Justice Alito Ridicules World Leaders

One of these was former Prime Minister Boris Johnson. But he paid the price. My guest is constitutional law scholar Kim Whaley, a professor at the University of Baltimore Law School. Kim, this seems so out of character for Supreme Court justice. I can't remember another justice or even a judge who ridiculed world leaders publicly. Well, I'm not entirely surprised, because he made a pretty shocking speech in to the Federal

Society where he really crossed some lines of independence. But of course, you know, getting into sort of the international political arena in that way, so deliberately making fun of

Boris Johnson and the royal family, etcetera. But what really bothered me about it is that he introduced the topic of saying he had quote the honor of writing unquote this opinion that is jobbed that was lambasted the honor, when meanwhile he seems to just shrug off the fact that tends, if not hundreds of thousands of women and girls are horrified by this, and many will be physically and emotionally and psychologically and personally deeply affected in negative

ways by virtue of what he says was an honor. So that just rubbed me wrong as as a person tripping with sarcasm. He called it the decision whose name may not be spoken. It's such a contrast to the kind of careful, discreete speeches Supreme Court justices usually give. And he had to know that his remarks would be picked up around the world. Was that his intention or

you know what was his intention? Well, I'm no psychologist, but the level of defensiveness and the sarcasm, to me reveals some deep insecurities as a personal matter, because people who are confident in their decision making, particularly when it

comes to something so somber and important. You know, he opened his job's opinion talking about how abortion is a moral issue that he would address it in such a trivial way, take it so personally that people take issue with this, you know, landmark ruling that reverse fifty years of precedent and as I said, withdraws for the first time in American history and established individual constitutional right and

effects women and girl. I think it was more of an insight into kind of how potentially small he feels as a person that he has to do that, rather than something that he can think be lauded for respected for it. You know, it makes me uncomfortable to even hear that, given his stature as a Supreme Court justice and know that someone is in that positions that had that kind of low self esteem. Frankly, Supreme Court Justice Alito has a history of not behaving with the decorum

we'd expect of a Supreme Court justice. We all remember his shaking his head and mouthing the words not true during President Obama's State of the Union address when he criticized the Citizens United decision. And he also mocked the late Justice Ruth Bader Ginsburg by pursing his lips and shaking his head and rolling his eyes as she read a descent from the bench in so is this perhaps par for the course for him well as a constitutional

law professor and thinker. If you look at act with the substance of what he said and again what he said in at this Federal Society speech, I mean, it looks like Justice Alito really believes that religion and I would guess, based on his comments Christianity, because he seemed aghast that a ten year old would not know who Jesus was, and talked about an image of Jesus in Germany and he was stunned that the child didn't know

what that was. I mean, I think there are plenty of Christians that would not know iconic images from other religions, for example. It looks like he really has this personal sense that religion is under assault that is almost irrational, right. He talks about how people and he even sort of made a nod to his colleagues them assuming the progressives want no special protection for religion, he said, and he compared those who aren't staunch believers in you know, protecting

religion even in the public sphere. That's his position. He compared them to you know, Green Bay packers fans, and the idea that people who don't adhere to his strong view of Christianity as central to American culture and society, as somehow thinking of religion as a sports team, and

that's just not true. I think the other justices and people that care about this issue, and most Americans understand there's a there's a line to be drawn between the free exercise clause and what we know is the establishment clause. And in two cases this term, the court whittled down the establishment clause. I think what we're going to see, frankly,

is religion back in government. And when you hear Justice Alito, he's doing more than calling balls and strikes under the law, which is really what the role of judges are in the federal system, because they're not elected, and he really believes he's on some bigger mission. He equated not having religion and government to potentiality for totalitarianism. He suggested little look at the Soviets. They pushed religion out and they fell.

You know. Of course, he's ignoring places like Afghanistan and the Taliban, where religion has been used to justify tremendous human rights violation. And he spends a lot of time talking about the protections under International Code for certain individual rights and liberties, and he says, you know, religion is there, but what about girls and women's rights to bodily autonomy.

He's really kind of almost off kilter, frankly, in terms of what should sound like from a Supreme Court justice as neutral, thoughtful, unemotional, un ideological assessment of the law and the fact his reference his little tale about the crucifix was particularly jarring to me because it seems so out of touch with, you know, where the world is nowadays. An atheist activist group Freedom from Religion Foundation called his comments disturbing. They said Alito appeared to single out nonbelievers

as implied enemies of religious freedom. Is it appropriate for a Supreme Court justice to be sort of proselytizing like that. I mean, I agree with that comment. I think that is the tone of his remarks is that, you know, boo on the people that are not religious, and that's a problem for America, that it's religiosity is not as fun as center as he would like. Of course, it's inappropriate.

Of course it's problematic. And it's problematic because the Supreme Court, when it construes ambiguous language and the constitution that functions like an amendment to the Constitution unless there is an actual amendment which requires supermajorities of both Houses of Congress and state legislatures. So voters, right voters. It's virtually impossible

to amend the Constitution through the electoral process. But when Justice Alito, you know, and his colleagues get five people that are unelected and then they're there for life to agree with his interpretation of something like the First Amendment or the due process, cause that binds the rest of us. And it's inherently antidemocratic, you know, in its worst form, it is a recipe for the very totalitarianism that he

pretends to be rejecting, because there's no accountability. You know, people talk a lot these days about January six and Donald Trump and how, you know, we're losing our democracy, and I'm one of those who say that. But really the biggest threat from where I stand is what's happening on the United States Supreme Court. That is, these people

believe that they have this some kind of mandate. And maybe for Justice Alito, it's divine to reshape America through constitutional interpretation with no buying and no accountability through the voters, And in my mind, that's inherently undemocratic rights. The founding generations fought and died to not have a single sovereign state anymore and to have the people decide. And that's not what's happening on this court. These folks are really taking you know, it's not a surgical knife, it's a

machete to longstanding constitutional principles. And so when he feels that he can say these things publicly, it just demonstrates the belief I think on this majority that's whatever they do, there's nothing anyone can do about it. And they're probably right. Americans seem to be losing confidence in the Supreme Court. According to a recent ap North Pole, forty three of Americans have hardly any confidence in the Court at all,

have only some confidence. Should they take into account the fact that people are just losing confidence in the court with all these radical decisions that don't respect precedent, of course, and that's because it's part of why people talk a lot about the rule of law. And this also gets to the January sixth situation and the peaceful transfer of power.

I mean, you know, think about if you've got a kid who's in a in a little league and your kids team loses, you take them out for pizza and you say, you know, next time at a boy it'll be better, um or at a girl. Right, um. But you don't leave the league. But if it turns out that the umpire it's fixed, that the rules of the game are unfair, that they're one sided, that their arbitrary, that they're ideological, you're not only going to be angry,

you're gonna pull your kid out. And that's really the concern in this moment, and it's across the electoral process as well, after money, is that people lose faith in our institutions. You know, the Supreme Court doesn't have its own army to enforce what it says is the rule of law that it gave itself that authority in the nineteenth century in a landmark case called Marbury versus Madison. What happens if and when people say listen, I don't need to listen to the Supreme Court, they're a joke,

they don't matter. Then what happens to the whole fabric and structure of our legal system? And when why do we care about that? Because we want to have an ordered society, We want to know we can walk outside our door and not just be violently sort of assaulted by by one of our enemies and have no accountability. We want to be people to stop at red lights so that our kids are safe when you know they

get their license. Is succeeding, right. We want to get on a plane and not have it crashed into another plane or have it hijacked by some domestic terrorists because they don't think anything will happen. I mean, the implications of this cannot really be overstated. And this is why I think it's what people like you know, Justice Soda, Miller and Kig and are right have been sounding the alarm in some of their descents now for a few years that when you degrade the institutions, it's very hard

to rebuild them. So that the damage that's being done I think, you know, by a lego speech, but also by what they're doing to the Constitution by rejecting these things. It's very very serious. Now, the upside might be that now leto speech is drawing attention to the problem on the court. Right, if they did this quietly, that might be under the radar. And as you know, I've written now three books on basic legal literacy. How to read the Constitution? Why you know what you need to know

about body? And why? How do you think like a lawyer? And why because if you had to pull a lot of Americans, they wouldn't really know what the Supreme Court does or how the Constitution works. You know, I think historically only a third of Americans could even name the three branches of government. So if this triggers greater civic literacy, you know, I think that's that's a light in the

darkness here in this tunnel. Representative Alexandrio Casio Cortez has said that this speech, together with the leak of his opinion, is SUSPICI and you know, are we ever going to find out who leaked that? You know, I don't know. And honestly, that is not something that gets me particularly concerned.

A much much much more concerned with the relationship between Jenny Thomas's connections with the anti democratic far right wing groups that were behind the carnage on January six and are still seeking to cancel elections in America to put a minority single party in power indefinitely. There's a lot

of smoke there. Did she influence her husband in four cases involving the election in one in which he was the sole dissenter when all Congress wanted to do was to get official records from the National Archives, and he said, no, That to me is where the energy should go, because you know, leaking the opinion is probably not going to change the outcome. But having a justice make decisions based on influenced by radical groups through his wife, if that

is the case, that doesn't affect the outcome. And as I said earlier, I mean if if he's a deciding vote on a revised construction of a critical provision of the Constitution that's in place forever and until there's a new configuration on the Court, until Congress decides to expand the quarter, until there's constitutional amendment, all of which are close to impossible. And you know the Court did accept this year, Sirchiroory in a case UM that would consider

a radical view of the election system. UM, the independent Legislature's clause right where the idea would be, UM, And I think they're probably gonna rule yes, as my guest, they wouldn't take the case that only state legislatures can decide elections. It can't be state constitutions, it can't be state judges. It can't be from governors, it can't be anybody that's the legislature delegates authority to and we've got

jerrymandered legislatures across the country. So that's just to me, that is, that's a much bigger issue than the leaked opinion. That is, you know, how is Thomas going to rule on something that important and the extent to which it's affected by Jenny Thomas, who was in contact with Mark Meadows and others are urging that they not acknowledge Joe Biden clear wind for the presidency. That is much more terrifying, and frankly, it's very troubling that the Democrats haven't even

held hearings on that topic. That case is going to be next year's Dabbs. Thanks so much for your insights, Kim. That's Professor Kim Whalley of the University of Baltimore Law School. In this day of the Mega merger, the Biden administration

is cracking down on consolidation in industries. Indeed, President Joe Biden signed an executive order in July of last year directing federal government agencies to enforce the nation's antitrust laws and prevent companies from taking advantage of labor and potential competitors. I expect the federal agencies and they know this, to help restore competition so that we have lower prices, higher wages,

more money, more options. And the Justice Department is doing just that, going to trial to block Penguin Random House, the largest US book publisher, from buying Simon and Schuster, the fourth largest, for two point eighteen billion dollars. My

guest is Jennifer Ree, Bloomberg Intelligence senior litigation analyst. So, John, the Justice Department is using a rather novel theory here, focusing on the impact this merger will have on the livelihood of authors and choices for consumers, rather than a traditional focus on prices. You know, it's a very interesting argument because it is a bit different than a typical

antitrust argument made to try to block a merger. So what they say here is that there will be an impact on labor, in other words, authors of anticipated top selling books. So these are the authors that come along you expect the book to be really big, and these publishers are bidding for the rights to that book, and you know, they bid against each other and the price

goes up. And the authors are paid more. So they're saying that that kind of head to head competitions boost these authors pay, you know, and spurs the publishers to give better editorial and marketing services to get those book rights. They aren't arguing that people like me or like you that go out and buy a book are actually going to pay more for a book. That's a more traditional antitrust theory. This theory is about labor and what it's called as a monopsony theory too few buyers rather than

too few sellers. So is this a theory that is so new the judge will have to decide whether or not to accept it? So interestingly, I think it's been called very new. I actually don't think of it as new. I think the monopsony aspect of mergers has always been something that the Department of Justice and Federal Trade Commission have thought about and looked at. Where it's new is

that it's untested in courts. So, in other words, perhaps a deal in the past that was challenged that had monops in the aspects, really the front and center was the monopoly aspect and that was really what was tried, and the monops in the aspect was a little bit more besides show or where there were monopsony concerns, the companies were able to settle with some sort of concessions and then get the deal cleared and they never went

to court. So where this is new is we don't have precedent on it, so it's going to be new for this District Court judge. Then, is the market they're talking about, the market for anticipated best selling books. Yes, that's the market they're talking about, and they claim that that market really includes only the top five publishers, what they call the Big five, and among those Big five

are Penguin, Random House and Simon and Schuster. So in their view, within this market for publishing rights to anticipated top selling authors, you have five competitors, and this will reduce the five to four. One analysts said it would reduce it to one and then three others right, And I think the reason for that is because when you look at the market shares as a result of the deal, this company will be a strong number one, So it will not only have the number one spot, as it

will be pretty far away from the others. Now, according to other data I've seen, though, the combined company would have about share, And honestly, you know, that's not necessarily a share that's in thought in the past to confirm market power, you know, usually you're looking for something over that's kind of borderline in terms of whether there could be market power or anti competitive impact. So, even though it does create a big one, I think the d o J would be on a bit better footing here

if that combined share was a little higher. So the judge will decide which market she uses exactly. I mean, the DJ has to come and I prove that the market they're defining is an appropriate market, that that is a market in which competition takes place, and it is different from let's say, smaller authors. It is a different market from the market that the midsize of the smaller publishers competence. They're going to have to prove that, and I think that could be the crux of it. That

could be a difficult market to prove. They'll have to

see what the evidence shows. These two companies claim that it's arbitrary and it's kind of a Jerryman or our ument, you know, And what the companies say is that in each of the past three years, three of the top ten highest selling authors were published by publishers outside of this big five, and that's one of the examples they lay out to say that this market doesn't really make sense because you have other smaller publishers that also compete

for some of these big highest selling authors. Also in the defense argument is that this wouldn't lower the price

that new authors get and wouldn't affect the price for consumers. Right, you know, obviously they're going to argue that they're going to say there is still sufficient competition out there such that when we're bidding for the publication rights for these top authors, there will still be plenty of other bidders against us, that that author will get the best price that they're going to get, and as a result, there won't be any impact on the ultimate consumers at the

end of the line buying the books. And the Justice Department is simply going to have to have to prove that that is not the case. That there's a potential that with fewer bidders, the price won't be a bit up as high, and perhaps the result of that could be less paid to these authors and fewer books published, which would have an impact on consumers. The Justice Department's argument sounds logical. I don't know if they have the stats to back it up. This is an industry that's

already undergone consolidation. Penguin Random House, that name shows consolidation, right, you know, I think that's one of the most important

points here. In particular, the Department of Justice has said, you know, they really want to broaden out the kinds of deals that they challenge and broaden out the antitrust approach to mergers, and one of the things they want to think about more are just industries that have trended toward consolidation that as you see a trend toward consolidation, you kind of want to nip it in the bud before it gets too far and too consolidated under your nose.

And you're exactly right. This is an industry that's had loads of consolidation in the last couple of years. And not only that, this top five companies that the d o J is talking about have been accused of colluding in the past. And that's another theory the d o J will have hate the fewer you have, the more likely it is that they can collude in the future. One of the first witnesses for the government was best selling horror author Stephen King, who testified against his own publisher.

He said the five biggest publishers have largely squeezed out independence shops, making it harder for new authors to make it into print. Did the government call King to put some sort of celebrity pizzazz into the trial or for more substantive reasons. I think it's a little bit of both. But I think he can certainly add to the evidence.

He's been out there publishing for many, many, many years before a lot of consolidation, and now after consolidation, he can talk about the impact that that's had on him or other colleagues that are also authors as the industry has become consolidated. But you know, obviously that's just one person testifying, and the judge is going to have to look at where the weight of the evidence is, and that's just a tiny percentage of what will be taken in in terms of other testimony as well as the

company's documents and what those say. But certainly think that it's more than just, hey, you know, this makes a splash having Stephen King piband. Now if it were a jury trial, King's appearance might make more of a difference. Now, this has been described as a key test for the Biden administrations pushed to expand antitrust enforcement. Do you see

it that way? You know I do, because, as I said this, this concept that we're going to look at the merger's impact on labor is barely untested and new in court. To rest the entire theory of harm just on that theory and go to court with it is fairly new and untested. So we'll see how they can prove that and how the district court judge views that, and it could lay the groundwork for future challenges to mergers that are based on the impact on labor. So

it is very new in that way. And I think also with respect to what you just talked about, that it's an effort to sort of stem the tide of consolidation in an industry that's been trending in that direction. And it'll be interesting to see how much the judge takes that into account as well. So Biden signed an executive order in promoting competition in the American economy. Has the Justice Department been following through with more antitrust lawsuits? Oh?

I absolutely think so. Yes. I think both the Department of Justice and now also the Federal Trade Commission, now that there is finally both late of five commissioners and a three commissioner democratic majority, are following through. Um. I think they're both aggressively going after investigations of deals. They have a lot of investigations of conduct generally ongoing, and more lawsuits filed in the last six months than I

recall from the past. On the FTC is getting active now too, with the newer challenge to Facebook trying to buy a small virtual reality company called Within. So I do think we are seeing a reaction by the DJ and FTC to what was expressed in that executive order. So now the deal is blocked, Simon and Schuster's parent is likely going to offload the publisher to a private

equity firm. I think that's what the speculation is. I think the issue is that the parent has said it will offload the company no matter what, and it may be that some of these other publishers that would like to buy it, or could buy it, which worried about having a lawsuit just like this one. And when that happens, usually the buyer ends up being private equity but it's not to say that one of the smaller or mid sized publishers, or even one of the big five that's

smaller than Penguin Random House couldn't acquire this trial. It'll bring a lot of interest from the public. But do these trials really cause any companies to hesitate when they're deciding to merge. I mean, is it really part of their factoring in, Oh, we could be sued by the

Justice Department? I think sometimes yes. I think the bigger right now, at least the bigger issue that might be preventing more deal making is just the aggressive stance generally that's been taken very openly and overtly by the Department of Justice in Federal Trade Commission and sort of setting up roadblocks and hurdles that make the whole process more difficult from start to finish, you know, a longer investigation and more difficult investigation, the potential for a novel, new

theory of harm that the company's can't anticipate going in. So there's a lot of uncertainty, and I think that uncertainty tends to diminish dealmaking. Can you compare the Biden administration's approach to antitrust to the Trump administration's approach, well, it's it's definitely more on the progressive side um and

more aggressive. Disadministration and the people that President Biden has put in place to make the decisions in the anti trust area are really trying to expand antitrust, trying to be more aggressive, trying to stop at the consolidation we've seen in many industries, and trying to sort of craft away through court to develop some more novel theories and make it easier to challenge deals or to challenge monopolistic conduct. So it's definitely been more aggressive. Some of that started

a bit though in the Trump administration. I don't want to say that the antitrust authorities under Trump we're not doing anything, because they were actually quite aggressive as well. And and some of the things that are happening that this administration has followed up on started in the Trump administration, like a distaste for settling mergers with behavioral conditions rather than divestitures. I mean, I think that that's someone aggressive take,

and that started under the Trump administration. I don't know if having two antitrust trials going on at the same time means anything about the push but another trial on competition started Monday in federal court in d C, where the Justice Department is suing to block United Health Group, which runs the biggest US health insurer, from acquiring health tech company Change Healthcare. The government contends the thirteen billion dollar deal would hurt competition and put too much healthcare

claim information in the hands of one company. Tell us a little more about it. Yeah, I know, I wish I were in Washington, d C. Right now, sitting in a seriously going back and forth between these courtrooms, because they're both interesting, interesting cases. So you know that one is also a somewhat difficult case for the Department of Justice because that theory is largely vertical in nature. Now, United and Change Healthcare do have what we think of

as horizontal overlaps. In vertical overlaps horizontal meaning they both have uh services or products that compete with each other. But on that that's not going to be as big an issue in trial because the companies have already agreed to divest that part of the business and just eliminate

that overlap. So what's left to be tried really is just the vertical relationship and by virtue of buying Change The theory is United gets access to competitively sensitive data and information of its insurer rivals like you know Etna and Insignia and these companies that United competes with UM for insurance health insurance. So by getting access to that data,

it alters competition. It makes an artificial competitive environment where the company could pull its punches when it starts to see the kinds of offers and contract terms that its competitors have, and it could have an effect on competition. And that is the theory that the Department of Justice is going in with in that case. And it will be very interesting to see what happens because again relatively untested in court, two really interesting antitrust trials in one courthouse.

Thanks so much, Jen. That's Bloomberg Intelligence Senior Litigation Analyst Jennifer Ree. You can read more of Jen's analysis by going to b I go on the Bloomberg terminal. And that's it for this edition of the Bloomberg Law Show. Remember you can always get the latest legal news on our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify, and at www dot Bloomberg dot um, slash podcast Slash Law, And remember to Tune to The Bloomberg Law Show every

week night at ten pm Wall Street Time. I'm June Grosso and you're listening to Bloomberg