Weekend Law: SCOTUS Term Analysis & What's Next for Sean 'Diddy' Combs - podcast episode cover

Weekend Law: SCOTUS Term Analysis & What's Next for Sean 'Diddy' Combs

Jul 03, 202538 min
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Episode description

 Former federal prosecutor Robert Mintz, a partner at McCarter & English, discusses what’s next for Sean “Diddy” Combs. Constitutional law expert Michael Dorf, a professor at Cornell Law School, analyzes the Supreme Court’s term. June Grasso hosts.

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Transcript

Speaker 1

This is Bloomberg Law with June Grossel from Bloomberg Radio. It's a great victory for Sean Combs. It's a great victory for the jury system.

Speaker 2

You saw that the Southern District of New York prosecutors came at him with all that they had.

Speaker 3

It was indeed a resounding victory for Sean Diddy Combs and a resounding loss for federal prosecutors. After more than six weeks of sometimes graphic and emotional testimony, the jury acquitted Combs of the most serious charges against him, racketeering, conspiracy, and sex trafficking, and convicted him only of the lesser charges of transportation to engage in prostitution. After the verdict was read, Combs mouthed the words thank you to the jurors,

dropped to his knees, and prayed with good reason. Instead of facing a sentence of life in prison, he now likely faces no more than six years, although the decision on his sentence will ultimately be up to the judge. My guest his former federal prosecutor, Robert Mintz, a partner maccarter and English Bob. He was convicted of two felonies, but Combs and his lawyers were elated with the verdict.

Speaker 4

Given the charges he was potentially facing, which included up to life in prison for the racketeering conspiracy and a minimum sentence of fifteen years to life for sex trafficking. The fact that he was only convicted of two counts of transportation to engaging prostitution can't be viewed as anything other than a win by the defense and a bitter loss for prosecutors.

Speaker 3

So the top count racketeering conspiracy, the charge has historically been used to take down mob bosses like John Gotti. Did the prosecutors overcharge him with this count?

Speaker 4

Well, I think that's going to be the question that prosecutors will have to ask themselves when they look back on this case, whether or not it was overcharged with

the rico conspiracy. Now, the rico conspiracy, as you say, has been used traditionally in order to prosecute organized crime figures, but it has been used more broadly in recent years and was used in a high profile case just a couple of years ago in the R. Kelly case where that hip hop artist was also charged with RICO and sex trafficking in twenty twenty one, and in that instance, prosecutors did get a conviction, but here jurors ultimately concluded

that the Rico conspiracy was overcharged, that the prosecution did not meet the burden of showing that Sean Combs had used his business empire as a vehicle in orders to commit further acts and in order to force his former girlfriends into performing sexual acts against their will.

Speaker 3

Explain how when prosecutors overcharged it, it gives the defense an opening to challenge their case.

Speaker 4

Well, that's ultimately where this case turned. It was really an argument by the defense that although mister Combe had committed some abhorrent acts, they had the video of him picking Tasti Ventura by the elevator bank out in Beverly Hills. That was undeniably bad behavior and painted mister Combs in

a very negative light. But when that was held up against the more serious charges of racketeering conspiracy, which included certain criminal acts such as forced labor, bribery, obstruction of justice, all of that was thrown in and basically prosecutors were stating that he used this vast empire that he built up over many years simply as a means of forcing these ex girlfriends to continue to perform these sexual acts against their will, and all the while they were coerced

into doing this. The defense was able to effectively pick that apart by showing text messages from both of the victims which at various times suggested that they had participated in these acts willfully, that they were not coerced, that they could have left but chose not to, And ultimately I think that was the downfall for the prostitution's case.

It really ultimately turned on whether they believed that the victims were actually trapped in this relationship and had no way out and were literally forced to commit these acts, or whether this is more complex than that, and the defense was able to show that these relationships, while toxic, while not healthy, and while it involved bad behavior by mister Colmbs, didn't rise to the level of racketeering conspiracy.

Speaker 3

The two acquittals for sex trafficking, which stemmed from allegations that Colmbs forced his two ex girlfriends to engage in these so called freak offs, and Ventura testified over four days some very emotional testimony refer to this, But did the jurors just not believe her.

Speaker 4

It's hard to say exactly what they were thinking that testimony was compelling. That testimony had to be very emotional for jurors to sit through, and yet at the end of the day, they did not believe that she was necessarily compelled to participate in commercial sex acts through force, fraud, and coercion. The key here is there has to be a link between the force, the fraud, and the coercion and the acts of sex. And I think at the end of the day, the evidence was just not clear

enough for them to meet that burden. Remember, prosecutors have to prove their case beyond a reasonable doubt. Anything less than that will result in an acquittal, as we saw here and sex trafficking.

Speaker 3

Did those charges even fit the facts here? Aren't people usually charged with sex trafficking when there's no connection to the victims, not people in long term relationships like Combs and his ex girlfriend.

Speaker 4

Yeah, that was I think one of the problems too, because the victims here were involved in these long term relationships, and they had written many messages, emails, text messages, other writings evidencing their love for mister Combs at various times. The fact that they willingly participated in some of these acts, the fact that they did things in order to please him, and the fact fact that after some of these sessions

they texted him saying that they enjoyed them. And I think it was very difficult for jurors to necessarily conclude that all of this was done against their will, that none of it was consensual. And as you say, June, it's a situation where the sex trafficking charge is typically brought in an instance where the perpetrator does not have

a relationship with the victim. Here there was a long term relationship, one that was very complicated, and also one in which the victims had benefited financially from their relationship with mister Combs. So it became, I think, very difficult for jurres to sort out the true nature of those relationships.

I don't think they necessarily disbelieve the victims, but I think they ultimately concluded that the fact as presented to them in court did not meet the elements of the sex trafficking charges.

Speaker 3

He was convicted of two counts of transportation to engage in prostitution that stems from allegations that he paid sex workers to come to his freak off parties. Tell us about that that's a felony violation of the Federal Man Act.

Speaker 4

These were the charges that were really easiest for prosecutors to prove, because all they have to show is that individual's cross state lines with the intent to engage in prostitution. And there was plenty of evidence presented at the trial that mister Colms had made arrangements for these male prostitutes to meet with his girlfriends. He bought plane tickets, there

were credit card statements, there were hotel records. These were the charges that prosecutors were able to prove fairly readily, and there wasn't really much of a defense to them. I think the defense strategy was to focus on the more serious charges, which they ultimately succeeded in convincing jurors to quit their client on.

Speaker 3

The prosecution put on thirty four witnesses. The defense didn't call any witnesses and elected instead to challenge the credibility of the prosecution's witnesses through lengthy cross examinations that sometimes were longer than the directs. Was that a risky move by the defense, No, I.

Speaker 4

Think from the very start the defense strategy was always to win their case through cross examination. I think they correctly sized the case up and knew that it was going to turn on the testimony of the two victims and how compelling they were, and that by adding witnesses for the defense, it was only going to complicate the case and create a more complex narrative for them to have to convince Durres ask exactly what was going on here.

They wanted the case ultimately to be about these two victims and to show that the relationship that they were in with mister Colmbs over many years was one in which they gained financially, one in which they willingly participated. In no doubt, they were ups and downs in those relationships, and there were some domestic violence that went on, and the defense readily admitted that. But the question is did

it really rise to the level of racketeering conspiracy? The defense placed a large set that the jurors would answer that question in the negative, and ultimately they prevailed.

Speaker 3

Were you surprised that the judge refused to release Colmbs while he waits to be sentenced.

Speaker 4

I wasn't totally surprised. I think here there was some sense from the judge that the defense team is really trying to have it both ways on this issue. He noted that the Combs defense team at trial admitted the domestic violence claims and said that a confession was really unnecessary here because the defendant's violence was starkly depicted in the twenti sixteen Intercontinental video, referring to the video of

mister Holmes violently beating Cathy Ventura. This suggests to me that the judge was very troubled by the violence he witnessed in the video and led him to conclude that mister Colmbs continues to pose a danger to the community, which is why he decided to leave him in jail pending sentencing.

Speaker 3

As far as sentencing, technically it's ten years on each of the counts, colmb's lawyers said that under the federal sentencing guidelines, he'd likely face twenty one to twenty seven months. Prosecutors, citing his violence and other factors, said he'd likely face fifty one to sixty three months. Considering what the judge said in denying bail, mighty sentence Colmb's to more than that.

Speaker 4

Well, the upper limit that the judge can send them to is actually twenty years. That's the statutory maximum the sentencing guidelines govern these sentences to the extent that they give guidance to the jug judge, but the judge has full discretion to send mister Colmbs to whatever he wants,

theoretically up to twenty years. I think the fact that he's decided to keep him in jail pending sentencing, even though he's already been in jail for almost a year, suggests that the judge does do this as a serious crime, and they send them to something much closer to what prosecutors are asking than what the defense is speaking here. And it is even possible that the judge sends them

to something more than what prosecutors are asking for. It's highly unusual, but it is within the judges' discretion to really send mister Combs to whatever he believes is fair and just given the circumstances.

Speaker 3

They'll be a hearing next Tuesday to discuss the sentencing process. That should be interesting. Thanks so much, Bob. That's Robert Mins of maccarter and English coming up next. The winners and losers at the Supreme Court this term, I'm June gross. When you're listening to Bloomberg, Chief Justice John Roberts repeatedly stresses the importance of judicial independence as he did during an interview in May.

Speaker 1

Its job is to.

Speaker 2

Obviously decide cases, but in the course of that check the excesses of Congress or of the executive, and that does require degree of independence.

Speaker 3

However, in the Supreme Court's recent term, it doesn't appear that justices did much to check the excesses of the current executive. In fact, the clear winner of the term was President Donald Trump. The Court sided with him on broad legal questions and emergency request to let his policies take effect, from throwing transgender service members out of the military to opening hundreds of thousands of migrants to deportation.

And for the second year in a row, the Court ended the term with a decision handing Trump a major victory, basically eliminating the main tool used to thwart his ambitious agenda, the nation wide injunction.

Speaker 1

This was a big one, wasn't it.

Speaker 5

This was a big decision, an amazing decision, one that we're very happy about.

Speaker 3

Like almost all the high profile cases this term, the Court divided six to three down ideological lines, with the conservatives in the majority and the liberals dissenting. Joining me is constitutional law expert Michael Dorf, a professor at Cornell Law School, Mike The finale of the term, if you will, was the decision in the case over Trump's ban on automatic birthright citizenship, where the Conservatives stripped the lower courts of the power to grant nationwide injunctions, which have really

been the only effective check on the Trump agenda. Trump thought the decision was important enough to call a press conference. How important do you think.

Speaker 1

It is that remains to be seen? The prohibition on most universal injunctions will have very serious bite if, but only if, the Court makes it difficult for plaintiffs to bring class actions and makes it difficult for states to sue for statewide injunctions. Those are two potential workarounds, neither of which the majority directly addressed is but both of which, just as the Leto and his concurrence suggests, should be

only available under a heightened standard of sorts. So what remains to be seen is whether plaintiffs challenging these executive actions. Here it was the birthright citizenship order, but it applies diversely everything, whether they can quickly convert to class actions, whether states can bring these cases. If they can, then I think this ends up not being such a big deal.

Speaker 3

Getting class action status is a lot more complicated, and I think we've seen just in the last week how confusing it is for the lower courts to parse through this.

Speaker 1

The Supreme Court could have, and in my view, should have given more guidance on whether class actions are available and under what standard. You know, one of the things I think is easily overlooked is the ruling in the case is not a constitutional holding. The court doesn't say that the Constitution forbids this kind of equitable relief. What it says is that this power was not conferred by

statute on the federal courts. Well, if that's the case, it's possible that federal Rule of Civil Procedure twenty three, which is the class action provision, is empowered by the Rules Enabling Act that that does confer this power, and that would be fully consistent. It would just lead to, you know, the availability of similar relief under a different mechanism.

Speaker 3

President Trump says that the administration is going to move to lift hold that judges have placed on a number of his policies. He mentioned fights over refugee resettlement, federal spending, and sanctuary cities. So you know, it's going to open up a.

Speaker 1

Can of Oh, I think that's right. I mean, I think this is in some ways the basic problem with the Supreme Court these days, which is it's treating the Trump administration like a normal administration rather than one that is committed to sort of pushing the edge of the

envelope and getting away with whatever it can. And so, you know, if you were thinking about the system as a whole and what's good for the rule of law, you would have been much clearer of your guidance and in what you're allowing and not allowing justice.

Speaker 3

Sonya Sotomayor and one of her ascent said the Court was rewarding lawlessness because the Trump administration has repeatedly, either explicitly or not so explicitly, ignored court orders, particularly in the cases of immigration orders.

Speaker 1

She is exactly right that it's one thing to stay, as the Court has said in some of these cases. Well, we think the lower courts went too far in issuing this order. That doesn't mean that the administration was permitted to violate the order while it was us in force. The normal rule is if you don't like a court order, you appeal it. But unless you get a stay of that order, and until you get a stay of that order, you have to comply with it.

Speaker 3

There were three cases involving LGBTQ rights that divided the justices down ideological lines and ended up in losses for the LGBTQ plus community. In the Scrimmeti case, which has implications for transgender youth in more than half the states, the Court's conservatives uphel Tennessee's ban on gender affirming care for transgender miners, and advocates say the decision is devastating for transgender youth and their families in the twenty seven

states that have similar bands. Here's Kelly Robinson, the president of the Human Rights Campaign.

Speaker 1

You're going to have families, families that have been in states that they live in for generations.

Speaker 2

I know family has been in Arizona for generations and generations.

Speaker 1

They are Arizonas. They're going to have to leave their states just to get access to care for their kids.

Speaker 3

Justice Sonya Sotomayor wrote that she dissented in sadness. She said this decision will open the door to more state discrimination against trans tenes and authorize, in her words, untold harm to these families. Mike, this was an equal protection argument.

Speaker 1

As it came to the Supreme Court, the only issue was whether this was a violation of equal protection, and the Court, in a sense I wouldn't say, duck that issue, but sort of mooted it by saying, well, there isn't a sex based classification or even a transgender identity based classification at issue here, so we don't have to apply the intermediate scrutiny that would normally apply to such laws, and therefore we only have to say whether it's rational.

And of course states get to make all sorts of medical judgments, and you subject those to rational basis scrutiny,

they're almost always going to survive. So, in a sense, the case doesn't tell us that much about the status of discrimination of the basis of transgender status under the Constitution going forward, because the Court said, well, we don't have to address that here, except that several justices in concurring opinions didn't address that and said, even if it is transgender based discrimination, that's okay because that kind of discrimination doesn't trigger any heightened scrutiny.

Speaker 3

Would those three concurring justices Clarence Thomas, Samuel Alito, and Amy Cony Barrett reject heightened scrutiny for any anti trans laws.

Speaker 1

I think that's right. I mean Justice Barrett actually is the one who writes most extensively on this, and she says, look, we have criteria for deciding whether something is a suspect of sent me susie classification, and transgender status doesn't meet those criteria. Now, I think she applies them a little bit strangely. One of the thing she says is that in order for something to be so called immutable characteristic, it has to be identifiable at birth, and transgender status

doesn't emerge until later. Well, that's a kind of backwards analysis, because of course, the whole point of someone wanting to transition to address their gender dysparrior or other mismatch between their experience of themselves and the sex assigned at birth is that what they were treated as at birth was

you know, not accurate. And so it's a very odd odd thing to say, Well, because when you were an infant you didn't realize or other people didn't realize, that you were a male inside of a female body, or vice versa, then that's not real in some sense. So there's a way in which it's a kind of you know, denial of the existence of transgender persons at all. I mean, she doesn't say that, but I think that's the logical implication of that particular criterion.

Speaker 3

I mean, the same drugs that Tennessee ban for the purpose of gender firming care for transitioning miners are allowed for a number of other purposes in non transminers. How do they get away from saying that's not an equal protection violation?

Speaker 1

So the plaintiffs and just the state of my orin descent, I think, are very clear. Look, if a boy wants to take this drug to give himself facial hair, you allow it. If a transgender boy who's assigned female at birth wants to take it, you disallow. It's the same same effect. How could that be anything other than sex discrimination? And what the court says is, well, it's not the same treatment if it's being prescribed for a different condition.

In the boy who's taking this to give himself facial hair, it's being prescribed because he has low testosterone. In the transgender boy who's signed female at birth, it's being given to facilitate sex transition. And that the course says is a different treatment. Now they analogize to something like, you know, different off label uses, so that something might be approved as a treatment for hypertension and people discover heness also

can cure baldness mormally. If a drug is approved for one purpose, it can be prescribed off label, but states can forbid certain off label uses if they think the risks and benefits are different. So that's the analogy that

the majority draws. The difficulty with that as I think just the studyment are convincingly, says in dissent, is well, here, what makes this a different treatment is simply the sex assigned birth of the person taking it, And you're sort of building the lily or double counting by working that in.

Speaker 3

On Monday, the Court ordered federal appeals courts in four states to re examine their rulings in favor of transgender people in clashes over healthcare and birth certificates in light of the Scrimmette decision. Can we read anything into that?

Speaker 1

Oh yes, So I was trying to be a little bit hopeful there to say that, you know, as a matter of the official holdings, the court has not or closed the possibility that sometime in the future it could say transgender status ecrimination is sort of presumptively invalid in the same way that sex discrimination is. But reading the tea leaves, I think it's pretty clear that that's not

the direction of this Court is going. And another way to put that is that they are going to increasingly treat the boss Stock decision, the case that held that sexual orientation and transgender status discrimination or sex discrimination for purposes of Title seven. They're going to treat that decision as a kind of outlier, the case that gets distinguished, and they specifically say, Inscremmetti, well, we're not addressing this

Bostock analogy. Title seven might be different. So I think they're teeing that up and so cutting back, you know, anti trends backlash that we've been seeing in the political realm I think is now flowering in the Supreme Court as well.

Speaker 3

And LGBTQ rights may be further curb next term because on Thursday, the Court agreed to decide whether states can ban transgender girls and women from competing for their schools on female athletic teams. Coming up next on the Bloomberg Law Show, I'll continue this analysis of the just completed term with Cornell law professor Michael Darf How far to the right. Has the conservative super majority moved the court.

I'm June Grosso, and you're listening to Bloomberg. The Supreme Court waded into the culture wars this term, and that showed up nowhere more than in a case where the six Conservatives ruled that religious public school parents have the right to opt their children out of classroom lessons that

involved the reading of LGBTQ themed storybooks. In the majority opinion, Justice Samuel Alito took issue some of the books, for example, saying that the book entitled Uncle Bobby's Wedding presents a subtle message about gay marriage.

Speaker 1

Quote.

Speaker 3

It asserts that two people can get married regardless of whether they are of the same or the opposite sex, as long as they love each other, an echo of the concerns you raised when questioning the attorney for the school district, Alan Schoenfeld, during the oral arguments.

Speaker 5

But it expresses the idea this is a good thing, Mommy, said Chloe. I don't understand why is Uncle Bobby getting married. Bobby and Jamie love each other, said Mummy. When people, when grown up, people love each other that much, sometimes they get married. I mean that's not sending subtly sending a message this is a good thing.

Speaker 2

I think that's a way of a mother consoling her daughter who's annoyed that her favorite uncle is distracted and doesn't have time for her. But even if the message were some people are gay, some people get married, I don't think there's anything impermissive normative about that.

Speaker 3

I've been talking to constitutional law professor Michael Dorf of Cornell Law School, Mike, when religion comes up against other rights, in particular LGBTQ rights, religion always wins at the Roberts Court.

Speaker 1

Yeah, that's right. I mean, you can think of this as sort of the finale, for now of a trilogy that began with the Masterpiece Cake Shop case, continued with the three or three Creative case, and now here we have a similar situation where the religious claim wins out as against the effort to in this case have an LGBTQ plus inclusive curriculum. To my mind, what's so surprising about this case is how quickly and easily the court

dismisses the administrative burden that it's placing on school districts. Right, what the court says is, if there is a burden on religion, then the government school district has to give an exemption unless it can statisfy scrutiny. And the burden on religion here is as the descent points out, that kids are being exposed to ideas that are contrary to what their parents want to teach them as a matter

of religious faith. And if you just think about that for a moment, you quickly realize, well, that could cover a lot of things. You know, there are great many people in this country who, as a matter of religious faith, don't believe that humans descended from other animals through revolution. Does that mean that religious parents can op their kids

out of biology? People believe in the millions that the Earth is only six thousand years old, even though you know, geology suggests that it's four and a half billion years old. Can parents op their kids out of geology? I think those issues are probably unlikely to arise in large numbers, But the real impact will be to these concerned efforts to have parents object to what they see as some

woke curricula on religious grounds. And because the administrative burden is so great, the school district might conclude, well, you know what, it's just easier not to teach this stuff. At all, and that is the point that the descent makes, I think very effectively.

Speaker 3

You mentioned the trilogy of cases, and this reminds me of the three to H three Creative case, which involved a website designer who didn't want to design websites for gay marriages. However, she'd never been asked to. And here you have a case where the curriculum for using these LGBTQ books isn't even established yet. It seems like the Court is just jumping in before there's a real controverse.

Speaker 1

I think a fair criticism of the Court would be that in these cases where there are religious objections to aay rights, trans rights, etc. That are statutory, the court's standing rules seem to be flexible. You know, you can make a case that there is standing both in three or three Creative and here. But again, some of the same justices who might be sticklers in other contexts in this context tend to say, well, of course you can challenge.

Speaker 3

This policy, and the Court isn't stepping away from the culture wars. Next term, it's going to hear a challenge to Colorado's ban on conversion therapy, and the challenge is from a licensed counselor who says she views her work as an outgrowth of her Christian faith. So I think we're going to see the same result in that case. Maybe I'm jumping the gun bill.

Speaker 1

I don't think you are. And you know, if you want to sort of juxtapose that with skir Many right, so INSCRIMMENTI the court is all about giving deference to Tennessee's ostensibly medical determination that it's not in the interests of miners and they're not sort of fully able to give and form consent to have puberty blockers and hormone therapy. I don't think you'll see the same kind of deference given to Colorado in its judgment that this kind of therapy is not in the interests of miners.

Speaker 3

There were three Second Amendment cases, and the justices upheld federal regulations for build at home ghost gun kits, refuse to give gun manufacturers broad immunity from civil suits, and turned away constitutional challenges to state bans on assault weapons and high capacity magazines. Does this signal that the Court won't eviscerate gun control measures or is it too soon to tell?

Speaker 1

I think it's a little of both. The Vanderstock case that's the ghost guns case there. The statute is pretty specific, and you look at that versus the bump stock case that they had where they came out the other way. You can just see those as a statutory construction. You know. The same thing goes for Smith and Weston. I mean, after all, Mexico did lose that case, so they're unable to bring the lawsuits. I don't count that one as

a pure victory for gun regulation. And then Henston, which is the case where they denied cert from the District of Columbia CIRT denial doesn't set a precedent, and I think they're the case involved a limit of ten rounds on a gun. You can make an argument that the gun that is in common use, that's the term for Second Amendment purposes, is the handgun. And then you ask, well, is it consistent with the history of regulation of guns

to limit them to ten rounds. Well, you're not going to find guns that were capable of firing more than ten rounds at the founding, so there's a way to get to this result. But I think is consistent with what they've said before, and I think it's far too soon to say that the court is sort of easing up on the Second Amendment revolution that it began in two thousand and eight with the Heller case.

Speaker 3

The Trump administration repeatedly went to the court on an emergency basis, and the conservative justice is repeatedly reinstated Trump policies found by lower courts to be illegal. A few examples, the court allowed Trump to discharge transgender people from the military, fire top officials at government agencies, and open hundreds of thousands of migrants to deportation. How do you read all his wins on the emergency docket?

Speaker 1

I guess I'd say a few things. First. One of the things we didn't talk about when we're taling about Trump against KASA is Justice Kavanaugh's concurrence, in which he says, well, the solution to the problem of universal injunctions is for us to get these cases up here really fast, and then for us to decide them because we can lay down the law that will be binding nationally. Well, one of the odd things is, if that's true, how come they're not doing that that in a lot of these cases.

They're not actually saying, well, here's the rule, and we're deciding on the emergency docket. They're just sort of reversing the lower courts giving either no guidance or very scant guidance. And that's to say nothing of whether Justice Kavanaugh's proposed solution makes any sense, given that putting something on the emergency docket means they don't really have that much time to decide the case, and they don't have full briefing

in full oral argument. So you had this remarkable decision where they essentially overrule the Humphreys executor case, which is, you know, a very old president banding for the proposition that Congress can create independent agencies. And you know, Justice Kagan in the sense says, what are you doing? You barely even mentioned the case and you're off ruling it, and we haven't had a full briefing in argument on this, and you're reversing the lower court for following our established president,

which we've told them they're supposed to do. So one remarkable thing about what they're doing on the emergency donket is timply, you know how much law they're making. And now that's not an entirely new phenomenon. They did that in a bunch of religion cases during the pandemic, and they continue to do that, but it is the very strange thing for them to be doing. It is striking how different a position the Court is staking out from

that of the lower Court. One of the interesting phenomena in this court this year is if you look at the statistics on their plenary docket, they reverse the Fifth Circuit, which is the most conservative circuit, quite a lot. So the Fifth Circuit is getting how to head of the Supreme Court and beings very very conservative. But on their emergency docket in these cases challenging coup administration actions, the Court is basically saying, well, the lower court are too liberal. Now.

Part of that I think is forum shopping by plenty TIFFs. Right, if you're going to challenge the Trump administration policy, you're not going to go to Judge Kasmiric or one of the other judges that Republicans go to to challenge democratic administrations. But I think it also suggests again that this court is, you know, not all that skeptical of a lot of what the Trump administration is doing on the merits.

Speaker 3

So how far to the right has the conservative super majority moved the law?

Speaker 1

I mean, I think the answer to that question is very far. I don't think there's any question about that. I mean, you know, they did most of the work in prior terms. They overturn roep Wade, they got rid of the permative Action, the religion cases go very far. They invigorated the Second Amendment. So in that sense, their work is basically done on what traditional conservatives care about.

To my mind, the question that is most pressing and sort of remains open is not how far to the right the Court is moving the law, but how far to the sort of maga direction is the Court moving the law or at least allowing the Trump administration to go. You know, a lot of what President Trump and his administration are doing doesn't fall within traditional left right boundaries. It's just sort of you know, authoritarian, for lack of

a better term. So it's not surprising to me that, you know, if the Trump administration wants to peel back transgender rights, that conservatives on the Supreme Court would be on board with that. What is surprising, and I think frankly alarming, is the extent to which the Roberts Court is facilitating the Trump administration's challenges to the rule of law. So what we were talking about a little earlier with defiance of court orders and other things that fall outside

the left right spectrum. As we've understood, it's for the last hundred years or so, and are on a sort of democracy and rule of law on the one hand versus authoritarianism on the other.

Speaker 3

Thanks so much for your analysis, Mike. That's Professor Michael Dorf of Cornell Law School. And on Friday, another win for the Trump administration on the emergency docket, a divided court rule the administration can send eight migrants to South Sudan, where they've said their risk of torture and death. I'm June Grosso 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. You're listening to Bloomberg

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