November 10, 2025 • 37 mins
Columbia Law School Professor Suzanne Goldberg, Director of the Sexuality and Gender Law Clinic, discusses the Supreme Court’s decision not to take up a challenge to same-sex marriage. Then Bloomberg Law Reporter Suzanne Monyak discusses the second-in-command at the Justice Departments asking young attorneys to join the “war” on the judiciary. June Grasso hosts.
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Speaker 1 (00:02):
This is Bloomberg Law with June Grossel from Bloomberg Radio.
Speaker 2 (00:09):
The nearly eight hundred thousand same sex couples in this
country can breathe a sigh of relief, at least for now. Today,
the Supreme Court rejected an effort to overturn its landmark
twenty fifteen decision that legalized same sex marriage. Without any comment.
The Justice is left intact a jury verdict against Kim Davis,
(00:32):
the former Kentucky court clerk who drew national attention by
refusing to issue marriage licenses to same sex couples. Today's
order indicates that Davis couldn't get the four votes necessary
for the Court to take her case. Although the appeal
was a long shot, it due attention because the Supreme
(00:52):
Court has shifted to the right since the five to
four decision in obergerfelvi hodges Well. My guest is Suzanne Goldberg,
a professor at Columbia Law School and director of the
school Septuality and Gender Law Clinic. Suzan, this case brings
up a name that was in the news ten years ago.
Tell us more about Kim Davis's appeal of a three
(01:15):
hundred and sixty thousand dollars, damages and attorney's fee award
to the couple she refused to give a license to within.
Speaker 3 (01:26):
Days of the Supreme Court granting same sex couples the
right to marry in a case called Obergofell versus Hodges.
In twenty fifteen, a couple presented themselves to Kim Davis's
office and said, you know, we'd like to get our
marriage license. She said no, And in fact, not only
(01:47):
did she say no. She's a clerk for Rowan County,
Kentucky and her job was to issue marriage licenses. She
said she was acting under God's authority to deny this
gay couple of marriage licenses. And one of the men
actually say to her that she had probably given marriage
licenses murderers and rapists and people who had done all
sorts of horrible things, and Davis responded by saying it
(02:08):
was fine because they're straight. So she was ultimately overridden
and required to present the couple with their marriage license.
But she's been up and down the change. She's been
litigating for many years now, almost a decade, saying that she,
as a government employee, had a right to implement her
(02:28):
religious views against marriage for same sex couples and based
on those views, deny a marriage license in her capacity
as a government official. So quite complicated. It goes beyond
a basic challenge to the idea of same sex couples
marrying and says essentially that somebody working as a government
official should have the right to refuse services to a
(02:51):
resident or a citizen of that location of that jurisdiction
based on their faith. So when she first got up
to this court in twenty twenty, Justice Thomas actually when
the Court rejected her case, specifically said that her case
did not cleanly present questions about Obergefell, the Court's marriage
(03:11):
equality ruling to the court. And so this time around,
when Kim Davis went up to the court, she brought
the same complicated set of facts related to her personal position,
but she also argued that the Court should reverse its
Obergefell marriage equality ruling based on the same reasoning that
(03:33):
the Court had used in Dabbs, the case in which
the Court overturned Reversus weighed and said there's not constitutional
protection related to abortion. So the question in this case
was would the Court take up Kim Davis's challenge to
the Obergafell marriage equality ruling the Court denied cert meaning
(03:54):
it will not take up her challenge. Most commentators expected
this because case is so particular to her situation. I
think that her cert petition, her request for Supreme Court review,
is best understood not as a realistic shot at getting
Supreme Court review of a Burgerfell, but instead as additional
(04:18):
publicity for the idea that the Court someday should overturn
its marriage equality ruling. And in that sense, even if
this cert petition itself wasn't very troubling, the broader effort
to call into question marriage equality is concerning.
Speaker 2 (04:33):
So are you saying that same sex couples shouldn't breathe
a sigh of relief that the Supreme Court turned this
case down.
Speaker 3 (04:40):
People can certainly breathe it five of relief that the
Supreme Court turned down can Davis's certain petition? That said,
I think it would be a mistake to think this
is the end of these kinds of cert petitions or
the end of these battles. There is an ongoing effort
to try to destabilize the idea of marriage equality and
(05:02):
ultimately the Supreme Court's ruling on marriage equality. You know
whether that will succeed. It doesn't seem to me it
will succeed in the near future. But it is also
important to keep an eye on this because I think
many people would have said Roe versus Weight would not
ultimately be overturned, And of course it was many decades
after the Court first issued that ruling that was overturned
(05:24):
in jobs. But we are in a time when well
established precedents are coming into questions. So it's also a
time for vigilance for those who care about the right
to marry as protected by the Constitution, and.
Speaker 2 (05:39):
The Supreme Court has shifted significantly to the right since
that five to four oh Bergerfeld decision. You have three
members of that majority are no longer on the Court
and two have been replaced by Trump appointees, so it's
a different court.
Speaker 3 (05:56):
It is a very different court from the court that
decided the Obergafell case granting safe sex couples the freedom
to marry, and Chief Justice Roberts as well as other
members of the Court specifically dissented from that ruling, So
we'll have to see. I think the key takeaway is
(06:16):
in the marriage equality right is safe at this moment,
and certainly it is a good thing in my view.
That the Supreme Court denied Kim Davis's petition for lots
of reasons, and at the same time, it is important
to pay attention to what is going on both societally
and in legal challenges to see where this will land.
(06:39):
There are a number of state legislators who have introduced
various bills to try to cut back on marriage equality.
We haven't seen those get a lot of traction at
this point, but again, it's something else to pay attention to.
Speaker 2 (06:53):
It always seems to me that it would be very
difficult to take away same sex marriage because you have
these new eight hundred thousand couples who've acted in reliance
on the right to same sex marriage, getting married, having children,
sharing finances, etc. What would happen to all that if
the Supreme Court took back the right to same sex marriage.
Speaker 3 (07:17):
To take away marriage equality would be an administrative disaster
in states and at the federal level. So it would
be complicated and unfair in addition to in my view, unconstitutional.
At the same time, we know there are people who
are committed to taking that away. Precisely. Would also say
(07:40):
that even though access to abortion presents different issues, access
to abortion as a part of reproductive healthcare has certainly
been something that women have relied on for decades where
they live or in states nearby, and people have ordered
their lives around this. Not in the same way as marriage,
(08:01):
but it has certainly been an important form of reproductive
health care that is now being denied in a number state.
So there's a set of challenges to access to healthcare,
to access to relationship recognition that are continuing to be
debated and have important implications for people who live throughout
(08:24):
this country.
Speaker 2 (08:25):
Something that repeatedly comes up in discussions about same sex
marriage is that Conservative Justice Clarence Thomas, in a concurring
opinion in the DBS abortion case, so the justices should
reconsider all the courts substantive due process precedents, specifically mentioning
the cases involving same sex marriage and contraception. Will you
(08:50):
explain his position?
Speaker 3 (08:52):
The idea of substantive due process is that the US
Constitution protects Americans in our day to day lives from
government interference with certain fundamental rights, including rights that are
deeply recognized as part of individual autonomy. Access to contraception,
(09:14):
certain parental rights, certain other rights to sexual relationships between
consenting adults in private for non commercial purposes, and so
Justice Thomas has long taken the position that the Constitution
does not protect these rights that have long been considered fundamental.
Does not protect marriage equality, does not protect access to contraception,
(09:37):
does not protect access to abortion. If there were more
justices to take his position that is not only with
respect to abortion and marriage, but more generally sweeping off
the table any constitutional protections understood in these ways, we
would be living in a very different country. And again,
(09:57):
it's not to say that everything would change at once,
because the absence of a substantive due process protection doesn't
mean that states could not grant marriage equality or provide
access to abortion. This is why, even in a world
where Dobbs exists, we have many states that protect the
(10:17):
right of a woman's seek an abortion as part of
a reproductive health care. But what it means is that
if a state chooses to criminalize abortion or chooses to
refuse to recognizing six couples marriages, if Obergerfella were to
be overturned, then states could refuse to provide those protections.
Speaker 2 (10:37):
It's been noted that Thomas didn't mention the case of
loving versus Virginia, which struck down interracial marriage. Is there
a difference in the legal analysis or a distinction there possibly?
Speaker 3 (10:50):
You know, when the Supreme Court druck down Virginia's while
criminalizing into racial marriages, the court recognized a part of
the problem with that law was that it gave effect
to white supremacy, gave effect to the view that white
people were superior to people of color. So the court
(11:11):
did two things. It recognized that the government should not
interfere with people's fundamental right to marry by restricting the
race of the person who they could marry. But also
the language of that ruling was in part tied deeply
to the prohibition on race discrimination and a justification for
(11:32):
that restriction. So interracial marriage would be analyzed differently somewhat
from the right to same sex couples marrying, but the
underlying idea is the same in the sense of should
the government be able to restrict who you can marry
so long as that other person is a consenting adult
who is not immediately related to stay.
Speaker 2 (11:54):
With me, Suzanne. Coming up next, another setback for transgender
rights Blomberg.
Speaker 1 (12:03):
This is Bloomberg Law with June GROSSEO from Bloomberg Radio.
Speaker 2 (12:09):
It's the twenty fourth win for the Trump administration on
the Supreme Court's emergency docket and the second blow to
transgender rights from the conservative justices on the so called
shadow docket. In a vote down ideological lines, the Court
is allowing the Trump administration to go forward with requiring
(12:30):
passports to be marked with the sex assigned at birth.
This reverses the policy in place since nineteen ninety two,
which had allowed passports to reflect a person's gender identity.
I've been talking to Professor Suzanne Goldberg of Columbia Law School. Suzanne,
will you explain the change in policy by the Trump administration?
Speaker 3 (12:53):
For nearly thirty years, actually thirty three, and as Justice
Jackson points out, across six presidential administrations, transgender Americans have
been able to get US passports with their gender marker
that accurately matches their gender identity. So transgender man can
get M on his passport and a transgender woman can
(13:15):
get an F on her passport, which is important for
many reasons, including so that the person looks like they
match their passport. But from basically nineteen ninety two to
twenty ten, there was an eligibility requirement related to a
surgical transition that has changed over time, but the point
(13:36):
is for thirty three years this has been the same.
On the first day of his administration, Donald Trump issued
an executive order saying that transgender people are corrosive to
the United States. In so many words, he used the
word corrosive and directing the State Department to no longer
issue passport to people that would be consistent with their
(13:57):
gender identity if they're transgender and so, the Trump executive
order led the State Department to take two steps, first
to stop issuing passports to transgender people consistent with their
gender identity, and second to remove the ex gender marker,
which was an option for anyone who does not fit
(14:19):
the M or the F or someone who doesn't want
to share their gender identity with the US government. So,
put into simple terms, the Trump administration changed policy on
the first day of the administration, and the State Department
followed two days later to prevent transgender Americans from obtaining
(14:40):
passports consistent with their gender identity.
Speaker 2 (14:43):
This was an unsigned order, and the Conservative Justice's very
short explanation seems to me like it's ignoring the facts
that were presented in the case, the Justice has said
displaying passport holders sex at births no more offense equal
for detection principles than displaying their country of birth. In
(15:04):
both cases, the government is merely attesting to historical fact
without subjecting anyone to differential treatment.
Speaker 3 (15:11):
It is stunning because the plaintiffs in the case explained
to the district court, which agreed as did the Court
of Appeals, that if you are a transgender man and
you have a passport that says f on it, it
does have real world harmful consequences every time you have
(15:33):
to show that passport to someone, because the person receiving
the passport may say, as has happened to some of
the plaintiffs, you're using fraudulent documents because you don't appear
to match your passport gender marker. So this has led
to some of the plaintiffs being accused of fraud, one
of the plaintiffs being strip searched, other plaintiffs facing all
(15:56):
sorts of problems as they've tried to cross borders. So
for one and the Supreme Court kind of casual remark
that this is as insignificant as somebody's sort of national
origin or place of citizenship is just untrue. In addition,
the country of birth is not anything that affects somebody
(16:17):
when they're using your passport and passing through security, but
the gender marker is used to check accuracy, and so
even on its face, the Supreme Court's analysis is wrong.
The Supreme Court description, I can't really call it analysis.
The Supreme Court statement is wrong, and a dissent from
Justice Jackson points that out as well.
Speaker 2 (16:36):
The Court also found that the administration is likely to
win on the merits, and the administration faced irreparable injury.
I'm not sure where the irreparable injury is, since this
policy is a new one that's changing what's been in place,
but the conservative justices have found irreparable injury in almost
(16:59):
all of present in Trump's emergency requests.
Speaker 3 (17:04):
There is no irreparable injury in the traditional way that
courts look at a reparable harm. To let me explain,
when a statute comes over from Congress and is challenged
in the court, it is given a presumption of constitutionality, right,
so the court assumes it's constitutional. But sometimes plaintiffs can
(17:25):
show actually it's on constitutional, and the court will strike
it down. And there's understood to be some arguable harm
to government when a statute is put on hold, But
when a government policy is put on hold, like an
executive order or a preference of the president, that's a
different situation that is not entitled to the same presumption
(17:47):
of constitutionality as a statute that has been passed by Congress.
And the upshot is just saying, well, the government is
irreparably harmed by not being able to put in place
its desire passport policy is akin to saying the government
is irreparably harmed whenever it is stopped from doing something
(18:08):
that it would like to do, And that is akin
to having no judicial review over government actions at all,
at least not at this preliminary stage. So that's a
very serious problem from a sort of basic approach to
constitutional analysis of executive actions.
Speaker 2 (18:27):
Justice Jackson wrote that the Court has once again paved
the way for the immediate infliction of injury without adequate
or really any justification. This is also a pattern of
the Court at this point basically allowing the Trump administration
anything it asked for on the emergency docket and saying, well,
(18:47):
this is while litigation is pending.
Speaker 3 (18:50):
Yes, this is the twenty fourth consecutive grant of emergency
relief to the government, and this process of the Supreme
Court staining rulings of lower courts finding problems constitutional or
other problems with government policies. This phenomenon of the Supreme
Court repeatedly saying, oh, we're going to put those lower
(19:12):
court rulings on hold has had the effect of basically
giving the Trump administration a free pass to continue enforcing
policies that and taking actions that lower courts have held
to be not only likely unconstitutional, but also causing irreparable
(19:33):
harm to the people who have been affected.
Speaker 2 (19:35):
So this is.
Speaker 3 (19:37):
Certainly part of a larger trend. The striking thing about
this case is that the harm to the individuals who
are denied passports that accurately reflect their gender identity is
stunningly clear. Another problem here is that the government is
obligated anytime it changes a policy that collect information from
(19:57):
the American people. The government is obligated under the Paperwork
Reduction Act, which was passed by Congress, to spend sixty
days collecting information and public comment on whether it can
make this sort of a change, and of course, changing
its passport rule two days after the president was inaugurated
and issued. His executive order is fully out of compliance
(20:21):
with this law that is supposed to apply to all
of the government's actions.
Speaker 2 (20:25):
As I mentioned, this order stays in place as a
litigation below continues. So how much of a blow is
it to the rights of transgender people?
Speaker 3 (20:36):
This is a tremendous blow in terms of the human cost.
One only has to think about the named plaintiff, Ashton Orr,
who needed to travel out of the country needed a
new passport. Ashton Orders a man. He's a transgender man.
The only passport he is able to get to cross
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borders has an s gender marker on it that reveals
Asketon to be transgender, not only as he crosses the
border out of the United States, but as he crosses
into other countries, possibly putting him in danger of harm
from other governments and now as well as our own.
The harms are very serious, very painful to individuals, and
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also are reflective of a broader harm to people who
are not transgender, which is that the government can, for
irrational reasons, possibly hostile reasons, towards this group of people,
or any group of people more generally, choose to withdraw
passports right choose to do any number of things that
cause harm, and the Supreme Court is unwilling to say
(21:45):
hold on government. The lower court has found a problem
with this law or this new policy, and we need
to hold while this case is being litigated. So there
are real world problems, there are constitutional problems, there are
traditional separation of power problems that we're seeing.
Speaker 2 (22:01):
In May, the Supreme Court allowed him to start discharging
transgender members of the military at oral arguments. This term,
it appears that the Conservatives will allow state laws that
ban licensed counselors from using talk therapy to try to
change a child sexual orientation or gender identity. And there's
(22:22):
another case coming up about whether states can ban transgender
girls and women from competing for their schools on female
athletic teams. It's hard to ignore that the Court has
been consistently ruling against transgender rights.
Speaker 3 (22:38):
Yeah, I mean, there has been a current of policies,
you know, from the Trump administration and laws at the
state level that restrict the lives or try to restrict
the lives of transgender people in every imaginable way, from
getting identity documents to using the bathroom, to participating fully
(23:01):
at school, to serving the country in the military, and
so far the court when these issues have been presented,
the Court has said it's okay to create this legal barrier,
really like a legal burden that harms transgender people. In
twenty twenty, the court took a different tack. This involved
(23:23):
in an employment discrimination case, a transgender woman was fired
from a role at a funeral home where she had
served for many years, and she sued the employer, saying
it was sex discrimination that she was treated differently because
of her sex, being fired based on her sex, right
based on that she is transgender. And in that case
(23:45):
Bosta versus Clayton County, which also involved two other cases
with sexual orientation discrimination at issue. In that case, the
court said it is sex discrimination to fire a transgender
person because if there's no way to understand this other
than they're being fired because of their sex. One of
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the big questions before the court is that case came
under Title seven, which is a federal law that prohibits
sex discrimination as well as other forms of discrimination and employment,
and a question is whether it's a logic of understanding
sex discrimination in that boss Stock ruling from twenty twenty
is going to carry over into these other areas, or
(24:26):
will the Court say as it may appear to be
inclined to do. Oh no, that might be sex discrimination,
but this isn't.
Speaker 2 (24:34):
Well, We'll have two cases at least this term that
will further illustrate how the Court's dealing with transgender rights.
Thanks so much for joining me, Suzanne. That's Professor Suzanne
Goldberg of Columbia Law School coming up next. The second
in command at the Justice Department talks about its war
on judges. This is Bloomberg.
Speaker 1 (24:57):
What a travesty it is when you have an individual
judge be able to stop an entire operation or an
entire administrative policy that's constitutional and allowed, just because he
or she chooses to do so. So it's a war.
Speaker 2 (25:14):
That was the second in command at the Justice Department,
Todd Blanch, describing the Trump administration's war against federal judges
and calling on young conservative lawyers in the audience to
join the battle.
Speaker 1 (25:30):
There has got to be a couple dozen young lawyers
who are thirsty and hungry and ready to work because
because we need you, Because because it is a war,
and it is something that we will not win unless
we keep on fighting. And it's a Joining me is.
Speaker 2 (25:48):
Bloomberg Law reporter Suzanne Monnac. Suzanne, where did Blanche give
these remarks?
Speaker 4 (25:55):
Todd Blanch's the Deputy Attorney General at the Justice Department.
I was delivering remarks last week at the Federalist Society convention.
That's a legal conservative legal group, and they hold an
annual convention over a course of I was three days
this year in Washington.
Speaker 2 (26:10):
It's stunning to hear a Justice Department official describe a
war against judges.
Speaker 4 (26:17):
Yes, it was fairly striking, in fiery language. He referred
to it as a war against what he described as
activist judges who've been ruling against the administration and in
his view, in some of these cases getting reversed by
the conservative Supreme Court. And I should say when I
say reversed, I mean a lot of these cases are
coming up at pretty interim stages. But we've seen some
(26:37):
instances where the Supreme Court has paused lower court rulings
against the administration while litigation continues. That's on the so
called emergency dockets. So I should clarify these are preliminary decisions.
But he's pointing to those wins at the Supreme Court
and at other appeals courts to say that these are
lower court judges that are acting outside their authority and
that he just sees it as a battle, as a war,
(26:57):
and he put out a call for lawyers even to
a joint what he described as a fight.
Speaker 2 (27:02):
Was this a Q and A. Did anyone challenge him
on the fact that the Supreme Court has a super
conservative majority and it's that majority that's reversing these lower
court decisions against Trump.
Speaker 4 (27:17):
The conversation was moderated by Gene Hamilton, who's a former
Trump White House aid as well as the co founder
of a conservative legal group. I would describe it as
a fairly friendly discussion. It wasn't so much styled as
an adversarial debate.
Speaker 2 (27:30):
Uh huh, And I mean this is the old refrain
of activist judges that conservatives have been making for so
many years. He's also talking about activist bar associations.
Speaker 4 (27:43):
Yes, we saw the bar associations also or a target
of his hire at this conversation. Specifically, there have been
some misconduct complaints filed against lawyers within the administration for
their conduct in court, and we saw Blant say that
he's looking to to do something different. He says he
wants to have that process be handled in house, as
(28:04):
opposed to within the bar associations. He specifically took aim
at the DC BAR as being one of the worst,
and he called them activist bar association.
Speaker 2 (28:12):
How would he take that power away from the bar
associations and put it in the Justice Department.
Speaker 4 (28:17):
There was not a ton of detail given, and that
that is a person excellent question. He said that they
want to have a new system where complaints against trial
lawyers and prosecutors are handled in house, within an ethics
unit within the Justice Department, and evaded herman that something
should be referred to the bar, that they would then
do so. But wouldn't, you know, refer all complaints to
the bar if they don't think that they have merit.
(28:38):
It was interesting. I hadn't heard that from him before,
so I think that was an interesting thing to note
in something to watch going forward. How they implement it.
Speaker 2 (28:45):
Bar associations handle the disciplinary proceedings for lawyers and the
Justice Department has no part in that. So it makes
almost no sense to me that the Justice Department would
suddenly start doing that, especially with regard to complaints against
its own lawyers.
Speaker 4 (29:01):
I think we're likely to see concerns like that raise
if in when a process like this is rolled out,
and I you know, certainly I think it's worth you know,
hearing from the bar associations. I'll be curious if they
speak out about whether they see this as any kind
of use of pation of their authority.
Speaker 2 (29:15):
He called for young lawyers who are hungry and thirsty
to join the Justice Department and the fight. The Justice
Department has lost a lot of attorneys since Trump took office.
Tell us about that.
Speaker 4 (29:29):
That's true, and we've seen that really throughout the federal government.
I mean, of course, there were a couple of offers
for lawyers to take a deferred resignation where they were
paid but on leave through the end of last fiscal year,
which ended at the end of September. And so you know,
many many people think it was over over four thousand.
I think maybe even more than that. That was a
tally from a couple of months ago. Thousands of lawyers
(29:52):
took that deal. And we've also seen people, you know,
leaving for other jobs. So we've you know, at the
Civil Rights Division, I know, when we've spoken about past
that's one where we really saw a major priority shift
from away from more traditional civil rights areas toward more
conservative priorities like gun rights, for example. So that's a
(30:12):
division that saw a huge amount of attrition, both through
the different resignation offer but also through people just trying
to get different jobs. And so that's just something we've
seen throughout the Justice Department as lawyers maybe don't feel
like they want to be doing this work anymore. We've
certainly seen the administration has been somewhat hostile to the
federal workforce, and that's just true across the government. So yes,
that's absolutely the Justice Department has been, you know, very
(30:33):
much part of that of that movement, and you know,
I think the administration is very much looking to the
staff backup.
Speaker 2 (30:40):
This attack on judges. Do you see it as part
of the Justice Department's approach now because you had and
you wrote about a former Justice Apartment official who criticized
Democratic appointed federal trial judges who ruled against the Trump administration.
Speaker 4 (30:59):
That's right. Chad myself also spoke at the Federalist Society
had mentioned and made somewhat similar fiary remarks about his
complaints and grievances about federal judges who he also sees
as democratic appointees and ruling against the administration and then
at times being reversed at higher court. And yes, I
do think this is kind of part and parcel of
an approach that we're seeing really across the administration that
(31:21):
these many of these remarks sort of at a time
of significant tension between the administration and the judiciary. I mean,
we've seen Trump and other officials and allies have really
made a habit of putting judges and even in some
cases their family members on blast when court rulings just
don't go the administration's way. We've seen judges gold government
lawyers for what they say is making false or misleading
(31:43):
statements in court or suggesting that maybe they're not fully
complying with their court orders. So we're really just seeing
a lot of distension as the administration is really expanding
executive power and kind of pushing the boundaries, and judges
are ruling against that effort. That's just created a lot
of bad blas I guess I could say, sort of
certainly from the administration towards the judiciary, and maybe arguably
(32:06):
both ways.
Speaker 2 (32:07):
Since the beginning of the Trump administration, threats against judges
have skyrocketed, and there seems to be no effort on
the part of administration officials to dial down the criticism
of judges. In fact, they seem to be amping it up,
and it's hard to ignore that as a possible cause
(32:27):
of the rising threats against judges.
Speaker 4 (32:31):
That's certainly a criticism that you might hear when you
hear officials day things like we're at war. Of course,
if you reach out to the Justice Department, they will
tell you that this is a top priority for them
to address threats against judges. But you're correct that they
are increasing. We've seen hundreds last fiscal year of threats
against judges, higher than the year prior, and so this
(32:51):
is I think a cause of significant concern really across
the judiciary that judges are being subjected to this. And
I think many people would say that public officials, you know,
publicly criticizing rulings, criticizing the judge by name, and really
specifically not necessarily criticizing their legal reasoning, but really going
after the judge in more personal capacities, as being biased,
(33:11):
as having the cards of stacked against the administration. Making
claims like that might put more of a target on judges.
Speaker 2 (33:17):
Back, going back to the Supreme Court for a moment,
some federal judges have been frustrated with having to interpret
the Supreme Court decisions on the emergency docket where there
is no explanation of why the court reached that conclusion.
Speaker 4 (33:34):
That's right. There's kind of even another tension within the
judiciary that we're seeing between the lower court and the
Supreme Court, where we're seeing the Supreme Court handling these
challenges to major comp administration policies at early stages in
the litigation, and they're putting out emergency orders pausing lower
court rulings that had blocked the policies, thus allowing the
policies to move forward. Obviously, we saw administration officials, as
(33:57):
I mentioned earlier, really celebrating those emergencies state orders from
the Supreme Court as big wins for them, and I
think it's also just been a challenge for lower courts
to then maybe sometimes get the case back on remand
and have to kind of decide how to approach it
when all they've got is this one page emergency order
from the Supreme Court that doesn't really explain its reasoning.
And we've seen a couple instances where judges have even
(34:17):
expressed some frustration about that and the emergency docket in
their written decisions, where they're saying, you know, I had
a case that's a little similar to a case the
Supreme Court had, but the Supreme Court didn't explain why
they made the decision that they did in that case.
So I'm not sure how to handle it in this one.
Are these the same?
Speaker 1 (34:32):
Like?
Speaker 4 (34:32):
How do I apply that reasoning? So I think that's
certainly a bit of a challenge for the lower courts,
and it's causing consternation.
Speaker 2 (34:38):
I thought it was very interesting. Now there have been
a lot of accusations that the Trump administration has weaponized
the Justice Department, and you look at the prosecutions against
Trump's perceived enemies, FBI Director James Comy, New York Attorney
General Letitia James. How did he defend against that?
Speaker 4 (35:00):
He really defended himself in the administration against claims of politicization.
He really took the time to rattle off charges that
were filed under the Biden administration against Donald Trump himself
and really said that he saw those as politicized. And
you know the fact that there were multiple charges across
the country. He specifically said, you know, we have rolled
back investigations that we see as being brought for the
(35:20):
wrong reasons, and instead we're prosecuting the right people for
the rightly reasons. And he even said, sort of citing
those charges under the past administration, that when he reads
weaponization claims, he says, he feels like he's being quote
gas lit because he just feels like it was the
Trump administration that was the target, or I should say
Trump administration officials during the Biden administration who were the
target of a politicized DOJ And that's something we've heard
(35:43):
from other right wing officials as well, when they say
that they see its politicization as being during the last
administration and they're not doing that. So I think that's
kind of a common criticism that we have heard before
from that side. But yes, I mean, you're corrected to
note that a lot of critics have pointed to a
lot of the ways that Trump has really directly seems
to be communicating with the Justice Department. There's being a
(36:04):
bit of a difference that we haven't seen in the past.
When he specifically addressed jo Jay and said, hey, can
you please look into these people, typically we've seen a
little bit more Drug Department is supposed to historically has
acted more independently.
Speaker 2 (36:18):
Yeah, the criticism is that in this second administration there's
no daylight between the White House and the Justice Department,
and perhaps in the Komi and James cases, we'll see
what judges think of the president's apparent direction on truth
social to the Attorney General to bring cases against his
(36:40):
perceived enemies. Thanks so much, Suzanne. That's Bloomberg Law reporter
Suzanne Monyac, 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
(37:02):
into The Bloomberg Law Show every weeknight at ten pm
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 (00:09):
The nearly eight hundred thousand same sex couples in this
country can breathe a sigh of relief, at least for now. Today,
the Supreme Court rejected an effort to overturn its landmark
twenty fifteen decision that legalized same sex marriage. Without any comment.
The Justice is left intact a jury verdict against Kim Davis,
(00:32):
the former Kentucky court clerk who drew national attention by
refusing to issue marriage licenses to same sex couples. Today's
order indicates that Davis couldn't get the four votes necessary
for the Court to take her case. Although the appeal
was a long shot, it due attention because the Supreme
(00:52):
Court has shifted to the right since the five to
four decision in obergerfelvi hodges Well. My guest is Suzanne Goldberg,
a professor at Columbia Law School and director of the
school Septuality and Gender Law Clinic. Suzan, this case brings
up a name that was in the news ten years ago.
Tell us more about Kim Davis's appeal of a three
(01:15):
hundred and sixty thousand dollars, damages and attorney's fee award
to the couple she refused to give a license to within.
Speaker 3 (01:26):
Days of the Supreme Court granting same sex couples the
right to marry in a case called Obergofell versus Hodges.
In twenty fifteen, a couple presented themselves to Kim Davis's
office and said, you know, we'd like to get our
marriage license. She said no, And in fact, not only
(01:47):
did she say no. She's a clerk for Rowan County,
Kentucky and her job was to issue marriage licenses. She
said she was acting under God's authority to deny this
gay couple of marriage licenses. And one of the men
actually say to her that she had probably given marriage
licenses murderers and rapists and people who had done all
sorts of horrible things, and Davis responded by saying it
(02:08):
was fine because they're straight. So she was ultimately overridden
and required to present the couple with their marriage license.
But she's been up and down the change. She's been
litigating for many years now, almost a decade, saying that she,
as a government employee, had a right to implement her
(02:28):
religious views against marriage for same sex couples and based
on those views, deny a marriage license in her capacity
as a government official. So quite complicated. It goes beyond
a basic challenge to the idea of same sex couples
marrying and says essentially that somebody working as a government
official should have the right to refuse services to a
(02:51):
resident or a citizen of that location of that jurisdiction
based on their faith. So when she first got up
to this court in twenty twenty, Justice Thomas actually when
the Court rejected her case, specifically said that her case
did not cleanly present questions about Obergefell, the Court's marriage
(03:11):
equality ruling to the court. And so this time around,
when Kim Davis went up to the court, she brought
the same complicated set of facts related to her personal position,
but she also argued that the Court should reverse its
Obergefell marriage equality ruling based on the same reasoning that
(03:33):
the Court had used in Dabbs, the case in which
the Court overturned Reversus weighed and said there's not constitutional
protection related to abortion. So the question in this case
was would the Court take up Kim Davis's challenge to
the Obergafell marriage equality ruling the Court denied cert meaning
(03:54):
it will not take up her challenge. Most commentators expected
this because case is so particular to her situation. I
think that her cert petition, her request for Supreme Court review,
is best understood not as a realistic shot at getting
Supreme Court review of a Burgerfell, but instead as additional
(04:18):
publicity for the idea that the Court someday should overturn
its marriage equality ruling. And in that sense, even if
this cert petition itself wasn't very troubling, the broader effort
to call into question marriage equality is concerning.
Speaker 2 (04:33):
So are you saying that same sex couples shouldn't breathe
a sigh of relief that the Supreme Court turned this
case down.
Speaker 3 (04:40):
People can certainly breathe it five of relief that the
Supreme Court turned down can Davis's certain petition? That said,
I think it would be a mistake to think this
is the end of these kinds of cert petitions or
the end of these battles. There is an ongoing effort
to try to destabilize the idea of marriage equality and
(05:02):
ultimately the Supreme Court's ruling on marriage equality. You know
whether that will succeed. It doesn't seem to me it
will succeed in the near future. But it is also
important to keep an eye on this because I think
many people would have said Roe versus Weight would not
ultimately be overturned, And of course it was many decades
after the Court first issued that ruling that was overturned
(05:24):
in jobs. But we are in a time when well
established precedents are coming into questions. So it's also a
time for vigilance for those who care about the right
to marry as protected by the Constitution, and.
Speaker 2 (05:39):
The Supreme Court has shifted significantly to the right since
that five to four oh Bergerfeld decision. You have three
members of that majority are no longer on the Court
and two have been replaced by Trump appointees, so it's
a different court.
Speaker 3 (05:56):
It is a very different court from the court that
decided the Obergafell case granting safe sex couples the freedom
to marry, and Chief Justice Roberts as well as other
members of the Court specifically dissented from that ruling, So
we'll have to see. I think the key takeaway is
(06:16):
in the marriage equality right is safe at this moment,
and certainly it is a good thing in my view.
That the Supreme Court denied Kim Davis's petition for lots
of reasons, and at the same time, it is important
to pay attention to what is going on both societally
and in legal challenges to see where this will land.
(06:39):
There are a number of state legislators who have introduced
various bills to try to cut back on marriage equality.
We haven't seen those get a lot of traction at
this point, but again, it's something else to pay attention to.
Speaker 2 (06:53):
It always seems to me that it would be very
difficult to take away same sex marriage because you have
these new eight hundred thousand couples who've acted in reliance
on the right to same sex marriage, getting married, having children,
sharing finances, etc. What would happen to all that if
the Supreme Court took back the right to same sex marriage.
Speaker 3 (07:17):
To take away marriage equality would be an administrative disaster
in states and at the federal level. So it would
be complicated and unfair in addition to in my view, unconstitutional.
At the same time, we know there are people who
are committed to taking that away. Precisely. Would also say
(07:40):
that even though access to abortion presents different issues, access
to abortion as a part of reproductive healthcare has certainly
been something that women have relied on for decades where
they live or in states nearby, and people have ordered
their lives around this. Not in the same way as marriage,
(08:01):
but it has certainly been an important form of reproductive
health care that is now being denied in a number state.
So there's a set of challenges to access to healthcare,
to access to relationship recognition that are continuing to be
debated and have important implications for people who live throughout
(08:24):
this country.
Speaker 2 (08:25):
Something that repeatedly comes up in discussions about same sex
marriage is that Conservative Justice Clarence Thomas, in a concurring
opinion in the DBS abortion case, so the justices should
reconsider all the courts substantive due process precedents, specifically mentioning
the cases involving same sex marriage and contraception. Will you
(08:50):
explain his position?
Speaker 3 (08:52):
The idea of substantive due process is that the US
Constitution protects Americans in our day to day lives from
government interference with certain fundamental rights, including rights that are
deeply recognized as part of individual autonomy. Access to contraception,
(09:14):
certain parental rights, certain other rights to sexual relationships between
consenting adults in private for non commercial purposes, and so
Justice Thomas has long taken the position that the Constitution
does not protect these rights that have long been considered fundamental.
Does not protect marriage equality, does not protect access to contraception,
(09:37):
does not protect access to abortion. If there were more
justices to take his position that is not only with
respect to abortion and marriage, but more generally sweeping off
the table any constitutional protections understood in these ways, we
would be living in a very different country. And again,
(09:57):
it's not to say that everything would change at once,
because the absence of a substantive due process protection doesn't
mean that states could not grant marriage equality or provide
access to abortion. This is why, even in a world
where Dobbs exists, we have many states that protect the
(10:17):
right of a woman's seek an abortion as part of
a reproductive health care. But what it means is that
if a state chooses to criminalize abortion or chooses to
refuse to recognizing six couples marriages, if Obergerfella were to
be overturned, then states could refuse to provide those protections.
Speaker 2 (10:37):
It's been noted that Thomas didn't mention the case of
loving versus Virginia, which struck down interracial marriage. Is there
a difference in the legal analysis or a distinction there possibly?
Speaker 3 (10:50):
You know, when the Supreme Court druck down Virginia's while
criminalizing into racial marriages, the court recognized a part of
the problem with that law was that it gave effect
to white supremacy, gave effect to the view that white
people were superior to people of color. So the court
(11:11):
did two things. It recognized that the government should not
interfere with people's fundamental right to marry by restricting the
race of the person who they could marry. But also
the language of that ruling was in part tied deeply
to the prohibition on race discrimination and a justification for
(11:32):
that restriction. So interracial marriage would be analyzed differently somewhat
from the right to same sex couples marrying, but the
underlying idea is the same in the sense of should
the government be able to restrict who you can marry
so long as that other person is a consenting adult
who is not immediately related to stay.
Speaker 2 (11:54):
With me, Suzanne. Coming up next, another setback for transgender
rights Blomberg.
Speaker 1 (12:03):
This is Bloomberg Law with June GROSSEO from Bloomberg Radio.
Speaker 2 (12:09):
It's the twenty fourth win for the Trump administration on
the Supreme Court's emergency docket and the second blow to
transgender rights from the conservative justices on the so called
shadow docket. In a vote down ideological lines, the Court
is allowing the Trump administration to go forward with requiring
(12:30):
passports to be marked with the sex assigned at birth.
This reverses the policy in place since nineteen ninety two,
which had allowed passports to reflect a person's gender identity.
I've been talking to Professor Suzanne Goldberg of Columbia Law School. Suzanne,
will you explain the change in policy by the Trump administration?
Speaker 3 (12:53):
For nearly thirty years, actually thirty three, and as Justice
Jackson points out, across six presidential administrations, transgender Americans have
been able to get US passports with their gender marker
that accurately matches their gender identity. So transgender man can
get M on his passport and a transgender woman can
(13:15):
get an F on her passport, which is important for
many reasons, including so that the person looks like they
match their passport. But from basically nineteen ninety two to
twenty ten, there was an eligibility requirement related to a
surgical transition that has changed over time, but the point
(13:36):
is for thirty three years this has been the same.
On the first day of his administration, Donald Trump issued
an executive order saying that transgender people are corrosive to
the United States. In so many words, he used the
word corrosive and directing the State Department to no longer
issue passport to people that would be consistent with their
(13:57):
gender identity if they're transgender and so, the Trump executive
order led the State Department to take two steps, first
to stop issuing passports to transgender people consistent with their
gender identity, and second to remove the ex gender marker,
which was an option for anyone who does not fit
(14:19):
the M or the F or someone who doesn't want
to share their gender identity with the US government. So,
put into simple terms, the Trump administration changed policy on
the first day of the administration, and the State Department
followed two days later to prevent transgender Americans from obtaining
(14:40):
passports consistent with their gender identity.
Speaker 2 (14:43):
This was an unsigned order, and the Conservative Justice's very
short explanation seems to me like it's ignoring the facts
that were presented in the case, the Justice has said
displaying passport holders sex at births no more offense equal
for detection principles than displaying their country of birth. In
(15:04):
both cases, the government is merely attesting to historical fact
without subjecting anyone to differential treatment.
Speaker 3 (15:11):
It is stunning because the plaintiffs in the case explained
to the district court, which agreed as did the Court
of Appeals, that if you are a transgender man and
you have a passport that says f on it, it
does have real world harmful consequences every time you have
(15:33):
to show that passport to someone, because the person receiving
the passport may say, as has happened to some of
the plaintiffs, you're using fraudulent documents because you don't appear
to match your passport gender marker. So this has led
to some of the plaintiffs being accused of fraud, one
of the plaintiffs being strip searched, other plaintiffs facing all
(15:56):
sorts of problems as they've tried to cross borders. So
for one and the Supreme Court kind of casual remark
that this is as insignificant as somebody's sort of national
origin or place of citizenship is just untrue. In addition,
the country of birth is not anything that affects somebody
(16:17):
when they're using your passport and passing through security, but
the gender marker is used to check accuracy, and so
even on its face, the Supreme Court's analysis is wrong.
The Supreme Court description, I can't really call it analysis.
The Supreme Court statement is wrong, and a dissent from
Justice Jackson points that out as well.
Speaker 2 (16:36):
The Court also found that the administration is likely to
win on the merits, and the administration faced irreparable injury.
I'm not sure where the irreparable injury is, since this
policy is a new one that's changing what's been in place,
but the conservative justices have found irreparable injury in almost
(16:59):
all of present in Trump's emergency requests.
Speaker 3 (17:04):
There is no irreparable injury in the traditional way that
courts look at a reparable harm. To let me explain,
when a statute comes over from Congress and is challenged
in the court, it is given a presumption of constitutionality, right,
so the court assumes it's constitutional. But sometimes plaintiffs can
(17:25):
show actually it's on constitutional, and the court will strike
it down. And there's understood to be some arguable harm
to government when a statute is put on hold, But
when a government policy is put on hold, like an
executive order or a preference of the president, that's a
different situation that is not entitled to the same presumption
(17:47):
of constitutionality as a statute that has been passed by Congress.
And the upshot is just saying, well, the government is
irreparably harmed by not being able to put in place
its desire passport policy is akin to saying the government
is irreparably harmed whenever it is stopped from doing something
(18:08):
that it would like to do, And that is akin
to having no judicial review over government actions at all,
at least not at this preliminary stage. So that's a
very serious problem from a sort of basic approach to
constitutional analysis of executive actions.
Speaker 2 (18:27):
Justice Jackson wrote that the Court has once again paved
the way for the immediate infliction of injury without adequate
or really any justification. This is also a pattern of
the Court at this point basically allowing the Trump administration
anything it asked for on the emergency docket and saying, well,
(18:47):
this is while litigation is pending.
Speaker 3 (18:50):
Yes, this is the twenty fourth consecutive grant of emergency
relief to the government, and this process of the Supreme
Court staining rulings of lower courts finding problems constitutional or
other problems with government policies. This phenomenon of the Supreme
Court repeatedly saying, oh, we're going to put those lower
(19:12):
court rulings on hold has had the effect of basically
giving the Trump administration a free pass to continue enforcing
policies that and taking actions that lower courts have held
to be not only likely unconstitutional, but also causing irreparable
(19:33):
harm to the people who have been affected.
Speaker 2 (19:35):
So this is.
Speaker 3 (19:37):
Certainly part of a larger trend. The striking thing about
this case is that the harm to the individuals who
are denied passports that accurately reflect their gender identity is
stunningly clear. Another problem here is that the government is
obligated anytime it changes a policy that collect information from
(19:57):
the American people. The government is obligated under the Paperwork
Reduction Act, which was passed by Congress, to spend sixty
days collecting information and public comment on whether it can
make this sort of a change, and of course, changing
its passport rule two days after the president was inaugurated
and issued. His executive order is fully out of compliance
(20:21):
with this law that is supposed to apply to all
of the government's actions.
Speaker 2 (20:25):
As I mentioned, this order stays in place as a
litigation below continues. So how much of a blow is
it to the rights of transgender people?
Speaker 3 (20:36):
This is a tremendous blow in terms of the human cost.
One only has to think about the named plaintiff, Ashton Orr,
who needed to travel out of the country needed a
new passport. Ashton Orders a man. He's a transgender man.
The only passport he is able to get to cross
(20:56):
borders has an s gender marker on it that reveals
Asketon to be transgender, not only as he crosses the
border out of the United States, but as he crosses
into other countries, possibly putting him in danger of harm
from other governments and now as well as our own.
The harms are very serious, very painful to individuals, and
(21:21):
also are reflective of a broader harm to people who
are not transgender, which is that the government can, for
irrational reasons, possibly hostile reasons, towards this group of people,
or any group of people more generally, choose to withdraw
passports right choose to do any number of things that
cause harm, and the Supreme Court is unwilling to say
(21:45):
hold on government. The lower court has found a problem
with this law or this new policy, and we need
to hold while this case is being litigated. So there
are real world problems, there are constitutional problems, there are
traditional separation of power problems that we're seeing.
Speaker 2 (22:01):
In May, the Supreme Court allowed him to start discharging
transgender members of the military at oral arguments. This term,
it appears that the Conservatives will allow state laws that
ban licensed counselors from using talk therapy to try to
change a child sexual orientation or gender identity. And there's
(22:22):
another case coming up about whether states can ban transgender
girls and women from competing for their schools on female
athletic teams. It's hard to ignore that the Court has
been consistently ruling against transgender rights.
Speaker 3 (22:38):
Yeah, I mean, there has been a current of policies,
you know, from the Trump administration and laws at the
state level that restrict the lives or try to restrict
the lives of transgender people in every imaginable way, from
getting identity documents to using the bathroom, to participating fully
(23:01):
at school, to serving the country in the military, and
so far the court when these issues have been presented,
the Court has said it's okay to create this legal barrier,
really like a legal burden that harms transgender people. In
twenty twenty, the court took a different tack. This involved
(23:23):
in an employment discrimination case, a transgender woman was fired
from a role at a funeral home where she had
served for many years, and she sued the employer, saying
it was sex discrimination that she was treated differently because
of her sex, being fired based on her sex, right
based on that she is transgender. And in that case
(23:45):
Bosta versus Clayton County, which also involved two other cases
with sexual orientation discrimination at issue. In that case, the
court said it is sex discrimination to fire a transgender
person because if there's no way to understand this other
than they're being fired because of their sex. One of
(24:05):
the big questions before the court is that case came
under Title seven, which is a federal law that prohibits
sex discrimination as well as other forms of discrimination and employment,
and a question is whether it's a logic of understanding
sex discrimination in that boss Stock ruling from twenty twenty
is going to carry over into these other areas, or
(24:26):
will the Court say as it may appear to be
inclined to do. Oh no, that might be sex discrimination,
but this isn't.
Speaker 2 (24:34):
Well, We'll have two cases at least this term that
will further illustrate how the Court's dealing with transgender rights.
Thanks so much for joining me, Suzanne. That's Professor Suzanne
Goldberg of Columbia Law School coming up next. The second
in command at the Justice Department talks about its war
on judges. This is Bloomberg.
Speaker 1 (24:57):
What a travesty it is when you have an individual
judge be able to stop an entire operation or an
entire administrative policy that's constitutional and allowed, just because he
or she chooses to do so. So it's a war.
Speaker 2 (25:14):
That was the second in command at the Justice Department,
Todd Blanch, describing the Trump administration's war against federal judges
and calling on young conservative lawyers in the audience to
join the battle.
Speaker 1 (25:30):
There has got to be a couple dozen young lawyers
who are thirsty and hungry and ready to work because
because we need you, Because because it is a war,
and it is something that we will not win unless
we keep on fighting. And it's a Joining me is.
Speaker 2 (25:48):
Bloomberg Law reporter Suzanne Monnac. Suzanne, where did Blanche give
these remarks?
Speaker 4 (25:55):
Todd Blanch's the Deputy Attorney General at the Justice Department.
I was delivering remarks last week at the Federalist Society convention.
That's a legal conservative legal group, and they hold an
annual convention over a course of I was three days
this year in Washington.
Speaker 2 (26:10):
It's stunning to hear a Justice Department official describe a
war against judges.
Speaker 4 (26:17):
Yes, it was fairly striking, in fiery language. He referred
to it as a war against what he described as
activist judges who've been ruling against the administration and in
his view, in some of these cases getting reversed by
the conservative Supreme Court. And I should say when I
say reversed, I mean a lot of these cases are
coming up at pretty interim stages. But we've seen some
(26:37):
instances where the Supreme Court has paused lower court rulings
against the administration while litigation continues. That's on the so
called emergency dockets. So I should clarify these are preliminary decisions.
But he's pointing to those wins at the Supreme Court
and at other appeals courts to say that these are
lower court judges that are acting outside their authority and
that he just sees it as a battle, as a war,
(26:57):
and he put out a call for lawyers even to
a joint what he described as a fight.
Speaker 2 (27:02):
Was this a Q and A. Did anyone challenge him
on the fact that the Supreme Court has a super
conservative majority and it's that majority that's reversing these lower
court decisions against Trump.
Speaker 4 (27:17):
The conversation was moderated by Gene Hamilton, who's a former
Trump White House aid as well as the co founder
of a conservative legal group. I would describe it as
a fairly friendly discussion. It wasn't so much styled as
an adversarial debate.
Speaker 2 (27:30):
Uh huh, And I mean this is the old refrain
of activist judges that conservatives have been making for so
many years. He's also talking about activist bar associations.
Speaker 4 (27:43):
Yes, we saw the bar associations also or a target
of his hire at this conversation. Specifically, there have been
some misconduct complaints filed against lawyers within the administration for
their conduct in court, and we saw Blant say that
he's looking to to do something different. He says he
wants to have that process be handled in house, as
(28:04):
opposed to within the bar associations. He specifically took aim
at the DC BAR as being one of the worst,
and he called them activist bar association.
Speaker 2 (28:12):
How would he take that power away from the bar
associations and put it in the Justice Department.
Speaker 4 (28:17):
There was not a ton of detail given, and that
that is a person excellent question. He said that they
want to have a new system where complaints against trial
lawyers and prosecutors are handled in house, within an ethics
unit within the Justice Department, and evaded herman that something
should be referred to the bar, that they would then
do so. But wouldn't, you know, refer all complaints to
the bar if they don't think that they have merit.
(28:38):
It was interesting. I hadn't heard that from him before,
so I think that was an interesting thing to note
in something to watch going forward. How they implement it.
Speaker 2 (28:45):
Bar associations handle the disciplinary proceedings for lawyers and the
Justice Department has no part in that. So it makes
almost no sense to me that the Justice Department would
suddenly start doing that, especially with regard to complaints against
its own lawyers.
Speaker 4 (29:01):
I think we're likely to see concerns like that raise
if in when a process like this is rolled out,
and I you know, certainly I think it's worth you know,
hearing from the bar associations. I'll be curious if they
speak out about whether they see this as any kind
of use of pation of their authority.
Speaker 2 (29:15):
He called for young lawyers who are hungry and thirsty
to join the Justice Department and the fight. The Justice
Department has lost a lot of attorneys since Trump took office.
Tell us about that.
Speaker 4 (29:29):
That's true, and we've seen that really throughout the federal government.
I mean, of course, there were a couple of offers
for lawyers to take a deferred resignation where they were
paid but on leave through the end of last fiscal year,
which ended at the end of September. And so you know,
many many people think it was over over four thousand.
I think maybe even more than that. That was a
tally from a couple of months ago. Thousands of lawyers
(29:52):
took that deal. And we've also seen people, you know,
leaving for other jobs. So we've you know, at the
Civil Rights Division, I know, when we've spoken about past
that's one where we really saw a major priority shift
from away from more traditional civil rights areas toward more
conservative priorities like gun rights, for example. So that's a
(30:12):
division that saw a huge amount of attrition, both through
the different resignation offer but also through people just trying
to get different jobs. And so that's just something we've
seen throughout the Justice Department as lawyers maybe don't feel
like they want to be doing this work anymore. We've
certainly seen the administration has been somewhat hostile to the
federal workforce, and that's just true across the government. So yes,
that's absolutely the Justice Department has been, you know, very
(30:33):
much part of that of that movement, and you know,
I think the administration is very much looking to the
staff backup.
Speaker 2 (30:40):
This attack on judges. Do you see it as part
of the Justice Department's approach now because you had and
you wrote about a former Justice Apartment official who criticized
Democratic appointed federal trial judges who ruled against the Trump administration.
Speaker 4 (30:59):
That's right. Chad myself also spoke at the Federalist Society
had mentioned and made somewhat similar fiary remarks about his
complaints and grievances about federal judges who he also sees
as democratic appointees and ruling against the administration and then
at times being reversed at higher court. And yes, I
do think this is kind of part and parcel of
an approach that we're seeing really across the administration that
(31:21):
these many of these remarks sort of at a time
of significant tension between the administration and the judiciary. I mean,
we've seen Trump and other officials and allies have really
made a habit of putting judges and even in some
cases their family members on blast when court rulings just
don't go the administration's way. We've seen judges gold government
lawyers for what they say is making false or misleading
(31:43):
statements in court or suggesting that maybe they're not fully
complying with their court orders. So we're really just seeing
a lot of distension as the administration is really expanding
executive power and kind of pushing the boundaries, and judges
are ruling against that effort. That's just created a lot
of bad blas I guess I could say, sort of
certainly from the administration towards the judiciary, and maybe arguably
(32:06):
both ways.
Speaker 2 (32:07):
Since the beginning of the Trump administration, threats against judges
have skyrocketed, and there seems to be no effort on
the part of administration officials to dial down the criticism
of judges. In fact, they seem to be amping it up,
and it's hard to ignore that as a possible cause
(32:27):
of the rising threats against judges.
Speaker 4 (32:31):
That's certainly a criticism that you might hear when you
hear officials day things like we're at war. Of course,
if you reach out to the Justice Department, they will
tell you that this is a top priority for them
to address threats against judges. But you're correct that they
are increasing. We've seen hundreds last fiscal year of threats
against judges, higher than the year prior, and so this
(32:51):
is I think a cause of significant concern really across
the judiciary that judges are being subjected to this. And
I think many people would say that public officials, you know,
publicly criticizing rulings, criticizing the judge by name, and really
specifically not necessarily criticizing their legal reasoning, but really going
after the judge in more personal capacities, as being biased,
(33:11):
as having the cards of stacked against the administration. Making
claims like that might put more of a target on judges.
Speaker 2 (33:17):
Back, going back to the Supreme Court for a moment,
some federal judges have been frustrated with having to interpret
the Supreme Court decisions on the emergency docket where there
is no explanation of why the court reached that conclusion.
Speaker 4 (33:34):
That's right. There's kind of even another tension within the
judiciary that we're seeing between the lower court and the
Supreme Court, where we're seeing the Supreme Court handling these
challenges to major comp administration policies at early stages in
the litigation, and they're putting out emergency orders pausing lower
court rulings that had blocked the policies, thus allowing the
policies to move forward. Obviously, we saw administration officials, as
(33:57):
I mentioned earlier, really celebrating those emergencies state orders from
the Supreme Court as big wins for them, and I
think it's also just been a challenge for lower courts
to then maybe sometimes get the case back on remand
and have to kind of decide how to approach it
when all they've got is this one page emergency order
from the Supreme Court that doesn't really explain its reasoning.
And we've seen a couple instances where judges have even
(34:17):
expressed some frustration about that and the emergency docket in
their written decisions, where they're saying, you know, I had
a case that's a little similar to a case the
Supreme Court had, but the Supreme Court didn't explain why
they made the decision that they did in that case.
So I'm not sure how to handle it in this one.
Are these the same?
Speaker 1 (34:32):
Like?
Speaker 4 (34:32):
How do I apply that reasoning? So I think that's
certainly a bit of a challenge for the lower courts,
and it's causing consternation.
Speaker 2 (34:38):
I thought it was very interesting. Now there have been
a lot of accusations that the Trump administration has weaponized
the Justice Department, and you look at the prosecutions against
Trump's perceived enemies, FBI Director James Comy, New York Attorney
General Letitia James. How did he defend against that?
Speaker 4 (35:00):
He really defended himself in the administration against claims of politicization.
He really took the time to rattle off charges that
were filed under the Biden administration against Donald Trump himself
and really said that he saw those as politicized. And
you know the fact that there were multiple charges across
the country. He specifically said, you know, we have rolled
back investigations that we see as being brought for the
(35:20):
wrong reasons, and instead we're prosecuting the right people for
the rightly reasons. And he even said, sort of citing
those charges under the past administration, that when he reads
weaponization claims, he says, he feels like he's being quote
gas lit because he just feels like it was the
Trump administration that was the target, or I should say
Trump administration officials during the Biden administration who were the
target of a politicized DOJ And that's something we've heard
(35:43):
from other right wing officials as well, when they say
that they see its politicization as being during the last
administration and they're not doing that. So I think that's
kind of a common criticism that we have heard before
from that side. But yes, I mean, you're corrected to
note that a lot of critics have pointed to a
lot of the ways that Trump has really directly seems
to be communicating with the Justice Department. There's being a
(36:04):
bit of a difference that we haven't seen in the past.
When he specifically addressed jo Jay and said, hey, can
you please look into these people, typically we've seen a
little bit more Drug Department is supposed to historically has
acted more independently.
Speaker 2 (36:18):
Yeah, the criticism is that in this second administration there's
no daylight between the White House and the Justice Department,
and perhaps in the Komi and James cases, we'll see
what judges think of the president's apparent direction on truth
social to the Attorney General to bring cases against his
(36:40):
perceived enemies. Thanks so much, Suzanne. That's Bloomberg Law reporter
Suzanne Monyac, 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
(37:02):
into The Bloomberg Law Show every weeknight at ten pm
Wall Street Time. I'm June Grosso, and you're listening to
Bloomberg
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