When you may have Texas on a list, but that wasn't enough for the Supreme Court to list Texas on its docket. California bands government funded travel to Texas and eleven other states it sees is having anti LGBTQ policies. So the Lone Star state took its case against the Golden State straight to the Supreme Court, but the court turned Texas away. Joining me is Steve Sanders, a professor at Indiana University's Mars School of Law. So Steve tell
us about this California law. So in TwixT California passed a law that basically said that the state would not pay for any state funded travel, in other words, traveled by its employees or anyone else who has the tab paid by the states taxpayers for travel to states which have decided either to repeal protections for sexual orientation and
gender identity, or states that have carveouts. So, for example, a state by Texas does not have a state wide law that protects gay or lesbian or transgender people, but a lot of cities in Texas do. But nonetheless Texas law says even those cities have to have carve outs that if somebody is motivated by religious belief, they may
continue to discriminate against LGBTQ people. For example, a social services provider that has a contract with a Texas city does not have to do business or does not have to allow lgbt people to be clients or eligible for its services. So California basically decided it was going to try to punish these states to try to have an impact on other states by depriving them of travel, business and travel dollars from California. And so here we are now a case where Texas wanted to sue California at
the United States Supreme Court. Is it unusual? Is what California is doing unusual? Trying to evaluate what's happening in other states and punish those states. So I'm not aware of any other state that has tried to do this, at least to this extent. And arguably it it does
violate some principles of federalism. You know, we think that if if we take the idea of federalism seriously that states should be laboratories of democracy, that what policies are right for California aren't necessarily right for Texas or South Carolina or Alabama, for example, This is California trying to push the issue a little bit, essentially saying, we think that rights for LGBTQ people are so important, and we believe that the sort of carve outs that some of
these other states are providing from nondiscrimination laws are so unjustified that we're going to go further. We're going to say, not only if you're in California, do you have to abide by our policies. We're going to say, we don't want to even have our state taxpayer dollars associated with you if you don't have the kinds of policies that we believe you ought to have. And you can see that if states got into this business a lot, it would be hard to know what the stopping point is.
So some of the states that are the target of California have past resolutions or done other things disapproving of California's immigration policies or its taxing policies, and so it's an interesting debate about what exactly federalism should mean. So tell us what Texas has claimed against California. Are here what its argument is. There are a couple of different provisions in the Constitution which deal with the relationship of
states to each other. And so, for example, the Federal Constitution has something called the Commerce Clause, which is understood to put the authority to regulate interstate commerce broadly defined in the hands of the federal government. And so if states engage in activity that is protectionist or discriminatory against the business interests or the economic interests of other states, those kinds of laws can potentially be challenged by the
states that feel burdened by them. It's a principle that we should have free movement of goods and people in this country, and states shouldn't do things that are overtly protectionist seeking to give an advantage to their own businesses and economic interest over those of other states. And so
that was one theory that Texas brought. There's something in the Constitution, it's called the Article for Privileges and Immunities Clause that basically says one state can't treat the citizens of other states disadvantageously or in a way that's worse
than they treat their own citizens. And finally, Texas brought out a claim under the Fourteenth Amendment Equal Protection Clause, which basically says that this is a violation of equal protection for the equal protection rights of Texas citizens who are being disadvantaged by California, that they're essentially their right to have their religious liberty protected by Texas is being infringed upon by californ What was California's response to this?
So California is essentially saying that given the very limited scope that the Supreme Court has has given over the years to these kinds of suits by one state against another state, that essentially Texas itself as a state, as a sovereign, couldn't claim a sufficient sort of injury. Now Texas says it is suing essentially on behalf of the
citizens and businesses in its own state. States have what's referred to as the parents patrii power, which is basically the sort of government power to look out for and
protect welfare of its own citizens, its own subjects. But California is essentially saying, look, if there are businesses or economic interests in Texas that feel they are being disadvantaged, then they can file a lawsuit that is a common kind of suit under the Commerce Clause that is filed when one state's policies are said to burden the people in businesses and economic interests in another state. Typically it's
not the target state that sues. It is the people who are most directly affected by the policy that say, hey, California is exceeding the bounds of proper behavior under the Constitution. So Steve Texas wanted to sue California directly at the Supreme Court under what's called its original jurisdiction. Tell us about that. Yeah, The vast majority of the cases that
the Supreme Court here's our appeals. They are cases that come up from the federal circuit courts and the Supreme Court decides there's an important enough question that it needs to step in and resolve it, or sometimes cases that come from state supreme courts but which contain a question of federal law or Constitution law. But the Constitution's Article three does provide a very limited category of cases that the Supreme Court can hear under what's called its original jurisdiction.
That is, you come directly to the Supreme Court to bio your case. You are not coming up through a lower court or a state court in which you have previously litigated. One of the very few categories of cases for original jurisdiction are suits by one state against another state.
Presumably the framers thought those were so important and so sensitive that lower federal courts, which are located in one state or the other might have a bias, perhaps can't be trusted to be even handed, and so that is of such kind of cosmic significance potentially that only the Supreme Court should hear it. The consequence is that the Supreme Court turns down most of the cases where one state is seeking to sue an the other states simply
declines to hear them. And the Supreme Court has not only original jurisdiction over these cases, it has exclusive jurisdiction. That means Texas can't go back to a federal district court and violets lawsuit against California. It's the Supreme Court or nothing for Texas soul. It turns out here the Court's jurisdiction is not only original but exclusive, but it
may be exclusive that it's not mandatory. And so again the Court believes it has the right to essentially decline to hear a case like this if it wants to. Do we have any idea why the Supreme Court turned down this case, We can only speculate. And so when when a Court declines to allow the filing of a complaint, which is technically what this is called. In this instance, they don't explain themselves if they don't issue an opinion, They just issue online order that says Texas is request
to file it if complaint is denied. What we did get though, was a fairly lengthy descent from Justice as Alito and Thomas, and they were really careful not to say that they have a side or they have a particular view of the merits of Texas position. Justice Alito and Justice Thomas are basically saying the Supreme Court doesn't have discretion over something like this. Their interpretation both of the Constitution and of the relevant federal statutes that govern
the jurisdiction of the Supreme Court. Their interpretation is the Supreme Court doesn't have discretion, that this is the only forum the Texas has available, and everybody should have at
least one chance to make their legal arguments. So unless Congress changes the law and allows a state to file a case like this in the lower court, their position is the Supreme Court doesn't have the discretion to decline to hear something like this, and that state sovereignty and state dignity are sufficient enough interests that the Court should take on this case. Now, the Court does here some
original jurisdiction cases, they're relatively rare. They typically involve things like a boundary disputes or water rights or something like that. It's much more rare for a sort of policy difference like this to come to the Court under its original jurisdiction. One could speculate that, you know, some of the justices sort of just may have decided, you know, we're already
involved in culture war issues as it is. We're already involved in enough issues related to LGBT key rights or religious liberty or both that we don't need this case. That perhaps this is just the Texas Attorney General, who is pretty well known as an arch conservative and a sort of national figure and conservative political circles. You know, that he just wants to keep the pot boiling on these religion and culture war issues, and you know, sort of we don't need to be spending our time there.
If there is merit to this, other people in Texas can find a way to sue over the policy and come up through the courts through the normal process. It struck me that California put Texas on the list after it passed a law that lets foster care and adoption organizations refused to work with same sex couples on religious grounds, and gay adoptions are before the Court this term in a very controversial, high profile case. So could it be that the justices don't want to handle another case that
pits religious rights against gay rights. I think that's probably correct. Again, I think that the Court has had regular encounters with that issue. It has a case that it's about to decide or issue an opinion on sometime in the next
month or two related to that issue. It comes out of the City of Philadelphia and involves the Philadelphia Catholic Charities Organization and whether a religious organization like that can essentially take money from the government but then refused to serve everybody still reserve the right to discriminate on the basis of sexual orientation. Not too long ago, the Court had a similar encounter with lgbt Q rights and religion
in the Masterpiece Cake Shop case. And so, um, you know again, I think the the instinct of the Court might be understandable to say, you know, there are times when the sovereign dignity of a state is truly an issue. This is more a policy spat a difference in opinion,
the difference in views. Maybe California is being heavy handed here and essentially trying to not only govern its own citizens, but trying to force people in other eates to come around to California's point of view or suffer the potential loss of travel money and tax revenue and so forth.
Maybe California is over reaching that the Court often takes the position on cases that, look, politics is a messy business, and there is a difference between issues of true constitutional rights or true constitutional principle versus the messiness of politics. And my guess is that a majority of the justices saw this case is fitting into that latter category. Thanks for being the Bloomberg Law shows, Steve. That's Steve Sanders,
a professor at Indiana University's Morris School of Law. President Joe Biden has issued a second list of judicial nominees, with nominees to the district courts in the Western District of Washington and New Jersey. All three have backgrounds representing non corporate clients, answering a call to add experiential diversity to the bench. Joining me is professor Carl Tobias of the University of Richmond Law School. Carl, what struck you
most about the latest list? Well, first, that the Biden administration is continuing to expedite and plan well, Uh, it's rollout of nominees uh. And continuing to do that after the first extremely qualified, mainstream and diverse group of eleven. Uh. These three, though, also show that the Biden administration is studying wise priorities in terms of the vacancies it is attempting to fill, because really the worst case scenario in the country is the Western District of Washington. There were
two nominees for that court. The court has five vacancies out of seven active judge ships, and that puts the dream pressure on all of the other judges. And it has been in that condition for some time, and so all of those vacancies are emergencies and have been and so it's very important to fill those as soon as possible. And so the President sent forward to well qualified, mainstream,
diverse nominees for that court, and that's valuable. The other nominee was the third nominee for six out of seventeen vacancies on the New Jersey District Court, which have been troubling the court for a long time. It UH is suffering under six out of seventeen active judges being vacant UH, and the pressure is enormous there too, And so it's great that the administration is setting priorities in these courts
that are desperate to have their vacancy still. And so that's really the singular thing I see in the second group. Are these courts desperate because the Democratic senators in those didn't step up to the plate to either work with the White House under Trump or suggest nominees. Well, I think the Senators tried very hard to cooperate with the White House all four years, but they never could reach agreement with the White House. And in fact, I think
it's the other way around. Trump and the White House and the Justice Department did not reach out or try to cooperate with the senators UM. But now it looks like the White House is very much coordinating with UH and seeking input from the Senators, and they have brought forth very highly qualified nominees. For example, in this hearing last week on Wednesday, of course too, UH nominees from New Jersey were there and testified. And so they'll move
quickly through and provide some relief. And in the third nominee, Christino hearn for that same district, was nominated just last week, and I assume she'll move quickly as well. Progressives criticized the New Jersey nominee for her work representing management and said that the New Jersey Trial Court nominee is a former corporate lawyer and a former federal prosecutor didn't fit
the professional diversity that the White House has asked for. Well, every nominee is not going to satisfy everybody, as I understand it. Oh, Hearne has several decades of valuable experience, especially employment litigation. Uh. And almost all of the nominees today have not been defended side civil attorneys but rather uh former federal public defenders and uh not prosecutors either. Uh and so uh it seems like the White House, with the vast majority of nominees to date, is focusing
on experiential diversity. And if you look at the other two, Domini said the hearing last week from New Jersey, you can see that very clearly. Julian Niels, who was an Obama appointee, who's the GOP majority in tam refused to confirm, even though he came out of committee with a vote UM and a first for the country. A Zahid uh Jureshi, who is a magistrate judge in New Jersey, would be the first Muslim appointed to the federal Old Bench. And he has a wealth of experience in the military UH
and in the courts. And they both were well received at the hearing by Democrats and Republicans. And so I think that the administration is keeping its commitments in terms of diversity in terms of ethnicity, gender, sexual orientation, and experiential diversity. UM. But that doesn't mean there won't be some well qualified mainstream UH nominees who UM have practiced on the side of corporations m and but there have
been very few so far. Biden's first two Federal Appeals Court nominees came before the Senate Judiciary Committee last week for hearing. They described how their experience as public defenders would influence their approach on the circuit court bench. The spotlight was on Judge Katangi Brown Jackson, who currently says
as a Washington d C. Federal Trial Court judge. She's nominated to the US Court of Appeals for the d C. Circuit, and it's considered a potential favorite for Supreme Court vacancy. I've been talking to Carl Tobias, a professor at the
University of Richmond Law School. Carl, the hearing turned out to be pretty mild, even though before the hearing, conservative activists were pointing to decisions that Jackson has made as a federal trial court judge that were reversed on appeal, But Republicans didn't really press her on that, and in fact, it was a pretty mild hearing. Why do you think the Republicans chose not to press her on any controversial
issues because she's such an excellent candidate. She has a wealth of experience, uh in a whole number of different contexts. She served on the Sentencing Commission. Republican senators praised her for her quality work there, and she's been a district judge in the District of DC in two thousand thirteen. And I think the reason they didn't bring up her
reversals because there was such a tiny percentage. I think the figure I saw was something like two or one percent, and she's written some five hundred decisions, and so I think the reason why they didn't attack her was that she had answers for every question they asked. UM, and so it was an amazing I think, very high quality performance, straightforward and just saying she um is very independent as
a judge. When accused of writing the McGann opinion in a way that would promote herselves, she just said, no, I decide the cases on the facts and the law, and um, I am completely independent of any administrations that she had reversed, both Trump administration decisions and Obama administration decisions. UM. And I just thought she was very persuas said, extremely articulate, clear,
um and engaging. But let's face it, in those hearings, if you want to, you can always find something, some points, some case to challenge the candidate with or to criticize the candidate for. So might the Republican senators have been trying to present a different appearance from that of the
Democratic senators during the hearings for Trump's circuit nominees. Well maybe that I was wondering, as you suggest, why they weren't more vigorous and rigorous in their questioning, But I think it's more due to the high quality of the nominees in that group, who were at the hearing, and if you listen to their responses, they were responsive, clear, and uh, what you would expect of an independent, excellent jurist. And so it's difficult to lay a glove on somebody
who uh is so strong uh. And I think that was the case with Judge Jackson, and I think it was the case with the seventh Circuit nominee, and the same with the three district nominees. They are all very strong. Um, candid forthright, clear, um, exactly what I think you'd want in an article three. Judge, I know that some of the Republican Senators were critical of Demand Justice, and we're painting this picture that Demand Justice is behind Biden's lists?
Is that the case? I mean, the Federalist Society was behind Trump's lists? Is Demand Justice behind these lists? Well? Demand Justice in American Constitution Society submitted suggested lists to the White House. But that, as Democrats pointed out on the committee, is strikingly in contrast to having someone like Leonard Leo, executive vice president of the Federalist Society run
the circuit nominee operations for the Trump White House. That's why we have fifty four extremely conservative Trump appointees now sitting on the federal appeals courts, and that's different. That was essentially outsourced to the Federalist Society UM by Trump, and so I don't think Demand Justice has anything like
that kind of influence in this administration. It's being run by Biden uh and his very qualified team of people in the White House, starting with Diana Remus, the White House Council, and of course the people of Justice Department like Marrick Garland, who are not going to add force to anybody. So UM. Turning to a different topic, Tomorrow is the last day of the Supreme Court term, and often when justice is retire they retire on the last day of oral arguments. Sometimes they retire after all the
decisions are in. What are you hearing? What's the likelihood of justice? Briar retiring of Demand Justice is really trying to put the pressure on him. Well, I haven't heard anything that you haven't heard or that hasn't been in the public press. I do agree that a number of individuals and groups are the guessing that Justice prior stepped down. UM, But I think as Biden has himself has said, we're not doing that. That's justice Briar's decision, and I think
that's the appropriate way to handle that. UM an important decision. Uh, he's then devoted public servant, a fine justice, and UM, I think he'll come to his own decision. I will guess I'd be surprised if he were to do it tomorrow. But there are other opportunities, as you suggest, and he may see those depending on how he thinks this truth. Thanks for being in the Bloomberg Laws Show, Carl. That's Professor Carl Tobias of the University of Richmond Law School.
And that's it for this edition of the Bloomberg Law Show. I'm June Grosso and you're listening to Bloomberg