Court Avoids Major Ruling on Partisan Gerrymandering

be so partisan it violates the Constitution. Joining us a Supreme Court reporter Greg's store, Greg tell us about the partisan jerrymandering decisions, Hi, June. Yeah, two decisions, one in the case from Wisconsin, one in the case from Maryland. And as you said, the court punted on the biggest issue, which is, can you ever challenge a district or or a map as being so partisan and violates the Constitution?

Both cases were resolved on a procedural ground. Uh. The Wisconsin one did it in a in a what could be a significant way where they cast real doubt on the ability of opponents of a jerrymander to challenge an entire statewide map. They said, in this case, where you only have plaintiffs from voters from certain from particular districts. They don't have enough of it an interest in challenging this whole map, at least under the legal theory they're using.

They don't have enough of an interest to try to knock out the entire map. So where does this leave the jerrymandering question? Well, that's a that's a great question, that's a six or four question. UM. The Court does have another case that it could act on the next few days from North Carolina. It's probably the strongest challenge to a jerrymander. This involves congressional districts that were designed by Republicans. They do have a voter in every district

in that case. UH. They also have the Democratic Party challenging in that case. It's possible. I don't know if it's it's likely, but it's certainly possible. The Court could say, Okay, we'll resolve all these big issues next term, UH, and agree to take up that case in the next few days. Greg, is it unwieldy to challenge a state map district by district and show partisanship. It is unwieldy, and it also, UH would seem to knock out kind of the theory

of why a map should be struck down. So in the Wisconsin case, the basic argument was that these districts were drawn in a way so that Republicans were highly highly likely to maintain control of the state Assembly, even if Democrats won a majority of the votes across the state,

and the fact that happened one year. If you're having to challenge districts on a district by district basis, where it's a voter saying, UM, my vote isn'tcounting for as much as it should uh because of the way they drew my particular district, it's a little harder to see how a court would be able to step back and say, I want to throw out We're gonna throw out the entire map because it is too tilted towards one party or another. Did Justice Elena Kagan's concurring opinion sound a

little like a dissent. I don't know if I would say a descent, but it's certainly very important. What what Justice Kagan said was, UM, I agree with the majority that the plaintiffs here don't have standing to pursue a particular type of claim, which is that their votes were deluded so that they didn't mean as much, but there's a whole different theory called under the First Amendment and the right end of the First Amendment, the freedom of

association under the First Amendment. And she said that whole theory is not really the focus of the Wisconsin case. And in my view, she says, uh, and she had the votes of four justices. Um uh, there's no reason why a case like that couldn't go forward. So there's at least an opening there. But the Court as a whole said, we're not getting to that issue that Justice

Kagan was just talking about. So you talked about how this is a narrower look, and this isn't the first time this term that we've seen the justices side swept side step. What was see by many is the major issue in the case. Is this a pattern we might see in some of the cases that are coming up. Yeah,

that's a good question, June Uh. You're you're no doubt thinking about the Masterpiece Cake Shop case, where the Court didn't decide this big issue of whether there's business has a free speech or religious right to refuse to to serve people for a same sex wedding. The court resolve

that case of narrow narrow grams too. UM. With the cases going forward, things like the the Internet, whether the Internet sales tax and whether Internet retailers can be required to collect tax, the Trump travel ban, the issue of mandatory union fees for public sector workers, it's a little harder to see. I'm not going to say impossible, but it's hard to see how those cases are amenable to some sort of compromised ruling UH that that sidesteps the

big issues. It seems like from where I said that, with those big cases, the court is going to have to confront the core issues. We shall see, Greg, there was another case today that was decided which didn't get much play at all. So tell us about that. Oh I had, I had three cases that were decided, see that the third one didn't get into I'm going to guess you're talking about Mr Lowesman, who is in a man who has some issues with his local government and

Riviera Beach UH, Florida. He was arrested while while making some remarks at a city council meeting and he um UH sued for retaliatory UH First Amendment retaliation for retaliatory arrest UM, and the court essentially revived his claim. It didn't say for sure he's entitled to a new He lost a trial, and it didn't say for sure that he's entitled to a new trial. But uh, it did suggest that he may have a claim for retaliation under

the first Amendment and the third decision that ire. But there were two more, and I'm going to confess June I have not gotten to those yet. Uh, well, we're waiting for the big you know, this one, the jerrymandering was one of the ones that we were waiting for. So now we have how many sessions left to hear? How many people probably have three or four sittings left. We have fourteen more opinions. We've we've mentioned internet sales taxes, travel band union fees. Uh, there's a cell phone privacy

case that is very important. Uh. There's a case that's really important to American Express and involves there's called their anti steering policy where they require they forbid merchants from uh steering customers to cards that that charge lower fees. Uh. That that's an anti trust case. The court could revive a government claim against American Express. That's very important. And then of course, after the court issues its last opinions were all holder breath that we see whether or not

any justice as he or she's going to retire. Oh, that would be Justice Kennedy we're thinking about. Thanks so much, Greg, And that's Bloomberg, new Supreme Court reporter Greg's store. Let's turn now to a new appointment by President Trump. Speaking with Bloomberg earlier this year, OMB Director and Acting CFPB chief McK mulveney explained his concerns about the structure of the agency that was created under the Dodd Frank Act. The structure is completely u It's irrational. I have way

too much authority as an individual. So who does President Trump want to give that authority to run one of the most politically divisive agencies in Washington? Kathy Crowninger. If you don't recognize her name, you're not alone joining me as Christopher Peterson, a professor at the University of Utah Law School. Christopher, A lot of people were googling that name when it was announced. Tell us about her, Well, I had the googler too. Um, it's a new name

to me as well. Um. She she is currently a lieutenant So to speak to Mick mulvaney, the Director of Office and Management and Budget who is also simultaneously serving as the director of the the fpb UM. She's got a background um in in various federal regulatory agencies, but she doesn't have any experience in consumer protection or banking.

She worked as a clerk in the UH in the Senate Um, worked at the Partner Transportation for a little while, but really doesn't have a track record to evaluate on the consumer protection issues that the Consumer Bureau was focused on. So progressive groups and consumer advocacy groups are calling this a political stunt and a way to ensure that Mulvaney

stays in the job longer. How do you evaluate this, Well, it's hard not to think that that's what's happening here, given all of the concern that conservatives expressed over the years about how much power this director has. To turn it over to somebody that has never worked in a bank or a credit union and has no experience whatsoever that's discernible in doing any of the kinds of federal regulatory work that this agency does, it seems like a

pretty big surprise. So I think that the I think that the likely outcome is that this is going to delay consideration of a of a permanent director and is probably going to keep Director Mulvaney in control of the agency. So from what you just said, do you think that she will not be confirmed? Well, I think it's tough to say. I can imagine that some Democrats will be tempted to call the President's bluff and confirm her in order to try and get something done. But I don't

know that I have a crystal ball on that. I do think that it's a very controversial nomination. UH. And what it does, at least immediately in the short term, is it allows uh mc mulvaney to continue to operate as the acting head of the agency under the Federal

Vacancies Reform Act. So that statute of the statute Congress past that try that allows UM the President to have temporary heads of agencies while UM for two ten days after a vacancy it opens up or during a period of time in which uh a nominee is pending before the Senate. And so in a fact, Mulvaney's term was coming up at the end of during this week, and this allows him to continue to be in charge until

the Senate acts. Just about thirty seconds, Christopher, do we are we ever going to get someone that that consumer advocates wanting this job as long as President Trump is in office, and he opposes it just about twenty seconds. Sorry, sure, no problem. Well, I think it's I think it's something

that the public deserves. You know, the Trump administration has had seven months to find someone to run this important watchdog agency, and it's remarkable that somehow they still have managed to pick a nominee with no discernible experience in consumer protection or banking. All right, thanks so much, I appreciate it. That's Christopher Peterson, a professor at the University of Utah Law School. Thanks for listening to the Bloomberg

Law Podcast. You can subscribe and listen to the show on Apple Podcasts, SoundCloud, and on Bloomberg dot com slide podcast. I'm June Brosso. This is Bloomberg. H m hm