With or Without Kavanaugh, Court Prepares for Big Term

The Supreme Court will begin its new term on October one, and the justices will take on a number of seemingly ordinary cases that could have wide ranging implications for the country. Speaking to reporters this week, Louisiana Senator John Kennedy said he and his fellow Republicans were working to make sure

Kavanaugh would be on the court from day one. We've got a deadline of October one, and that's when the Supreme Court starts, and I think we all the needed Joining me is Kimberly Strawbridge Robinson, Bloomberg Law, Supreme Court reporter Kimberly, this might be a sleeper term at the Supreme Compare this term to last term. Well, last term was really just an incredible term where we saw so

many headline grabbing cases. We had cases where the judges were going to potentially decide such as you, as big as partisan gerrymandering of course, the controversial travel ban, and even a really high profile of dispute between religious freedom rights and LGBT protection. So, uh, it was quite monumentous term, but not totally out of uh, out of the realm of what we've been seeing from the Supreme Court over

the last several terms. Now, it's not always the cases that start with the big headlines that have the most effects. In your latest piece, you quote Professor Jonathan Turley of the George Washington University Law School calling one of the cases coming up this term a trojan horse. Let's start with that. Well, sir, this case is called Gundy versus United States, and it really involves kind of a sleeping giant among constitution no law. And that's what's known as

the non delegation doctrine. And it's really simply just that, you know, Congress can give some of its lawmaking authority away to administrative agencies that are in the executive branch, but it has to give the agency some guidance. It can't give away all of its lawmaking authority. Uh. And so the Supreme Court has cited this rule often, but it hasn't very often struck down laws based on this rule. And need the last time and only time that the

Court has done it, uh, was in the nineteen thirties. Now, what effect might the case have if the Court does this? The United States and its briefing noted that nearly a dozen laws that the Court has the courts have upheld under this lenient standard might might be subjected to this. Well, that's right, and it really depends on how the Supreme Court ultimately comes down how broadly they say is a

nondelegation doctrine applies? And so you know, if the Court is going to hold Congress to task very tightly and and make it, you know, make a really clear guidance to the agencies, then that could put you know, virtually unlimited laws um in play. If instead, the Court says, well, in general, Congress had a lot of leeway, but here it went too far. That's gonna affect fewer laws, So double jeopardy. It's a concept that most people are familiar with from TV and the movies at least, but they

don't often understand all the implications of it. And there's a case asking the court to overturn a sixty year old precedent. Tell us about that, Well, that's right. This is gamble versus the United States, and it does involve the very confusing doctor and of double jeopardy. And this is really, at its most simplest, just the idea that an individual can't be tried over and over again for the same crime. At some point, Uh, you know, the government has to stop. They really only should get one

bite of the apple. But there has been this long standing six year old exception to that doctrine, and that's called the separate sovereign's doctrine, the idea that if you a state could try you for the same crime as the federal government is trying you for. Now, in this case, people are saying that doctrine, that separate sovereigns doctrine, it

has to go. So would that mean? We've seen civil rights cases where the federal government has used this in order to be able to pursue civil rights cases after a federal case was lost at the criminal trial with this effect that well, again it depends on how broadly, uh, the Supreme Court comes down, and so uh, there is some concern that whenever there's a failed state criminal action that we would like the federal government to be able to come in and punish the same conduct under civil

rights violations. The most famous example probably is that of UM the officers and the Rodney King beating where this happened U. But you know, the court could rule a bit more narrowly if it wants to overturn this doctrine and just say that, you know, it can't be the exact same laws that these states are operating under that it has that if you can find just a slight difference, then that's going to be enough to get around double jeopardy.

So again, it depends on what the Supreme Court ultimately says. And last term, kimberly, did the Court issue a lot of narrow rulings. Well, they had a lot of rulings that really got around a lot of the big merits questions um that they were asking. And so you know, the travel ban is one exception where the court came down and uh, you know on the merits of that decision. But in the other ones that I mentioned, the court really side steps the issue and kind of kick the

can down the down the way for another day. So we we did see a lot of narrow and kind of circular decisions from the Court last year. So Sherylyn Eiffel of the n double a CP Legal Defense Funds, there could be cases this term with lasting effects on minorities. Tell us about one of those cases. Well, right, the Supreme Court has already agreed to hear a case called Abendski,

which deals with the Fair Debt Collections Practices Act. Now, this is a longtime statue that is meant to curb deceptive practices in in lending, and it's very important for minority groups because studies have shown that they are more often uh, the target of kind of predatory lending, and so this is an issue of whether how broadly those protections apply in certain floor closure proceedings. Now, is the

Court taking up any cases that have already made headlines? Well, the Court isn't done yet filling out it's it's docket, and so we don't have those just yet. But there are several that are waiting in the pipeline. In particular, there's one about how much federal law UH protects against discrimination based on sexual orientation both in schools and an employment and that's something to keep an eye on if

the justices decided to grant that case. Now, if the Justices go into the October term with just eight justices, if Kavanaugh has not been confirmed yet, how will that affect what cases they decide to take as the term goes on. Well, we have a pretty good idea about how this will affect that. And that's because you know the court that recently with just eight members, and we could see a real effect that that had on its stocket, both in the terms of the number of cases that

it took. It didn't take as many cases, and also in the kinds of cases that it took. And so what we saw was that they had uh cases that weren't as controversial, that didn't risk getting these evenly split decisions. Always a pleasure to have you on Kimberly. That's Kimberly Strawbridge, Robinson,

Bloomberg Loss Mean Court reporters. We're alive from the Bloomberg Interactive Brokers studio and in Washington today, US antitrust enforcers are kicking off a second day of hearings to explore whether their playbook needs revamping because of rising industry concentration and the dominance of tech giants joining me is Joel Mitnick, a partner at Cadwalader. So, Joel, have mergers made the American economy less competitive? Or is something else at work?

Thank you June, first of all for for having me on the show. Uh So, I don't think mergers have made the American economy less competitive, and I think that the merger standard at the agencies are actually pretty rigorous in terms of the review. I think that there are probably a lot of other factors at play, but I don't think competition or lack of competition enforcement is the

reason for any lack of competitiveness. I'm not sure that there is a lack of competitiveness, by the way, So you disagree with the economists and lay years who have

called for more aggressive enforcement. So it's not actually more aggressive enforcements so much as I think the interesting thing about the current hearings in Washington is that people are calling for different enforcement and the key standard that antitrust lawyers have been using since probably the mid nineties, when the so called Chicago School developed this theory of consumer welfare has focused on whether a given merger or a

conduct can result in higher prices, less choice, less innovation, And the question is whether that should continue as the standard or whether in the newer economy, particularly with these huge tech web giants like Amazon and Google, have they changed the landscape with for example, um low cost re production of digital files or giving away products at below cost.

Has it changed the nature of what it means to gain dominance because they can gain dominance now with a very very low cost structure, which traditionally would be viewed as pro competitive. And so that's really the question. It's not so much as more aggressive as it is do we have the right standard? So what kind of standard would you use if you don't want to use price effects? Well, I think that's what the hearings are trying to explore.

Uh and this is probably consistent with the progressive movement that's been going on throughout America. UH. In in opening up today's hearing, I understand Commissioner slaughter Um made an observation that, UH, it can't possibly be the case that these lengthy conclusion, these lengthy hearings would lead to quote

a conclusion that nothing should change. So uh and and she came from uh Senator Schumer's staff, and Senator Schumer is on record for expanding the kinds of analysis and the kinds of effects that and I trust law takes into account. For example, people today are wondering whether an I trust standards should take account of labor, effects of labor on effects on labor of a merger, or other conduct,

whether it should be looking at concentration of wealth. So in a way, it's kind of a return to the populist an I trust movement that existed before the nineties for a very long time that essentially rested on the

notion biggest bad. And today I think the analysis that commission Slaughter and Commissioner Chopra and others are raising UH is much more sophisticated than simply biggest bad, but it is that popular, this notion that an I trust shouldn't be just focused on price to consumers but should look at broader economic interests. I'm not sure that anybody knows yet what the right standard is for the modern economy, but I think it's probably a good idea that it's

being explored in these kinds of hearings. Do you agree, though, with the conclusion of many industry analysts that there are a lot of industries that have grown more concentrated, including

even agriculture, healthcare, airlines. So I think that that is true UM and it's not clear why necessarily that is, but the fact that there is concentration I think in the older biggest bed analysis would probably be the equivalent of saying that those concentrations are in a competitive Again, I think with the economic tools that we have available to us, we're able to look at the industries that have concentrated and see that there are also a lot

of efficiency gains. And then the question becomes, are the efficiency gains and the scale that the more concentrated competitors can achieve are they actually having more vigorous competition. So in a lot of areas, for example, old brick and mortar um UH companies and industries may have concentrated, but that concentration allows them more strength and more scale in order to compete against the Internet companies and the web based companies. So again, I don't think that we yet

know what the answer is. I think it's very good that we're studying the question. The Justice Department's Antitrust Division has asked the U. S. Court of Appeals in DC to reverse the ruling by Judge leon in the A T and T Time Warner case out a minute here,

What's what's your opinion of where that's going to go? Well, I think that was a case that probably should never have been brought, and having brought it, the division is between a rock and hard place because they have a terrible precedent on their hand, and so they have to roll the dice whether that precedent will become entrenched, maybe even made worse for them, or whether they can reverse

it on appeal. Um. I think probably that's the reason that the Solicitor General of the United States reportedly opposed the appeal, because if they lose this appeal, it will have a much more entrenching effect in terms of the d J having a very hard time in the next vertical cave. All Right, we'll have to leave it there, Joel. That's Joel Mtnick of Cadwalader. Thanks for listening to the

Bloomberg Law Podcast. You can subscribe and listen to the show on Apple Podcasts, SoundCloud, and on Bloomberg dot com slash podcast. I'm June Brosso. This is Bloomberg. M m HM.