This is Bloomberg Law with June Brossel from Bloomberg Radio.
Honorable the Chief Justice and the Associate Justices of the Supreme Court of the United States. Oh yay, oh yay, Oh yay.
The new Supreme Court term begins on Monday, and it promises to lead to several blockbuster decisions on the docket tariffs, voting rights, religion, transgender rights, copyright and capital punishment, and looming over it all, several tests of President Trump's attempts to expand executive power. My guest is former United States Solicitor General Gregory Garr, a partner at Latham and Watkins.
Greg let's start with one of the biggest cases of the term, where trillions of dollars in trade are at stake, as well as the extent of the president's authority away tariffs.
We could end up being a third World country.
Lower courts have ruled that Trump overstepped his authority in imposing the tariffs, but now it will be up to the Supreme Court to decide.
It's a very important decision, and frankly, if they make the wrong decision, it would be a devastation for our country. We've taken in trillions of dollars.
Greig, what are the issues here?
So this case involves a challenge brought by small businesses to President Trump's tariff policy imposing tariffs on products from
companies around the world. Importantly, in this case, the president doesn't assert inherent executive power to impose the tariffs, and said he claims that Congress granted him the power under a fifty year old statute called the International Emergency Economic Powers Act, or AEPA, and Section seventeen oh two of AEPA has a long list of things that the president can do if he declares an emergency, as President Trump did here on the basis of foreign trade deficits and
the Futonol crisis as to certain countries. So when the president declares such an emergency, Congress authorized him to do a number of things, including to quote unquote regulate the importation of goods. So this statue doesn't mention tariffs expressly. Before this year, no president in aiba's fifty year history had ever invoked it to impose tariffs, and Congress has always explicitly imposed limitations on the exercise of tariffs when
it's granted that power explicitly. But the President claims that the broad reference to regulate in this statute does authorize him to impose the tariffs. So far, he's lost that argument in each of the lower courts that has considered it, but the case is moving to the Supreme Court. And one of the signature projects of the Roberts Court has been the development of the so called major Questions doctrine, which is built on the age old principle that Congress
does not hide elephants in mouseholes. So a couple of years ago, the Supreme Court in Biden versus Nebraska held the Department of Education lacked authority to institute sweeping student loan forgiveness on the basis of a general emergency language in the Hero's Act. And before then it held in a different case that the EPA couldn't rely on a general provision of the Clean Air Act to enforce sweeping
climate change regulation. And the challengers in this case essentially argued that the same principle compels the conclusion that Ayapa's general reference to regulate can't be interpreted to authorize the President to impose what would amount to one of the biggest text increases in US history, sort of the elephant
of all elephants. Now, in response, the administration claims that the Court has never applied the major Questions doctrine to the foreign affairs context, and that in that context, the Court should presume that Congress would give the president more leeway, which is actually something that Justice Kavanaugh suggested in a
concurring opinion last year. Nevertheless, it seems hard to square the administration's position in this case with the application of the major question doctrine in other cases, particularly given that few presidential acts have had such a momentous economic sweep as the president's tariff program has. So this is a very big power he's asserting, and you know, we're all waiting to see how the Court reacts to this particular assertion.
Well, the case is the Court is going to consider this term. Do you think that this tariff's case presents the most significant test of Trump's attempts to expand presidential power.
Well, this case is different, and that again, it really just concerns the scope of the authority that Congress granted. In other cases that I think we'll talk about the question is the president's assertion of his own inherent constitutional authority. But this case, it really just boils down to a question of what Congress delegated. So I mean, even if the administration did win this case, it would still lead
to Congress the prerogative to change the law. On the other hand, the Court might hold, again, following its major questions cases that Congress simply didn't delegate this elephant to begin with.
Okay, So going on to a couple of other cases that set up tests of presidential power over federal agencies that have been independent. They involved Trump firing a member of the Federal Trade Commission, Rebecca Slaughter, and a Federal Reserve Board governor Lisa Cook, slightly different issues. So let's start with the FTC commissioner and the law there that says commissioners can only be removed for cause, right.
And this is one of the cases where the president is asserting his own inherent authority and Congress has imposed a limitation on the president's removal authority with respective heads of the Federal Trade Commission and requires the President to show cause things like malfeasance or neglect of duty or the like before he can actually remove the official. And in this case, the president removed the official Rebecca Slaughter commissioner of the FTC simply because he disagreed with her
as a matter of policy. So this case tees up a challenge to a nineteen thirty five decision called Humphrey's Executor, where the Court upheld the Congress's in position of a four cause requirement on the president's removal of commissioners of the FTC. So it's basically just a redo and a chance for the Supreme Court to reconsider it's Humphrey's Executor precedent. The administration here is arguing, first of all, that the FTC has changed a lot since the day of Humphrey's Executor.
In essence, this is not your grandfather's FTC. It's got a lot more executive authority, and so whatever constitutional basis the Court had for its decision in Humphrey's Executor, that shouldn't apply to the FTC today. The administration also argues that if the Court doesn't accept that, it should just go ahead and overrule the Humphreys Executor decision, which is something a number of the more conservative justices have expressed
a willingness to do in recent years. And the administration is also arguing that, you know, even if the president did do something wrong here, a court couldn't actually order the reinstatement of the official miss slaughter. Here the only remedy would be one for back pay, which is actually the remedy that was sought in the Humphreys executor case.
So this is a major test of executive power. And really, although the case arises in the context of firing an individual, ultimately it's about the president seeking to gain control of so called independent agencies by being able to place his own preferred heads of those agencies in place.
So the Court has been chipping away at Humphrey's Executor for a while, and Justice Elena Keigan said in one of her recent decisions that you know, they're raring to get rid of Humphrey's executor. Do you think Humphrey's executor can survive this?
You know, it sure seems like they are raring to get rid of it. And you know, I probably would put my money on the side of it not surviving. That said, I mean, it would be fairly easy for the court to say that the FDC today is much different than the FDC in Humphrey's Executor time, and so to you know, further narrow Humphrey's executor. But I do think it's the case that the justices probably have just had enough, So I think Humphrey's executors' day's maybe number.
The Court refused to let Slaughter return to her job as the litigation goes forward, and that sets it apart from the next case we'll talk about involving Trump's attempts to fire Federal Reserve Board Governor Lisa Cook. And this week the Court said that Trump can't fire Cook as the litigation is proceeding. Is that different significant?
Yeah? I think it is. I mean it's the one time among all the other officials that the President has fired that the Supreme Court has declined to grant the administration's request us to permit it to actually remove the official once and for all. And instead, what the Supreme Court did here was set the case for argument on the administration's emergency request in January. Cook's case is different.
Cook is a member of the Board of Governors of the Federal Reserve, and here the President is in claiming that he had the right to fire Cook for any reason. He claims that he had cause based on allegations that she had engaged in mortgage fraud before she became a member of the FED. So that's one way in which
the case is different than the Slaughter case. And then also the Supreme Court has indicated in prior opinions that the FED may be different and that it's what the Supreme Court called a uniquely structured in quasi private entity
with the unique history. So even if the Court is poised to overrule Humphrey's executor in the case of an FDC official, it's not at all clear that the Court is poised to reach anything like that result in the context of the FED, which I think many believe is is uniquely important in terms of its insulation from immediate presidential control.
Let's turn to a business case where Cox Communications is trying to overturn a one billion dollar verdict in a suit by the music industry.
This case involves the important copyright question of whether an Internet service provider can be held contributorily liable for its customers act of copyright infringement. So the Internet service provider allows streaming and someone at his home improperly downloads music.
The Court of Appeals held that a culpable intent to facilitate infringement could be inferred simply on the basis that the Internet service provider continued to provide services after it knew that those services were being used to commit direct infringement.
And what the challengers argued here, pointing to prior Supreme Court present in this area, is that near knowledge of an actual infringing use is insufficient to impose secondary liability on the seller of goods or services, and that instead what the copyright infringement law requires is a culpable intent to facilitate direct infringement, when that would be like evidence that the merchant urged another to infringe or actually set up a platform that lacked any significant non infringing uses
anything apart from that, The internet service provider Coxcommunication here argues it would create a substantial disincentive for the provision of universal Internet service, which could affect all of us, or at least anyone in a home or a teenager has improperly downloaded music.
Yeah, Cox Communication argued that Grandma will be thrown off the Internet because Junior visited and illegally downloaded songs. Coming up next more with Gregory gar on transgender rights, religion and voting maps. I'm June Grosso and you're listening to Bloomberg. Lindsay Heacox is a transgender woman who participated in club level running soccer at Boise State University and believes she should be able to play sports like everyone else.
I don't even think most of my teammates would even think of.
Me as trans. I just look like a regular girl.
But in twenty twenty, Idaho passed the first of its kind law barring transgender women and girls from participating on female sports teams. A federal appellate court ruled that the ban violated the Equal Protection Clause and couldn't be enforced. But now Hee Cox's case, along with that of a fifteen year old transgender girl from West Virginia, is before the Supreme Court. I've been talking to former US Solicitor
General Gregory Garr, a partner at Letham and Watkins. Greg These are two of the most closely watched cases of the term where the Court is going to decide whether states can ban transgender women and girls from competing on female athletic teams. The Ninth Circuit blocked Idaho's ban based on the Equal Protection Clause, but the Fourth Circuit blocked West Virginia's ban based on Title nine, which prohibits sex discrimination in federally funded educational programs, tell us about the issues.
Here, so it wouldn't be a Supreme Court term with that. A return to the culture wars in this case definitely presents that, and the cases from both circuits do present the different questions of the equal Protection Clause in Title nine and challenges to the validity of state laws that prohibit transgender girls and women from competing in girls and
women's sports. These are laws that I think about half of the states have, and the main legal question in the case is whether it's sex discrimination when a state mandates that only biological females can compete in female sports. Both cases involve transgender girls who want to compete on
female cross country teams. So last year, as you remember, in US versus Scrimti, the Court held that a Tennessee law banning puberty blockers and homeowned therapy for transgender miners did not engage in sex based discrimination, violating the Equal Protection Clause, and it seems likely that the courtal reach
a similar conclusion here. In fact, picking up on Justice Ginsberg's own writings, the government argues that the laws here simply take into account the physical differences between men and women, and that therefore they don't really engage in impermissible discrimination
to begin with. Now that plaintiffs sort of counter with the Supreme Court's decision in boss Stock versus Clayton County, where the Court held the discrimination based on gender or sexual identity is discrimination on the basis of sex under Title seven. But the Supreme Court distinguished and I think limited Bostoc in the Sucurmety case last year, and I think that challengers probably have a hard argument in pushing
Bostok to the Supreme Court in this case. The supporters of these laws also argue that allowing biological males to compete in women's sports would defeat the whole purpose of Title nine. So you know, this is again one of these cases that really sort of hits hard on the culture wars, and the Court I think will be following out Bonnette's decision last year in Scrematti and we'll see what it does.
And it also wouldn't be a Supreme Court term without a religious rights case. A Rastafarian wants to suit prison officials in Louisiana who forcibly shaved him bald in violation of his religious beliefs. The Court has considered a lot of cases involving the rights of Christians, but I don't know of any until now involving the rights of Rastafarians.
Yeah, and the court's been very active in the area of religion recently, and you know, generally as sided with proponents of religious liberty. The facts of this case are
really pretty extreme and outrageous. In this case is brought by a Rastafarian, Immey, who is suing a state prison official under what's called the Religious Land Use in Institutional Persons Act or our LUPA, and he claims that when he was transferred to a new prison, the prison official allegedly handcuffed him to a chair and actually shaved his head, even though he told the guard that he had taken a religious vow not to cut off his hair, which
he had honored for over a decade, and actually handed the guard a copy of a Fifth Circuit decision holding that cutting the hair of a Rastafarian inmate would violate the inmate's religious liberties, so that the inmate brought suit seeking monetary damages against the prison officials involved in this process. So under a different law, the Religious Freedom Restoration Act, the Supreme Court is held that inmates can get money
damages against federal officers who violate their religious liberties. And so the basic questions whether the same rule would apply to state officers under our LUPA the parallel statute, and it would seem like the answer would have to be yes.
But the state argues that because our LUPA was passed under Congress's spending clause power, where Congress generally attaches strings to federal funding grants, the state argues that a different rule applies because the state has never agreed to these sorts of terms to be subjected to money damages suits. And then the state also argues that if the court accepts the inmate's position, it's going to only exacerbate the shortage of people who are willing to serve as prison guards.
I'm not sure that that's going to be enough here. I mean, I think that the facts of this case in particular may weigh in the court, and the Trump administration here is actually supporting the inmate in this case, so that the state may have an uphill battle in his hands.
But we'll see the only case I can remember recently where religious rights didn't win at the Court was the case you argued in one last term on the effort to create the country's first faith based charter school. So we'll see what this term brings. Let's turn now to congressional maps, a hot topic lately. The Court is going to hear a case involving Louisiana's map that could have implications for elections dozens of congressional districts with predominantly minority populations.
And this case was already argued at the Supreme Court.
Yeah, so the case was argued in brief last term and the Court couldn't reach a decision, so they set it for reargument and consideration this term. And this case really has sort of had a long and tortuous history already. So after the twenty twenty census, Louisiana legislature, like many states, went back and redrew its congressional maps, and the new map it drew had one majority black district out of
six districts statewide. At that point, a group of black voters brought suit against the state, arguing that the plan and permissively diluted the votes of black residents in violation of Section two of the Voting Rights Act because nearly a third of the state's population is black. So the lower courts ultimately ordered the state to draw a new map, and the new map contained a second black majority district.
But this time a group of non black residents went to federal court and argued that the twenty twenty four map impermissibly took race into account in the other direction, and so it was itself invalid. So the state went to the Supreme Court, said it was between Iraq and a hard place, and asked the Court to resolve it. And as you noted, the Court was enabled to do
so last term. So it set up for reargument again and basically up the ante by asking the parties to brief the question of whether the state's intentional creation of a second majority minority district to comply with the Voting
Rights Act actually violated the equal protection clause. So now the Court is faced with the question that is sort of long beleegud at the court in voting rights cases, which is, how do you square the fact that you have to take race into account to comply with the protections of the Voting Rights Act with the fact that the Constitution Protection Class generally prohibited states from taking race into account and making important decisions, so this case could
definitely have a major effect on Section two litigation going forward. The Government, for its part, argues that Section two's results tests is unconstitutional requires the states to draw majority minority districts where race predominates, and that basically, when a planet passed to show to prevail under its view of the Voting Rights Act, as it must show that the new
district is superior under race neutral districting principles. So the Voting Rights Act is one area where we've seen some consequential decisions in the past few years, and this is a case that definitely should be followed closely.
The Court gutted part of the Voting Rights Act in the Shelby County versus Holder case in twenty thirteen, and some justices have questioned the constitutionality of race based districts. A quote the challenges used here was one from Justice Brett Kavanov. The authority to conduct race based cannot extend indefinitely into the future. Does it seem as if the Court is heading in that direction to get rid of the consideration of race in map drilling?
Well, the hesitation, reluctance, and hostility to consideration of race in a number of areas, including a permative action and the like, has definitely been one of the sort of emphasises of this court. Interestingly, the Court just a couple of years ago, in a case out of Alabama, by a five to four vote, upheld a map that was challenged out of Alabama. So it would be, you know, something of a right turn for the Court to go ahead and validate Section two of the Voting Rights Act
on constitutional grounds more broadly, and we don't know. I think, based on the fact that the Court was unable to reach a decision last term in this case, it suggests that the Justices are struggling. The fact that they've added this broader constitutional question doesn't mean that the Justices have to resolve it on that basis. I think if there's anything we can sort of speculate at this point is that the Justices are closely divided on this issue.
So the Court is going to hear another death penalty case. It hurt a couple last term. This time it's about what defendants have to show in order to prove that they're mentally disabled and thus ineligible for the death penalty.
The death penally has actually been a pretty interesting area for this court. Last term it had three death penalty cases and the death row inmate won in all three of those cases. And so this term, as you said, it's revisiting the constitutional limits on the execution of intellectually
disabled individuals. In a case called Atkins versus Virginia, the Court held at the Eighth Amendment prohibits the execution of individuals who are intellectually disabled, which has generally been defined to mean someone having an IQ of seventy or below. And so the question in this case is what are court's supposed to do when they're presented with multiple IQ scores,
one of which falls below the line. And in this case, the inmate had multiple IQ scores of seventy five, seventy four, seventy two, seventy eight, and seventy four again, and so all five of these scores were above seventy, but one of the scores, the seventy two, actually falls below the line if you accept the standard range for error, which
would put his score at sixty nine. The Court of Appeals nevertheless held that the death sentence should be set aside the inmate argues that it was right and that you could actually just look beyond the low IQ score and if you looked sort of holistically at the evidence, including testimony about the inmates intellectual disability, that it was
unconstitutional to execute him. But the state argues that the fact that there are so many scores above seventy should be in itself decisive, and that this is an area where the courts should defer to the state's judgment, at least where it's based on multiple ice Q scores about seventy. So it's an interesting question. And again, I mean, this court, you know, maybe a little bit against what some might expect, has actually been more receptive to the claims of death
row inmates. But we'll see if less terms run of successes carries over into this term.
The Court's going to be accepting more cases as the term goes along. You have the shadow dock. It's so active. But do you think that in the end this term is going to be you know, the headlines afterwards will be about the expansion or perhaps limitation of presidential power.
No question. One of the big sort of headline questions of this term will be the exercise of executive power. I mean, we have an administration that is boldly exercising executive power across the number of fronts, and those cases are now coming to the Supreme Court. So I think that it's likely that that will be one of the
headlines of this term. Whether the headline is that the President has succeeded in expanding executive power or that the Supreme Court has pushed back against assertions of executive power,
we don't know. There are a number of really important cases already on the docket, and as you indicated, there are more cases in the pipeline, in the emergency docket and otherwise, And if you go back over the last couple of terms, you know many of the most important cases are added to the Court's docket after this point in time. So this is really I'm just the tip of the iceberg.
Well, thanks for taking us through these major cases. Greg that's former US Solicitor General Gregory Garr coming up. Justice Thomas dis is precedent. I'm June Grosso and you're listening to Bloomberg.
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, and would you want to follow that just because it's a train.
Justice Clarence Thomas use that train metaphor to downplay the importance of settled law or precedent into ciding new cases. Thomas said he wouldn't follow precedent if it doesn't make sense to him.
And I don't think that any of these cases that have and decided are the gospel.
The Roberts Court has overturned precedents in at least twenty five cases since two thousand and five, including the constitutional right to abortion, race conscious college admissions, and judicial deference to federal agencies, and in the upcoming term, the Court will be considering challenges to several long standing precedents, like the ninety year old president limiting the president's ability to fire members of independent agencies, and a landmark nineteen eighty
six decision about the use of race in redistricting under the Voting Rights Act. So are Thomas's comments dissing precedent a sign of things to come. My guest is constitutional law 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 as here in 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 to 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 explain the importance of precedents in the law.
Well, Precedent is what makes the courts distinctive. Anybody can side 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 decisis, and it is supposed to be what keeps unelected judges
from acting willfully and just pursuing their personal agenda. 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 I have 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, he.
Also said, it's not the gospel, which I always thought President was the Gospel. But as you mentioned, he in a backhanded way, made fun of prior Supreme Court justices. He said, the President, if it's totally stupid and that's what they've decided, you don't go along with it just because it's decided.
Well, 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 courts that historians regard as all star courts, packed with brilliant legal minds, and to suggest that they can compared to orangutans is disappointing.
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 Clia was Justice Thomas's best friend on the court and most frequent ally, But unlike Justice Thomas, Justice Clia 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 policymakers with an agenda.
The Robert's Court has overturned around twenty five precedents, but in May, the Chief Justice talked about how the Roberts Court has overturned precedence at the lowest rate of recent courts. A New York Times study found that the Roberts Court averaged one point six reversals a term. But if you look at averages, that ignores the significance of the precedents they've overturned, doesn't it.
Well, it does, and it also is subject to a lot of counting. There have been many, many, many cases about abortion rights. After Row be weighed, 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 admiralty 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.
The president that seems to have a target on it this term is Humphrey's Executor, which protects members of independent agencies. And just as Elena Kagan, in a descent from the majority decision allowing the president to fire the last Democratic member of the FTC, her colleagues are quote raring to overturn Humphrey's Executor. Do you think that will 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 an up respect for Supreme Court president, even when that precedent 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 opinion. I think the Justice need to decide whether the work of the Supreme Court is or is not entitled to great deference.
President Trump is asking the Justices to take his appeal concerning his executive ordered to end birthright citizenship. If the Justices take that 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. Any aerious originalist approach would affirm the plain language of the fourteenth Amendment and the decision from the nineteenth century.
In a concurringinion in the Dobbs case, Thomas urged his colleagues to reconsider all of the Court's substantive due process precedence and explicitly called on the Court to overturn the decisions that established the right to obtain contraception, the right to same sex intimacy, and the right to same sex marriage.
And now the Court is being asked to overturn the Obergerfeld decision, which legalized same sex marriage in a case involving Kim Davis, the former Kentucky clerk who refused to give a marriage license to a same sex couple because of her religious beliefs. 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. 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 for 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 a 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. But I think, 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, is still he's reached the point where he sees no reason to be secretive about it. He's got a super majority, he can lose a very conservative justice and still win a case. And though he's prepared to dispense with pretense, 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, and we'll see if any precedents are overturned this term. Thanks so much, David. That's Professor David Super of Georgetown Law. 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 pop. 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