Live from the Supreme Court: Week One

versus Booking dot Com. Chief Justice John Roberts started the session as usual by announcing the case, but then rolled out a new format, calling on the jostices by Seniority in an orderly fashion, unlike the usual free for all. Justice Brier the same question of Justice Thomas's question, good morning anyway, There are just a few glitches. Justice Stephen Brier's audio at one point was garbled, and Justice Sonia Sotomayor seemed to to get her mute button was on.

Justice Soda Mayor, Yese Soda Mayor, I'm sorry, Chief ms Ross picking up on where you were right now. The one surprise, Justice Clarence Thomas asked a question for the first time in more than a year, Justice Thomas, Yes, Ms Ross. The couple of questions, Um, the could booking uh acquire an eight hundred number? For that's a vanity number, one eight hundred booking for example. Uh, that is similar to for one eight hundred plumbing, which is a registered mark.

Even though the Chief trying to keep the questioning on time, Thank you, thank you, Miss Black. Justice Ginsburg, the argument ran fifteen minutes past the normal hour long session. Joining now is Bloomberg, Supreme Court Reporter Greg Store, how would you rate the first live oral arguments? Well, it went pretty smoothly. Wasn't like the usual oral arguments in the courtroom. But for what it was, there weren't any major glitches. Justices were all able to be heard, They could hear

the lawyers. And you know, we had a couple of moments where, for example, Justice and you said, of myr seemed to have the new button on. So when Chief just As Roberts turned to her for her turn to ask questions, she wasn't there. And that happened with one of the lawyers as well. And then there were a couple of minutes where very hard to hear Justice Brier.

The audio was just bad. But that only lasted a few seconds, and then he must have walked to another part of the room or something and we were able to hear him. But for the most part it went relatively smoothly. And when Chief Justice Roberts said, Justice Thomas, we heard a question from Justice Thomas, we did. That was the first time we've heard Justice Thomas in an argument in more than a year. In fact, that one

point went ten years without asking a question. He has said that he said various things, but among the things he has it is I don't like the way the arguments go. We asked too many questions. We don't let the lawyer get an answer out. He really doesn't seem to like the free for all nature of most Supreme Court arguments. Well, this was not a free for all argument. It was much more structured, and perhaps he felt much

more comfortable with the format. I think it's also the case, though, that it would have been striking for him not to ask a question. This was a very structured affair where John Roberts went from the most senior justice down to the most junior justice. Everybody had their turn, everybody had their three or four minutes, and it would have been very notable if the one and only justice who didn't

take advantage of that opportunity was Clarence Thomas. And so in some ways maybe this was actually the path of least resistance form a person who hasn't heard or seen oral arguments before. Was this a fair representation for them

or are they missing a lot? In some ways, it was because it highlighted how some Supreme Court arguments are actually pretty dry and technical, and the justices actually do get into the weeds about federal statutes and a hundred year old precedent, and they're not all the attention grabbing abortion and gun rights cases. On the other hand, you didn't have the kind of running narrative that you usually

have in a Supreme Court argument. He did to some degree, but you really didn't have justices jumping in and saying, hey, you didn't do a very good job of answering that other justices question, or say, jumping in and trying to help out a lawyer who was floundering a little bit. You didn't have that, And because each justice got two minutes to ask questions, it meant that chief had more of a role of cutting off the lawyers and moving

them along which he doesn't usually do. Yeah, he usually has to do that only maybe at the end of the argument when a lawyer is running out of time. But even then, when they're in the courtroom, there's a like system, a visual system that the lawyers have where they see a yellow light when they're running out of time and a red light when they're out of time. He or it was up to Chief Justice Roberts not only to tell the lawyer at the end, your time

is expiring. You need to wrap up, but also to make sure that none of the answers went so long that other justices would lose their questioning time. As it was, the argument went longer than it was supposed to supposed to be sixty minutes, it win seventy five minutes. And part of that was it was actually difficult for John Roberts to have to cut in over and over and over again to interrupt the lawyers so that another justice

could ask questions and the argument could move alone. Gregg looking forward when the justices returned to the bench, will they be pressure to continue the live streaming. I'm sure there will be public pressure, But part of the question is when is this going to happen? There's no guarantee that when new term starts in October, that these many of them elderly justices are going to be able to go back into a courtroom and here arguments like usual.

So this may last for a while. From the court standpoint, no doubt. Part of it will depend on what happens with these arguments and the line long ago. Thanks Gregg, that's Bloomberg New Supreme Court reporter Greg Store coming up next on Bloomberg law that justices appeared divided over religious exemptions. The fractious debate over the contraceptive mandate in Obamacare returned to the Supreme Court on Wednesday, and the Justices seemed

as divided as ever. The issue was the Trump administration's broad expansion of the types of employers who can opt out of the Obamacare requirement that they offer free birth control coverage in their healthcare plans. Chief Justice John Roberts, the possible pivotal vote, suggested that the Trump exemption might sweep too broadly and seemed frustrated that neither side wanted

to work the problem out well. The problem is that neither side in this debate wants the accommodation to work the one side doesn't want it to work because they want to say the mandate is required, and the other side doesn't want it to work because they want to uh impose the mandate? Uh? Is it really the case that there is no way to resolve those differences? Justice Ruth Vader Ginsburg, who called in from Johns Hopkins Hospital, where she was being treated for a gallbladder condition, said

the exemption would come at a cost to women. At the end of the day, the government is throwing into the wind the women's entitlement to seamless no cost to them. It is requiring those women to pay for contraceptive services. But Justice Brett Kavanaugh seemed to suggest the exemption was an appropriate balance. Why isn't that the way to look at the case? And if we get down to the

bottom line of is this reasonable? Not maybe everyone's preferred choice, but at least within the bounds of reasonable, why isn't this a reasonable way to balance it? Joining me? Is Richard Garnett, a professor at Notre Dame Law School, explain the issue here? The real issue, the real issue in this case is probably not what a lot of people

think it is. It's got a bunch of layer. So the issue here is whether the administrative agency in question, HHS has the authority to create the accommodation that it created. So that tells us what the issue is not. The issue is not whether the Constitution requires this accommodation. It's not whether the Religious Freedom Restoration Act requires this accommodation. It's really a question of administrative law. Did the agency create this accommodation in the correct way? And was it

acting within its authority when it did. During the oral arguments, I thought that some of the justices seemed to be talking about or trying to relitigate questions that I don't really think are the ones that are presented. So you know, this case isn't supposed to be about whether the contraception coverage mandate is a good idea or whether the hobby

Lobby case was correctly decided. What happened here is that a federal agency determined to change its own rules, and then some states decided that because I didn't like that change in the rules, they were going to say that the agencies lacks the power to change them. And I suspect that the Court is not going to agree with

that claim. And then you have some other additional fun kind of law geek technical questions like does a federal district court have the power to issue a nationwide injunction on a policy or does it have the power only to issue an injunction within its jurisdiction? And do states have what's called standing to challenge changes to federal regulations simply because they predict that those changes will result in

some cost to them. So from a law professor or you know, law geeks perspective, is all kinds of things swirling around in this case, But it's not really about whether or not one believes that the contraception coverage mandate is a good idea. Some of the justices seem to be talking to a broader audience perhaps, and to Justice Ruth Bader Ginsburg kept coming back to the costs of exams gens to women, saying that this would be tossing to the winds. Congress is intent that women have seamless

and no cost coverage. Yes, she used the tossing to the wind image I think three different times, so that might be a good example of what I'm talking about. I mean, it's clear that Justice Kinsburgh thinks that the change in regulations that the HHS adopted are are bad policy. But you know, the question of what Congress's intent was

is I think a little more complicated. I mean, after all, the Affordable Care Act itself didn't contain a contraception coverage mandate that was created by the administrative agencies that have now decided to recraft the accommodation insense. The agency is changing it's its own rules. That's not going against what Congress actually said. And there have been exemptions from the coverage mandate from the very beginning that it's it's never

been a blanket requirement. There have always been employers who are exempted. It's been a balancing act. So I think the claim that these latest regulations are a dramatic departure from what Congress did is difficult to maintain. The better complaint, it seems to me, is this kind of administrative law complaint that the agency crafted these new accommodations in a way that sort of might not have followed the strict requirements for notice and comment and outside consultation and so on.

But at the same time, there's plenty of precedent which states that so long as the agency does get that input at some point it's permissible. I think you're exactly right to pick up on the fact that Justice Ginsberg was speaking to a larger audience about the broader policy question. But I don't really think that broader policy question is the legal question that's before the Court in this particular case.

Let me ask you something that's a broader policy question, because according to the States, the Trump exemption allows more publicly traded companies and large universities to get the exemption, and also expands it to include not just religious but

moral reasons. You know, the Court had already ruled in the Hobby Lobby case several years ago that the Religious Freedom Restoration Act required an exemption for a publicly traded corporation, so it is theoretically possible, although as the lawyers pointed out in this case, it's not particularly likely that a large publicly traded corporations could try to invoke this exemption.

That is, they're not categorically ruled out, but they would have to assert a sincere religious or moral objection to providing the coverage in question. And I don't think we have much evidence that there's a whole lot of publicly traded, large corporations that are lining up to do that. On the opposite side of Justice Ruth Bader Ginsburg, we had Justice Alito, who wrote the Hobby Lobby case. What were some of the points that he was trying to make well.

I think Justice Alito's main point to be that the Religious Freedom Restoration Act, as the Court had already held, requires religious accommodations in some cases, and that what had been here with this accommodation was not that the agency had decided that it was required, but that it's permissible. And I think in Justice Alito's view, it's consistent with longstanding American traditions to try to accommodate religious objections when one can, and the Religious Freedom Restoration Act kind of

an expression of that policy. And I think he believes that this rule is as well, and that, you know, since it complies with the relevant administrative law principles that the States are on. Pretty I think he would say weak ground in trying to insist that somehow the accommodation is impermissible. It might well be bad policy, but the issue here is whether the agency is authorized to make

this change. I took Justice Aldo's point to be that not only is the agency authorized to make this change, but that the change, in his view, is consistent with the policy of accommodation. That's the Religious Rate Restoration Actents. Next on Bloomberg Lawford Decide, I've been talking to Professor Richard Garnett, have noted Dame Law School about the Supreme Court's arguments over the Trump administration's expansion of the religious

exemption to the Obamacare contraceptive mandate. Several of the justices seemed dismayed that the parties couldn't work the problem out themselves. Here's Justice Stephen Bryer. The point of the religious clauses is to try to work out accommodations because they can be some of the most difficult to resolve disputes, and they can substitute a kind of hostility for harmony. So from that point of view, I really repeat, there's anything you want to add the Chief Justice's question, I don't

understand why this can't be worked out. So we have the Chief who some people will look at as a middle ground here, perhaps a deciding vote in these kinds of cases. And right off the bat he questioned whether the Trump exemption might sweep too broadly, and then later on in the argument, Justice Elena Kagan re asked that question. Yeah, I think both of them wanted to have that issue kind of out in the conversation. That is, had the you know, in its effort to accommodate, had the agency

kind of gone bigger than it needed to. But I guess my own read, which certainly could be wrong, is that once that's the discussion, then the accommodation is going to be upheld, because you're still talking about the broad range of discretion that agencies have within which to move. So, you know, whether or not has a policy matter. A particular justice might think that this accommodation is broader than

the Religious Freedom Act would require. That's perfectly consistent with saying, but the agency has the authority to do it if it wants. That was kind of how I read it. And you know, even Justices Kagan and Brier and I'm not suggesting that they're gonna side with the Little Sisters.

I wouldn't predict that so much, but I took them in a similar way to be acknowledging that this is a case really about the power of administrative agencies to act within the broad describe shi that Congress has given them. And it seems to me that once that's the terrain that the justices are arguing about, that that points in the direction of of a win for the Little Sisters in this particular case. Well, Justice Brier said, can't you work it out? And isn't that what the Supreme Court

asked them to do? The Yeah, in the zoo Bic case. You know, if you remember, it was right after Justice Scalia passed away and the Court was down to eight people, and rather than issue a four four opinion that kind of really cut to the heart of the matter, they put together a kind of an to nothing ruling that didn't really do much but basically said, go fix this.

And I think the litigation position of the government, the federal government and of the Little Sisters is that, well, that's what we did after the zoo Bic case, said go work it out. We did, and the way we worked it out was with these new regulations which provide a pretty generous accommodation for those companies, those employers who

have objections to this. And this litigation has been going on now for close to a decade and this is an for on our part too to kind of put this litigation to a to a halt and to move on, recognizing that very few employers have actually tried to invoke it, and that you know, for the vast majority of employers the contception coverage mandates not a problem. But that's a new broad accommodation means that a lot of the litigation, which has occupied so much time of court, can kind

of be put to rest. So I guess that's that's what the federal government would say in this case. We we did what the court told us to do. In the Zoobic opinion. Obviously, there's always a range of options. The decision can even either be very narrow or very broad. Tell us what some of the options are. I don't think there really are any sort of sweeping broad outcomes

that are on the table. This isn't a case where the courts being asked to create a new constitutional right or to reverse the precedent having to do with religious freedom and so on. I think from the perspective of the Little Sisters and of the national government, really all they're asking is for the Court to reaffirm that agencies, when they're acting within the scope of the authority that

Congress has given them, have a wide range of discretion. Again, the issue here is not whether the religious freedom restoration that requires this particular accommodation, but whether it permits it. And I think it's likely that it does. Some of the arguments against the accommodation, if they were accepted, would

be a pretty big deal. So there's the arguments that made that the First Amendments established from clause does not permit governments to accommodate religion if those accommodations would impose any substantial costs on third parties, and law professors like me and others argue about that position, but I don't believe that's the laws that stands, And I think if if a majority of the Court were to adopt that, that would pretty interesting change. But I don't think that's

going to happen. So my own view is that there's certainly a lot of interest in this case. It's been bouncing up and down a long time in the Supreme Court and has kind of culture war dimensions and so on that as a legal matter, regardless of which side wins,

it's likely to be on relatively narrow, relatively technical grounds. Now, there are some really intriguing possibilities the Court could change the rules about standing, for example, whether state governments have standing to sue for reasons like the ones the states have invoked here. There's an interesting question, like I said earlier, about the power of federal courts to issue injunctions that

cover the whole country. Get A lot of academics and others have been thinking a lot about this, But in terms of the religious freedom dimension, this case doesn't really hold out the prospect of any sweeping changes or innovation. Thanks rich That's Richard Garnett of Notre Dame Law School coming up next on Bloomberg Law, robot calls and toilet flushes. At the Supreme Court arguments, everyone seems to agree that

no one likes robocalls. Chief Justice John Roberts expressed that sentiment during a case on Wednesday in which political groups are challenging the exemption to the ban on robo calls that allows the collection of government debt. And it's an extremely popular law. Nobody wants to get robocalls on their cell phone. The idea that Congress would embrace that result simply to save this government debt collection, Uh, they'd have to be very anxious to be more unpopular, uh than

they otherwise would be. The court almost made it through four live oral arguments by phone without a major mishap, but towards the end of these arguments there was the unmistakable sound of a toilet flushing live. But the FEC has said is that when the subject matter of the fault ranges the topic, then the call is transformed. But the justices completely ignored the distraction and went on with

the arguments. Joining me to talk about the substance of this case under the Telephone Consumer Protection Act or t c p A is Christine Riley, a partner Manette, Phelps and Phillips. So Christine tell us about the main issue in the case. And the interesting issue about this particular argument is it is about the t c p A and it is about a specific exemption, but there are

far broader implications of this particular case. So going back to the first question, we're really looking at a very specific exemption that was created by Congress in two thousand fifteen, and specifically, there was an exemption put into the t c p A that would allow calls made to cell phones if they concerned federal debt collection, and that was carved right into the automated calling the restrictions. The question that came up from a political group a a PC

was basically asking why is that fair? Why is it fair to have this exemption that is in favor of the federal government debt collection, and that's the exclusion of other types of call such as, for example, political calls. If political agencies or organizations want to make calls, they need special consent under the u c p A if they're using some type of automated system. So the question in front of the Supremes was is that government debt

collection exemption constitutional? Is it a violation of the First Amendment free speech? And if the answer to that question is yes, it is unconstitutional, is the remedy then to basically just cut that piece out of the statute and

go back to the status quo. The broadom implication, of course, is an argument being made by the political consultant here who say that even if you find this particular exemption is unconstitutional, the remedy that they're asking for is that the Supreme Court get rid of the entire provision on automated calling, rather than just cutting out the part that's bad. And that's really where the fight is. Give us a feel of what the justices seem to be concerned about.

There definitely seems to be a pretty prominent concern on this particular exemption and whether or not it's what we'd consider to be content based, meaning are you making some restriction on free speech based on the content of that message?

And there are lots of questions that get to that particular issue, and that's going to be a problem for the government because they're going to get in this situation where if the Supreme Court is going to say that the standards going to be one about strict scrutiny and content, there is a good chance of the Supreme Court is going to hold that that is fun constitutional, and that's really going to be something that then leads itself to

the second and bigger question on sever ability. Well, this Court is known for broad views of the First Amendment. So did any of the justices talk about sever ability? I think almost every single judge, if not every judge, did ask about that particular question. You know. I think Justice Alito really put a nice spin on it when he came out and said I find the severability question fascinating, and Justice Kavanaugh came and said, this case, you know,

really is about severability. It's about leveling up or leveling down on speech. Justice gor Vitch that said, well, why

can't we just go back to the status quo? Lots of justices were noting that the t c p A is an extremely popular statute, and Chief Justice Roberts noted that in particular, extremely popular statute, and they wondered why a statute that's been on the book for over twenty years where there has not been this challenge that goes to the heart of the t c p A. And the question they're asking and grappling with is why not

just cut it? If there really is a problem on it being a content based distinction and that it's not in conformity with the Constitution, why is the remedy not to just cut it out? And I think that's really where the the biggest fight seems to be leaning from the justices. Well, there are a lot of controversial cases before the court, and this case isn't that well known. But you can bet that if the justices allowed robo calls, now, that would be one thing that consumers across the country

would be really upset about. Absolutely. And you know, I've always said that this case no matter who you are, what work you do, and as a lawyers say, whatever side of the vur on, there is a general distaste for having unwanted, unexpected calls to your cell phones. And I think that theme really resonated with the justices. Many of them were making comments like, no one wants to get robo calls on their cell phones, and that's from

the Chief Justice, so don't. Mayor made a whole number of comments about how she doesn't like scam robo calls. These are issues that everyone can relate to, and I think that's really going to pose an issue with this particular Supreme Court and deciding whether they take the nuclear option of just cutting the guts and the heart out of the t c p A. Because you have a statue on the book that is extremely popular. It is the source of many private class action litigations across the country.

Consumers rely on it, and the really big debate here is are you going to get rid of a statute that, for many people in the country is something that they feel is very important to their privacy considerations. And that's really going to be a tough pill for the Supreme Court to swallow the idea of just undoing this portion of the t c p A that has been in

existence for decades now. So how do you think the court would be able to get around the obvious First Amendment concerns with the A. I think that it's going to be difficult for this court to get out of the First Amendment is us. There is certainly an appeal to the idea that by making a special exception for the federal government and debt collection, that you are somehow

judging the content of those calls. And there is an appeal to the idea of why should that be, Why should the federal government get a special exception for their own debt? What about other commercial actors or even state governments that have collection of debt concerns and want to make outreach. I think it's going to be difficult for them to look at that question and find that that it's not on constitutional or another way of saying it is.

I think it's going to be difficult for them to not rule that it is in its violation of First Amendment unless they come up with a different way of addressing the issue, either or not signing a different standard, or as justice of a mayor noted there was also this idea of maybe we should remand it back to the Fourth Circuit as looking at some alternatives that the

Fourth Circuit didn't look at. So if they want to punt on the constitutional issue, there are ways to do that, and one is to throw it back to the Fourth Circuit and say, look at another issue and try again, tell us a little bit more about what the Fourth Circuit decided here. So the Fourth Circuit, just like the Ninth Circuit, has decided that this particular exception for federal

debt collection is unconstitutions it's content based. There's no reason why the federal government should be able to get a special exemption that other parties don't get to have. That's it a violation of free speech. But both of these circuits have looked at the same question of what the remedies and they both have said the same thing. Just sever out the bad part and leave the rest. And that's really, I think what the Supreme Court justices are

looking at. Chief Justice noted that not only is it a popular statute, but isn't the the obvious solution here just to cut it? But why can't we just go back to the status quo? That's really where I think we likely end up coming to and where this case really gets decided. The political consultants say that they want to take surveys and things, how would you do that

by robocall? So where this question becomes an issue for the political consultants is they want the ability to make political calls, surveys, or even just delivery of messages to your cell phones by using certain automated means, including prerecorded voice messages and what we call autodials messages. And the reason they want to do that is because it's far more efficient to be able to reach a larger number

of people by using some automation. The problem that they're running into is the ccp A has certain restrictions on when you can contact folks by phone, And unlike popular beliefs, it is not the case that it's just about marketing calls. That's actually in correct. There are restrictions on informational or political calls made to cellphone. If you want to use an autodialer to make a political message to a cell phone, you need to have what we call prior express consent.

In other words, you need to have gotten that phone number from someone and they need to have voluntarily provided it to you within the scope of why you're calling. That's what they're upset about. They don't want to have to comply with that. They just want to be able to make calls anyway they want without having to worry about the ccp A. Thanks Christine, that's Christine Riley, a partner Manette Phelps and Phillips. 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 Brasso. This is Bloomberg