This is Bloomberg Law with June Brusso from Bloomberg Radio. Will the FTC try to stop the largest packaged food deal in years? Mars, known for its candy like m and Ms, Milky Ways, Skittles, Twigs and on and on, wants to buy cheese at maker Kelenova for nearly thirty six billion dollars. But will FTC chair Lena Kahn's views about a chocolate oligopoly lead to a challenge to the deal?
Joining me is Bloomberg Anti trust reporter Leon Nylan Leah tell us how Lena Kahan had a problem with the chocolate oligopoly about a decade.
Ago before she became FTC chair and con worked for an advocacy group that focuses on anti chask to open markets, and she did a lot of research and writing sort of about consolidation within various industries and one of those a scud So. About ten years ago she wrote a story about how there had been a significant con coolidation within the candy industry, particularly chocolate candies, and how today there are only about three major chocolate companies That's Nestleie
Mars and her Shee's. You know you have a couple other ones like Baro Rocho, which is an Italian company, but those are the big free So even though when you go to the bircery store you see like what looks like, you know, dozens of different brands, really most of those are owned by one of these free companies. And so she was lamenting a little bit. How when there is this kind of confolidation, there ends up being a little bit less innovation in market.
See, now I would wish there was less innovation in candy so that I would not be so tempted. I never noticed that there was a lack of diversity in candy. So tell us about this proposed or possible Mars deal.
Yeah, so Mars, which is primarily a candy company, is looking at buying Kelenova. Keelenova is a company that was spun out of Keellog to Kellogg, the cereal company decided to split up its business in between Kellogg the traditional cereal and like everything else it did, And so Keelenova
is sort of the everything else. So it has pop tarts, it has cheese, it it has nutri grain bars, it has all of these other sort of like snack food and frozen items in packaged food, and so Mars would like to buy it because, as I said, primarily it is a candy company, but it would like to sort of get a little bit more into snack food. So they are looking at doing a thirty six billion dollars deal and it's really going to put Mars into one
of the top packaged food companies in the world. So right now the top ones are Unilever, PepsiCo, and Nestlie and this would make Mars the number four, right behind those three. So the FTC is going to take a look at the dial because there's a lot of interest in food right now, particularly with all the inflation that's
been going on. There's been some suggestions that the reason that food prices haven't come down as much is because there is so much consolidation in the industry that a lot of the food companies can sort of keep their prices high in a way that they would otherwise not be able to if there was more competition.
They do compete in snack bars. Is the analysis going to depend on how they compete in snack bars or is it going to focus on their becoming then the fourth largest packaged food dealer. I mean, it really doesn't seem like there's a lot of overlap in what Mars and Kelenova do.
Yeah, the biggest overlap is that you said in snack bars. So one of them owns Utri Grain and the other owns Matro's Bakery, And if you ever had those items, they're very similarly. You know, they have the fruit in the middle and then there's the grains on the outside. One of them also owns Hind Bars, you know, all those like nut and chocolate ones, and the other owns are expires, which they often have like fruit and that's
mixed together into sort of a bar. But these are all sort of like the slightly healthier nack and or the real replacement type things that you might you know, grab when you're hungry. And so the FTC is definitely going to take a look at that. And you know, the traditional way that this would be resolved is that they would try and sell off one of these brands. They would keep one and they could sell off the other. This FTC has been a lot more reluctant to accept
that kind of a deal. I mean, I am here in Portland because of the Kroger Albertson steal and that's exactly where they're challenging at Kroger and Auversons are saying, you know, we'll sell us some supermarkets, everything will be fine, and the FTC is like, eh, we're not really sure. So that may be a little bit harder in this case.
How long does the FTC have before they have to make a decision in the Mars case.
Yeah, so Mars and Kelenova just announced the steal a couple of weeks ago. They will file their initial paperwork pretty soon, and then the FEC will have thirty days to decide if it wants to do an in depth review that we call a second request. A lot of those people I spoke to said they believe that FPC
is definitely going to do a second request here. Once it goes into the second request phase, that can take several months or maybe even up to a year for them to sort of make a decision about what they're going to do with the deal.
So, speaking of Kroger Albertson's, I understand that the surgeon grocery prices played a big part in the opening statements at the trial.
Yeah, you know, this is a merger between what the US calls the two largest traditional grocery stores, Kroger and Robertsons, and you know there's sort of one stop shop places where you go and you can get sort of all of the food you might need for a week. And they have alleged that both Kroger and Robertsons spend a lot of time thinking about how the other one prices, particularly on what they consider it to be consumer stables, which are things like milk, eggs, bananas, things along those
lines that Americans purchased a lot, probably even weakly. So we have heard a lot about egg pricing in particular. You know, there's been a lot of up and down in egg pricing since the pandemic, in part because there's been a couple like bird flu outbreaks here in the US. But there has been some testimony that Albertson's and Kroger look to each other very significantly on how to price
their eggs. They do weekly reports on what the other one is charging in the market, and they oftentimes, yeah, like adjust their pricing based on what either you know, Kroger or Albertson's just charging. The companies have argued that they don't compete with each other as much as the FTC claims that really their biggest competitors Walmart. Walmart obviously is one of the biggest food sellers in the United States.
But you know, we've seen at this point dozens of documents in which Kroger and Albertsons refer to each other as either their primary competitor or their biggest competitor. And while they do look at Walmart for some pricing, it's pretty clear that they are very, very focused on the other traditional supermarkets.
There was testimony at the trial about the company that would buy almost six hundred of the divested stores from Kroger and Albertson's CNS Grocery Wholesale.
So in order to get the deal through, the companies knew that they competed directly in a lot of areas, and so they offered to sell five hundred and seventy nine stores to a company called CNS Grocery Coolesalers. So CNS is primarily a grocery holesaler. That means that they fiber products from the consumer packaged goods or from the farmers.
They keep them in the warehouse, and then when the supermarket needs to stocket shelves, it orders from them and they send a truck to the serper market with all of the goods. So a lot of the bigger supermarkets like Kroger and Overritson sort of do this warehousing and distribution themselves, with smaller grocery chains to use wholesalers like CNS. So,
as I said, CNS is primarily a wholesaler. It does operate twenty three grocery stores in upstate New York and Wisconsin, so buying five hundred and seventy nine stores would be like quite a significant change for this company, and they argue that they are really excited about this possibility, that they would really like to sort of diversify their company beyond just being a whole baler, and that it sort of makes sense for them, since they are so involved
in groceries, to pick up grocery retailing. But the FEC argues that this is putting a lot of the risk onto consumers because if this divestiture package were to fail all of a sudden, there's not going to be as much grocery competition and a lot of places around the country, consumers would only have the option of the combined Kroger and Operts them.
And CNS doesn't have a great record of keeping supermarkets that they buy.
Yes, so historically, as I mentioned, CNS has played a little bit in the retail business. But what they would do is they would buy a couple grocery stores, primarily from other companies that were already their customers, and then they would keep them for a while and then sort of sell them off or sell them back to somebody else. So there was a period in time in the early mid two thousands when they had a couple hundred stores, but by twenty twelve they had completely exited the retail
grocery industry. So for a long time they operated no grocery stores whatsoever. In about twenty twenty one, they sort of decided to get back into the retail business, and that's when they started acquiring a couple more stores, And as I said, they now operate just twenty three of
them only in these two places in the country. Even though they are a big distributor, they also don't have any even of their distribution business in some areas of the country where they would be buying stores, So they don't do a lot of work right now in southern California, where they would be buying something like ninety something stores, and they don't do any real business in Colorado right now, where again they would be buying ninety something stores and
taking over sort of the Safe Way brand in Colorado only.
And this hearing is just to allow a judge to decide whether or not to issue a preliminary injunction against the deal.
Yeah, so technically this is a preliminary injunction hearing. The judge is going to decide whether it's to block the deal from going through while the FTC move forward with a proceeding in it's in house court. The companies have already said that if the judge blocks the deal here, they're probably going to abandon because the deal has already now been pending for two years and they can't really keep waiting given all of the financing and things that
are up in the air with this merger. So if she ends up ruling against them, they'll abandon the deal and sort of move forward with a new strategy.
Do you know what other kinds of witnesses are going to testify?
Yeah, we are almost done with the FTC's case, So we've heard from a lot of Koger and Albertson's sort
of mid level managers in the various regions. We've heard actually a lot from various union officials because one of the interesting things about this case is the FTC has argued that it would produce competition for unionized labor because both Kroger and Albertsons have arge unionized work courses all of the people who work in the stores, and they argue that eliminating the competition between Kroger and Albertson's would
lead to lower wages for their workers. The SEC is expected to finish up probably tomorrow morning, and then we're going to hear from the Kroger CEO and the Robertson CEO, who are going to talk a lot about, you know, why they want to steal some forward.
It's very interesting because you have two of the issues in the presidential campaign, inflation and union jobs.
The Harris campaign has already said that they oppose this merger, So we will see what happens.
Thanks so much, Leah. That's Bloomberg Ante Trust reporter Leah Nylen. Coming up next on the Bloomberg Launch Show. Texas is making a long shot bid to become a business law center with a little help from Elon Musk i'm June Grosso. When you're listening to Bloomberg, there's no doubt that in the tiny state of Delaware is the world's per i'm
ain in business court. The Delaware Court of Chancery, Delaware is the legal address for nearly three hundred thousand businesses like GM, Walmart and Goldman Sachs, and in a two century old commercial court, sits one chancellor, six vice chancellors, and three magistrates, considered the best judges in the business of judging business cases. Now into this picture comes an
unlikely challenge from Texas. It's launching its own version of a business court without a designated courthouse or even designated courtrooms. Joining me is Bloomberg Texas legal reporter Madelin Meckelberg, who's investigated Texas's bid to become a business court hub. Madelin start by telling us about the Delaware Chancery Court.
I think there is no question that the Chancery court is the pre eminent business court. And although it's the state and a small state court, it has global implications because so many businesses are incorporated in Delaware and have it set up so that litigation like shareholder actions go through the Chancery Court. There are decades and decades of precedent out of that court on really crucial business law cases, and those decisions, given the stature of this court, those
decisions have impact felt across the whole country. I was speaking to a law professor at the University of Texas for this story, and he told me, is you're taking corporate law classes anywhere in the country. You're learning about Delaware law, whether you plan to practice in that court or not, because of the significance of the decisions that are coming out of the Chancery Court there, and.
Also the court's ten officials. You know, the judges are experts in business law.
That's exactly right. The idea is that these are people who come from really high profile corporate litigation practices already, they have a ton of experience and knowledge in this space, and they're appointed to serve twelve year terms in the court, and so they're really steeped in current issues of the day, and they have a reputation of being some of the top legal minds in the country.
Now, Texas has made a concerted effort to attract businesses. Abbot is promoting the Texas miracle. What is that.
That's a great question.
Definitely, Texas has been working for a long time now to cementous reputation as a really business friendly state. I think the number changes, but there's something like fifty fortune five hundred companies that are headquartered here. But what Texas and Governor Abbott is talking about there is this idea that businesses can come to Texas and experience lower taxes, they can experience a really robust workforce. There's tons of
physical space. Texas is a gin normalis state. So if you're looking for somewhere to set up a business, set up an operation, chances are we've got the land for you here. I think we're also have a reputation of having business friendly lawmakers who really are attuned to the issues of businesses and have shown a willingness to listen to what they're looking for when it comes to crafting
regulations for the state. And so Abbott has been looking for ways to kind of expand on this reputation, add more to the arsenal things that Texas uses when it's trying to recruit companies to come to the states. And that's why we're chatting today. The latest development in that effort is the establishment of dedicated business courts here in Texas.
Are they trying to become the next Delaware? Are they trying to directly compete with Delaware?
So not necessarily, Texas is not the first state to attempt to create business courts. There's maybe twenty two other states that have some former fashion of specialty courts, and so on paper, the reason to pursue these courts is to set orate business cases from the regular docket, because right now a really complicated contract dispute or shareholder lawsuit is going to be decided alongside personal injury cases and
family law disputes in state courts across Texas. And so what they're trying to do here is to create a similar system to Delaware, where you have specialty judges who have experience in business and corporate litigation who can help speed resolution of some of these cases that can tend
to get stuck in the dockets. But I think, for reasons I'm sure we're going to talk about more, I think Texas's reputation just as a business friendly state, some of our more famous business residents here, it kind of gives Texas a bigger opportunity to go against Delaware, and so whether they're trying to or not, the way that the situation is playing out right now is that everyone's looking at Texas as maybe not a direct challenger to Delaware,
but certainly an alternative to Delaware that could eventually kind of develop a similar reputation as a place to bring these kinds of.
I think you are referencing perhaps Elon Musk, who I'm sure feels he's had a terrible time in the Delaware Chancery court and has been promoting Texas.
That's exactly right. Elon Musk decided to shift the incorporation of Tesla and SpaceX to Texas. I think the final straw for him was when a judge in Delaware's Chancery court struck down his massive, massive fifty six billion dollar pay package that was approved by Tesla shareholders, and he said, guys,
I'm going to Texas. He has a long history here of having his physical headquarters and office spaces here, but by moving the legal home of these companies here, he's kind of ensuring that these future spats involving shareholders and specifics of the business are going to be resolved in courts in Texas. Now, he hasn't said that he was coming here to specifically experience the business courts that we're
setting up, but it's just the timing of it. He announced the decisions a few months ago, and Texas business courts just started operating this past weekend. So whether he wants to or not, I think he's going to be one of the early and most high profile cases that those courts see.
So Chevron moved from California after one hundred and forty five years, you know, it was having problems with California's environmental policies and regulations. Are a lot of the corporations moving there trying to escape from states that are not as business friendly and going to Texas, which seems to have open arms out for business.
I think that's certainly a factor for a lot of businesses that decide to come here. It's hard to imagine that being the only factor that they would make that decision based on, but certainly I think that's part of the idea of this Texas miracle, and part of the arsenal tools that Abbott uses to recruit businesses is this idea that yes, we are business friendly, we have business friendly judges here, and we have regulations that are friendly
to business. Kind of all of the above, and I think that we're going to see a similar dynamic play out with these business courts where the judges in Texas are appointed by Abbot. I think a lot of people assume, probably correctly, that the judges share his similar ideology when it comes to business and when it comes to applying
law in a maybe more conservative fashion. And so I think these courts will be an extension of what we've seen when it comes to presenting Texas as an alternative to some of these areas like California that are known for their more liberal policies.
Let's say Governor Abbot said the judges have a litany of experience in streamlining resolutions of business disputes. Do they? I mean, it doesn't seem like you can really compare the judges in Texas to the judges in Delaware.
Definitely not. I mean Delaware's judges. This court has decades and decades of precedent. They serve for twelve year terms. This Business Court is, as we're speaking today, about two to three days old. So I think it really remains to be seen how they're going to handle these cases.
Judges yappoints were required to have ten years of experience in either complex corporate litigation or as a judge in Texas, So they definitely do have experience in this space, but none of them, as far as I'm aware, have experience as a judge in this kind of setting of handling these specific disputes in a business court setting. So I think it's going to be one of the things people are watching for is how quickly they can take a case from filing to resolution.
And also Texas courts in a lot of instances are going to have to follow Delaware law because that's the only law on some of these issues.
That's right. I mean, these are state courts, and so they're going to be referring to Texas corporate law in a lot of fashions. And so we do have precedent in terms of how corporate law has been applied in cases in the past, just in a re Daduller's state court room. But a lot of those applications we've seen
previously are based on Delaware case law. That's kind of what I was saying earlier, this idea that the power of Delaware chancery court is these huge decisions that have significance that are being applied in other cases, and I don't think that's an exception here. I think what's different is perhaps how these judges might apply or interpret those
statutes when it comes to specific cases. I think that's another thing that remains to be seen, is how far they'll be willing to deviate from what's kind of standard and expected in this space.
Madlin, As you pointed out in your story, the terms are only for two years the judges terms, so that means that they may be leaving in the middle of a case. I mean, we all know how long legal cases take, yes.
And basically all the lawyers I spoke to for this story said that would be amazing to have a case that wraps up in two years or less. But I think that's another thing that is Again, a lot of the conversation right now is a wait and see. It's hard to really understand how these courts are going to work until we see them start taking cases and start
getting to that period where there might be turnover. Because the way that they've been set up under state law is that the judges can be reappointed to terms following this, so it's possible that the judges we have now their two years are up, how it renews them asks them to come back for two more years. But we just really don't know how it's going to work at best point, if that's something that's going to be understood to come for these judges or what. But as it stands right now,
two years is definitely a short term. I think I mentioned Delaware judges serve for twelve years, and so that's one of the big differences between our system here and what they have in the Chancery Court.
So they've been planning for more than a year. Are the courts located in one central building like in Delaware.
No, that's another thing. Texas is a huge state and they're technically are I believe, eleven divisions that they hope someday will exist for the business Court. But what they've decided to do is start small. So they're opening five divisions over the biggest cities in the state, and that's Austin, Dallas,
Fort Worth, Houston, and San Antonio. And that was one of the things we've been watching as this September first deadline for the courts to start operating has snuck up is where are these courts going to be located, how are they going to handle filings? Is it going to
be electronic? A lot of those questions were unanswered, and even up until a few weeks before the courts were supposed to open, we were told they were still looking for leases for courtrooms within those different divisions, but they decided to kind of abandon that effort for now to find permanent physical space and judges will have offices within their division, but when they need a courtroom, the plan right now is to use available existing infrastructure from other state courts.
What's the timeframe for determining whether or not this is a success. I mean it feels like they're opening without even having everything in place.
It's brand new. I think it's going to be a few years before we really understand whether this was a successful experiment. I think an early first test is going to be, you know, can they take a case from start to finish? I think that sounds like a really low bar, but creating a completely new court system, almost from scratch, is a huge undertaking. The court themselves kind of told us that just because September first came on the calendar doesn't mean no preparations are finished, there's still
a lot of work to do. They're still hiring staff, so it's not like what we're seeing today is what the courts are going to be looking like one year from now. They're still building up their internal infrastructure.
So I think it's going to take at least two years for.
A full judge's term to really understand kind of what the potential is for these courts. And then I think another big question is going to be whether Texas leaders see this as a worthwhile investment to continue put in money and resources towards growing these courts and supporting the existing courts they have.
This is certainly an ambitious project that Texas is taking on, and I know you'll keep following and let us know how it's going. Thanks so much, Madeline. That's Madeline Meckelberg, Bloomberg Texas Legal Reporter, coming up next on the Bloomberg Launch Show. It was a busy summer for the Supreme Court as the justices had to handle what could be a record number of summer emergency applications. I'm Jim Grosso
and you're listening to Bloomberg. In just about a month, the Supreme Court Justices will begin their new term on the first Monday in October. They left the Supreme Court for their summer vacation on July first, but the summer has been relatively busy for them. They've decided eleven emergency applications and they're on track to perhaps triple that before the new term starts. Why all these summer emergencies the applications here to explain is Bloomberg Law. Supreme Court reporter
Lydia Wheeler. We used to hear about the emergency docket, the shadow docket in reference to death penalty cases. What kinds of cases are we seeing now?
You're completely right. So the emergency docket, or what legal scholars are calling the shadow docket, was once primarily used for these last minute day requests and death penalty cases. As you mentioned, you know, basically death row inmates were coming to the court and saying, hey, stop my execution while I fight for a new sentence in court. Now the requests cover a much broader scope of issues I'm
talking about. Now we're seeing often hot button issues like abortion, voting rights, even the power of federal regulators, you know, issues that are really dividing the nation. Politically, those are what's coming to the court on this emergency docket.
Explain how the shadow docket is different from the merits docket in other words, you know, the truncated pers for filing briefs, et cetera.
Right, So, the shadow docket is the name that legal scholars use when referring to the emergency docket, and they call it that because the court decides these requests through a truncated process without full briefing or oral arguments. The decisions are orders that are usually only a sentence long, and we never know kind of when they're going to come out. It's not like on a specific decision day.
So there's that right now. They're happening over the summer when the court isn't even in its normal session, and unless there's a notable concurrence or a dissent, there's usually very little insight into the court's reasoning for why they're either blocking something or letting something take effect. We don't
know what the vote count is. Usually you know which justices decided, you know for which side, So there's very little information, which is why you know, one legal scholar kind of coins the name shadow docket and why that term has kind of.
Taken off, So now tell us about some of the decisions on the shadow doget that the Court has made this summer.
Right, So, the Court recently rejected the Biden administration's requests to reinstate the Education Department's new rules that protect transgender students from discrimination in school nationwide. That was actually a rare one where we saw a partial dissent from four justices. Actually, Conservative Justice Neil Gorsitch joined the liberals, which is Justice so to Mayor Justice Pagan and Justice Jackson in saying
that they would have let those rules take effects. Last week, we also saw the justices allow Arizona to enforce part of a state election law that will require voters to show proof of citizenship to vote. And it's unclear if that will again be blocked or if that will be a requirement likely during the twenty twenty four presidential elections.
Lydia, we're watching to see whether the Court is going town decision or when the Court is going to hand down decisions in several different cases. Tell us the ones that we're waiting for.
They still have more than a dozen applications still pending. I think at this point we're up to fifteen or sixteen now. You know, legal scholars told me they're really on track to triple the number of cases that they decide on the shadow dock at fifth summer. I'm personally waiting for one right now that has to do with
family planning funding in Oklahoma. These are dollars that AHHS stripped from the state of Oklahoma because the state wouldn't agree to force its healthcare providers to offer abortion referrals. They said that that is a violation of their new abortion van well, a near total abortion ban that took effect after the Supreme Court two terms ago in twenty twenty two overturned the constitutional right to abortion and left
that up to the state beside. You know, Georgetown law professor Steve Vladdock, he has been tracking these requests and he actually shared his data with us. You know, he said that the Court is on track to blow previous summers out of the water when it comes to the number of emergency actions that it's taking. You know, he said that that even includes the first summer of the COVID nineteen pandemic, when there were actual true emergencies that the Court was being asked to act on.
You can understand why during COVID there was an optic in these applications, but why so many more emergency applications these days?
Right, So this is actually something that the justices themselves have spoken to, and Justice Elena Kagan is really someone who kind of gave us the first understanding of why this is happening. You know, she said that, you know, in granting a number of these emergency requests that were brought to the Court during the Trump administration years ago, she said that the Court really encouraged people to kind of keep bringing these kinds of petitions for emergency relief.
And so the Court basically kind of sent the signal like, hey, we're now open to these kind of requests. And now what we're seeing is we're really seeing a lot of these requests come from Republican led states and also industry
groups that are looking to block Biden administration policies. Now, the concern here is that the Court, in acting so many times on these requests, that they're changing kind of what's considered a true emergency, and legal scholars that I spoke to actually so that that further undermines the Court's credibility.
And you know, we know that the Court right now has very low public approval ratings due to their ongoing ethics issues and controversies, and also that of controversial decisions that the Court keeps releasing that are really split along ideological lines. You know, I'm thinking about last term the Court's decision on presidential immunity and also their decision to overturn the federal ban on bump stocks, which are those devices that allow guns to fire like machine gun.
Are the justices complaining because they have to work during the summer more now, or are they complaining for other reasons?
You know, they actually, oh, several of them have come out in public appearances and like lavent it that like, oh my gosh, this is way busier, you know. Justice Soda Mayor recently said, like I'm tired. You know, We're not used to working around the clock like this. And the number of requests that they're getting is a lot, you know. Justice Kavanaugh also said that it's challenging, you know, because the number of emergency applications that they're getting takes
time away from the Court's merits docket. And now the merits docket is actually what they refer to as the normal process for the court, you know, hearing a case and deciding it. That happens during the course of their normal term, which begins the first Monday in October and traditionally runs until the end of June. Now they can go a little longer than that. We saw that unusually happy this summer where they ran into the first.
Day of July.
But usually they like to wrap everything up Spanda June and then they get a couple of months break with the occasional emergency request. But now they're just it seems like there's this flurry of activity, you know. Justice Clarence Thomas also commented on this. He said that the emergency process really short circuits the court's normal process for hearing disputes, and he said that it's not a quote thorough way of dealing with these issues. But Justice Kavanaugh and Justice
Thomas really didn't offer any sort of solution. At least, nothing publicly was said about what the Court should be doing. As I mentioned, you know, Justice Kagan was really the only one who came kind of closest to that when she said, you know, hey, this phenomenon is kind of caused by us. We're granting these opinions and we're sending the signal that we're open to this kind of decision
making and hey, send your stuff our way. So that seems to signal to me that like, one way that the Court could kind of avoid doing this, which we saw them do in past terms, is to take cases that come in on the emergency docket and move them over to the merits docket. The Court definitely has the power to do that.
Yes, Justice Kagan is definitely the most outspoken or it reveals the most of the justices, it seems. And also she talked about, and you know, the Supreme Court has during oral arguments talked about how lower courts it's a problem that they're issuing these nationwide injunctions, but no one has done anything about this. So she said that they have to intervene then, right.
That's so she said, sometimes like where we have to step in because as you mentioned, right, lower courts are you know, they'll get a dispute that comes to them. Instead of just blocking some sort of policy that impacts the party that's before them, these courts are taking it upon themselves to block a policy for the entire nation, to make it so that no one has to follow, you know, the new policy or new rules that the fide administration has put in place, or an administration has
put in place. You know, this is not just a Republican tactic, I should say, you know that this has also been something that democratic state attorneys general have also pursued, you know, bringing these challenges against the administration and challenging those So not necessarily just something that red states are doing, but off the blue states have done in the past as well. But yeah, she said that, you know, sometimes we have to step in like there's no other choice.
Are they expecting or are legal scholars expecting to see election cases on the shadow docket?
Yeah, that's definitely something that could come as we get closer to the election, to see more of these disputes. That's something we're expecting to see that I would expect over the next several weeks maybe to see those coming to the court and definitely, you know, as they start at the beginning of their term, it's going to be very busy, lots to watch out for. So yeah, I guess, you know, stay tuned because there's definitely more to come
in the shadow docket. This isn't an area where they are slowing, you know, the number of requests that are coming to them. They seem to be popping into my inbox, you know, from the Court's press office almost every day. So a lot of activity.
And it was interesting. You talked to University of Virginia law prefer Yes who said that increasingly state attorneys and state solicitor generals are challenging federal laws in the courts.
They are, Yeah, this is in kind of a new tactic. I talked with legal scholars who said that state attorneys generals and solicitor generals those are the attorneys that represent the states and their challenge before the Supreme Court. That they are really kind of acting like normal litigans now more so than ever, and that they're bringing these big
actions and challenging the administration. You know. And what's interesting is I've done reporting in the past where you kind of do a lot of venue shopping, a lot of forum shopping, where they seek out particular parties they all kind of ban together in multi state litigation sometimes and they seek out their preferred court to file these challenges and to try to get a judge that will most likely rule in their favor. And sometimes there'll be different
groups of states. You know, a couple of states will file in like Oklahoma, and a couple of states will file somewhere else. So it's like multiple challenges. We often see with these cases of national importance and challenges to administration policies. You'll see a tactic is to kind of the states try their hands in different courts and so you'll get competing rulings, and that often will make an
issue more enticing for the Supreme Court. When lower courts have ruled in different ways on the same issue, and you have a split in the decision, meaning one court rules one way and another court rules another way, it almost forces the Supreme Court to kind of be the decider and step in and settle it.
And that filing in two different jurisdictions and getting two different results is what Republican ags did in attacking Joe Biden's latest push to reduce student loan bills. And just last week, the Supreme Court turned down the Biden administration's request to lift a pause that one of the federal appeals courts imposed on the program. So that's a perfect example of what you were saying, Lydia, Thanks so much, so much. That's Bloomberg law. Supreme court reporter Lydia Wheeler.
And that's it for this edition of the Bloomberg Law Podcast. Remember you can always get the latest legal news by subscribing and listening to the show on Apple Podcasts, Spotify, and at Bloomberg dot com, slash podcast, slash Law. I'm June Grosso, and this is Bloomberg