Supreme Court's Seismic 2022 Docket

and I agree on. Though President Joe Biden and former President Donald Trump may agree on the need for vaccines, it will be the Supreme Court that decides whether to allow two federal vaccine mandates to take effect nationwide in the first argued cases of a year that will be consequential at the Court, with cases involving a range of controversial social issues, from abortion and climate change to gun rights in religion. Joining me is Bloomberg Law. Supreme Court

reporter Kimberly Strawbridge Robinson Kimberly. David Cole, the National Legal director of the American Civil Liberties Union, told you that this is going to be the most important term in decade. Explain why, Well, even with the cases that the justices have already heard in this is going to be a blockbuster term. So I'm thinking about cases on abortion, gun rights, and religious freedom. These are all cases that have already been argued, many of which are waiting an opinion in

two and would really set the term apart. From really what's been a series of blockbuster terms. But the justices do have a small window to add new cases to that explosive docket. We've already recently seen them as the vaccine mandates, which is the first thing they're going to

tackle when they return to the courtroom in January. But there are a lot of other cases are on schedule to meet this mid January cut off to add new cases to the term, and many of those really show how the courts cases are increasingly intersecting with some of the biggest social debates and a really stealing questions about the Court's legitimacy. The Court is fast tracking, I do

mean fast two cases on Biden's vaccine mandates. The two cases are going to be the first thing the justices tackle on January seven, and as you said, they are

really two separate mandates. One involved the Occupational Safety and Health Administrations Mandate more frequently known as OSHA, and the question there is whether OSHA has the authority to adopt the so called shot or tests mandate for certain large employers, or whether it really overstepped is congressional mandate to develop standards that you know typically are tended to ensure safe and healthy workplaces, you know, think of things like falls,

or hazardous materials or dangerous machines. Now OSHA has been asked by the Biden administration to expand that to the vaccine mandates. And then the second challenge is one involving the Centers for Medicare and Medicaid Services or CMS. We always have to have a bunch of alphabet soup in these cases, and these applied to health care facilities that

accepted these federal funds. And it's really the same issue there whether or not CMS went too far in adopting these sweeping rules, and whether or not Congress have to say more before they can and act such a mandate like this. So I looked at the calendar. You know, usually the court has arguments on Monday, Tuesday, Wednesday, and I saw that this was on a Friday. That's so unusual,

isn't it. It is really unusual, And I think to understand why it's scheduled on a Friday, we have to talk a little bit about what's called the shadow docket or the courts emergency docket. This procedure is really a kind of special way for the justices to consider things that come up outside of the normal course of its regular decision making process. But think of things like a month law breaking arguments and then a really considered opinion

that could go for dozens of pages. Instead, in these shadow doctor cases, we tend to get a one sentence ruling, you know, very expedited, and you know that's at particular process caught a lot of criticism after the Court required the Biden administration to keep a Trump era immigration policy in place, and then that's six weeks Abortion Man out

of Texas as the Court allowed to go forward. And so even though we've seen some pushback from the justices about that criticism, they have taken the extraordinary step of taking, you know, these vaccine cases, that Texas case, off of the shadow docket, setting them in an argument more in line with how they traditionally do things. And that's why we see such a rapid schedule for these vaccine cases. So the environment comes into focus on February twenty in

three cases. They're all from the DC Circuit Court, that's right, And these cases concerning the environment are really similar to these vaccine mandate cases, and that they go to the ability of administrative agencies past sweeping rules that could potentially cost US us as billions of dollars. And it really shows the overt court's interest in administrative laws. And before listeners start to tune out, you know, it can be a very technical area of the law, but they have

enormous impact. And so here the Justice will consider whether the e p A has the authority to regulate greenhouse gas emissions from coal plants and an attempts to really rein in climate change. And you know the fact that the Justices took this case is concerning for those who want really broad and sweeping reactions to climate change because

they didn't have to take it. This is one of those cases where this particular program that cleaned power plant is not in effect, and so the Biden administrations but just hold on, let us figure out what we're going to do with it. But of course that didn't happen, suggesting that you know, there may be support on the Court for saying the administration has just gone too far.

And you know, this is really an area where Congress has at another case the Court didn't have to take also involves a Trump administration rule on the public charge doctrine. The Biden administration and the challengers agree to dismiss the case. So it's a little confusing as to why the court decided to take the case. It is confusing, and you know, again, this is one of those cases where it seems like the justices are reaching out to decide this case when

they really don't have to. The rule it issue here requires the government to consider whether a non citizen is going to pull on public benefits when considering whether to grant them release, like admission into the country. And you know, like the Clean Power Plan is not a rule that's an effect right now. But the question here is for the justices a procedural one. Again. You know, we see them tackling so many of these really big issue cases

on procedural grounds rather than on the merits. And it's whether or not these gop led states can really pick up where the Biden administration left off and go ahead and defend the legality of this rule, as the Biden administration says it no longer wants to do at federal court. Several of these cases seemed to be sort of caught between two administrations. The Biden administration is also asking the court to consider whether it has to continue the Trump

remained in Mexico policy. Yeah, we have really seen over the last five years, given that there's such a break between the Obama, Trump and Biden administrations, this issue of changing administrations really cropping up in the Supreme Court. So in the past, there will be maybe a handful of cases where this would happen, where a new administration would come in and just say we're going to take a

whole new approach to this particular law. But by and large, administrations have continued to have kind of the same general interests and that's just not the case today. And it will be really interesting to see when the next administration takes over. Is this a trend that's going to continue or is it something unique to Trump and to Biden. Coming up, I'll continue this conversation with Kimberly Strawbridge Robinson and we'll talk about some controversial cases that could make

the docket. The House committee investigating the January sixth attack on the Capitol is considering the involvement of former President Donald Trump and wants documents from the Trump White House being held by the National Archives. Here are the committee chairman Benny Thompson and Vice chair Liz Cheney, the White House knew exactly what was happening here at the Capitol. We are getting a clearer picture of what happened, who was involved, and who paid for it, and where the

money went. And now Trump is using an interview Thompson gave to the Washington Post to try to get the Supreme Court to block the National Archives from turning over his documents. I've been talking to Bloomberg Law Supreme Court reporter Kimberly Strawbridge Robinson. So, Kimberly, this is one of the cases the Court could put on its argument calendar for. So this was a recent it that came to the

Court just in the past week. And it's really the first time that the Court has been asked to consider the legal ramifications of that January six attack on the Capitol, and it deals with the House Select committees attempt to get documents from the White House involving then President Trump's

actions on that day. Now, it's important to note that there was a similar battle listeners may remember over documents that recently reached the Court, the battle over President trump tax returns, and they're the Streme quote said that, you know, Chris should really stay out of these disputes, that the political branches, Congress and the President have been able to work these disputes out in the past, and you know

it should be hands off for the judiciary. Of course, the twist here is that this involves the Biden administration agreeing with Congress to turn over certain documents by waiving executive privilege for documents that came up under a different administration. And so we're gonna see if that make a difference for the Court and whether or not they say that Congress and the American people really have a great interest in these cases that they should go ahead and be

turned over. But importantly, as you mentioned, the Justices have not agreed yet to take up this case. The House has asked the Justices to expedite this case so that they can hear at this term. And I think what's really behind that is that you know, the House is working on this informal deadline of the midterm elections, because of course, a GOP takeover of the House could undo

the whole commission. And on Wednesday, Trump's lawyers filed a supplemental brief asking the Justices to look at Thompson's statements that the committee was considering making a criminal referral against Trump, arguing that it's outside the committee's purpose. Another case the court is being asked to take, and this is unusual in there was a landmark ruling about the sovereignty of Indian tribes and now Oklahoma is asking the justices to

reverse that ruling they just handed down. That's exactly right, dude, And I think that's why this is one of those cases that court watchers are really keeping an eye off. As you mentioned, this case was a very recent case that came down five to four in favor of the tribe, and Oklahoma is now citing what it does is chaos following the ruling, and the state has asked the court

outright just the over rule that brand new case. And it's a pretty significant ask given that, you know, the state really made the same arguments in the first case, but they didn't win the day. And I think the

ruling flipping the decision the other way. It's really cannot be seen by many as an example of how the court is really just another political actor and they're not deciding these cases based on the law, but instead, you know, based on their personal preferences, and that really anything is up for grabs based on the makeup of the Court at that time. So I will be watching how the

Justice is response to that. You know, we know if this for the first time they were hearing the case, it's likely that it would come down five to four the other way. But are they going to consider the potential questions about their legitimacy when deciding that the only thing that's really changed is Justice Sammy Coney Barrett being

on the court, that's right. And so that's why I think this is, like many indicates on the court stocket, one of those cases that it's going to have implications beyond just the merits, but really implications for the way that the Court of operates and it's legitimacy going forward. There are a pair of challenges involving affirmative action programs at Harvard College and the University of North Carolina. The schools wanted trial. Will the Court want to add more

controversy to its donket by taking these cases? If we're just looking at what the justices have said in the past, this does seem like a case that a majority of the Court would like to take on and would like to say something about affirmative action and maybe pull it

back a little bit again. You know, as we've been talking about this whole time, this is just such a blockbuster case that the Justices might want to wait on that case until they can kind of get the lay of the landscape after these bombshell rulings come down on the flip side. You know, if they're already doing all these other things and it seems like they're going to have implications for the midterm elections, why not just go ahead and all and lets the American electorate, you know,

go from there. But I don't really have a sense of which way that's playing on the justices. But for sure affirmative action is going to be a strategic grant for the justices. But which way strategically it goes, I don't now. One thing that is sure is you're going to be very busy this year. Thanks so much, Kimberly.

That's Bloomberg Law. Supreme Court reporter Kimberly Strawbridge Robinson. Former President Donald Trump's too eldest children have been subpoenaed by the New York Attorney General, who is investigating whether Trump's real estate business manipulated the value of key assets for

tax and insurance purposes. Ivanka Trump and Donald Trump Jr. Filed a joint motion in New York State Court to block the subpoenas, accusing New York Attorney General Letitia James of making an unconstitutional attempt to get testimony from the family members while they still face a separate criminal investigation. Joining me as former federal prosecutor Michael Zelden, Michael tell

us a little bit about the age's investigation. So, beginning in two thousand and nineteen, the Attorney General of the State of New York has had a civil inquiry focused on whether the Trump organization fraudulently inflated the value of its assets to secure bank loans while at the same time understating them when he had to pay taxes on the same property. So her office now has this investigation about whether this dual valuation is part of a civil

fraudulent scheme to deny New York. It's a tax revenue. Why has it taken so long? It seems like something like that. You know, you need the papers involved, and then you could do the calculations. Well, if you have the papers and if you have the testimony of witnesses to explain to you what those papers represent, then this case could have moved quicker. But the Trump organization has not cooperated. They've fought every subpoena and every effort to

obtain the information to make the evaluation. And therefore we now are in year two of this case. So do you know why she's subpoenaing Don Junior and Ivanka Trump. Well, Don Junior and Ivanka Trump have been executives in the

Trump organised nation. When Donald Trump became president in the United States, he turned over the business to his two children, his three children, actually Eric as well, and each of them therefore has knowledge of the company's operations and how they valued things, and therefore their testimony is relevant to the Attorney general's determination of whether or not this was a fraud or this was appropriate business conduct. So now they already deposed Eric Trump in October. There are reason

why he was deposed first or subpoenaed first. I don't know. Eric has had a large role in the operation of these companies, and uh, it may just simply be that he was the first one that they wanted to speak to. But I don't know why they chose the do they chose? I know, though, that they believe that all three of them have relevant testimony to answer the question of whether this was a fraud or whether this was not a fraud. The Trump's Don Junior Ivanka are asking a New York

State judge to block the subpoenas. What are their grounds for doing that? What they say is that Miss James, who is conducting a civil investigation, is improperly trying to sidestep the grand jury process that would apply in a criminal case. Meaning in a criminal case, if you brought either Trump into the grand jury to take their testimony under New York law, they would be immunized from prosecution

for their testimony, not so in a civil case. And so what they're arguing is that really what she's trying to do is making an in run around the limits that the criminal investigators have because she's working with the Manhattan District Attorney's Office, who has a parallel criminal test agation.

So what they're saying is essentially she's trying to with bad motive bypass the restrictions of criminal investigations in order to get the information through the civil process, which he then will turn over to the Manhattan District Attorney's office and they will use it with the criminal prosecution. So do they have a point? If there's a criminal investigation going on, wouldn't they be foolish to testify in a civil deposition? Well, yes, possibly, depending on what they have

to say. But in orders them to prevail in this case, what they'll have to do is prove that she is in fact abusing the civil process to gather evidence for a criminal case. They'll have to have a basis to prove the truth of that proposition, not just the bold statement of their belief that this is the case. Because the Supreme Court, in a case called US versus Cordell, has held that evidence obtained through civil discovery can be

used in a parallel criminal prosecution. There is there's notion of parallel proceedings in the law where things which used to be only civil or administrative are now both civil and administrative and also criminal. And so the screaming Court was asked to figure out whether or not this is appropriate, and the Court held in Cordell and followed up with other cases where they basically said, parallel proceedings are okay.

You just have to make sure that things are done properly, and you have to measure the full sort of civil discovery rights and civil discovery, the rule is full disclosure. Everyone gets to know what everyone else is doing, no surprises. In criminal it's much more restrictive. And so the course that as long as you're not, you know, making this improper end around, it's perfectly normal, uh for this to occur.

So they have to prove that it's it's an end around, and then they have to figure out what they want to do if they have these subpoenas, and they can simply say, you know what, we're a ticket the Amendment because this may jeopardize us in the criminal case, and that's they're they're right, but they can't necessarily bring it to a complete close. Do you know if Eric Trump for his subpoena as well, do you know if he

used the same grounds. I don't know that he specifically argued the end around theory that we've been discussing, but he too fought the subpoena. Usually they fight these things on them being overbroad and unnecessary. But in the end he lost his case. And I think that in the end, Ivanka and Donald Jr. Should lose their case. Not because I have a political mode for saying should, but they should on the basis of the law that governs parallel

proceedings and due process. Courts have generally ruled in parallel suits that there isn't a due process violation and they don't apply double jeopard um, but they do sometimes allow for various remedies, such as a stay in the civil proceeding or protective order in the civil proceeding until the

completion of the criminal case. So the Trumps may say to the court, look, court, please stay the civil action until the completion of the criminal action, and that might be in a winning argument for them, or the court might say, no, these things can run in parallel to one another. We'll just make sure that the evidence is used properly as it is supposed to be used in the civil versus a criminal case. And if they were

witnesses before the grand jury, they would get transactional immunity. Correct. That's their big argument. They're saying, Look, if you want to hear from us about this, bring us into the grand jury, give us immunity and we'll talk. But you can't force us to talk in the civil case and then use that evidence against us in a criminal case.

The Spreme court has said you can, um, but with you know, qualifications to make sure that there isn't a improper process that's in place, um, some subch refuge that the government is using to obtain evidence that they couldn't otherwise properly obtain. So they attached to their papers tweets that the New York A g Letitia James has made in public statements to support their claim that she's operating

in a dual role. Here is that convincing at all? No, because she is permitted to engage in a dual participate in the dual process. What they're arguing, in some sense is her motives are impure, that this case is a political witch hunt, and therefore it should be brought to a those So I think that they're really impugning her, you know, sort of integrity, her intentions in this case more than they are saying that you can't do these

things side by side. But they're saying she's They call her all sorts of names, corrupt, attorney general and the like because they say that this is all a witch hunt, phrases that we've heard them use in other contexts. And former President Trump had sued her last month along the same lines exactly. Trump is trying to bring it in to these this litigation by saying, essentially, this is a political witch hunt, and um, it should be called to an end, and courts, I think are going to be

very reluctant to do that. To impune the the integrity of the government in such a way as to cause the case to be brought to a end is I think a very unlikely outcome. Yeah, So that's the question I have because you know, as you talk about former President Trump trying to delay other cases, for example, to delay the January six Committee from getting his records. The aim there is to delay it until the mid terms, when likely the House will be turned over the Republicans

and the investigation will be terminated. But here there's there's nothing like that. Any Attorney General New York is going to continue this investigation. So how do the delay tactics really help him in the end. They don't, and they shouldn't. But that's still his method of operation. When anyone accuses him in a in a legal case, what he does is delay and fight back by attacking the integrity of the lawyers who are for the government agency that's bringing

the case. This is just his standard method of operation. So he doesn't you're exactly right that in New York, because we saw this already in the Manhattan District Attorney's office. Cyrus Vans, who started this investigation, has left office. He has there's a successor ahead of the Manhattan District Attorney's office, right, and uh, that person is proceeding with the case without

missing a beat. If Miss James, who was going to run for governor but now no longer is if she had one for governor, then her successor would pick up this case and they would just move it right along. So this is not like you're exactly right. This is not like the Hill where he is trying to delay that in the hopes that the Republicans take over the House and kill the investigation. That's a very different endgame here. There is no endgame that this will be able to

run out the clock. It's just this is what he does. And it remind us he already to look the subpoena for records from his accountants to the Supreme Court. Remind us what happened there. He lost. He loses, essentially, he loses all of these cases, all of these arguments that he makes it the government is not entiled to this or this is this is a case born of political bad faith. But this is a witch hunt. All of those cases for his tax records and the like, he

loses because they're not based in solid legal reasoning. They're based in, you know, sort of wishful political outcome based thinking. And so that's why I say, in this case, the law favors Miss James being able to proceed, but the court could entertain various protective styled orders to ensure that the Trump's are not penalized for sitting for the old deposition in their criminal case. Thanks for being on the show, Michael. That's former federal prosecutor Michael Selden and that's if in

the edition of the Bloomberg Law Show. Remember you can always get the latest legal news by listening to our Bloomberg Law podcast. You can find them on Apple Podcasts, Spotify, and at www dot Bloomberg dot com, slash podcast Slash Law. I'm Judie Bronso when you're listening to Bloomberg