This is Bloomberg Law with June Brusso from Bloomberg Radio. At a judicial conference in August aired on CSPAN, Justice Elena Kagan said that the Supreme Court, like every branch of government, is subject to checks and balances.
It just can't be that the Court is the only institution that somehow is not subject to any checks and balances from anybody else. I mean, we're not imperial, and we too are a part of a checking and balancing system in various ways. So can Congress do various things to regulate the Supreme Court? I think the answer is yes.
That may not seem like a particularly surprising opinion, but it is diametrically opposed to what her colleague, Justice Samuel Alito said in a July interview at The Wall Street Journal's opinion section. That interview has now led to calls for a leader to requete himself in a major tax case coming before the court, not because of what he said in the interview, but because one of the writers
is a lawyer involved in that case. Despite calls from Democratic senators, Alito has refused to recuse himself, saying there's no valid reason for him not to participate in the case joining me is constitutional law expert David Souper, a professor at Georgetown Law School, tell us a little more about the background of this recusal dispute.
Certainly, Justice Leto perceived correctly that he was under considerable criticism in the media and responded in a number of ways, partly by writing an op ed defending himself, and partly by giving two interviews to a lawyer who was interviewing him for the Wall Street Journal. That lawyer is now one of the lawyers behind an effort to have large chunks of our text declared unconstitutional, that is in front
of the court. Several people, including a number of Senators, have suggested that Justice Alto should refuse himself because of the ties to the lawyer who twice interviewed him, and Justice Alito has said he will do no such things.
A group of Democrats, led by Senatjudiciary Chair Dick Durbin, call for his recusal in a letter to the Chief Justice, and Alito attached his statement in response to a Supreme Court orders list, and if you look at it quickly, it looks like a decision of the court, complete with footnotes. How unusual is it on a scale of.
One to ten, pretty close to a ten. I think you can get to a ten if you combine the fact that the very unusual form and that the content is also extremely strange.
He said that there was nothing out of the ordinary about the interviews in question, and then he refers to to in footnotes interviews that various justices have done with members of the media and says, well, they didn't recuse themselves when cases involving those media entities came before the court. But I don't know of any case where the journalists then came before the court.
I don't either. It's also pretty unusual because Justice Alito himself described this PR campaign as his self defense. Judges talked to journalists to educate the public about the law. All the time, they speak to junior high school civics classes. That's all fine, but he said that no one was defending him, so he would have to defend himself and launched this PR campaign. The lawyer in this case helped
him with his PR campaign. Something that people in this town pay tens and hundreds of thousands of dollars for was given to him free. And then the lawyer who did this enormous favor to him is arguing a case in front of the court that's unprecedented to my knowledge.
There's also the fact that when the first article was published in April, the justices hadn't yet agreed to hear the case. They agreed in June, and then the second article was published in July. So the timing alone gives the appearance of impropriety.
Well, any participation, whether it's in considering whether to take the case or in deciding it is improper if you have a conflict of interest, and when someone has just provided you services which, by your own admission, you felt you badly needed, and those services have enormous value. That's precisely why we have conflict of interest law. There's nothing wrong with his getting these services. He just shouldn't participate in a case that is being litigated by the person who provided them.
Something he said is something that I think Justice Thomas has said, which to me, this is the point about ethics. He said that the lawyer Rifkin participated in the interviews as a journalist, not an advocate, and that they didn't discuss the tax case, either directly or indirectly. Well, I mean, that's not the point is it whether they discuss the case.
Well, that's certainly not the point. I mean, if a lawyer in the case had given a car or a house to a Supreme Court justice while not discussing the case they were litigating, that justice should still refuse themselves from the case that that lawyer was arguing, because they obviously owe the lawyer or something and will have a temptation to repay it.
Judiciary Chairman Dick Durbin's response was quote Justice Alito, of the originalist school of thinking that empty seats on an airplane don't count as gifts, surprises no one by sitting on a case involving a lawyer who honored him with a puff piece in the Wall Street Journal at referring to the two thousand and eight private flight on a jet charted by a billionaire whose hedge fund was linked
to several disputes before the court. That was pretty sarcastic, but made the point that, I mean, there are just a string of these ethical lapses.
Yes. This one, though, is really more striking, because Justice Alito is saying that he should be able to rise above his debt that he owes this lawyer and decide the case fairly, which shows a fundamental misunderstanding of conflict of interest law. The whole point of conflicts of interest law is that we don't want to ask people to rise above their conflicts, and we don't want to ask
the public to trust that that has happened. Instead, we eliminate the conflicts by having people who are conflicted not involved in cases and with judges. The goal is to avoid the appearance of propriety.
In this case, maybe Alito is putting all the information out there and saying, let the public decide whether I'm right or wrong.
I mean, that might be grounds for the public to vote against his reelection, but of course he isn't subject to re election. The point is not whether the public believes well of him or not. The point is to get an impartial decision on the cases in front of the court. And having a judge decide a case is being pursued by a lawyer who helped him out when he said he needed pr assistance makes it impossible to know whether that case is influenced by the debt he owed that lawyer.
The Judiciary chair wrote to Chief Justice Roberts. Can Roberts do anything when Alito says Nope, I'm not going to recuse myself.
Yeah, the Chief Justice combined with the other Justice can do quite a great deal. Towards the end of Justice Douglas's service on the Court, the other justice concluded that he didn't have enough mental acuity to make responsible decisions, so they informally agreed that they would not decide any
case in which his was the fifth vote. The other justices can similarly decide that they will not decide any case in which Justice Alitos is the fifth vote, or they could simply vote to reject this case because they can't hear it. In impartial circumstances, it's called dismissed as improvidently granted or dig. They can dig the case to prevent Justice Alito from participating in it.
And Justice Clarence Thomas seems to be in a class all by himself as far as ethical controversies with luxury trips paid for by mega GOP donor Harlan Crow and real estate deals. Thomas just revealed that last year alone, he went on three trips on Crow's private plane, and yet Thomas shows no inclination to step down.
If you take these gifts in the first place, and if you see yourself as responding to a fairly narrow segment of the legal community in the political environment, perhaps you don't care about the appearance you give to the broader public. But this goes way beyond Justice Alito or Justice Thomas. There's seven other justices and it only takes five of them to make an order. They can adopt an ethics code, they can adopt rules for accusal, and it does not have to be unanimous. Many orders of
the Court, of course, are not unanimous. So the other seven need to step up if they want the public to respect the court and if they want the Court to do its business in a way that's worthy of the public's company.
Durbin said, why do these justices continue to take a wrecking ball to the reputation of the highest court in the land. It seems like a three prong problem. You have the court's ethics controversies, You have the limited transparency at the court, and then you have also these far reaching rulings that bring the public's attention to the court and its power.
Yes, and that's the combination. Now, there's a majority of the Court that is very conservative, and even on a case that neither Justice Thomas nor Justice Alito were participating in there would still be a conservative majority on the Court. The question is why do they insist on proceeding in a way that is at once there in bold and at the same time raises serious ethical questions, And that's
very hard to understand. And then why the other justices don't seem to see this is the problem worth addressing is also hard to understand.
What do you make of these defiant attitudes from Thomas and Alito?
Well, I think Justice Thomas came on to the Court with a sense that much of the world was already against him. His confirmation went through by the barest of margins and has been fairly dismissive of public opinion since then. Justice Alito's rise so the Court was far less controversial, so it's harder to come up with a personal explanation of his definant attitude on these ethics issues.
Justice Kavanaugh did say that the Supreme Court is going to be taking action soon to address ethics concerns. Do you think that means that they're going to come out with an ethics code or it could be anything.
It could be anything. It was a very vague statement and hard to know. I hope that he's right. I hope they do come out with an ethics code worthy of the name. I strongly suspect even what both Justice Leader and Justice Thomas have indicated that they won't be able to come up with a strong ethics code that gets the unanimous support of the Court. But they don't need it, and they shouldn't hold off for it.
We spoke before about Alito in his view that Congress had no authority to impose an ethics code on the justices, and then Justice Elena Kagan told an audience of judges and lawyers attending the Ninth Circuit can Congress do various things to regulate the Supreme Court? I think the answer is yes, and that it just can't be that the Court is the only institution that somehow is not subject to checks and balances from anybody else. We're not imperial.
So obviously there's a break between at least Justice Kagan and Justice Alito on this, and I suspect other justices as well.
It would seem. I mean, that's a matter of simple reading of the Constitution that is absolutely plain. The Court's jurisdiction on most matters is subject to Congress's choice, and Congress can serve condition that jurisdiction in any way that doesn't dictate outcomes to particular cases. So she's certainly right about that. That statement suggests that she strongly disagrees with
Justice Alito about Congress's power. I hope she also disagrees with him about the desirability of forcing Congress to act. I hope there are four other justices that share feelings.
You talked about the various things that could be done by the Supreme Court justices. But do you think that anything will really be done in the end about either Justice Alito or Justice Thomas by the Court itself.
I don't think they'll take action directly against them. That's not how I close system like the Supreme Court typically works. But I think they might very well establish a code of ethics going forward. It won't deal with all the
problems we've had. It won't deal with how much, particularly these two justices have committed themselves to a narrow set of right wing billionaires, but it can limit what happens going forward and hopefully keep this sort of thing from snowballing, as it obviously has with these two justices.
And the new term begins in less than three weeks, so we shall see. Thanks so much, David. That's Professor David super of Georgetown Law School. The Fifth Circuit Court of Appeals has concluded that the Biden White House, the Surgeon General, the CDC, and the FBI likely violated the First Amendment by coercing social media platforms to take down posts on their sites at times with intimidating messages and
threats of adverse action. The White House has said that it just pushed social media companies to adhere to their own rules about content.
We have promoted responsible actions to protect public health, safety, and security when confronted by challenges like a deadly pandemic and foreign attacks on our elections, and we have consistently made clear that we believe social media companies have a critical responsibility to take account of the effects of their platforms that they have on the American people while making independent decisions about the content of their platforms.
It's a ruling with consequences for the government's ability to combat false information about voting rights, COVID and other issues spread on social media. The appellate court did significantly whittle down a federal judges order that effectively blocked multiple government agencies from contacting platforms such as Facebook and x formerly Twitter to urge that content be taken down. My guest is Professor Eric Goleman of Santa Clara University's School of Law.
He co directs the law school's High Tech Law Institute. Eric, what was the main issue here?
The basic question is when were conversations that were taking place between the government and social media services becoming so coursive or so directed that the social media services were doing the government's bidding and removing content of their direction.
Did the Fifth Circuit find that there were actual threats made to social media companies?
It did, But the threats are always a little bit vague. It's not always as easy as you must do X or we will throw you in jail. The threats are often more indirect, and that's one of the many challenges from this opinion. It wasn't entirely clear to me exactly which threats mattered were when they even became threats, and.
Did the court specify which agencies or departments were subject to this injunction?
They did, but the actual implementation of the injunction is no more clear than before. The opinion what the Court said is that certain branch of the government, specifically they called out the White House and the FBI must comply with the rules articulated in the court. But the Court didn't provide concrete boundaries around those rules. It simply said,
you must comply with the Constitution. So, in a sense, I don't know how the executive branches are going to implement what the court's ordering them to do, because it's saying comply with the constitution. But obviously the people who made the decision in the first place weren't clear what was constitutional what wasn't, and I don't know they're in clearer now.
It also says they can't significantly encourage platforms to remove lawful content. So what does significantly encourage mean exactly?
That's the point is that the significant encouragement is the boundary around the constitutional protections. In other words, if they're significantly encouraging the removal of constitutional content, that's not constitutional, that's a violation of the First Amendment. However, what constitutes this significant encouragement is not made clear by the opinion. They do point to a few examples, but I don't think I would know how to actually interpret that language
the next time it came up. And so what's likely to happen is that if this opinion stands, I think that the regulated anties are going to become far less conversational with the social media services. They're not going to take a chance about violating the rule. And so the court standard actually clears out a lot of permitted behavior today. Because the boundary is so unclear, people are going to err on the side of being cautious.
Well that's what the Republicans who brought this case want, isn't it. The Missouri ag Andrew Bailey said that the ruling was another brick in the wall of separation between tech and state.
No doubt, there are many people who wish that the government would not be in conversations with social media services, and yet the Court's opinion really casts a shadow over dialogues that take place every day, all the time throughout our entire country between governments and private entities, not just
social media services. This concern about significant encouragement or coercion comes up across the board in lots of spaces, and the Quirt standard puts potentially many or all of those in play, opens up the door for lots of people to challenge government conversations that are just in the public health and safety interest. Them's just trying to do its job to protected citizens, and now this court casts a doubt on the legitimacy of those efforts.
The Biden administration had said that it was pushing social media companies to just adhere to their own rules about content. Did you see a First Amendment violation here?
There's no doubt that some individual employees of the government push the frontiers, perhaps to or over the limit. That's just the nature of individual government employees so zealously trying to do their job. They might get a little bit excited. Having said that, I think that overall a number of the social media services appreciate the feedback from the government.
They want to hear from the government because the government sees things that they don't or is a good neutral source of assessing risks in the community that need to be addressed, and so it's helpful for the social media services to hear from the government the risk that the government is assessing what might be done to address those risks.
That's actually helpful and that informs the social media service's own independent At a turtle discretion So the line between that kind of activity and the over zealous pushing by some government employees is really sin and we want fewer of the Overzella's stuff, but we definitely want the other stuff to continue. And that's the part that I don't think the government eployees are going to know where they are on that spectrum.
So do you think this will inhibit, you know, the federal government from communicating with the public about like key public health issues or the twenty twenty four election.
I don't think it's likely to discourage the government from continue to communicate to the public, but it will definitely discourage some of the conversations that were taking place directly with social media services about those same issues, educating in social media services about the kinds of harms that occurring in the election sphere or in the public health sphere with things like COVID. The government was calling attention in particular problems that the government was trying to address in
its public facing efforts. It also wanted the social media services to know about those efforts and potentially choose to interview on the government's behalf as well. And it's that latter piece that I think is less likely to happen, and social media services therefore may feel less likely to even consider what the government's saying given the ruling in this case, With this.
Decision by the Fifth Circuit, are there any agencies or people who can't talk to the social media companies because of this ruling?
No, all the government agencies are still allowed to talk with the social media services, but they're not allowed to coerce or significantly encourage the removal of constitutionally protected material. And yet that legal standard doesn't actually answer the question
about which of those conversations are permissible. So even though conversations will still take place, they're going to be constrained, they're going to be chilled, they're going to be restricted because of the fact that the boundary is unclear.
I thought it was interesting that doctor Anthony Fauci, who came under such criticism from conservatives during COVID, you know, the Fifth Circuit said, no, he did, Okay, he was fine.
Yeah, you know, I think the Fifth Circuit was trying not to engage in partisan politics. So Fauci was, you know, the targeted conservative ayre, and so they weren't pandering to that ire. And yet the entire structure of the opinion really does validate a lot of the conservative objectives in a way that I think fundamentally in their minds, part of the health and safety So it's kind of like,
what do we really want from the government? And I don't know that I share the Fifth Circuit's vision of what it wants from the government.
I always point out that the Fifth Circuit is considered the most conservative appellate court in the country, and we've seen these judges make rulings that were outliers before, and it's getting reversed by the Supreme Court more than it used to.
Well, the good news is that this particular opinion fixed an even worse District Court opinion that was a true outlier, and even that opinion was too much for the Fifth Circuit. They could not stand behind this opinion that had just gone rogue on the rule of law. So in that sense, the Fifth circu opinion is definitely better than the District Court opinion that preceded it. And yet I don't know what would happen if the Fifth Circuit opinion has appealed to the Supreme Court.
Tell us about Judge Doddy's order.
There's just a few things to say about it. Really, Judge Douty has been a go to judge for the Conservatives, hoping to basically find a way to make a venue selection that gives them the best odds of success in court. And in this particular case, he issued an opinion on
July fourth, which is a federal holiday. The federal courts are closed on July fourth, but he deliberately issued the opinion on July fourth, as I think his way of saying that he was celebrating the independence that we obtained from the British by dropping one hundred and fifty page opinion that just completely disregarded the present about when government dialogues with it actors becomes an unconstitutional conversation. And as I said, it was so far beyond what even the
Fifth Circuit to could tolerate. The Fifth Circuit overturned the vast majority of what he had to say. And it's just a sign that, you know, conservative plaintiffs are looking to increase their odds of getting favorable of rulings by picking judges like Judge Dowdy and finding ways to basically
activate him to advance their agenda. It really was, I think a terrible display of our judicial system that he was issued this opinion that was so far unsupported by the rule of law, and dropping the opinion on the fourth of July as a statement that just I thought was really not cool.
I didn't know it was on the fourth of July.
I guess I took that day off, as said everyone else, And so you know, most people were like, really dropping one hundred and fifty page opinion on central holiday. It was like completely disrespectful to the hundreds of thousands of people who were going to be affected by this opinion, who all had to take their holiday to go read it. It was just not cool, and the Fifth Circuit couldn't abide by it.
Now, Republicans in this case and in the House have accused government officials, as you referred to, of actively colluding with the platforms to influence public conversation. Is this their biggest victory so far?
It's definitely validating of some of their concerns. And I think that anyone who reads the fact statement of the case and sees the insistent messages from the government will feel a little troubled by them. You know, there's definitely some fire under the smoke about whether or not government officials went too far I saw in the shouble by
seeing some of the evidence produced in this case. Yet, the bigger question is what do we want the government to do differently, and how do we articulate the guidance to them to get them to do the job we want and to still take advantage of act. So the private sector plays a key role in advan saying public health and safety, and so in that sense, it makes me question what the people who champion the concerns about
government overreach actually really want. Do they want less government at a risk or cost of public health and safety? Do they just hate the government when their team is not the one running it, or do they think that there's going to be some way to navigate this extremely fine line that's going to allow them to only get the good government intervention and screen out all the bad. And that ladder hope I think is just not supportable.
I do want to add one other thing. Almost everything that the Biden administration was accused of in the case where the facts were showing what it was doing to converse with the social media services, the Trump administration was doing equally bad or worse things. That just was not an issue in this opinion, but it was absolutely the case, and state governments, including those that are led by Republicans, are doing equally bad or worse things as well. It's
not really a problem with the Biden ministry. It's a problem with the government and what we want from the government, and so to think that this is a Biden administration problem is really a misunderstanding the problem.
Eric, do you think the Justice Department should appeal this to the Supreme Court.
I think it has to appeal the case to the Supreme Court because the opinion, although it's narrowed the injunction quite a bit, it still leaves a core injunction against key executive branch agencies, restricting their ability to do their job and leaving such ambiguity about how they can do their job that it seems like they need the Supreme
Court to give the government more guidance. It wouldn't surprise me if the states that are the plaintiffs in this case also appeal the ruling because they want to pick up the stuff they had gotten in the district court that the Fifth Circuit took away. So it's entirely possible both sides will be encouraging the Supreme Court to take this case.
And just explain the cases that they're considering involving Florida and Texas laws that would restrict the editorial discretion of social media platforms.
Yeah. So, in twenty twenty one, both Florida and Texas passed laws called social media censorship laws, and these laws give a significant amount of instruction to social media services about how to run their editorial functions. Among other things, it says that if the social media services publish policies, they must adhere to the policies. And both laws say that there are certain types of editoral decisions that the
services cannot make. For example, in the Texas law, it says that the services cannot engage in viewpoint discrimination when they engage in their editorial functions. I don't know what that means. I don't understand that terminology. But the point is that the Texas legislature specified and told the social media services how to run their business. Now, that's exactly what the circuit says in this opinion that the government
could not do. The government could not tell the social media services that they had to publish certain items or had to remove certain items. Yet the Texas law did exactly that. And the worst part is the Fifth Circuit upheld that law, saying that was a constitutional intervention in the editorial discretion of the social media services to decide what content with search or their audience. I cannot reconcile
those two opinions. The opinions that the Court issued most recently, saying that the executive branch had engaged in sensorial instructions to social media services is almost indistinguishable from what the Texas law did to order sensorial interventions into social media services at a total discression, and yet the Fifth Circuit reached inconsistent results.
Supreme Court has asked the Biden administration for an opinion, and the Biden administration urged the Supreme Court to strike down key parts of the Florida and Texas laws since the measures have divided the federal appellate courts, and it seemed like the Supreme Court has to almost take that case. What are they really dolling about?
To be fair, I don't know why the Supreme Court has not yet granted review in the Texas and Florida social media censorship cases. Those cases grais essential questions about the future of Internet regulation and if the Supreme Court doesn't take these cases now, they're just going to get dozens more cases coming at them raising the exact same issues.
So to me, it seems like they have to take those cases, they have to get more guidance, and ideally they're going to clip the wings of both the executive branch decision makers and the state legislatures that are right now having their way with social media services telling them what to do when they shouldn't be.
Always a pleasure to have you on the show, Eric, thanks so much. That's Professor Eric goldban Co, director of the High Tech Law Institute at the Santa Clara University School of Law. And that's it for this edition of The Bloomberg Law Show. Remember you can always get the
latest legal news, honor Bloomberg Law podcasts. You can find them on Apple Podcasts, Spotify, and at www dot Bloomberg dot com, slash podcast, Slash Law, and remember to tune into The Bloomberg Law Show every weeknight at ten pm Wall Street Time. I'm June Grosso and you're listening to Bloomberg