This is Bloomberg Law with June Grossel from Bloomberg Radio.
Just think of law as these cases as a series of kate of cars on a long train, and you just accept the train, and you just add another car. We just follow wherever it's going. We never go to the front see who's driving the train. Where's it going? And you could go up there in the engine room and find us an orangutang drive in the train. Would you want to follow that just because it's a train.
Justice Clarence Thomas used that train metaphor last week to describe the import of settled law or precedent in deciding new cases. Thomas downplayed the importance of prior Supreme Court cases and said he wouldn't follow them if it doesn't make sense to him.
And I don't think that any of these cases that have been decided are the gospel. And I do give respect to precedent, but it should to precedent should be respectful of our legal tradition and our country and our laws, and be based on something not just something that somebody dreamt up and others went along with.
In the new term, beginning on Monday, the Supreme Court will be considering several cases with long standing precedents, including a ninety year old precedent that limits a president's ability to remove members of some independent federal agencies without cause and a landmark nineteen eighty six decision about the use
of race in redistricting under the Voting Rights Act. So Thomas's comments dissing the importance of prior case law might lead some to question whether those precedents will be overruled, much as the Court has overrule precedents like the constitutional right to a book and race and college admissions decisions. My guest is Supreme Court expert David Super, a professor at Georgetown Law. David, what was your reaction to Thomas's comments.
Justice Thomas's remarks were quite remarkable. He said that adherence to precedent is perhaps overrated. He compared it to a situation where people are riding a train without knowing who's in the cabin driving the engine and suggested that that might well be an orangutan, and we should not take
directions from an orangutan. I've never compared the US Supreme Court to an orangutan, but he has apparently, And he said that precedent may be something that one person just bought up and everyone else said, yeah, let's go along. And on that basis, he thinks that the court needs to be more willing to overrule precedent unless deferential. President.
When the Supreme Court justices have their confirmation hearings, they all say, oh, you know, we're going to follow precedent. Yes, yes, yes, And of course they don't in many cases. So tell us about the importance of precedents in the law.
Well, precedent is what makes the courts distinctive. Anybody can decide however they want at the moment. Why we listen to the courts is because they are bound by the law, and in the Anglo American system, the law is precedent. We even have a fancy term for it, starry decisives, and it is supposed to be what keeps unelected judges from acting willfully and just pursuing their personal agendas.
He also said, it's not the gospel, which I always thought precedent was the gospel. But as you mentioned, he in a backhanded way, made fun of prior Supreme Court justices. He said, the President and if it's totally stupid, and that's what they've decided. You don't go along with it just because it's decided. Does it show just a lack of respect for prior justices.
Well, it certainly does. It suggests that the current court is smart and its predecessors are foolish, which is a remarkably condescending approach. It's also an ahistorical approach. We've had many brilliant justices on the court. We've had many court that historians regard as all star courts, packed with brilliant legal minds, and to suggest that they can be compared to orangutans, it's disappointing.
Thomas is a believer in originalism looking at history, but yet when the justices look at history, they often come up with totally different conclusions about the historical origins of the law. Why does he think that that's so much better better than following precedent, I don't know.
And I find it exceedingly strange that perhaps the court's most vociferous originalist is taking this view, Because if there is one core principle of the original understanding of the courts is that they were bound by precedent. That's the essence of the common law system that England had for many centuries before the founding of this country, and that originalists, like Justice Thomas say, should control how we decide things now.
There are important decisions that were handed down five six hundred years ago that decided difficult questions and that no court since then has ever disputed. Just as Thomas seems to suggest that that core original aspect of Anglo American jurisprudence is irrelevant, this is not.
Really anything new for Justice Thomas. The late Justice Antonin Scalia told one of Thomas's biographers quote, he doesn't believe in starry decisive period and Thomas has also frequently suggested overturning landmark opinions in cases that are not before the court.
Well, and it's important that Justice Cleia was Justice Thomas's best friend on the court and most frequent ally, but unlike Justice Thomas, Justice Cleia generally decided the cases that were brought for him, whereas Justice Thomas for a long time has written concurring or descending opinions inviting parties to bring cases to the court. That departs from another important aspect of originalism, which is that the courts are passive. They take the cases that come to them, but they
don't go out trying to do affirmative policy making. Again, that goes back hundreds and hundreds of years, and an originalist like Justice Thomas should be particularly anxious to follow the traditional role of the courts as passive deciders rather than as policy makers with an agenda.
The Roberts Court has overturned I read twenty one precedents, but it includes significant precedents, of course, the constitutional right to abortion in Roe v. Wade, race conscious admissions and higher education and the Harvard case, the power of executive agencies, and the Chevron doctrine, a forty year old precedent on
unions in the Janice case. And seventeen of those cases that they overturned were split five to four decisions, with the conservative justices on one side and the liberal justices on the other. I mean, does that tell you anything about what was going on there? Well?
Does suggest that this is a court with an agenda, That they are not calling balls and strikes, as justices like to say when they're seeking confirmation, but rather that they're pursuing a particular agenda, that they are more conservative than their four bears, and they're trying to move the
law in that direction. I should note that one of those five four decisions you mentioned actually had five justices voting to overturn president, and the Chief Justice, a very conservative justice in his own right, joining with the pree moderate to liberal justices in disagreeing that being bobbed.
Roberts recently has talked about how you know, the Roberts Court, His court overturned precedence at the lowest rate of any of the recent courts, and the New York Times study said that it was one point six per term averaged out. But does that ignore the significance or the importance of the precedents that they're overturning.
Well, it does, and it also is subject to a lot of counting. There have been many, many, many cases about abortion rights after Roe v. Wade. Do you say that Bob's only overturned Row. No, it made a whole bunch of other cases irrelevant and wrong as well when they said this or that restriction on abortion was unconstitutional. So you have to make some very arbitrary choices in
doing account like that. There are going to be some very very technical cases in admulti law that may get overturned because of new technology, and no one really knows or cares, and then they're going to be sweeping decisions about the Fourteenth Amendment about the separation of powers, and that kind of counting game blurs all of them together.
We look at the upcoming term that starts on Monday, there seem to be a few precedents that may get overturned, and one involves that nearly century old ruling called Humphrey's Executor that protects the heads of independent agencies. Justice Elena Kagan, in a dissent when the majority allowed Trump to fire for now, the last Democratic member of the FTC, said that her colleagues are quote raring to overturn Humphrey's Executor. Do you think that'll be the next precedent to go?
It will be unless they overturned something else first. Humphrey's Executor is clearly on its way out. There's a real irony here because Justices Gorsuch and Capitol have criticized lower courts for not showing in our prospect or Supreme Court president, even when that president is handed down through the shadow docket, without full briefing, without oral argument, without much of an opinion.
And here Justice Thomas, their partner, is turning around and saying that he would disrespect Supreme Court decisions even that were fully argued, fully briefed, and the result of painstaking opinions. I think the Justices need to decide whether the work of the Supreme Court is or is not entitled to great deference.
The Trump administration is asking the justices to take his challenge to birthright citizenship, and they did use the birthright citizenship clash to make it harder for federal judges to block government policies nationwide. If they take this case, does that say, yes, we're going to overturn the precedent from eighteen ninety eight that supported birthright.
Citizenship and as the president handed down by arguably the most conservative Supreme Court in the nation's history, So it would be quite remarkable to overturn that case. I think the Justices will take this simply because it's a high profile and very important matter that the President has been emphasizing. I would have trouble imagining how they could overturn it. The original opinion is based on analysis of historical uses
of terms going back hundreds of years. It's a very model of originalism, and the Trump administration's complaint is largely a political one responding to their base and their opposition to immigrants. Any serious originalist approach would affirm the plain language of the fourteenth Amendment and the decision from the nineteenth century.
In a concurring opinion in the Dodds case, which overturned Row Thomas suggested revisiting cases concerning the rights to conception, same sex intimacy, and marriage quality. And the Court is being asked to overturn the Obergefell decision, the landmark twenty fifteen decision that legalized same sex marriage nationwide in a case involving Kim Davis, the former Kentucky cleric who became famous when she was jailed for refusing to issue marriage
licenses to a gay couple on religious grounds. Do you think that same sex marriage is in jeopardy.
It certainly is in jeopardy. It's hard to know what the Court will do. The Chief Justice Roberts has been insisting that the judges look at cases on their merits and are not pursuing a political agenda. If the Court turns over a decision handed down barely a decade ago that has had this profounded impact on the nation's fabric, I think his effort to persuade people that this court is anything other than the super legislature will fail.
I mean, do you think Thomas with these statements as an outlier that the other justices are sort of cringing when they hear them.
I imagine the Chief Justice was cringing all the way through reading accounts of this, because Justice Thomas is so overtly politicizing the court. But Justice Thomas is winning a lot more cases than he's losing these days, So it would seem that a number of other justices are pretty comfortable with this approach.
So you think it's just the Chief that's uncomfortable with these sort of brazen statements from Thomas.
I think a lot of the others, first and foremost the Chief, but certainly also Justice Barrett, would rather we not be this explicit about the Court pursuing its own agenda. But Justice Thomas, I guess it's feels like he's reached the point where he sees no reason to be secret to about it. He's got a super majority, he can lose a very conservative justice and still win a case, and so he's prepared to dispense with pretemps.
And why do you say Justice Barrett in particular.
Well, she's given a couple of interviews lately in which she said that we're not at a constitutional crisis and things are working more or less ordinarily, and they sort of downplaying the importance of what's happening and seems to suggest that what we're doing is simply a technical act of judging, and Justice Thomas is saying, no, I'm not doing technical judging. I'm getting rid of the stupid stuff.
Well, we're off to a new start on Monday. We'll see whether this new term brings any more reversals of precedent. Thanks so much, David. That's Professor David Super of Georgetown Law. Last week, President Trump warned about the unproven link between women's use of thailanol during pregnancy and autism in children and advise women to tough it out.
For this reason, they are strongly recommending that women limit iler and all use during pregnancy unless medically necessary, that's, for instance, in cases of extremely high fever.
Medical experts and organizations immediately slam the remarks as irresponsible and dangerous advice not backed by science, and thailan al's manufacturers said there is no proven link between taking acidaminifin and autism. Still, the FDA has initiated the process for a labeled change to products containing a set ofminifin. Joining me is healthcare attorney Harry Nelson, a partner at leech
Tishman Nelson Hardiman. So let's start with the elephant in the room, so to speak, President Trump and of course RFK Junior's claim that there is a link between the use of thailanol during pregnancy and autism in children.
So President Trump and the FDA were citing two US studies. In both studies there was some heightened rate of autism in the population of moms who took seamnifin thailanl during pregnancy. So the FAA was rolling on these two studies. What many people are pointing out is that there was a very large Swedish study of the same issue with two point five million people participating, substantially a bigger cohort, which
found absolutely no link. So first, there's really competing data on the point, and second, there's nothing here to suggest causation that thailandal causes autism if taken by a mother and pregnancy, rather some correlation which needs to be studied further. So it's an interesting case again of a major divide about what good science looks like.
Well, also in the FDA news release itself, it said, it's important to note that while in association between a set of MINIFIT and neurological conditions has been described in many studies, a causal relationship has not been established, and there are contrary studies in the scientific literature. So why are they doing this if they're saying in their own statement that it hasn't been established.
My sense is that this president and this administration is really trying to make sure that it maintains an activist kind of footing with people who are looking for change in its base of supporters, and that this was a very aggressive style of announcement that was made before there was any kind of conclusive process here, but that this was done really as a kind of political driver, with the president wanting an opportunity to stand at the podium
and make the claim that he's doing something to protect public health and fighting back against the scientific establishment, you know, and yet another way. So that's at least my sense of why this happened the way it did.
When does the law allow the FDA to change a drug label.
So the FDA can at any point initiate an administrative process of looking at how a drug both a prescription druger and over the counter drug and tailanol interestingly is both has both forms. You know, there's a whole administrative process by which a change can be proposed, the public has a chance to comment on it, and then it's finally ordered. And then only after that process do prescription drug manufacturers like the company can view here that makes
tilanol have the right to challenge it. So there's a long process that's still ahead, and it's not unusual for the FDA to undertake that process. It's just that here the sequence of events of really that evidence, review, the decision, and a process that happening came second. Normally that process comes first. Here the political announcement came ahead of everything.
Is it normal to do this without negotiating with the company first.
I do think that it is more typical to allow prescription drug manufacturers to be part of a process and make sure that all of the evidence, all of the research is considered. So I don't know exactly how much can view, how much opportunity had. It seems clear from everything that the company is saying that it intends fully to challenge this action and to argue that the FDA
is acting without sufficient scientific justification and that process. Certainly, if there was an unquestionable issue here, the FDA normally could have started in dialogue with the company to make
sure that this action was sound. You know, the thing that worries me the most here is that TAILERML is one of the most widely used and trusted medications out there during pregnancy as well as for many other conditions, and this creates a risk of confusion of fear, and you know that's a process is not great for public health.
Yeah, I mean, there are so many stories about doctors obgyns receiving tons of calls from pregnant women who don't know what to do. They're very confused about this new allegation I guess from the FDA.
Yeah. And it's by the way, globally, we're seeing with World Health Organization and European drug regulatory systems that around the rest of the world, the message is going out that that has seen a minifit is perfectly safe for pregnant mothers. And so this is like a creating a real contrast between the public health word in the rest of the world and apparently in the United States that this goes all the way through.
And do we know how the FDA intends to change the label. Is it going to be like a tobacco warning on cigarette packs.
Well, it's a big question. Again, it's a question whether this is only going to apply to the prescription drug form or also to the over the counter form. There's a lot of generic cinematics and out there on sales, and it's not clear exactly who this is going to apply to or what the labels going to look like. That's something that will have to be resolved by the FDA as we go through the administrative process ahead.
So the drugmaker can only challenge in the administrative process after the review is complete.
Yeah, exactly. There needs to be a final order. So so first the agency has to make the final proposed action, as it's called, and then there has to be an opportunity for the public to comment, and only when the action is actually finalized and is an agency decision by the FDA. At that point, you know the issue is ripe to be challenged by the drug manufacturer.
Harry, does anyone in the healthcare community doubt that no matter what the public comments are and what the manufacturer says, that the FDA is going to go ahead to try to relabel a cineminefin.
I think it's fairly safe to say this administration has a strong grip on the FDA. No one is expecting a kind of independence or for the FDA leadership to buck the announcements, particularly after it's made by the President. So you know, and by the way, I should say that manufacturer will have initially it has a challenge in the FDA, but eventually we'll get to a federal court and be before a federal judge to make the argument that this action is arbitrary and capricious and not grounded
in solid science. So there's no question in my mind that the FDA is going to move forward here, but the question of whether this actually stands is a very big one.
Coming up next on the Bloomberg Law Show, I'll continue this conversation with healthcare attorney Harry Nelson. Can the manufacturer ignore the administrative process and go straight to court? I'm
June Grosso. When you're listening to Bloomberg, the Food and Drug Administration said it initiated the process for a labeled change to products containing a sit of minifin after President Trump's announcement last week that warned about the unproven link between women use of tail and all during pregnancy and
autism in children. Trump's announcement on the medication, which has long been recommended during pregnancy to treat pain, fever, and aches, has spurred confusion for patients and pushback from medical organizations. I've been talking to healthcare attorney Harry Nelson, a partner at Leech Tishman Nelson Hardiman. Since the manufacturer basically knows what's going to happen down the road, can they jump the administrative process and just go to court.
No, It's a fundamental principle and administrative law that you have to wait for a final action. Judges don't want to be making decisions about things that are still influx in the regulatory process. So since there has been no action taken yet by the FDA, just a warning that's going to happen, the company doesn't have great recourse. It
essentially is sort of fighting. Has to really fight this issue for the time being in the media and try to hold on to public trust, you know, fight for its stock price and build confidence, But judges do not want to be addressing this issue until the FDA has actually done something.
This is sort of wild, but could the company sue Trump and Kennedy for defamation?
The principle of sovereign immunity here limits the action. We already have the Supreme Court, by the way, broadening substantially the things that the president is immune for actions taken in executive office. But this is classically something where there's a mixed case. So it's not like President Trump acted without any scientific basis. It's just that there's evidence on
both sides of this issue. So I think it's going to be very difficult for the company to think about actually having a case against Trump or against RFK.
This is just, I mean, a chip of the iceberg. The Trump administration or RFK his department is continuing to put out information and guidance that contradicts medical organizations and scientists and state health departments on vaccines and antidepressants. Is anything being done about that?
I think you're right, by the way. A lot of how I view this is this issue is in many ways adjacent to this broader effort, whether it's around vaccines or otherwise on public health to really undermine confidence and agencies and to express more skepticism and to validate people who are already incredibly skeptical of our public health agencies. So I think a massive kind of political persuasive effort has been underway kind of underpins all of these issues
around RFK and around our public health system. I think that's an issue that's going to be decided in many ways at the ballot box and by courts, which are going to be called upon to decide what is arbitrary and frecious and when government agencies are justified. So I don't know that there's any recourse other than voting for administrations that take positions on public health and science that people support, or judges standing in.
Let's say the FDA approves the final rule and then they're sued by the manufacturer. I mean, what kind of decisions would the judges be making that this was arbitrary and capricious, or would they be making decisions about the science.
I think the fundamental issue that judges have to confront is the administrative prestide erect. That is the federal law by which all federal agencies make rules, whether it's the environmental protection agency, whether it's the Food and Drug Administration, the Center for Disease Control. So it is a decision about arbitrary and capriciousness, and whether the procedure by which the decision was made was handled in a fair way.
In that process, inherently part of figuring out what's arbitrary and capricious is assigning if the findings are supported by the evidence, and if the conclusions are supported by the finding. So I don't think it's possible for judges to completely escape, you know, having opinions about science. That's really the tricky part here is that the administration did operate on the basis of some studies. It's just that we also see contrary, much larger studies that totally contradict what they did.
And where does RFK Junior and the Health Department stand on vaccines?
At this point, the administration has moved forward on a complete policy shift on vaccine distribution, and I think like a substantial amount has already happened to cut funding, cut distribution, and change policy in a way that also is going to drive lack of coverage in the insurance industry. There are multiple lawsuits going forward. State attorneys general have brought
lawsuits to challenge vaccine policy. It's just that we have not seen any legal action yet that is really undercutting anything that the administration is doing.
And in some states, I know New York State, the governor declared that, you know, vaccines would be paid for.
Right. So there's two different levels. One is a challenge to the actions of Department Health, um Services and RFK in terms of changing vaccine recommendations and access from government programs. And the second issue is all of the commercial health plans that are affecting their changing coverage. By the way, a number of private organizations, the American Academy Pediatrics, the American Public Health Association, and a number of other groups
have also filed suit claiming the actions are unlawful. We have since nineteen eighty six, we've had the National Childhood Vaccine Injury Act. There's been the arguments made that the existing federal law preempts the actions that are being taken, and that we already have a substantial amount of process also here too under the Administrative Proceedure Act for how this has to happen. So I do think there is
going to be a reckoning with the vaccine policy. The question is how much will have already happened on the ground based on narrower eligibility, based on the ending of emergency use authorsations for COVID vaccines, and changes on all these advisory and recommendation bodies that are adjusting vaccine schedules. So there's a lot of change on the ground, but there will be a reckoning at court at some point.
Has there been another administration where there was so much change at the Health Department in such a short period of time, sort of upending the norms.
I think it's safe to say that this administration has set a new bar for activism and for lawsuits and for controversy around federal health posse. It's not like we never had these issues before. It's just that we've never seen an administration that had such an ideologically aggressive position on hostility to the pharmaceutical industry and to vaccines themselves,
and so many questions about science. It's you can go back and you can cherry pick examples from the Obama administration or from the Reagan administration where we had narrow issues come up on particular public health points. But there's never been an administration with the breadth and depth of public health changes, really significant changes that we're seeing this year.
Thanks so much, Harry. That's healthcare attorney Harry Nelson of Leech Tishman Nelson Hardiman. 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 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