Former U.S. Solicitor General Garre on New Term

and on Bloomberg dot com slash podcasts. It's the beginning of a new Supreme Court term, and one that will run the gamut of polarizing issues gay and transgender rights, abortion, gun control, and DACA, which decisions that will affect millions of Americans coming during the run up to next year's election. Joining me as former United States Solicitor General Gregory gar a partner at Latham and Watkins and global chair of the firm Supreme Court and Appellate Practice. The Court is

obviously going to consider a lot of controversial issues. Is there one that stands out in your mind? I think what's unique about this term, at least compared to the last couple of years, is just how many hot button issues it's put on its played. I mean, it seems as though it tried to a low the last couple of terms to the extent possible, and now it's got a whole menu of issues ranging from abortion, guns, religion dot gay rights, and so it's it's hard to single

one out. I think what's unique is just the bevy of controversial issues before it. Let's start then with gay rights, which is going to be heard tomorrow. Justice Kenny was the pivotal vote in all the Court's gay rights decisions. So does this put the spotlight on Justice Brett Kavanaugh. I think, you know, certainly it's significant, and that will be the first time that we hear from Justice is Gorsoch and Kavanaugh in this area. I mean, particularly given

Justice Kennedy's retirement. I do think that these cases are different than the gay marriage cases and the like that were decided several years ago, and that these are really going to be focused on the text of the statute. In some sense, are statutory interpretation cases, albeit ones that have a obviously crucial impact in a particular segment. And do you have an opinion as to which side has a better case of statutory interpretation. I don't, at least

not one here today. I think what I would say what's really interesting about this case though, is that you know, both sides have approached it from an interpretation perspective and have relied on various aspects of Justice Scalia's methodology and are claiming to, you know, take the throne and statutory interpretation. So I think it's a testament to how statutory interpretation has changed over the last couple of decades. And it's interesting to see both sides coming in with a Scalia

type approach to the issue. As if the Court didn't have enough controversial cases on its docket last Friday, they added an abortion case, right, and this is this is one that, interestingly that the Court had issued a stay in from the lower court's decisions stay in the effect of the underlying Louisiana law, which which involves admittance privileges to local hospitals and is sort of a follow onto the Whole Women's Health case that the Court decided by

a five three vote a few years ago with Justice Kennedy still in the court. So Chief Justice Roberts dissented in the Texas case, does that put him in the position here of overturning precedent? Well, I mean, I think it's a different case today than it was at the time of Whole Women's Health and that we now have the Whole Women's Health decision, which is entitled to full story the scisive effect, So I think, you know, the Chief Justice will have to view the case through that lens.

And obviously the state is arguing that the Texas law is different in some respects, and the challenges are arguing that it's just like the Texas law, if not worse in some respects. And that's the sort of thing that the justices are going to have to work through in deciding the applicability of the whole Women's health decision. Of course, abortion is an area that draws more protests and more concerned than a lot of other areas, certainly for women.

Are you of the opinion, as some legal scholars are, that the Court is not going to make any wholesale changes, that they're going to sort of go inch by inch if they're going to change abortion rights. Well, I think you know, this case is very much narrowly focused on the same issue that was decided and whole women's health in terms of the particular type of state law requiring

doctors to have admittance privileges at local hospitals. So it's you know, it's hard to see the court going broader than that in terms of the specific issues presented, and certainly no side has suggested that this case involves a challenge to Row versus Wade itself. So I think in terms of the scope of this decision, all eyes will be upon it, and obviously their first sign indication from the current court as to where they are in these issues. But I think there's only so far the Court could

go here. When the Chief makes speeches or does q and as he often goes out of his way to emphasize that the Court is not political. We did this last month in a speech in New York, will he be able to maintain that with the kinds of cases that the Court is going to be deciding this term, the kind of issues that divide the country. Oh sure, And I think you know, that's a real challenge for

the Court. I think all the justices are sensitive to that, and I think they al would agree with the Chief Justice that they don't see themselves as coming from one party or the other, but as judges involved in a common endeavor. And I think, you know, I wouldn't be surprised if we see some unusual lineup among these cases. But you know, as to how it all sorts out, and whether or not there's a consistent five for majority

in these cases. You know, that remains to be seen, but it's it's certainly something that the court will be sensitive to. Let's turn to DHAKA. President Trump's attempt to end President Obama's Deferred Action for Childhood Arrivals program. Does even illustrations start with an advantage here because it has many ways it can win the case, many different arguments.

I think it does generally speaking. You know, I think certainly, as the Court indicated a few terms ago involving the travel band case, you know, where the president is acting in the field of immigration, he starts with a lot of inherent authority, which which is helpful here. You know. On the other hand, you know, this case ultimately involves an A p A challenge and you know, as we saw last term in the Census case, the president you

can't lose those challenges. So you know, from the challenges perspective, I'm sure they'll be trying to take a page out of the playbook of that case. You brought up the census case, and and that's the case where the Chief didn't believe the government's explanation and was the fifth vote against the government. Could that happen here. Well, it's certainly possible. I mean, I think, you know, you would look at the Chief is one of the justices you'd want to

focus on during oral argument. But you know, I think he would be looking at the justifications that the administration gave here, you know, focusing on them in particular or not necessarily feeling bound by anything in the census case or the particular justifications that issue there. So now, the Court hasn't heard a Second Amendment case in about a decade.

It had an opportunity to drop the case over New York City strict limits on where licensed hand duds could be taken because New York loosen the restrictions, but it's going to keep it on the docket, another hot button issue during election time. I mean, that's definitely true. It's

another big issue on the plate. I mean, the Court has not gotten back involved in the area of the Second Amendment for almost a decade, and a number of issues have been piling up in the lower courts, and I think it's been inevitable that sooner or later the Court was going to have to get back involved here

to provide some guidance. And you know, here it is in the New York case that they decided to do that now that New York had filed US gestion of muteness on the ground that they had changed the law issue. The Court ultimately declined to cancel the argument on that basis, but it did something that it not infrequently does, which is to refer the motion and the question of muteness to the oral argument itself and directed the parties to

be prepared to address that issue and oral argument. So it's still possible that the case would go away on that ground. It just means we're going to have an argument in November to flesh things out a bit more. Well. We might also be having other arguments. The Democrats demand for documents and testimony from the President of the White House are winding their way through the courts. We saw there was a decision in New York and then put on hold by the Second Circuit today, So impeachment is

on the horizon as well. Can the Court avoid getting involved in these issues or is it going to have to take up these issues? I think it probably would like to avoid getting involved in those issues to the extent possible, but you know, it can't always control the circumstances that are bringing the cases to the court. And that's the true with respect to a number of these issues in terms of how they come up and in

what context. And here I think, you know, it'll matter a lot who is asking the court to get involved, the nature of the underlying ruling. I think it's going to be harder for the Court to turn down or crest by the listener general himself, if we're to come to that. But you know, I think it remains to be seen how the lower courts sort these issues out and whether or not the Supreme Court's intervention is going

to be necessary or possible this year. I often count how many seconds it takes before a lawyer is interrupted in oral argument with a question. And now the court says it's going to give lawyers two minutes uninterrupted. It says the justices generally will not question lawyers for the first two minutes of their arguments. So does this give

you comfort when you're going to be doing oral arguments. Well, I think it's one of the biggest developments and Supreme Court law arguments that we've we've seen in a long time, and I think practitioners are excited to see how it plays out. You know, as a lawyer, it tells you upfront about how much time you're going to have and gives you an opportunity to try to frame the issues before the court. And I think all that is terrific, But I think, you know, at the same time, the

real argument doesn't start until the questions start flying. And I think, you know, that's where the rubber hits the road, and that's that's not going to change at all under the new rule. As things play forward. Has it become more of a hot bench in recent years, I think, without doubt, I think it is the most active court in history in terms of the number of questions during

the law argument. It's not surprising to have seventy questions and interruptions during the course of a thirty minute oral argument. And the justices are all eager to have their own questions asked, and so are jumping in more more quickly during the course of oral argument. And so, you know, I think this this two minute rule, you know, hits a bit of the pause, a pause button at the

beginning of oral arguments. But the meat of the oral argument is still going to consist of the back and forth, which is extremely important in getting to the bottom of these diffical issues. Thanks so much, Greg. That's Gregory gar former U slicitor General and a partner at Latham and Watkins. 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 slash podcast. I'm June Brosso. This is Bloomberg