Weekend Law: Rapper's Trial, Double Jeopardy & Voting Rights - podcast episode cover

Weekend Law: Rapper's Trial, Double Jeopardy & Voting Rights

Dec 02, 202335 min
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Episode description

June Grasso talks about the biggest legal stories of the week with top experts.

 

 

See omnystudio.com/listener for privacy information.

Transcript

Speaker 1

Welcome to the Bloomberg Law Show. I'm June Grosso. I had in this hour. The Supreme Court appears ready to limit the powers of the sec. The justices deal with a question of double jeopardy, Conservative appellate judges deal a severe blow to the Voting Rights Act, and prosecutors are using a rapper's lyrics against him in a racketeering trial.

Speaker 2

This is Bloomberg Law with June Grusso from Bloomberg Radio.

Speaker 3

Tuggar, I never killed anybody, but I got something's doing about it. I got this grease on my bag, carry like I'm move in the body. I told him to shoot a hunt around like he's trying to move to bout it. He would light them in the mountain and just get the school. That's truancy about it.

Speaker 1

That's Grammy's winning rapper Young Thugs twenty eighteen song called Anybody, and prosecutors are going to use those lyrics in the racketeering case against him, saying it's a reference to a

killing he ordered. Young Thug, whose real name is Jeffrey Lamar Williams, is on trial with five other defendants in Atlanta, Georgia, in a sprawling racketeering case in which the state accuses him of leading a criminal street gang fronted by his record label, a gang that committed a slew of violent crimes, including murder. Lawyers for the influential rappers say he's innocent of any crimes, that he's an artist with a successful

record label and his lyrics are just art. Joining me is Michael Moore, the former US Attorney for the Middle District of Georgia and a partner at Moore Hall. This sort of sounds like a movie script because Georgia is accusing this Grammy winning rapper of leading a street gang that's fronted by his record label, and the crimes include killings and shootings and carjackings.

Speaker 4

Right, And it's easy, remember, to charge people with a crime, and sometimes harder to prove that. And so the state they'll have to come forward and put on some evidence that the main defendant was really in control of what

was going on by other people on the street. I think that gets harder to do if we just have realistic conversations about what actually happens in the real world in certain neighborhoods and areas of town, and you know, that type of thing, and the prosecutors will have to explain how that's not just what i'll call street level crime, but was actually part of this larger umbrella that they've charged as part of this Rico case.

Speaker 1

Tell us about the Rico indictment of what the prosecution is charging.

Speaker 4

Rico really deals with racketeer influenced corrupt organizations, and if you think about it, maybe in layman's terms, that's really talking about things like organized crime. And so you saw some reco cases that is going after these organizations the mob basically where they would try to take down the mob leader by essentially attributing the bad conduct of his underlings to him. In other words, they didn't have to

find the mafia don pull of the trigger. They could actually have a murder committed by somebody else, but they could talk about this was a goal and an effort of this criminal enterprise to either obtain money or property, and that's how they went after the organization. Recently, you've seen Rico case is used not only in drug conspiracy type cases, but also there was one relatively well known case in Atlanta where a Rico case was used involving

public schools and the cheating scandal. Some of those people. I think indications may've got some of them reversed. That somen certainly were convicted, And probably the most famous one right now that we're hearing about is a Trump campaign. But it's a prosecutor's dream really because it allows them to basically paint everybody with the negative brush, and so

they can bring in a lot of evidence. They get to attribute all the bad conduct of your Code Defendment to you if you're a defendant, and it's more of a I guess the case involving either directions to do wrong, or involvement to do wrong, or sometimes just knowledge of people who are doing wrong. All that evidence gets to come in, and at the end of the day, the prosecution asks the jury to convict you because you were part of this organization. So it's not an uncontroversial statute.

Many people think that it allows prosecutors too much leeway in bringing cases and that they tend most of the time to be complex and involved and sometimes unruly. As you're saying in this.

Speaker 1

Case, what really interests me in this case is that the judge has ruled that prosecutors can use his lyrics as evidence of his involvement in the crimes. So they can present seventeen sets of lyrics as evidence, provided they can link their content to real world crimes that's been done before. Is it controversial?

Speaker 5

Though?

Speaker 4

It is controversial, and I don't know, frankly, how I feel about it. I think it's probably pushing the envelope a little bit. And while it's not the first time, so it's not really pressing a setting. There other cases where this has happened. I do think it raises some pretty unique questions about the First Amendment about you know, artists creativity and then whether or not later that can

be used in a case. You can think about cases, you know, woe be it for any country music star to either be charged with drug driving or get a divorce because that's going to come up. Does that mean now that that's going to be effens in their case that they talked about, you know, drinking too many drinks or chasing too many paramoms or whatever the case may be, or you know, smoking too much weed or you know whatever,

Is that now going to be the norm? And I think those are the kind of lines where this type of admission of evidence, of the specific type of evidence

that it gets blurry fright, Then you know. I was thinking as I thought some about the case that if you're defending a case like this, or you're just representing a music artist, are you well advised to suggest to them to just write a couple of songs with really acceptable lyrics things like I love the police, I've never commit a crime, I don't do drugs, and say, well, here's evidence. Now, by good care, you know that's something

that I'll go into jury. That the people who are prosecuting the case would say no. But somehow here this evident is coming in. It limiting instructions to to a jury, And that may be what the judge has in mind when he talks about you have to link it up, and this p may tell them, well, you can only consider this and it looks like it went to an actual crime. Those are often a little propylactic, enough about it.

Speaker 1

So do you think that admitting these lyrics will be an appellet issue.

Speaker 4

I think there's no question. It's here, are we getting our hands a little too tightly around the neck of the First Amendment and the free speech of people off for the sake of getting some small piece of evidence in and the hopes that that might be what pushes the jury over the edge to a conviction, as opposed to looking for that evidence through witness testimony, co defendite testimony,

physical evidence, videotapes, whatever it is. And even though the evidence has been used in other case, appellate courts are known for shifting or revisiting issues.

Speaker 1

Later on in the opening statements, the defense attorney told you know his rags to riches story, and he sort of changed the narrative. He said, THUG stands for truly humbled under God, and why I sell the alleged gang doesn't stand for young slime life. It stands for the luxury clothing brand.

Speaker 4

Well, you know. And sometimes lawyers have to sort of dance with what brung them, if you will. If it's this case, the lawyer may have been looking for some way to make a distinction. I do think though, that the ragged the richest story is the type of thing that plays in what we talk about ambigoo, and that

is the lyrics. And is this artist writing about what he saw as his life experience or an experience of his friends, or something that he believed might be relatable in his music genre to his audience, and it is just something there as opposed to some type of cryptic message about crimes that had taken place and that he had been a part of. And so those will to be things they have to ferret out a mindful those

how a lawyer might change the narrative. I mean, remember that we've seen in famous cases.

Speaker 6

A narrative change.

Speaker 4

We've gone from a bloody crime scene photo to say, means of somebody trying to pull on a leather glove and an argument about it. If it doesn't fit, you must have quit, you know. And so the lawyer may try to change that narrative here in this case to get the jury's attention on this is who he was, This is how he's come up, This is why he writes these lyrics, This is why he has this circle

of friends. This is him as a person, But he's now a place where he's so successful that this idea of sort of street crime at the level that's a legend. The indictment is outside of what he does, and that's why he may be talking about things like, you know, designer clues as opposed to the gang name and such as that.

Speaker 1

I can't let you go without talking about the other reco cause that Willis is bringing in the same courthouse. I mean, do you think that Trump's lawyers will be watching this? I mean the cases are so different.

Speaker 4

It's different in the nature of the charges, but it's not necessarily different in watching how prosecution things or a prosecution team might think. You know, this isn't a case where we're going to see the da rself, you know, making an appearance every day in the court room, just

like we haven't seen in the Trump case. I mean, she's got assistance in there, some different sets of lawyers' handling different cases, but it can't give you a sense of how the case is managed for sort of what the rhythm and the flow of their charging decision and their evidence presentation can mean if they're watching. So I'm sure that the lawyers will have their own group doing

some type of recon on this case. And while they won't be talking about things like murder or drug deliving all that, they may be looking for arguments that the state may make in response to objections that the defendance team will make about keeping certain evidence out of the recocase, and how the Rico Statute doesn't just give you carte

blanche to bring anything you want to into evidence. So I do think that they have likely been studying the past Reco case, maybe looking at closing arguments, opening statements, how the jury was charged, things that came up like that, and they'll probably be wanting to do the same thing here. The cases are different, but they have the same risks, and the state again has the same risk there, that is, if they stretch too far, you know, if they try to cast too wide and met, they risk missing the

big fish that they were after the start with. And so we may see that in this case, and ultimately that may be what happens in the Trump case. But I think likely that case is so far down the road that the lawyers have put in time to be watching this, and that case will be tied up in appellate course for some time. And we're not even sureing the schedule of that trial.

Speaker 1

Oh it's a pleasure, Thanks so much, Michael. That's Michael Moore of Moore Hall coming up a question of double jeopardy. I'm June Grosso and this is Bloomberg.

Speaker 2

This is Bloomberg Law with June Brusso from Bloomberg Radio.

Speaker 7

They're tough Louisiana, Liby, you shoot me, They'll give you the guest cheaper.

Speaker 8

No, they won't. It's called double jeopardy.

Speaker 1

I learned a few things in prison. Neck I could shoot you in the middle of Marty Grin, they can't touch.

Speaker 2

Me, and the next law professor, I can assure you she is right.

Speaker 1

Amendments double jeopardy clause. We all know about it from TV and the movies. So why did Georgia prosecutors want to try Damien mckelrath a second time after a jury had found him not guilty of the malice murder of his adoptive mother by reason of insanity. Well, there's a twist. The jury also found Michael Rath guilty, though mentally ill, of felony murder and aggravated assault, and the Georgia Supreme Court ruled that those inconsistent verdicts were illogical and threw

them out. But a majority of Supreme Court justices across the ideological spectrum seem to agree that once a person has been acquitted of a charge, the matter is closed. Here's Justice Neil Gorsuch, and.

Speaker 7

We do not ever talk about whether they make sense to us. They may be products of compromise, they may be inconsistent with verdicts on other counts, we don't question them. And this is a first time this issue has arisen here. Shouldn't that tell us?

Speaker 1

Something joining me is former federal prosecutor George Newhouse of Richard's Carrington. George tell us about these inconsistent verdicts.

Speaker 6

So the basic facts are a delusional defendant believed that his mother was trying to poison him and as a result stabbed her to death, called nine to eleven fold the dispatcher what he'd done and why he was right to have done it. He went to trial on three counts, by the way, and that's where this comes up to the three separate charges. The first one under Georgia law is called malice of murder, which is equivalent to a first degree murdered, always the most serious charge, the one

that typically can carry in capital punishment. And then there were two other counts, a felony murder rule, which means that he killed someone in connection with committing a felony, in this case, an aggravated assault. And so the third charge was aggravated assault. And you might ask, why do

prosecutors bring three separate charges when one act occurred? A killing, and they do that because sometimes they want to present the jury with the option of evicting on a lesser offense if they think they might have a problem with

the principal offense. And that's exactly what happened here. The jury deliberated and the defense was he was insane, so he lacked the criminal intent to commit murder, and the jury deliberated and found him not guilty by reason of insanity on the first count, saying he was crazy, But on counts two and three, the felony murder and the aggregated assault, the jury found that he was sane and convicted him. The State of Georgia, unhappy with that, went to the court and said, wow, we need a new

trial because these verdicts are logically inconsistent. You can't be crazy on one count, the worst count, but saints on the other counts, And that went all the way to the Georgia Supreme Court, which agreed. The court said the verdicts on these two different counts are logically repugnant, and as a result it vacated the not guilty verdict and told the state that they are free to retry him.

And that's what went up to the Supreme Court whether there should be an exception to the double jeopardy clause, and the exception would allow if the verdicts were logically inconsistent, which jury verdicts are, by the way, frequently, they'd be allowed to retry.

Speaker 1

In this and Justice course, it seemed particularly fervent about respecting the jury's verdict of acquittal.

Speaker 6

The rule in this country for the last two hundred and thirty years, Justice Corsage pointed out, is you only get one chance, and if that jury verdict comes back not guilty, there it can be no retrial. We don't the court system does not second guests acquittals. So for example, if the acquittal is based upon what's called jury nullification, they simply ignore the evidence. Where that verdict is illogically inconsistent between two different counts, the court system is not

allowed to second guess. Then what usually happens, probably happened in this case was the inconsistent verdicts were product of compromise. Justice Corsage addressed that they may be products of compromise. They may be inconsistent with other verdicts. We Justice Courses said, the court system does not question those verdicts, and that has been the longest country for two hundred and thirty years.

Inconsistent verdicts happen all the time. I tried one of the prosecutor and the judge said, well, we have two verdicts. One is inconsistent with the other and the case is finished, so double jeopardy apply.

Speaker 1

Thanks George. That's George Newhouse of Richard's Carrington. The case before the Supreme Court is about a challenge to the power of the Securities and Exchange Commission to bring legal actions in house, and it's another example of the conservative justices target on the administrative state. During oral arguments, Chief Justice John Roberts expressed his concerns about the growing power of federal regulators.

Speaker 5

The extent of impact of government agencies on daily life today is enormously more significant than it was fifty years ago.

Speaker 1

The Jocracy case could strip the SEC of a key enforcement tool, and conservative justices like Brett Kavanaugh suggested that people accused of fraud by the agency have a constitutional right to have their cases decided by a jury in federal court instead of by the SEC's in house administrative law judges.

Speaker 8

That seems problematic to say the government can deprive you of your property, your money, substantial sums in a tribunal that is at least perceived as not being impartial.

Speaker 1

A change in the law by the court here could have effects far beyond the sec because roughly two dozen agencies, including the EPA, the FTC, and the CFTC have similar enforcement schemes. As Liberal Justice Sonya Sotomayor pointed out to Jarcasy's lawyer Michael McCulloch.

Speaker 9

All of those agencies.

Speaker 5

We'll have to go to court.

Speaker 2

Correct, well, you are, all of their proceedings are now nullified, onto your theory.

Speaker 1

And Liberal Justice Elena Kagan said that in nineteen seventy seven Supreme Court ruling Atlas Roofing established there was no right to a jury trial here settling the issue in the case that's settled.

Speaker 7

Well, it's settled only to the extent no one's brought it up and forced this issue since Atlas Roofing, in his Carea's contact.

Speaker 9

Nobody has had the you know, kutzpa to quote my people to bring it up since Atlas Roofing.

Speaker 1

My guest is Harold Krent, a professor at the Chicago Kent College of Law. How this case involves George Jarcasey, a former hedge fund manager and conservative radio host, and the SEC found he had committed securities fraud in twenty thirteen for misleading investors. How high are the stakes here?

Speaker 10

The consequence of dramatic and briefer they are that almost every particular individual or firm erformed agency, many at least, would have the right to a jury trial and not have to go before Administrate of tributal as it is currently the case. That would be one fundamental change. Second would be that all the Ministry of Law judges would have to be subject to Outgill removal, which would undermine

the independence, ironically of these administrative determinations. And third, there would be some kind reinvigoration of the non delegation doctrine, which was limited Congress's ability to delegate issues for the Ministry of Agencies to resolve. So very consequential case, the stakes couldn't be higher now.

Speaker 1

Jocasy contends that defendants in SEC cases have a constitutional right to make their case to a federal jury, and the oral arguments focused almost entirely on that one issue on the Seventh Amendment, which provides that in suits at common law, the right of trial by jury shall be preserved. So tell us about the argument over the sete Amendment.

Speaker 10

The question is how broad the Seventh Amendment should be construed to extend. On the one hand, an individual has a right to a jury trial, but the courts for one hundred and fifty years, if not more, have said that the jury trial right does not exist if there is a public right involved, And so much of the argument discussed from different perspectives. What is a public right?

And the Supreme Court held fifty years ago in a case called Atlas Roofing that a public right would include not only issues between individuals and the government directly, such as taxes and claims like social Security benefits, but also would include anything under a comprehensive congressional scheme that was devised in order to protect the public. And therefore, in light of this unique public nature, there is no right to a jury trial, and that therefore the government can

recover fines even outside of a jury context. So this is the precedent that the government relied upon, and it has been cited in lots of cases since involving finding immigration proceedings, in customs proceedings and so forth. So the stakes are very high in this case, Justice.

Speaker 1

Is Elena Kagan and Katanji Brown. Jackson said that the Atlas ruling settled the issue here, So would the Court have to overrule that nineteen seventy seven president in order to rule for jocacy here?

Speaker 10

Likely they would do so, at least in substance, if not inform. I mean, Chief Justice Roberts himself said, well, Atlas was fifty years ago, and we've seen a lot of that's happened in the last fifty years, including the increasing power of administrative agencies. So it's time for us to take a good look back at it to see

if it makes sense today. And to be fair, some of the more conservative justices, particularly Justice Barrett, was strogving to figure out a limiting principle, how you could make the determination of when the Seventh Amendment right would be triggered.

Speaker 1

How do you think they're going to rule? Is it going to be a six ' to three ruling? Whatever it is.

Speaker 10

Again, it's so difficult to judge from an our largument how of course finally going to come out. But I would guess that they will try to articulate a fuzzy line, but a line that is more restrictive of Congress's ability really to determine what kind of suits can be presented

before administered eivation suites. I doubt they will go as far as to say that Congress can't allow subsuits to go before, but they'll probably talk about Congress is limited when the suit is either in all respects similar or

echoes or derivative of a common law right. So what the Court we'll want to do is say, use the touchstone of a common law right and say, if you have the right to have a jury trial in a similar case in seventeen ninety one a court to Westminster, then Congress cannot effectively deprive you of that right by calling it something else, by changing it slightly and vesting it before an administrative agency.

Speaker 6

That'd be my educated guess.

Speaker 1

This is part of a Supreme Court term that could have broad implications for federal regulators. The Justice has heard arguments in October over whether the Consumer Financial Protection Bureau's funding system is constitutional, and in January it will consider whether to overturn the Chevron doctrine, which is a precedent that gives agencies leeway when they interpret ambiguous congressional commands.

Why this focus and do you think federal regulators should be afraid of what's going to happen this term.

Speaker 10

Well, it's plain that the focus has arisen from a deep distrust of the administrative state, and the Court has signaled in a variety of cases that it wants to pare down the size of government, and it thinks Congress has gone too far in empowering administrative agencies with the ability to investigate and to proceed against mostly companies who violate the regulations that these agencies have promulgated in order

to enforce a Congressional mission. And so these cases, together with the appointments cases or removal cases, is trying to take another look at how broadly administry of agencies have influence over our lives. But that being said, I think that the Court is proceeding probably a little more slowly now than it thought it might two years ago. My guess is that they will take some steps to curve

the power of administrative agencies. But by ignoring the non delegation argument, for instance, they have bycassed an opportunity that really stick a stake in the heart of most administrative agencies.

Speaker 6

Directly.

Speaker 1

The justices are always saying things like that's up to Congress, that's not up to us. Here you have Congress expanding the power of administrative agencies over time, and the conservative justices seem to be trying to give the Core's more power at the expense of federal agencies supervised by the president. Are they trying to take more power for themselves over other part?

Speaker 10

Absolutely, there's no question in my mind that the Court is sort of redlining what congressmen do and can't do in terms of trying to make provisions for running the government. It's holding on to the power to be an umpire about what it is appropriate and not appropriate in a

variety of contexts. I mean they've done that most notably by saying that if something is a major question, we are going to ourselves decide what's a major question and then also decide whether we think Congress is clear enough in terms of giving power to the agency that itself is arrogating to the court the ability to decide how far agencies can operate and how creative they can be in trying to solve the many problems we face today

as a country. And so the judges are giving themselves more power by becoming umpires in these various aspects of the interaction between Congress the Ministry of State.

Speaker 1

So we'll see how far they go in the decisions in these three cases. Thanks so much, Hal. That's professor Harold Krant of the Chicago Kent College of Law. Coming up next. An appellate court deals a blow to voting rights cases. I'm June Gross when you're listening to Bloomberg. One of the most important pieces of civil rights legislation in our history, the Voting Rights Act, was signed into law in August of nineteen sixty five by President Lyndon Johnson.

Speaker 4

Today is a triumph for freedom, as huge as any victory that's ever been won on any battlefield.

Speaker 1

But the Supreme Court gott it a core part of that landmark law in twenty thirteen, and now are ruling by the conservative Eighth Circuit Court of Appeals threatens to deal a death blow to the Act. The Circuit dismissed a lawsuit brought by black Arkansas voters who argued the state's congressional map illegally discriminate against minority voters. In a two to one decision, the judges ruled that private individuals and groups like the ACLU and the NAACP cannot sue

to enforce the Act. That means only the Justice Department can bring those suits. Joining me is elections law expert Richard Brefalt, a professor at Columbia Law School. Rich tell us what happened in twenty thirteen and what's left of the Act before we get to what's happened to it recently.

Speaker 11

So, the Lena Rights Act of sixty five has significally made in eighty two had many proviiions, but two of

them really stood out. One was what's called Section five, which had this concept of preclearance, and it basically said that for certain problem jurisdictions, jurisdictions which have a serious track record of violating voting rights as proven by certain tests in the statute, when they change their voting laws, that has to be pre approved, pre cleared as the language the statue uses, either by the Department of Jobs Justice or by a federal court for it comes into effect.

And it kind of reverses the presumption. It says for those problem jurisdictions they have to prove that their new law or their new change in voting practice or procedure does not burden minority voting rights, so the burden is actually on the data of the local government to show that they're not clicting any harm. In twenty thirteen, the Supreme Court struck down the part of the Statute that provided the definition of the jurisdictions that were subject to

this special treatment. They were called cover jurisdictions, and the Court said that Congress basically had failed to update the formula that decides what a cover jurisdiction is. It was last updated in the nineteen seventies, and the Court said it simply cannot be right that that's the right formula now in a statute which was most recently updated in two thousand and six. So with that decision in twenty thirteen,

the Supreme Court eliminated preclearance. Complearance is technically on the books, but it has nothing to operate on because the provision that it works with, which is the definition of the covered jurisdictions, is invalid. The other major provision of the Act is called Section two, and that's the one that basically is used to challenge voting rules around the country which are either intentionally discriminatory or have a discriminatory impact and really for the parts of the country that were

never under Section five. Section two is where the action was, and since twenty thirteen now is for all of the country. Section two is where the action is. Now in Section two, the burden is on a plaintiff to show that a state or local law is discriminatory, either in intent or in effect against who's protected by the Act, which are primarily based on race or language minority status. But nonetheless Section two has been particularly after the twenty thirteen decision

that's known as Shelby County. Section two is clearly by far the major provision of the Act for enforcing voting rights.

Speaker 1

So now out of the blue are ruling by an Eighth Circuit chanel of Republican appointees affirmed a ruling of the District Court Judge Trump appointee Lee Rudowski that only the US Attorney General can bring suits to vindicate voting rights under section two. And I do mean out of the blue because none of the parties to the lawsuit raised this issue. Judge Rodowski came up with it on his own. What's their basis for this ruling?

Speaker 11

So their argument is that Section two, which makes all sorts of voting practices and procedures illegal doesn't explicitly say that people who are injured by these practices and procedures have a right to bring a lawsuit. That's known as a private right of action. The statute that basically declares that various kinds of voting practices and procedures which are discriminatory are illegal, but it doesn't explicitly literally say that

people who are injured by that can bring a lawsuit. Now, since the time of the enact of this statute, especially since it was significantly beefed up by Congress in reaction to a Supreme Court decision in nineteen eighty two, this statue has been used for private claims. I don't know, it's hundreds of times, which have been adjudicated by courts, including by the Supreme Court as recently as earlier this year the Allen v. Milligan decision. So it has been

used many, many, many many times. But according to the Eighth Circuit majority, the Supreme Court has never literally said that there's a private right of action. They've just assumed it. And in that Allen case, Justice Thomas in his descent also raised this as a question about whether or not there really is a private right of action. So I think he in that case in some earlier cases may

have planted the seeds of doubt. But as I say, until now, I think there have been hundreds of cases in the district courts and the courts of appeals which have assumed that there's a private right of action, and at least a number of cases, not sure if it's single digits or double digits of cases in the Supreme Court which have assumed a private right of action. And this is the first case that has literally said no,

we don't think it's there. And the fact that there have been these many, many, many cases assuming that it's there, we don't care about those because nobody ever literally worked it through and held that they're a private.

Speaker 1

Writer back and Justice Gorsich has also referred to whether private plaintiffs could sue under Section two as quote an open question. Wendy Wiser of the Brendan Center for Justice has called these comments by the two justices bat signals that they're open to considering novel theories to undermine voting rights. And maybe the lower court judge who clerked for Justice

Thomas saw the bat signal. Now, are these judges claiming that they're following precedent because this wasn't specifically addressed, even though you know there's case after case after case after case where private groups sue right.

Speaker 11

I think I would rephrase that to say they claim that they're fought following the text of the statute, the text of the statute and nothing more, and that they're not bound by any inconsistent precedent because there's no precedent that literally says the statute does create a private right of action. So I think that's how they would put it. This is consistent with kind of the dominant approach to statue of interpretation in the current Supreme Court in federal courts,

which is what's called textualism. We're just going to read the statute and see what's there, and they don't see this literal language there as opposed to seeing that the structure of the statute, the purpose of the statue was designed to enable people to protect their avoiding rights. Their view, there is not a specific little bit of text that says it.

Speaker 1

It seems like a very narrow technical argument that ignores everything except the words that are not there.

Speaker 11

It's a very technical argument, but it is an argument that I'd say resonates with some of the arguments that have really persuaded the Stree Court in other areas not voting rights. This idea of the private right of act that I mean this has come up in other settings where Congress passes a law that prohibits certain activity or provides for certain benefits, but doesn't literally get people the

right to sue if those are denied. Maybe this option is that the Attorney General will sue or thateral agency will sue. And for a long time, the Supreme Court was willing to imply private rights of actions as necessary to vindicate the rights provide the benefits that Congress authorized. In more recent years, the Supreme Court has cut back on that and has been less inclined to find a private right of action in a statute that doesn't literally say that.

Speaker 1

For decades, it's been private parties that have mainly sued to enforce the Voting Rights Act. If this decision is affirmed, it'll be up to the Justice Department to bring those suits. Does it have enough people and resources to do so?

Speaker 11

It's not clear that the Just Apartment have enough staff to bring it. And then there might be Justice departments that are not interested, that their philosophy is not inclined to bring these cases. I can imagine that happening too. So yeah, this is a real body blow to any effectiveness of the Voting Rights Act. If people can't sue, if they believe that there's a violation, the opportunities to enforce these rights will be drastically diminished.

Speaker 1

Certainly, there'll be an appeal of this. Thanks so much, rich That's Professor Richard Ruffald of Columbia Law School, 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 Podcast. 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

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