July 1, 2025 • 34 mins
Constitutional law expert Michael Dorf, a professor at Cornell Law School, discusses the Supreme Court term which included a number of victories for President Donald Trump and losses for LGBTQ rights. Former federal prosecutor Robert Mintz, a partner at McCarter & English, discusses the jury in the Sean “Diddy” Combs trial saying they are deadlocked on the top charge. June Grasso hosts.
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Speaker 1 (00:02):
This is Bloomberg Law with June Grossel from Bloomberg Radio.
Speaker 2 (00:08):
Chief Justice John Roberts repeatedly stresses the importance of judicial independence.
In an interview in May, he said, the judiciary is
a coequal branch of government.
Speaker 1 (00:20):
Its job is to.
Speaker 2 (00:22):
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. However, in its recent term,
it doesn't appear that the Supreme Court did much to
check the excesses of the current executive. In fact, the
clear winner of the term was President Donald Trump, as
(00:45):
the Court sided with him on broad legal questions and
emergency requests 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 by essentially eliminating
(01:09):
the main tool courts have used to thwart his ambitious agenda,
the nationwide injunction.
Speaker 1 (01:16):
This was a big one, wasn't it.
Speaker 2 (01:19):
This was a big decision, amazing decision, one that we're
very happy about. Like almost all the high profile cases
of the term, the Court divided six to three down
ideological lines, with the conservatives of the majority and the
liberals dissenting. Joining me is constitutional law expert Michael Dorf,
(01:40):
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
(02:03):
enough to call a press conference. How important do you
think it is?
Speaker 1 (02:07):
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
(02:28):
statewide injunctions. Those are two potential workarounds, neither of which
the majority directly addressed is but both of which, just
as Theleto and his concurrence suggests, should be only available
under a heightened standard of sorts. So what remains to
(02:49):
be seen is whether plaintiffs challenging these executive actions. Here
it was the birthright Citizenship Order, but it applies to
versally 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 2 (03:07):
Getting class action status is a lot more complicated, and
I think, you know, we've seen just in the last
few days how confusing it is for the lower courts
to parse through this.
Speaker 1 (03:20):
I think that's right. 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
(03:43):
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
(04:04):
would just lead to, you know, the availability of similar
relief under a different mechanism.
Speaker 2 (04:09):
Why is the Court allowing this rule to be applied
retroactively because now President Trump says that the administration is
going to move to lift holds that judges have placed
on a number of his policies. He mentioned fights over
refugee resettlement, federal spending, and sanctuary city. So you know,
it's going to open up a can of worms.
Speaker 1 (04:30):
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,
(04:50):
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 2 (05:00):
Sonya Sotomayor, in one of her descents, 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 (05:16):
I mean, I think she is exactly right. That it's
one thing to say, 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 in force. The normal rule is, if you
don't like a court order, you appeal it, but unless
(05:37):
you get a stay of that order, and until you
get a stay of that order, you have to comply
with it.
Speaker 2 (05:42):
Often the Chief Justice is the one who writes the
majority opinion in the biggest cases of the term. What
do you think he chose the second most junior Justice,
Amy Cony Barrett, to write this majority Well, I.
Speaker 1 (05:57):
Think there's a little bit of sort of doctrinal favoritism
going on here. So the decision in Trump Vicasa relies
on a precedent called Group of Mechicano, which was written
by Justice Scalia, who was, of course the justice for
whom Justice Barrett clerked, and she sort of sees herself
(06:19):
in many ways as trying to carry out his legacy.
So I think she was very much interested in applying
Justice Scalia's view, which was that courts of equity have
only the equity powers that they had in seventeen eighty
nine of you, which, by the way, I think is
somewhat far fetched, but that is the president, and so
(06:40):
it sort of fell into her wheelhouse. It turns out
it's a very important case, but I think it was
given to her because it was seen as falling within
her area of some special expertise and interest.
Speaker 2 (06:54):
Let's turn out to a decision that has implications for
transgender youth in more than half the state. The Supreme Court,
in another six to three decision down ideological lines, upheld
Tennessee's ban on gender affirming care for transgender miners. Transgender
advocates say the decision is devastating for LGBTQ youth and
(07:17):
their families in the twenty seven states that have similar bands.
Here's Kelly Robinson, the president of the Human Rights Campaign.
Speaker 3 (07:26):
You're gonna have families. Families have been in states that
they live in for generations. I know family has been
in Arizona for generations and generations they are Arizonas. They're
gonna have to leave their states just to get access
to care for their kids.
Speaker 2 (07:41):
In Justice Sodo Mayor's dissent for the Liberals, 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, the issue here was whether the
law violated the equal protection claw.
Speaker 1 (08:00):
Yeah, that's right. The underlying litigation raised a number of
other questions, including whether this violated the bodily autonomy or
substantial processed rights of the miners, the rights of parents
to make medical decisions for their children. But as it
came to the Supreme Court, the only issue was whether
(08:21):
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, though we don't have to apply the
(08:42):
intermediate scrutiny that would normally apply to such laws, and
therefore we all only have to say whether it's rational.
And of course states get to make all sorts of
medical judgments, and you subject those tor 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
(09:04):
of discrimination on 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
(09:25):
discrimination doesn't trigger any height and scrutiny. They didn't say
that about sex. Last. What they said there was that
it's not sex based discrimination. And in that sense, those
concurring justices differed with respect to their constitutional analysis from
what the Court said a number of years ago. As
a matter of statutory interpretation in employment discrimination cases.
Speaker 2 (09:48):
I mean, the same drugs that Tennessee bans for the
purpose of gender firming care for transitioning minors 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 (10:07):
So the plaintiffs and just the start of my ority 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 effect.
How could that be anything other than sex discrimination? And
(10:29):
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 assigned female at birth, it's being given
(10:52):
to facilitate sex transition, and that, of course, says, is
a different treatment. Now they announce to something like, you know,
different off label uses, so that something might be approved
for as a treatment for hypertension, and people discover henus
also can pure baldness mormally. If a drug is approved
(11:15):
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 studlement are convincingly, says in dissentis well, here,
what makes this a different treatment is simply the sex
(11:36):
assigned birth of the person taking it, And you're sort
of building the lily or double counting by working that in.
Speaker 2 (11:43):
So the three conservative justices you were referring to who
wrote concurrences, would they reject intermediate scrutiny for any anti
trans laws.
Speaker 1 (11:54):
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 semi susie classification, and transgender status doesn't meet those criteria. Now,
I think she applies them a little bit strangely. One
of the things she says is that in order for
(12:15):
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 dyspharrior or other mismatch between their experience of themselves
(12:36):
and the sex assigned at birth is that what they
were treated as at birth was you know, not accurate,
and so it's you know, 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,
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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 2 (13:12):
Well, the court also allowed the Trump administration to oust
transgender military on the emergency docket without even a full
hearing on the merits. It seems like transgender rights are
not in favor at the Court.
Speaker 1 (13:29):
I think that's right now. Of first, we don't know
what the basis for that decision was exactly, because it
was on the emergency docket without explanation. We do know
that there is traditionally greater difference shown to the political branches,
both Congress and the executive with respect to military matters,
(13:55):
and so it would be possible to say that gender
status discrimination generally triggers intermediate scrutiny, but not with respect
to who can be in the military. There were some
cases in the nineteen nineties and early two thousands before
(14:17):
the abandonment of the so called DNAs don't tell policy,
in which courts upheld the ban on gays and lesbian
serving openly in the military, even while saying they weren't
deciding the broader question of what kind of scrutiny sexual
orientation discrimination gets outside of the military context.
Speaker 2 (14:41):
Can we read anything into the Supreme Court throughout appellate
rulings in favor of transgender people in clashes over healthcare
and birth certificates in four states and ordered the judges
to re examine the cases in the wake of this
Scrimati decision. Do we read anything into that?
Speaker 1 (14:59):
Oh? Yes, so I was probably 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 discrimination is sort of presumptively invalid in
the same way that sex discrimination is. But reading the
(15:22):
tea leaves, I think it's pretty clear that that's not
the direction that this court is going. And another way
to put that is that they are going to increasingly
treat the boss Stock decision, which is the case that
held that sexual orientation and transgender status discrimination or sex
discrimination for purposes of Title seven. They're going to treat
(15:43):
that decision as a kind of outlier, the case that
gets distinguished, and they specifically say INSTAGRAMMETI. While we're not
addressing this boss Stock analogy Title seven might be different.
So I think they're teeing that up and so cutting back,
you know, the anti trends back that we've been seeing
in the political realm, I think is now flowering in
(16:04):
the Supreme Court as well.
Speaker 2 (16:06):
Coming up next, we'll continue this discussion of the Supreme
Court's term. The Court once again bolsters religious rights. I'm
June Gross. When you're listening to Bloomberg, I've been talking
with constitutional law professor Michael Dorf of Cornell Law School.
I got the Supreme Court's term. There was another case
involving LGBTQ rights, and in a six to three ruling,
(16:30):
once again with the conservative justices in the majority and
the liberal justices in the minority, the Court rule that
public school parents have a right to opt out of
classroom lessons that intrude on their religious beliefs, and in
this case it was because the lessons involved the reading
of LGBTQ themed story books. Religion versus issues involving LGBTQ rights,
(16:58):
Religion always wins Roberts Court.
Speaker 1 (17:01):
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
(17:24):
LGBTQ plus inclusive curriculum. To my mind, what's so sort
of 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
(17:48):
is a burden on religion, then the government school district
has to give an exemption unless it can satisfy high scrutiny.
And the burden on religion here is, as the descend
points out, that kids are being exposed to ideas that
(18:10):
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
(18:34):
can opt 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
(18:58):
be to these concerned efforts to have parents object to
what they see as you 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
(19:19):
the point that the descent makes, I think very effectively.
Speaker 2 (19:22):
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
(19:44):
LGBTQ books isn't even established yet it seems like the
court is just jumping in before there's a real controversy.
Speaker 1 (19:54):
I think a fair criticism of the court would be
that in these cases where there are a religious objections
to a 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
(20:16):
three H 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 this policy, and the Court.
Speaker 2 (20:29):
Is not stepping away from these issues. 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.
Speaker 4 (20:49):
Maybe I'm jumping the gun, but you no, I don't
think you are.
Speaker 1 (20:53):
And you know, if you want to sort of juxtapose
that with Scrimetti, Right, So, in Scrimmetti, 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
(21:15):
have puberty blockers and hormone therapy. Right. 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 2 (21:33):
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
(21:56):
won't eviscerate gun control measures or is it too soon
to tell?
Speaker 1 (22:01):
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,
(22:22):
after all, Mexico did lose that case, so they're unable
to bring the lawsuits. I don't count that one as
a sort of pure victory for gun regulation. And then Henson,
which is the case where they denied Zert from the
District of Columbia. Curt denial doesn't set a precedent, and
(22:44):
you can make an argument I think that 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, when,
how is it consistent with the history of regulation of
guns to limit them to ten rounds. Well, you're not
(23:08):
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 it's 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 2 (23:29):
Okay, stay with me, Mike. Coming up next on the
Bloomberg Law Show, I'll continue this conversation with Professor Michael
Dorf of Cornell Law School. We're going to take a
look at the Court's emergency docket and how the justices
gave Trump some or all of what he asked for.
I'm June Grosso and you're listening to Bloomberg. The clear
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winner of the Supreme Court's term was President Donald Trump.
The Court's conservative super majority sided with Trump on both
broad legal quests and an unprecedented barrage of emergency requests
to let his policies take effect right away. On the
emergency docket, the court allowed Trump to discharge transgender people
(24:13):
from the military, fire top officials at government agencies, and
open hundreds of thousands of migrants to deportation. The conservative
justice is repeatedly reinstated Trump policies found by lower courts
to be illegal, and it undercut judges who said the
administration had violated their orders. I've been talking to Professor
(24:35):
Michael Dorf of Cornell Law School. How do you read
his wins on the emergency docket?
Speaker 1 (24:42):
So I guess i'd say a few things. First. One
of the things we didn't talk about when we're 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 fast and then
for us to decide them, because we can lay down
(25:03):
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, you know,
reversing the lower courts, giving either no guidance or very
(25:24):
scant guide, you know. And that's to say nothing of
whether Justice Kavanaugh's proposed solution makes any sense, given that,
you know, 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 with full oral argument.
So you had this remarkable decision where they essentially overrule
(25:45):
the Humphreys Executor case, which is, you know, a very
old precedent banding for the proposition that Congress can create
independent agencies. And you know, Justice Kagan in the sense says,
what are you doing. You don't even 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
(26:06):
you're reversing the lower court for following our established president,
which we've told them they're supposed to do. So, you know,
the one remarkable thing about what they're doing on the
emergency donket is tympally. 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 continued it to do that, but it is
(26:29):
it is a 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
(26:49):
reversed the Fifth Circuit, which is the most conservative circuit
quite a lot. Right, So the Fifth Circuit is getting
a haw to head of the Supreme Court sort of
in being very very conservative on their emergency docket. In
these cases challenging comp administration actions, the Court is basically saying, well,
the lower courts are too liberal. Now. Part of that,
(27:11):
I think is forum shopping by funny tips, Right, if
you're going to challenge your comp 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 will also suggests again that this
Court is, you know, not all that skeptical of a
(27:33):
lot of what the Trump administration is doing on the merits.
Speaker 2 (27:37):
Yeah, the Fifth Circuit has become what the Ninth Circuit was,
maybe even more so. In conclusion, how far to the
right is the court moving?
Speaker 1 (27:48):
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 Roe v. Wade, they got
rid of the permantive 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.
(28:09):
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.
(28:30):
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, you know, for
lack of a better term.
Speaker 5 (28:44):
And so it's not surprising to me that, you know,
if the Trump administration you know, wants to peel back
transgender rights.
Speaker 1 (28:54):
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
(29:19):
left right spectrum as we've understood it for the last
one 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 2 (29:31):
And over the summer we'll have to keep a close
eye on the emergency docket, which I'm sure is going
to be very active. Thanks so much, Michael for your
analysis and spending all this time with me. That's Professor
Michael Dwarf of Cornell Law School. In other legal news today,
the jury in Sean Diddycombe's sex trafficking trial has said
(29:52):
that it reached a verdict on four of the five
counts against the hip hop mogul, but could not reach
a verdict on the top count of racketeering conspiracy. The
jurors said in a note this afternoon that it was
unable to reach a unanimous verdict on the racketeering conspiracy
charge because there were jurors with quote, unpersuadable views on
(30:14):
both sides. Joining me to discuss what may be happening
with the jury is former federal prosecutor Robert Mintz, a
partner Macarter in English. So, Bob, what do you think
it means that the jurors couldn't reach a unanimous decision
on the top count.
Speaker 4 (30:31):
It's not surprising that this has been the most difficult
charge for the jurors to reach an unanimous verdict on.
The racketeering charge was always the most challenging for prosecutors.
It requires proof of at least one other person acting
in conspiracy with mister Colmbs to commit two crimes or
(30:52):
predicate acts in furtherance of a racketeering enterprise. So it's
a very complex charge. It's also the most serious charge.
So it's going to be interesting to see what they
ultimately do with the charge, whether they are able to
reach a verdict or whether ultimately they are hung, which
means they could not get unanimity among jurors on that
(31:13):
particular charge.
Speaker 2 (31:14):
Yeah, Rather than taking a partial verdict, the judge told
the jury to continue weighing the remaining charge and deliberations
are going to continue. Does it seem to you like
they've reached guilty verdicts on each of the lesser charges.
Speaker 4 (31:30):
Well, it's always difficult when you have news from the
jury that they've reached a verdict or a partial verdict
in terms of reading the tea leaves and trying to
figure out what it means. Here we have a note
from the jurors saying they've reached a unanimous verdict on
four out of the five, and that they are hung
or unable to reach a verdict on the most difficult charge.
(31:50):
It would suggest that perhaps they have returned a guilty verdict.
That would be probably what most prosecutors would read into
that decision, but we won't know until the verdict is
actually read an open court.
Speaker 2 (32:03):
It appears that the defense thinks that the jury has
reached guilty verdicts on the other counts. Because Combs appeared.
Moreau says his lawyers explained to him what was happening,
and Bob explain where the judge is coming from in
ordering the jurors to resume deliberations.
Speaker 4 (32:22):
Well, what we have here is a trial that wan
for seven weeks and only two days of jury deliberation.
So what a judge will typically do, and what the
judge in this case has done, is given them what's
called a modified Alan charge. Basically, it tells jurors that
they should simply go back and continue to deliberate and
try to reach the unanimous verdict. It's not that uncommon
(32:44):
for jurors to send notes to the judges to say
that they can't reach unanimity on some or all of
the charges, and then the judge urges them to continue
to deliberate, and sometimes they're able to break through whatever
barriers they have in reaching unanimity. Sometimes they are unable
to reach an anonymous verdict. But typically after only two
days of deliberations in a trial that lasted seven weeks
(33:08):
and where they heard over thirty witnesses, it's something that
a judge is going to ask yours to spend more
time trying to reach a complete verdict, because both the
prosecution on the defense would prefer that there is a
verdict as to all of the charges here.
Speaker 2 (33:22):
And so tomorrow we'll see if that modified allen or
Dynamite charge helps the jurors to reach a unanimous decision
on that top count. Thanks so much, Bob. That's Robert
Mints of McCarter and English. Combs could face fifteen years
in prison to life behind bars if he's convicted on
(33:42):
all charges. 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
(34:03):
Wall Street Time. I'm June Grosso and you're listening to
Bloomberg
This is Bloomberg Law with June Grossel from Bloomberg Radio.
Speaker 2 (00:08):
Chief Justice John Roberts repeatedly stresses the importance of judicial independence.
In an interview in May, he said, the judiciary is
a coequal branch of government.
Speaker 1 (00:20):
Its job is to.
Speaker 2 (00:22):
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. However, in its recent term,
it doesn't appear that the Supreme Court did much to
check the excesses of the current executive. In fact, the
clear winner of the term was President Donald Trump, as
(00:45):
the Court sided with him on broad legal questions and
emergency requests 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 by essentially eliminating
(01:09):
the main tool courts have used to thwart his ambitious agenda,
the nationwide injunction.
Speaker 1 (01:16):
This was a big one, wasn't it.
Speaker 2 (01:19):
This was a big decision, amazing decision, one that we're
very happy about. Like almost all the high profile cases
of the term, the Court divided six to three down
ideological lines, with the conservatives of the majority and the
liberals dissenting. Joining me is constitutional law expert Michael Dorf,
(01:40):
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
(02:03):
enough to call a press conference. How important do you
think it is?
Speaker 1 (02:07):
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
(02:28):
statewide injunctions. Those are two potential workarounds, neither of which
the majority directly addressed is but both of which, just
as Theleto and his concurrence suggests, should be only available
under a heightened standard of sorts. So what remains to
(02:49):
be seen is whether plaintiffs challenging these executive actions. Here
it was the birthright Citizenship Order, but it applies to
versally 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 2 (03:07):
Getting class action status is a lot more complicated, and
I think, you know, we've seen just in the last
few days how confusing it is for the lower courts
to parse through this.
Speaker 1 (03:20):
I think that's right. 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
(03:43):
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
(04:04):
would just lead to, you know, the availability of similar
relief under a different mechanism.
Speaker 2 (04:09):
Why is the Court allowing this rule to be applied
retroactively because now President Trump says that the administration is
going to move to lift holds that judges have placed
on a number of his policies. He mentioned fights over
refugee resettlement, federal spending, and sanctuary city. So you know,
it's going to open up a can of worms.
Speaker 1 (04:30):
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,
(04:50):
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 2 (05:00):
Sonya Sotomayor, in one of her descents, 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 (05:16):
I mean, I think she is exactly right. That it's
one thing to say, 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 in force. The normal rule is, if you
don't like a court order, you appeal it, but unless
(05:37):
you get a stay of that order, and until you
get a stay of that order, you have to comply
with it.
Speaker 2 (05:42):
Often the Chief Justice is the one who writes the
majority opinion in the biggest cases of the term. What
do you think he chose the second most junior Justice,
Amy Cony Barrett, to write this majority Well, I.
Speaker 1 (05:57):
Think there's a little bit of sort of doctrinal favoritism
going on here. So the decision in Trump Vicasa relies
on a precedent called Group of Mechicano, which was written
by Justice Scalia, who was, of course the justice for
whom Justice Barrett clerked, and she sort of sees herself
(06:19):
in many ways as trying to carry out his legacy.
So I think she was very much interested in applying
Justice Scalia's view, which was that courts of equity have
only the equity powers that they had in seventeen eighty
nine of you, which, by the way, I think is
somewhat far fetched, but that is the president, and so
(06:40):
it sort of fell into her wheelhouse. It turns out
it's a very important case, but I think it was
given to her because it was seen as falling within
her area of some special expertise and interest.
Speaker 2 (06:54):
Let's turn out to a decision that has implications for
transgender youth in more than half the state. The Supreme Court,
in another six to three decision down ideological lines, upheld
Tennessee's ban on gender affirming care for transgender miners. Transgender
advocates say the decision is devastating for LGBTQ youth and
(07:17):
their families in the twenty seven states that have similar bands.
Here's Kelly Robinson, the president of the Human Rights Campaign.
Speaker 3 (07:26):
You're gonna have families. Families have been in states that
they live in for generations. I know family has been
in Arizona for generations and generations they are Arizonas. They're
gonna have to leave their states just to get access
to care for their kids.
Speaker 2 (07:41):
In Justice Sodo Mayor's dissent for the Liberals, 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, the issue here was whether the
law violated the equal protection claw.
Speaker 1 (08:00):
Yeah, that's right. The underlying litigation raised a number of
other questions, including whether this violated the bodily autonomy or
substantial processed rights of the miners, the rights of parents
to make medical decisions for their children. But as it
came to the Supreme Court, the only issue was whether
(08:21):
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, though we don't have to apply the
(08:42):
intermediate scrutiny that would normally apply to such laws, and
therefore we all only have to say whether it's rational.
And of course states get to make all sorts of
medical judgments, and you subject those tor 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
(09:04):
of discrimination on 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
(09:25):
discrimination doesn't trigger any height and scrutiny. They didn't say
that about sex. Last. What they said there was that
it's not sex based discrimination. And in that sense, those
concurring justices differed with respect to their constitutional analysis from
what the Court said a number of years ago. As
a matter of statutory interpretation in employment discrimination cases.
Speaker 2 (09:48):
I mean, the same drugs that Tennessee bans for the
purpose of gender firming care for transitioning minors 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 (10:07):
So the plaintiffs and just the start of my ority 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 effect.
How could that be anything other than sex discrimination? And
(10:29):
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 assigned female at birth, it's being given
(10:52):
to facilitate sex transition, and that, of course, says, is
a different treatment. Now they announce to something like, you know,
different off label uses, so that something might be approved
for as a treatment for hypertension, and people discover henus
also can pure baldness mormally. If a drug is approved
(11:15):
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 studlement are convincingly, says in dissentis well, here,
what makes this a different treatment is simply the sex
(11:36):
assigned birth of the person taking it, And you're sort
of building the lily or double counting by working that in.
Speaker 2 (11:43):
So the three conservative justices you were referring to who
wrote concurrences, would they reject intermediate scrutiny for any anti
trans laws.
Speaker 1 (11:54):
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 semi susie classification, and transgender status doesn't meet those criteria. Now,
I think she applies them a little bit strangely. One
of the things she says is that in order for
(12:15):
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 dyspharrior or other mismatch between their experience of themselves
(12:36):
and the sex assigned at birth is that what they
were treated as at birth was you know, not accurate,
and so it's you know, 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,
(12:58):
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 2 (13:12):
Well, the court also allowed the Trump administration to oust
transgender military on the emergency docket without even a full
hearing on the merits. It seems like transgender rights are
not in favor at the Court.
Speaker 1 (13:29):
I think that's right now. Of first, we don't know
what the basis for that decision was exactly, because it
was on the emergency docket without explanation. We do know
that there is traditionally greater difference shown to the political branches,
both Congress and the executive with respect to military matters,
(13:55):
and so it would be possible to say that gender
status discrimination generally triggers intermediate scrutiny, but not with respect
to who can be in the military. There were some
cases in the nineteen nineties and early two thousands before
(14:17):
the abandonment of the so called DNAs don't tell policy,
in which courts upheld the ban on gays and lesbian
serving openly in the military, even while saying they weren't
deciding the broader question of what kind of scrutiny sexual
orientation discrimination gets outside of the military context.
Speaker 2 (14:41):
Can we read anything into the Supreme Court throughout appellate
rulings in favor of transgender people in clashes over healthcare
and birth certificates in four states and ordered the judges
to re examine the cases in the wake of this
Scrimati decision. Do we read anything into that?
Speaker 1 (14:59):
Oh? Yes, so I was probably 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 discrimination is sort of presumptively invalid in
the same way that sex discrimination is. But reading the
(15:22):
tea leaves, I think it's pretty clear that that's not
the direction that this court is going. And another way
to put that is that they are going to increasingly
treat the boss Stock decision, which is the case that
held that sexual orientation and transgender status discrimination or sex
discrimination for purposes of Title seven. They're going to treat
(15:43):
that decision as a kind of outlier, the case that
gets distinguished, and they specifically say INSTAGRAMMETI. While we're not
addressing this boss Stock analogy Title seven might be different.
So I think they're teeing that up and so cutting back,
you know, the anti trends back that we've been seeing
in the political realm, I think is now flowering in
(16:04):
the Supreme Court as well.
Speaker 2 (16:06):
Coming up next, we'll continue this discussion of the Supreme
Court's term. The Court once again bolsters religious rights. I'm
June Gross. When you're listening to Bloomberg, I've been talking
with constitutional law professor Michael Dorf of Cornell Law School.
I got the Supreme Court's term. There was another case
involving LGBTQ rights, and in a six to three ruling,
(16:30):
once again with the conservative justices in the majority and
the liberal justices in the minority, the Court rule that
public school parents have a right to opt out of
classroom lessons that intrude on their religious beliefs, and in
this case it was because the lessons involved the reading
of LGBTQ themed story books. Religion versus issues involving LGBTQ rights,
(16:58):
Religion always wins Roberts Court.
Speaker 1 (17:01):
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
(17:24):
LGBTQ plus inclusive curriculum. To my mind, what's so sort
of 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
(17:48):
is a burden on religion, then the government school district
has to give an exemption unless it can satisfy high scrutiny.
And the burden on religion here is, as the descend
points out, that kids are being exposed to ideas that
(18:10):
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
(18:34):
can opt 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
(18:58):
be to these concerned efforts to have parents object to
what they see as you 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
(19:19):
the point that the descent makes, I think very effectively.
Speaker 2 (19:22):
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
(19:44):
LGBTQ books isn't even established yet it seems like the
court is just jumping in before there's a real controversy.
Speaker 1 (19:54):
I think a fair criticism of the court would be
that in these cases where there are a religious objections
to a 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
(20:16):
three H 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 this policy, and the Court.
Speaker 2 (20:29):
Is not stepping away from these issues. 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.
Speaker 4 (20:49):
Maybe I'm jumping the gun, but you no, I don't
think you are.
Speaker 1 (20:53):
And you know, if you want to sort of juxtapose
that with Scrimetti, Right, So, in Scrimmetti, 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
(21:15):
have puberty blockers and hormone therapy. Right. 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 2 (21:33):
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
(21:56):
won't eviscerate gun control measures or is it too soon
to tell?
Speaker 1 (22:01):
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,
(22:22):
after all, Mexico did lose that case, so they're unable
to bring the lawsuits. I don't count that one as
a sort of pure victory for gun regulation. And then Henson,
which is the case where they denied Zert from the
District of Columbia. Curt denial doesn't set a precedent, and
(22:44):
you can make an argument I think that 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, when,
how is it consistent with the history of regulation of
guns to limit them to ten rounds. Well, you're not
(23:08):
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 it's 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 2 (23:29):
Okay, stay with me, Mike. Coming up next on the
Bloomberg Law Show, I'll continue this conversation with Professor Michael
Dorf of Cornell Law School. We're going to take a
look at the Court's emergency docket and how the justices
gave Trump some or all of what he asked for.
I'm June Grosso and you're listening to Bloomberg. The clear
(23:49):
winner of the Supreme Court's term was President Donald Trump.
The Court's conservative super majority sided with Trump on both
broad legal quests and an unprecedented barrage of emergency requests
to let his policies take effect right away. On the
emergency docket, the court allowed Trump to discharge transgender people
(24:13):
from the military, fire top officials at government agencies, and
open hundreds of thousands of migrants to deportation. The conservative
justice is repeatedly reinstated Trump policies found by lower courts
to be illegal, and it undercut judges who said the
administration had violated their orders. I've been talking to Professor
(24:35):
Michael Dorf of Cornell Law School. How do you read
his wins on the emergency docket?
Speaker 1 (24:42):
So I guess i'd say a few things. First. One
of the things we didn't talk about when we're 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 fast and then
for us to decide them, because we can lay down
(25:03):
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, you know,
reversing the lower courts, giving either no guidance or very
(25:24):
scant guide, you know. And that's to say nothing of
whether Justice Kavanaugh's proposed solution makes any sense, given that,
you know, 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 with full oral argument.
So you had this remarkable decision where they essentially overrule
(25:45):
the Humphreys Executor case, which is, you know, a very
old precedent banding for the proposition that Congress can create
independent agencies. And you know, Justice Kagan in the sense says,
what are you doing. You don't even 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
(26:06):
you're reversing the lower court for following our established president,
which we've told them they're supposed to do. So, you know,
the one remarkable thing about what they're doing on the
emergency donket is tympally. 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 continued it to do that, but it is
(26:29):
it is a 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
(26:49):
reversed the Fifth Circuit, which is the most conservative circuit
quite a lot. Right, So the Fifth Circuit is getting
a haw to head of the Supreme Court sort of
in being very very conservative on their emergency docket. In
these cases challenging comp administration actions, the Court is basically saying, well,
the lower courts are too liberal. Now. Part of that,
(27:11):
I think is forum shopping by funny tips, Right, if
you're going to challenge your comp 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 will also suggests again that this
Court is, you know, not all that skeptical of a
(27:33):
lot of what the Trump administration is doing on the merits.
Speaker 2 (27:37):
Yeah, the Fifth Circuit has become what the Ninth Circuit was,
maybe even more so. In conclusion, how far to the
right is the court moving?
Speaker 1 (27:48):
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 Roe v. Wade, they got
rid of the permantive 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.
(28:09):
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.
(28:30):
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, you know, for
lack of a better term.
Speaker 5 (28:44):
And so it's not surprising to me that, you know,
if the Trump administration you know, wants to peel back
transgender rights.
Speaker 1 (28:54):
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
(29:19):
left right spectrum as we've understood it for the last
one 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 2 (29:31):
And over the summer we'll have to keep a close
eye on the emergency docket, which I'm sure is going
to be very active. Thanks so much, Michael for your
analysis and spending all this time with me. That's Professor
Michael Dwarf of Cornell Law School. In other legal news today,
the jury in Sean Diddycombe's sex trafficking trial has said
(29:52):
that it reached a verdict on four of the five
counts against the hip hop mogul, but could not reach
a verdict on the top count of racketeering conspiracy. The
jurors said in a note this afternoon that it was
unable to reach a unanimous verdict on the racketeering conspiracy
charge because there were jurors with quote, unpersuadable views on
(30:14):
both sides. Joining me to discuss what may be happening
with the jury is former federal prosecutor Robert Mintz, a
partner Macarter in English. So, Bob, what do you think
it means that the jurors couldn't reach a unanimous decision
on the top count.
Speaker 4 (30:31):
It's not surprising that this has been the most difficult
charge for the jurors to reach an unanimous verdict on.
The racketeering charge was always the most challenging for prosecutors.
It requires proof of at least one other person acting
in conspiracy with mister Colmbs to commit two crimes or
(30:52):
predicate acts in furtherance of a racketeering enterprise. So it's
a very complex charge. It's also the most serious charge.
So it's going to be interesting to see what they
ultimately do with the charge, whether they are able to
reach a verdict or whether ultimately they are hung, which
means they could not get unanimity among jurors on that
(31:13):
particular charge.
Speaker 2 (31:14):
Yeah, Rather than taking a partial verdict, the judge told
the jury to continue weighing the remaining charge and deliberations
are going to continue. Does it seem to you like
they've reached guilty verdicts on each of the lesser charges.
Speaker 4 (31:30):
Well, it's always difficult when you have news from the
jury that they've reached a verdict or a partial verdict
in terms of reading the tea leaves and trying to
figure out what it means. Here we have a note
from the jurors saying they've reached a unanimous verdict on
four out of the five, and that they are hung
or unable to reach a verdict on the most difficult charge.
(31:50):
It would suggest that perhaps they have returned a guilty verdict.
That would be probably what most prosecutors would read into
that decision, but we won't know until the verdict is
actually read an open court.
Speaker 2 (32:03):
It appears that the defense thinks that the jury has
reached guilty verdicts on the other counts. Because Combs appeared.
Moreau says his lawyers explained to him what was happening,
and Bob explain where the judge is coming from in
ordering the jurors to resume deliberations.
Speaker 4 (32:22):
Well, what we have here is a trial that wan
for seven weeks and only two days of jury deliberation.
So what a judge will typically do, and what the
judge in this case has done, is given them what's
called a modified Alan charge. Basically, it tells jurors that
they should simply go back and continue to deliberate and
try to reach the unanimous verdict. It's not that uncommon
(32:44):
for jurors to send notes to the judges to say
that they can't reach unanimity on some or all of
the charges, and then the judge urges them to continue
to deliberate, and sometimes they're able to break through whatever
barriers they have in reaching unanimity. Sometimes they are unable
to reach an anonymous verdict. But typically after only two
days of deliberations in a trial that lasted seven weeks
(33:08):
and where they heard over thirty witnesses, it's something that
a judge is going to ask yours to spend more
time trying to reach a complete verdict, because both the
prosecution on the defense would prefer that there is a
verdict as to all of the charges here.
Speaker 2 (33:22):
And so tomorrow we'll see if that modified allen or
Dynamite charge helps the jurors to reach a unanimous decision
on that top count. Thanks so much, Bob. That's Robert
Mints of McCarter and English. Combs could face fifteen years
in prison to life behind bars if he's convicted on
(33:42):
all charges. 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
(34:03):
Wall Street Time. I'm June Grosso and you're listening to
Bloomberg
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