This is Bloomberg Law with June Brusso 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. All persons having business before the Honorable the Supreme Court of the United States are admonished to give their attention for the Court is now sitting.
The Supreme Court's new term begins on Monday, as always, the first Monday in October, but unlike other terms, the justices are returning to the bench under a cloud of ethics controversies and with public opinion of the Court at a historic low. According to a Gallup pole released today, just forty one percent of Americans say they approve of how the Court is handling its job, while fifty eight
percent disapprove. And the Justices will be diving back into the culture wars, tackling controversial issues involving gun rights, voting rights, agency power, and social media. My guest is Gregory gar former Solicitor General of the United States and now a partner at Latham and Watkins. It's great to have you here. Greg.
Let's start our now annual review of the term with one of the most watched and perhaps consequential cases the first gun rights dispute the justices have taken up since the landmark decision last year establishing a constitutional right to carry a handgun in public. Tell Us about United States versus.
Raheemi, another big Second Amendment case and an opportunity for the Court to revisit the historical approach to adopted a couple of years ago in the Bruin case involving a New York law that restricted the right to carry firearms outside of the home. And this case involves a challenge to a restraining order that prevents a domestic violence abuser
from possessing handguns under federal law. And what's interesting about this case is beginning with the Heller decision ten years or so ago, where they recognized the individual right to pair of firearms in the home. The Court had always focused on the rights of what it called in Heller law abiding responsible citizens to possess and carry firearms. In this case, the challenger was convicted of domestic abuse after striking his girlfriend and doing other terrible things, and then
was prohibited under federal law from possession of firearm. And he's bringing a second Amendment challenge to that, which, if he's successful, would un all likelihood call into question a number of other firearm restrictions that apply to dangerous people were potentially even mentally ill people.
The Fifth Circuit said that while Rehimi was hardly a model citizen, he was entitled to Second Amendment protections.
And he looked at it through the lens of the courts. His historical analysis established a couple of years ago, which requires the courts to go back and line up the firearms restriction against historical laws going back to the eighteenth century. And oftentimes in these cases there's really no perfect analog given the way in which guns and restrictions has evolved
over time. And so, you know, one of the questions at the heart of the case is perhaps the court will give us some more guidance on how to apply that historical analysis. And in this case, the government has strenuously argued that this sort of restriction really is in line with historical restrictions prohibiting those who are deemed to
be dangerous from possessing guns. But that's really the numb of its due before the court is a historical argument about whether this restriction is analogous to eighteenth century restrictions on gun possession or not.
And here you have this listener general saying, well, there are some colonial and early state laws that allowed disarming dangerous individuals, and Raheemi's lawyers saying that none of those laws applied. They seem to want a law exactly on point this historical analysis. In this context, where weapons are so different and times are so different, the courts have really struggled with it, haven't they.
Yeah, they have, And we've seen a lot of cases in the wake of the Brewin decision a couple of years ago, cases challenging all sorts of restrictions that seem to have survived the Heller decision ten years back, recognizing
this individual right. And so I think as important as this specific issue is in this case, particularly for the victims of domestic abuse, I think the focus of the court's resolution is going to be to see if they can fine tune this historical analysis to give courts more guidance and considering.
These challenges, and this case could affect state laws as well. An Illinois led group back in the administration, so that almost every state either requires permits courts to limit firearm access for people's subject to domestic restraining orders.
Yeah, that's exactly right. It would apply to state laws, local laws, and that's obviously one of the government's arguments. And the court took this case right up on the government's petition, I think, understanding the general importance of the issue and the need to sort of jump back in and clarify its law in this area. So this is definitely one that we would want to follow.
Let's turn now to another high profile redistricting case to come before the court, Alexander versus South Carolina Conference of the NAACP.
Yeah. So one of the surprises last term was the case out of Alabama involving a challenge to a registricting plan in which a majority of the court actually agree with the lower court that the state had improperly taken race into account and drawing the districts. And so here we go again. This is a challenge out of South Carolina in which our court had found that the state improperly used race to draw this district which in order to favor Republicans. And what's sort of interesting about this
case is the interplay between race in politics. There's an argument that race was used as a proxy for political affiliation here, and that sort of brings into play two different doctrines in the Supreme Courts jurisprudence, one in which the Court recently held that challenges to redistricting on political grounds, so called partisan gerrymanders, actually not justiciable, and the second, in which the Court has always considered challenges that race
was improperly taken into account and drawing district lines. And so this case presents an opportunity to quot the court to sort of balance those two different inquiries.
So as you say, Republicans say they were motivated by politics, which is permissible, not race, and it seems like it's a difficult distinction to make, particularly in this case.
Yeah, that's exactly right, and that's why I'm sure it's one of the reasons that the case is before the court now. And again it'll be interesting to see if this is one of those cases where maybe the Court tacks back to the center, as it did in the Alabama case last term. But this will be a difficult one. This is obviously delicate issues in the intersection here between race and politics.
That case last term you were talking about, the Alabama case came as something of a surprise to many that the Court rejected the Republican drawn congressional map in a boost to the Voting Rights Act, and some see that as a shift in the Court's approach, or at least in the two conservative justices who sided with the liberals. So will this case show whether that's true or not, whether there is a shift.
It's definitely one to watch June, and I think the gun case we just talked about is one as well. These are two areas where the more centrist justices in the Court, for example, the Chief Justice and Justice cap and Awe, have not been as willing to go as far as some of the more conservative justices. And that's certainly one of the broader themes that we're looking at
for this term. Is last year we had several decisions in which the Court seemed to tack a little bit back to the center, and so it'll be interesting to see whether that trend follows, or whether the Court will proceed on what is otherwise a sort of conservative orbit out to the right.
Next, we have social media meeting the Supreme Court O'Connor, Ratcliffe versus. Garnier and Linky versus Freed. Both these cases involve public officials blocking constituents who left critical messages on their social media.
Right, so you know, we're seeing more and more of these cases where social media intersects with the First Amendment. And these are two different cases, one involving two California school board members and one involving a city manager in Michigan. And all of them had social media accounts Twitter and Facebook and the like, which they used in some instances to tweet about their public jobs, and when they got some criticism from some constituents, they decided to block them
on their accounts. And the question is whether or not that blocking is subject to scrutiny under the First Amendment, which boils down in this case to a question whether or not the blocking is actually state action subject to the First Amendment.
And the Sixth and the Ninth Circuits came to different conclusions on that right.
They split on that and the Ninth Circuit held that the blocking was state action and a violation of the First Amendment, and the Sixth Circuit came out the other way. And looks these cases may turn in part on the particular factual circumstances. For example, the extent to which the public officials used their accounts for public purposes. The officials in the cases are arguing that they actually were more private than public, and so they shouldn't be considered state action.
But then you can see social media interacting with politics and public life and finance way into the courts, And there are other cases out there, and so this is something we're going to see more of, is the Supreme Court and other courts grapple with the intersection between social media and First Amendment.
Right In twenty twenty one, when the Justice is turned down a petition from former President Donald Trump presenting a similar issue, Justice Clarence Thomas wrote an opinion saying that the case quote highlights the principle legal difficulty that surrounds digital platforms, namely that applying old doctrines to new digital platforms is rarely straightforward. That struck me coming from Justice Thomas, who wrote the decision in the New York gun case we were talking about.
That's exactly right. This is the case where they're looking at the future instead of the past and struggling to apply these doctrines. And I'm sure that that'll be one of the issues at the forefront of this decision.
Coming up next, I'll continue this conversation with Gregory Garr of Latham and Watkins and we'll talk about the court's focus on the administrative state this term and some cases targeting regulatory agencies. I'm June Grosso and you're listening to Bloomberg. Several cases on administrative law coming before the Supreme Court this term may seem a little wonky for most people, but they could transform the way the federal government operates
and alter the power dynamics between the branches. The cases target the power of regulatory agencies before a conservative court whose recent decisions have overridden the authority of agencies and reined in the so called administrative state. I've been talking to Gregory gar a partner at Latham and Watkins and the former US Solicitor General. Greg Now we're onto the
regulatory area. Let's discuss Loper Bright Enterprises versus Raymondo, where a thirty nine year old precedent, the Chevron Doctrine is on the line. Will you explain Chevron?
Sure? So. Chevron doctrine is one of the most important doctrines of administrative law that has been around since nineteen eighty four, and basically what it says, is that where you have a statute that is ambiguous and doesn't speak directly to an issue, that the courts would give deference to the administrative agencies interpretation of the statute. So this case involves a law that requires fishing boats in the North Atlantic to have observers to collect data and the like.
And the question is whether the fishing boats or the government has to pay for those observers. And the statute doesn't address that question, but the agency, the National Marine Fisheries Service, interpreted it to require the fishing boats to pay for these observers, and the lower court said that was a reasonable interpretation. So the courts would refer to
it under Chevron. And the Chevron doctrine has come under assault by the Conservatives as being contrary to the longstanding central principle that it's the duty of the courts to say what the law is. And so there's a great concern that they've sort of dedicated that task to the
administrative agencies. And there have been many justice maybe five in this case, who'd be willing to overturn the Chevron doctor and then give the courts the sort of frontline role in interpreting what statutes mean without administrative difference.
So has the Supreme Court been chipping away at Chevron in recent years? So some say if they overturned Chevron, it wouldn't be that big a deal.
It would be a big deal doc trintally, But you're exactly right. They've been chipping away at it, and then you know someone interestingly, they've actually just been ignoring it, giving the cold shoulder the last few years, where they won't even cite it in cases where it really is
directly implicated. So, in that sense, doing away with the doctrine wouldn't make a big practical shift, but doctrinally it would be a big shift, and in line with one of the I think big things we see from this conservative court, which is reconsidering the relationship among the branches with respect to the administrative state and scaling back on different doctrines that has empowered the administrative state.
I believe it's been four times since twenty nineteen that the Court has been asked to revisit Chevron and hasn't done. So do you think it will reverse Chevron in this case? You mentioned that there are perhaps five justices willing to do that, So this case feels different.
The court granted curcherari and the question of whether or not Chevron should be overruled. If you connect the dots, over the last few years, it seems as though the Court has tilting towards the direction of actually overruling Chevron, but it remains to be seen whether or not they
take that step. And that the broader question of stereodcisis is something that we've seen over the last several years, and the justices have very strongly held in different views about when or whether it's appropriate to overrule a case. But in this case, it does seem as the Chevron is on the shopping block.
I wonder if they were struggling with that while they were deciding whether to take the case or not. Because it took a long time to decide how to handle the case. They scheduled it for potential discussion at five private conferences before announcing that they would take the case.
So that's exactly right. You know. Obviously the decision to take the case was not a good one for the government ultimately, but the court does have the fallback option of just saying that the agency's interpretation is unreasonable. In this case, but really the focus is on the broader question of whether or not the Chevron doctrine is really consistent with our legal principles in practice.
Do you agree with this that critics of big government have targeted the Chevron doctrine much as anti abortion groups targeted Roe v. Wade.
I think that's a fair analogy, June. I mean, it's really on the short list of cases that you know would be on a wish list that this more conservative court would overrule. And it's in line again with a trend that we've seen in the last few years where the Court has been willing to reconsider doctrines to have balanced favored the administrative state. So this is one where the Court took this step that would be certainly in line with decisions we've seen in recent years.
Another agency, the Consumer Financial Protection Bureau, is before the Court again. The oral arguments in this case are actually next week. It's CFPB versus Community Financial Services Association, And.
This is in line with our assault in the administrative state. So in this case, though it's a really interesting challenge, it's a challenge to the funding mechanism for this agency. So usually when Congress passes in appropriation it specifies a specific amount that goes to the agency, typically on an annual basis. And in this case, what Congress did in setting up the Consumer Finds Protection Bureau is it's said, we're not going to have annual appropriations of a specific amount.
You're going to get your funding from services and fees generated by the Federal Reserve. There's no requirement to go back to Congress every year. This is sort of an indefinite appropriation, and it's up to an amount that you can just sort of dip into that the agency hasn't come close to dipping into. So as a practical matter, it's basically an unlimited funding mechanism for the agency, which gives it greater independence from the legislative branch.
This is a Fifth Circuit decision that it's being appealed from. Is this a novel theory that they came up with.
It's the first time in history that an appellate court has invoked the appropriations clause to invalidate a statute, So it is certainly novel in that respect. That said, the CFPB, the agency here is itself novel, and this is something that sort of haunted the agency a few years ago. In a different case, it involved a removal provision of the head of the agency, and Congress set this agency
up to be different. But because it did so, it sort of made it vulnerable to these different lines of constitutional attacks that we're seeing.
And this listener General said, the ruling of the Fifth Circuit threatens the validity of virtually all past CFPP actions, including numerous regulations that are critical to consumers in the financial industry. But the court refused to put it on an expedited schedule. Does that say anything to you?
I don't think the decision not to expedite it. But the government is right in this sense that if the court were to hold that the funding mechanism is unconstitutional, then you know, a logical step might be to say, well, then that everything that it did with that funding should be set aside. And that really sort of tees up the second question in the case, which may be even more difficult, which is the court does adopt this novel appropriations theory, then what's the remedy. And the parties are
very strenuously divided on that. I mean, the government says that the remedy should just be forward looking, or that you could go back and just sever a particular part of the law that you wouldn't say that everything that the agency has done in administrative actions or by rule is invalid.
So there's been this momentum to reign in the administrative state. Will this case be a test of just how far the justices are willing to go in that direction?
Yes, I think it will be, you know, in part just because this is a relatively novel theory, and in part because of the implications of this theory. And so the area that we're seeing sort of an insult on is power given to the administrative state. But in some sense, the branch that is, you know, at the heart of the dispute here is Congress, and adopting this theory would sort of place the restriction on the appropration power adopted by Congress that we haven't seen in our constitutional history.
But again, the specific appropriations law here, if you think of that way, really is unprecedented, and that you've given an agency an indefinite amount of money or pool within which to dip in order to carry out its operations. And we just haven't seen anything like that in this forum in over two hundred years.
So this case have implications for the Federal Reserve Board, the FDIC, and the Controller of the Currency.
It's conceivable. I mean, those agencies do have different funding mechanisms. But what's different about this case is this is a more conventional executive agency that's involved in sort of classic executive enforcement powers, and the funding mechanism here, although it
draws from the Federal Reserve Board, is really different. So I think that if the Court were to find this to be constitutionally problematic, it's ruling as a practical matter really would probably be limited to the unusual alignment of circumstances here.
Finally, Securities and Exchange Commission versus Jarkasy, I could swear we had a case life before about the in house judges used by the Securities and Exchange Commissions, So tell us about this case.
Yeah, this is sort of dejev who all over again. Last year, the question was whether or not individuals sort of stock in these administrative enforcement proceedings could go to a federal core and bring constitutional challenges to the federal
decision maker. In this case, which involves another individual who had gone through enforcement proceedings before the SEC the Securities and Exchange Commission, it's actually the merits of the constitutional challenge, and it's again another case which sort of puts the
administrative state in the crosshairers. And here, you know, there are several different questions, but the one that seems have gotten more emphasis is the question of whether individuals who are brought before administrative agencies and and sorts of civil enforcement proceedings have a right to a jury trial in those proceedings.
And his lawyer said that he was quote put to trial before a captive agency judge sitting unconstitutionally with no right to a jury and no way to escape to court. Does it seem as if the SEC has been a target for critics of federal agencies, the SEC in particular, Well, it's a.
Little bit of a product of its own doing, in the sense that the SEC has the option of bringing these enforcement actions in federal court or before its own in house decision makers. And looking back, it's in most of the cases opted for in house proceedings, and in these proceedings is basically you know, home rule. It prevails in you know, more than ninety percent of the proceedings. The decisions are made by an administrative law judge who's basically,
you know, within the administrative framework of the SEC. And so it's a fundamentally different dynamic, and for individuals stuck in that situation, it really can seem as though they've got no hope. You know, It's very different than being
in a federal court before an independent decision maker. And one of those differences is that when the SEC brings the exact same action in a federal court, then the individual can elect for a jury trial and have the protections of a jury instead of just a judge as the sole decision maker.
If the SEC loses here, would that change the way that they have been bringing cases or litigating cases.
It would have dramatic consequences for administrative enforcement action, and you know, really require all of us to rethink that, and it would be a great boon to individuals who find themselves in that situation. To have the right to a jury trial in that context would be a game changer, I think in a lot of cases.
So this was another Fifth Circuit decision. The Fifth Circuit has a lot of these noteworthy, controversial however you want to term them cases before the Supreme Court this term, So.
You're quite right about that, and it's really you know, one of the broader themes that we're seeing this court, and some people have said of sort of the Supreme Court versus the Fifth Circuit, it's interesting, I mean, the Fifth Circuit is now the most conservative circuit among the many, and you know, the kind of question that all these cases present is whether the Fifth Circuit has got out ahead of even the US Supreme Court today in terms of how conservative it is, and whether or not the
US Supreme Court feels as though it has to rein it in a little bit. And although you know, this Supreme Court is certainly one of the most conservative in history, as we saw last term, there's still a few justices in the center that are not necessarily as comfortable going as far as some of the justices at the far
right want to go. The Chief Justice Justice Capital and so in each of these cases that we've been discussing, the spotlight is really going to be on those justices in the middle and whether or not they're comfortable adopting these broader series.
It's been wonderful talking to you, greg and getting your insights on all these cases. Thanks so much. That's Gregory Garr, a partner at Lathaman Watkins and the former US Solicitor General. 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 podcasts. 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