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Welcome to a special Holiday edition of the Bloomberg Law Show. I'm June Grosso. Ahead in this hour, we'll take a look back at some crucial Supreme Court arguments this term. The justices considered regulations on ghost guns just months after all landmark decision on bump stocks. Will also look at a unique death penalty appeal where the state of Oklahoma
is siding with the death row inmate. But first, the liberal city of San Francisco found itself in an unusual position at the Supreme Court, taking on the Environmental Protection Agency over sewage discharge into the Pacific Ocean. With a ten billion dollar fine on the line. The city's attorney, Tara Steely, argued that the regulations were too vague.
They might as well have said, do not violate the Clean Water Act. It doesn't tell us anything.
But the liberal justice is pushed back on San Francisco's arguments. Here are Justices Elena Kagan and Sonya So to Mayor.
It's prescribing that you have to meet water quality standards, Like, how more clearly could you meet this statutory language than that? What they're asking you is to become responsible doing what's necessary.
The ideological divide was apparent, with conservative justices expressing concerns about the fairness of the city facing billions in fines without knowing what its obligations are under a vague permit. Just as Brett Cavanaugh challenged the EPA's attorney, Frederick lew.
You're suing San Francisco separately for a lot of money based on a standard that they had no idea. You know, that's the theory. That's the theory in your position, your position would allow that. I don't, yes, it will. I mean the base I complaint is exhibit A for what you said is not going to be true.
And Chief Justice John Roberts pointed out that Congress had updated the law to address the kind of concerns that San Francisco was raising about a lack of clarity.
The battle days is when we had water quality standards, right, people didn't know what they were supposed to do, how it was going to be allocated, sort of a problem of the commons, and they put in the permit system. And I think the danger here is that you're going back to the other system.
Joining me is former US Solicitor General Gregory garr, a partner at Latham and Watkins. Great tell us about the city's argument here.
So, the City of San Francisco is concerned about the lack of fair notice that they have in terms of how to comply with the Clean Water Act as to the sewage discharge that's going into the Pacific Ocean. And their argument is that the Clean Water Act obligates the EPA to set specific effluent limitations on the amount of
pollutants coming out of pink sources. Discharges like the pipes going into the ocean, and that instead, what the EPA has done here is just issued these vague water quality standards. You have to be sure that the water is a particular color where the sewage is coming out, or you know, NEETs other criteria. And the city's argument is that, well, they don't know how to meet those criteria, there's other
sources coming in, who's responsible for what? And you know, all this is against the backtop of a suit brought by the EPA in which they're seeking, according to the city, literally ten billion dollars in penalties. So the city feels as though they lacked the fair notice that they were entitled to under the Act up front in terms of what discharges could go into the ocean.
Did it seem like the three liberal justices were pushing back on the city's argument.
Definitely. Justice Kagan, Justice Sodamor, and Justice Jackson all leaned in hard against the city on their arguments, and they
took a number of different tacks. Most importantly, I think they really wanted to focus the city on the text of the Act and put the city on its heels in terms of identifying a provision of the Act that stripped EPA of the authority to issue these sorts of broader water quality standards and justice Jackson in particular went into the language in the Act which says that the EPA could adopt quote any more stringent limitations end quote, and argued that, you know, the city was wrong in
saying that the limitations were limited to effluent limitations coming out. The justices also had hard questions for the cities about the environmental impact potential environmental impacts of the city's position, which at times got pretty gross in terms of talking about floating toilet paper and the like. But the city definitely based a tough crowd from the more liberal end.
Of the court, and the EPA's attorney faced a tough crowd from the more conservative justices. Tell us about his argument.
So his argument was that number one, that the statute did confer this more broader authority on EPA, and that it could be exercise in particular instances more limited circumstances, and that here he claimed that the problem really was one of San Francisco's own creation, and that he claimed that EPA had asked for specific data from the city about its discharges and the like, and the city never provided it, and so according to the EPA attorney, they
had no choice but to issue these more general water quality standards. And you know, really one of the more interesting dynamics of this oral argument is this was the City of San Francisco, one of the more progressive jurisdictions in the country, facing off against the Biden administration EPA, and it was clear that there was no love loss between them, at least as to this particular issue.
Yeah.
Well, this is a case where the city's Board of supervisors voted eight to two to urge the city officials to resolve the suit quickly, there being a concern that a Supreme Court ruling in the city's favor could have sweeping implications for curtailing water pollution definitely.
And it's unclear how far the court would go even if it ruled for the city in this case. You know, there were justices sort of probing more narrow rulings, and I think even if the court ruled in favor of the city, it probably would you try to limit the
reach of its ruling. But you know, the basic question on the table is whether ETA has the authority to issue these broader water quality standards, which is something that is the Chief Justice pointed out during the oral argument that you know, this is what the prior regime did. It issued these general water quality standards instead of specific
discharge limitations. And in his view, and this is what the city argued, that the Clean Water Act was actually enacted in part to replace that regime with one which gave the dischargers more notice upfront in terms of the specific limitations that were permissible.
And did it seem just as the liberals were taking issue with the City, that the Conservatives were taking issue with the EPA.
Well, there was a group of them. There was the Chief Justice, Justice Kavanaugh. Justice Gorsich pushed back the hardest, I think, and the main concern on that sort of unified them was the lack of fair notice to the
city and other dischargers in this situation. Where As I mentioned earlier, you know, potentially these jurisdictions are on the hook for significant penalties in this case, you know, literally billions of dollars according to the city, and they don't know exactly, the city argues, and the Conservatives sort of picked up on how to comply with the Clean Water Act in this instance, particularly where there are multiple discharges going into the same place, and who's responsible for what
in terms of figuring out whether or not the water quality standard is met. But there was some uncertainty, at least in terms of where the other justices were. Justice Barrett, who actually joined the more liberal justices in an environmental case last term, Ohio versus EPA, you know, didn't join the stronger attack by the other conservative justices and seemed to be probing a narrower angle and dealing with these
challenges under the arbitrary and capricious doctrine. Justice Solito picked up a little bit on the government's argument that in this case, the problem was that San Francisco hadn't provided adequate data to the EPA, leaving it with the predicament that it had to issue these more general standards, and Justice Thomas definitely had some tough questions for the city,
although his position was a little bit less clear. So, you know, San Francisco coming out of the argument, I think should feel good about its position, but it's not over yet.
Are other cities in the same position as San Francisco have the same problems.
So I think that the use of general Walader quality
standards is definitely not the norm. But one thing that came up during the oral argument in response to questioning from Justice Kavanaugh was that there was many amikas brief file friends of the Court, from businesses, municipalities, and the like who had serious concerns and reservations and problems with the EPA's approach here, and you know, talked about the dangers and lack of fair notice with this sort of more general water quality standard regime, and that was something
that resonated with Justice Kavanaugh at least and probably some of the other justices as well.
This is the first case to grapple with federal agency power since lopeer Bright was decided last June. That's the case that overturned Chevron deference. So you didn't hear much about Chevron deference in these oral arguments.
No, not a word. EPA certainly didn't ask for it, and you know, it was clear that this is going to come down to what Congress actually said in the statute and the Court's best interpretation of that, which, of course is the way it works after Wiperbright, and really the way has worked at the Supreme Court for many years, even before Loperbright.
Do you think that we're just not going to hear about chevron defference in future arguments at all, or about that concept.
We're definitely not going to hear about chevron difference. I think the more interesting question is will we hear about other time types of difference, so called get more difference? You know, how aggressive will the government be in trying to claim some type of difference in other cases and try to push back a little bit? And I think that that'll be an interesting trend to follow on the court this term and beyond.
The EPA has faced a string of losses at the Supreme Court in recent years, for example, with the court curbing its ability to reduce greenhouse gases and to protect wetlands. Does it seem like in some respect it's going to lose in this case as well, whether it's broad or limited.
I don't think that that's a certainty at this point. I mean, one of the other questions that came up during the oral argument was whether or not there were some flaws with this case, and maybe the court just
not decided altogether. But you know, I think you're going to feel better about youural argument coming out of it if you're san Francisco an EPA, and I think you know EPA and the government more generally has been behind the eight ball and these administrative challenge cases, and you know, EPA sort of finds itself in a particularly difficult positions when you combined aggressive enforcement of its environmental priorities with broader statutory provisions, which is the area where the Supreme
Court has been particularly adamant in demanding the the agency point to more specific authority in the statute for what it's doing.
Thanks so much for coming on again, Greg and sharing those insights with us. That's former US Solicitor General Gregory Garr of Latham and Watkins. Coming up next on this special holiday edition of the Bloomberg Law Show, the justices grapple with whether ghost guns meet the federal definition of a firearm. I'm June Grasso. When you're listening to.
Bloomberg, this is Bloomberg Law with June Grosso from Bloomberg Radio.
Thanks for joining us for a special holiday edition of the Bloomberg Law Show. I'm June Grosso. We're looking at some high profile Supreme Court arguments from this term. Still ahead, we'll dive into an unusual death penalty case that finds the State of Oklahoma siding with a defendant on death row.
But first these guns were being purchased and used in crime. They were sold to be crime guns. There was a one thousand percent increase between twenty seventeen and twenty twenty one in the number of these guns that were recovered as part of criminal investigations. And it makes perfect sense because the whole reason why you would want to get your hands on one of these unseerialized, untraceable firearms is if you are a prohibited person or you want to use that gun in a crime.
Solicitor General Elizabeth Prelager argued that the Supreme Court should uphold the Biden administration's regulation of ghost guns, nearly untraceable firearms that can be assembled at home in as little as twenty minutes.
Those untraceable guns are attractive to people who can't lawfully purchase them or who plan to use them in crimes. As a result, our nation has seen an explosion in crimes committed with ghost guns.
During oral arguments, the Justice is grappled with the question of whether ghost guns meet the definition of firearms under the Federal Gun Control Act that would allow the government to regulate them. The analogies were plentiful. Justice Samuel Alito, who seemed skeptical of the government's argument, compared the gun kits to cooking ingredients.
There I show you I put out on a counter some eggs, some chopped up ham, some chopped up pepper, and onions.
Is that a Western ovelet?
No, because again those items have well known other uses to become something other than an omelet. The key difference here is that these up and parts kits are designed and intended to be used as instruments of combat, and they have no other conceivable use.
But Justice Amy Coney Barrett jumped in comparing gun kits to meal kits.
No pre lager.
I just want to follow up on Justice Alito's question about the omelet. Would your answer change if you ordered it from Hello Fresh and you've got a kit and it was like turkey chili, but all of the ingredient answer in the kit.
Yes.
The best analogies seemed to be if you buy a bed from Ikea that you have to assemble, is it still a bed? Joining me? Is Kevin Tobia, a professor at Georgetown Law, Many people might expect that this is a second Amendment case since it concerns guns, but tell us what the question before the court was.
Here, So it's not a second in the case. It's a statutory case. So it concerns the Gun Control Act of nine sixty eight. And there's two questions in the case, and so both of them involve the meaning of different language in this statute. So the question in some ways is kind of simple, right before you get to like all the kind of complexity that they were working through, which is what counts as a firearm for this law.
And so these gun parts kits, they're marketed and sold as kits that you can buy and assemble and construct into a functional firearm. So, you know, a lot of the conversation was drawing analogies to different sorts of goods, playing kind of with language and trying to understand, you know, what counts as an omelet or what counts as a table.
Right.
So Justice A. Leado offered this example kind of possible to the government's position that if we just have you know, peppers and mushrooms and eggs, that's not an omelet yet. So in the same way, like a collection of gun parts is not a firearm yet, And just as Barrett actually sort of responded as said, well, what if those come in a Hello Fresh kit, we actually might understand that as an omelet, even though it's not completely assembled yet. And you know, the example of Nikia table came up
as well. Some of the argument got into the technicalities of like what exactly is included in these parts kits? What's a frame and receiver? More broadly, a lot of the justices were drawing these analogies to other sorts of items that were pretty comfortable to call tables even though they're assembled or onless, even though they're unassembled.
The ghost gun kits don't come with fully assembled frames or receivers the core component of a firearm, so a kit might require the purchaser to drill some hole so that pins can be inserted. The challengers, the gun manufacturers and gun right supporters, argue that's what puts the kits outside the law, But their attorney, Peter Patterson, faced a tough audience, especially from the Chief Justice, who didn't seem to be buying that argument.
What is the purpose of selling a receiver without the holes drilled in it?
Well, there are some individuals, and just like some individuals enjoy like working on their car every weekend. Some individuals want to construct their own firearms. So the purpose of selling it is to allow I'm trying to go his to assist and provide individuals with material which which they can do that.
Well. I mean, drilling whole or two I would think doesn't give the same sort of reward that you get from working on your car on the weekends.
Yeah, so I thought that line of questioning from Justice Roberts was really interesting. I think, especially if you're trying to read the tea leaves and sort of think about where some of these justices will vote, and I think Roberts is a kind of important one in this case. He asked straight up, like, what's the purpose of selling
a receiver without the holes drilled in it? And you know, one answer from Patterson is, you know, people buy this as a hobbyist, right in the same way you might buy like a collection of unassembled parts to make it like a little toy ship or model or something, or working on a car and you enjoy it. And Justice Roberts really did not seem to be buying that answer, right. He said, you know, drilling a whole or two doesn't really give you the kind of reward you get from
working on your car over the weekend. And I think he's exactly right there. Right, So, like when you look at how these guns are marketed as well, these parts kits are not marketed for hobbyists, Like they're not described by language like this is a really leisurely, enjoyable, difficult build, right, They're marketed in terms like this is extremely fast and easy, this is ridiculously easy, like this is dummy proof, like
you can do this really fast with no expertise. And so I think that analogy that Patterson was trying to draw between buyers of these kids and cobbyists just really fell apart. And I think there's a great question from Justice Roberts and also give some insight into where he might stand on this case.
Is anyone arguing that this isn't a kit to assemble a gun? What I'm getting at is, are they just looking for a loophole here?
Yeah, So I think everyone agrees that these are kits to be assembled into a gun. Vanderstock's argument is just because of a kid that you could assemble into a gun does not in fact make it a firearm. Within the meaning of the statute, and the government sees the statutory meeting a firearm to include these kits. You know, interesting thing that came out to your question is there was some discussion, a lot of discussion actually about kind
of where to draw the line. And I think even Patterson conceded that a firearm that's disassembled as a firearm, and so this question about like how close does it have to be? And so you know, the government's argument is, you know, once it's readily convertible, which these kids they think are, that's good enough. And so the term fire arms should encompass these kits which could be readily converted to function as firearms very quickly.
Justice Gorsuch asked questions of a textualist nature. Where do you think a textualist analysis gets you here?
So there's two questions in the case, right. So the first one is about whether a parts kit falls under the Part A of this statute. So any weapon which will is designed to or may readily be converted to expel a projectile by the action explosive. As a matter of textualism, I think that question in this case is extremely straightforward, that these parts kits fall under that language. Just as part of the ordinary meaning of firearm. And
then you're underscored by the statutory language. The statute explicitly contemplates things that could be readily converted to expel a projectile, which just seems to be explicitly describing things like these parts kits. And in question, the second question in the case is about the meaning of the frame or receiver of any such weapon in the statue, and many of Justice Gorsuch's questions had to do with that second question.
So there the question is, if these companies sell an eighty percent receiver, which, as the government says, you have to drill a few holes in to convert this to a one hundred percent functional receiver, does that count as a frame or receiver within the meaning of the statute?
And so you know, Justice Gorsuch was asking a number of kind of interesting questions about that, and going in I would not have kind of, as a matter of politics, expected Justice Gorsage to be favorable to the government in this case, but his questions sort of suggested some openness to following the text in this case to a place that might not lead to the sort of conservative politics. So he was asking, you know, when you look at
this statue and look at the context. Every other part of the statute is contemplating convertible parts in addition to fully functional parts, and so in that context, might we understand frame and receiver just giving them their ordinary meaning in that context to also include things that are extremely close to functional and frame and receivers. I thought it was a really interesting kind of exchange between Gorsuch and the Swisser General from that point, So, the.
Solicitor General mentioned several times the explosion in crimes committed using ghost guns and that the new regulations are crucial for solving gun crimes. And also you had a group of twenty major cities filing with the Supreme Court saying that the regulation appears to have been effective reducing the use of ghost guns. Where does that fit into the Supreme Court's analysis, especially if it's a textualist analysis.
That's interesting if you think about textualism sort of as stated, with the idea that the court will resolve this question just by looking at the statutory text and giving that language the meaning it would have in the eyes of an ordinary reader, you might think those conserations about the practical consequences are irrelevant, Like, that's exactly the sort of political consequential decisions that they're trying to screen off with textualism.
So what's interesting is if that's right, looks like actually a majority of the justices are inclined to read the text in line with the government. That would be the three Democratic appointees and then potentially Roberts, Kavanaugh, Barrett Gorsich. I think Roberts in particular was responsive to some of the government's arguments about the practical consequences kind of over
and above the text. So, currently, federal law prohibits selling firearms to twenty one year olds, It requires backgrounds, check, serialization, all these requirements, and if the court decides that these kits are not firearms, those requirements will not apply at
the federal level. And so there's a real concern right that, again, if people who are buying these kits are not hobbyists but rather people who just want a firearm, there's a real circumvention concern that basically all of the law that would apply to firearm regulation effectively is meaningless because someone could just get the ghost gun and build their own kit in twenty minutes or however long it takes, and so, you know, some of Robert's questions, I think we're very
much kind of responsive to that set of concerns and the principle that if you read the statute in that way, the way Vnderstock wants it to, you'll render a big chunk of federal law meaningless. And so Congress was really underscoring.
Just a few months ago, the Supreme Court, in a six to three decision, tossed out a ban on bump stocks. That Cargol case was also a statutory interpretation case. Does that case have implications for this Vounderstock case?
That case it actually concerned a different firearm statue, So it concerns the definition of machine gun. Wherever you come out on Garland versus Cargo, whether it's sort of easy or difficult case textually, the case that they heard dander Stock as a matter of language is like just much
more straightforward, you know. I think it's reassuring actually that the Court's oral argument, many of the questions, especially from Barrett and Roberts and course such in Kavandah, really seem to recognize that fact these gun part kits are firearms in ordinary English. And then the statute explicitly talks about weapons that could be readily converted to expel a projectile, which you know also really underscores that these sort of kits are included, and the context indicates the same with
the frame of receivers. And so for this oral argument, I think if you think the court is primarily a political actor, you see the bump stock case, you think this is going to come out the same way. Six y three after the oral argument, I've got a little more hope that the Court's going to follow the text, although time will tell.
Thanks Kevin. That's Georgetown Law professor Kevin Tobia. I note Michael Bloomberg, the founder majority owners of Bloomberg LP, the parent company of Bloomberg Radio, is a donor to groups that support gun control, including Every Town for Gun Safety. You're listening to a special holiday edition of the Bloomberg Law Show. Up next a death penalty case that finds the State of Oklahoma siding with a defendant on death row. Remember you can always at the latest legal news by
listening to our Bloomberg Law podcast. You can find them on Apple Podcasts, Spotify, and at Bloomberg dot com Slash podcast Slash Law. I'm June Grosso and you're listening to Bloomberg.
This is Bloomberg Law with June Grosso from Bloomberg Radio.
This is a.
Special holiday edition of the Bloomberg Law Show. I'm June Grosso. We're looking at some import and Supreme Court case. Is this term?
Attorney General Drummond did not confess error here lightly. Indeed, he continues to defend multiple capital convictions and opposed mister Glossop's pen ultimate sert petition, But after commissioning an independent review, he reluctantly reached the conclusion that Brady and Napu violations by the state's own prosecutors obligated him to confess error and waive procedural obstacles.
It's a very unusual death penalty case where the State of Oklahoma is coming before the Supreme Court on the same side as a defendant on death row, arguing that Richard Glossop's nineteen ninety seven murder conviction and capital sentence
should be undone due to prosecutorial misconduct. Former US Solicitor General Paul Clement argued for the Oklahoma ag gentner Drummond, who had made an extraordinary concession known as a confession of error admitted that the prosecutor in the case withheld evidence from the defense and elicited false testimony from the
state's star witness at trial. The prosecutor's handwritten notes, which were unearthed in twenty twenty two, revealed that the state's star witness had been diagnosed with bipolar disorder and was being treated by a psychiatrist with lithium. Several of the justices seem to be divided about how important that evidence would have been to the jury. Here are Chief Justice John Roberts and Justice is Elena Kagan and Brett Kavanaugh.
Because the jury knew about the lithium, and what they didn't know is that it was prescribed by a psychiatrist, do you really think it would make that much of a difference to the jury.
That seems pretty material to me. I mean, it's just your one witness has been exposed as a liar.
Would have made the conviction more likely if the jury knows that not only does he have an incentive to lie, that he's lied on the stand in that he's bipolar, therefore creating all sorts of avenues for questioning his credibility.
Gossip has faced nine execution dates and eaten his last meal three times. In is more than twenty five years on death row. Joining me is Cliff Sloan, a professor at Georgetown Law who's argued several cases at the Supreme Court, including a victory in a case involving the death penalty. Tell us about the evidence the Oklahoma ag found a few years ago about the state star witness who testified against Glossop in exchange for not getting the death penalty himself.
So what was discovered was very important prosecutorial notes establishing that the main witness, and really the only witness tying Gossop to the murder, had a bipolar disorder and had received lithium under a prescription from a psychiatrist. And this was directly contrary to this witness's testimony at the trial where he said he had received lithium for a cold, and he flatly said he had never seen a psychiatrist, And right there in the notes of the prosecutor or
notes establishing that it was from a psychiatrist. And also there was separately a medical record establishing that the psychiatrist had prescribed the lithium for the bipolar disorder. This would have been extremely important to the jury both in its consideration of guilt or innocence and in his consideration of the death penalty. Because the witness was really the entire case against mister Glossop. It's undisputed mister Glossops had no
role in the actual killing of the victim himself. The theory of the state was that he hired this other man, Sneed to do the killing, and so Sneed's testimony was the only thing that linked Glossop to the killing.
What's so unusual in this case is that Oklahoma's age is arguing along with Glossop that his murder conviction should be set aside.
The Republican Attorney General of Oklahoma, who generally is very much in favor of the death penalty, has really acted in the finest traditions of justice here because he commissioned an independent investigation which concluded that mister Glossop's conviction and his death penalty cannot stand because of this false testimony and because of the failure to turn over important evidence to the defense, which is a constitutional violation, and so he concluded in good conscience he had to stand up
and say that the conviction should be set aside and the death penalty should be set aside. And there also was another independent investigation commissioned by the Republican state legislator which reached the same conclusion. But what is really striking here is that the Oklahoma Court flatly rejected the very considered decision of the Oklahoma Attorney General that there needs to be a new trial and that the death sentence cannot stand.
And at the oral arguments, a lot of time was spent on the procedural question whether the state court's decision rested on independent state grounds, in which case the Supreme Court couldn't review the case. Something Justice Samuel Alito kept pressing.
Well, you know, that's the issue that's presented about whether there's a threshold procedural problem that is based in state law and that would prevent the Supreme Court from reaching the federal constitutional issues. So it's an important threshold issue. But you had other justices very much emphasizing that they don't think that is a serious problem. That they think it's clear that the Oklahoma Court rested its decision on
an erroneous analysis of the federal constitutional claims. That the state procedural reference was wrapped up in that, and you even had Justice Kagan asking a question where she suggested that the reference to the state procedural issue was simply because the Oklahoma Court was throwing in the entire kitchen sink, and so it was just mixed up with a lot
of other things. It had no independent basis. And you also had a number of the justices, including Justices Kagan, so the mayor and Jackson emphasizing that this supposed independent rule that the Oklahoma Court was enforcing had never been enforced in this kind of context in any case other than one involving Richard Colossa, which added to their view. But this is something that was a makewight that Oklahoma was just throwing in and is not a bar to Supreme Court review.
So Glossop has a claim of a Brady violation where the prosecutor didn't turn over evidence, and also a NAPU violation where the prosecutor presented false testimony and didn't correct it at trial. Here's Justice Kagan on that a.
Napoo violation is a pretty dramatic thing when a prosecutor says, leg, we'll stop there, that was a lie under NAPO.
A prosecutor, of course cannot put on perjured testimony, and if the prosecutor learns that the testimony has been perjured, the prosecutor has to corrected or notified the defense about it and hear. What the independent investigations have found is that the prosecutor put out perjured testimony, never corrected it to the contrary, took efforts to protect it. That's a very very serious constitutional violation. It goes to the heart
of what the criminal justice system should be about. And you know, some of the justices were very much bothered by this violation and seemed to think that it's open and shut. Other justices seemed more skeptical about whether it was as clear a violation and also how significant it would have been, you know, in terms of materiality, which is important for NAPO, and whether it would have made
a difference or not. So I think there's clearly a split among the justices both about the procedure and the substance in terms of how they're viewing it.
It's always hard to read through oral arguments what's going to happen, and particularly in this case where a lot of the justices said very little, Do you have any idea of what the lineup might be from these arguments, well.
You know, with the usual important caveat that is very difficult to predict. Here's what I took away from the argument. And by the way, Justice course it was not participating, but it as from the argument that Justice Alito and Justice Thomas were very hostile to glossop claims into the position of the Oklahoma Attorney General and very skeptical of it. It seems that Justices Soda, Mayor, Kagan, and Jackson were very sympathetic to the positions of Glossop and the Oklahoma
Attorney General. And so that leaves Chief Justice Roberts, Justice Kavanaugh, and Justice Barrett. And I think it was difficult to tell from the questions exactly where those three are, and I think that you know, that's going to be the ballgame where those three justices are.
There did seem to be some support for a sort of middle position remanding the case back to the State Court for an evidentiary hearing.
A couple of the justices were suggesting that perhaps what should happen is that it should be sent back for additional facts finding about exactly what happened and how important it was. Some of the Justices were very explicitly saying that they didn't think that was necessary in light of the record and how clear the violations were.
The Supreme Court rarely grants relief in death penalty cases. Tell us about the Roberts Court's history in this area.
Well, I think that the way in general that the current Supreme Court is approaching death penalty cases is very, very troubling. It's very very difficult for capital defendants. The Court is creating all sorts of new procedural obstacles, and it's also as a general matter, being very unsympathetic to claims of capital defendants. Now that's not you know, one
hundred percent of the time. There have been, you know, a few cases in recent years where the Court has rules for capital defendants, but overwhelmingly, the Court is dramatically tilting the playing field in favor of the death penalty. And you know, the class of case really illustrates three of the most troubling characteristics of the death penalty in the United States today. One of them is the prevalence of cases of innocence and exoneration of people on death row.
There have been two hundred people on death row who have been found to be innocent and who have been exonerated, a truly shocking and alarming fact. The second problem that it highlights is misconduct by prosecutors. In seventy percent of the cases where there has been found to be innocence of people on death row, there has been misconduct by prosecutors exactly this kind of thing, putting on false testimony,
not correcting it, not turning over very important evidence. And the third, very disturbing problem is when courts don't accept prosecutors' conclusions that a conviction and a death penalty cannot stand. That happened recently in the execution of Marcellus Williams, and we're seeing it in the Glossop case.
And in Glossop's case, he can only afford to lose three votes because with eight justices hearing the case, a four to four vote would affirm the Oklahoma courts ruling against him. Thanks so much for being on the show. That's Professor Cliff Sloan of Georgetown Law, and that does it for this special holiday edition of The Bloomberg Law Show. I'm June Brosso. Stay with us. Today's top stories and global business headlines are coming up right now.