May 22, 2025 • 35 mins
Religious liberties expert Stephanie Barclay, a professor at Georgetown Law, discusses the Supreme Court deadlocking on a case involving a religious charter school. Barbara McQuade, a professor at the University of Michigan Law School and former US Attorney for the Eastern District of Michigan, discusses the Trump administration targeting the president’s political foes. Constitutional law expert Ilya Somin, a law professor at George Mason University, discusses nationwide injunctions versus putative class actions. 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):
The Supreme Court deadlocked four to four today in a
major case over the separation of religion and government, thwarting
an effort to create the nation's first faith based charter
school in Oklahoma. The tie was the result of Justice
Amy Coney Barrett's recusal in the case. The Supreme Court's
one sentence order didn't reveal which justices were on which
(00:32):
side of the divide, but during the oral arguments it
seemed apparent that four conservative justices were likely to side
with the charter school and the three liberal justices were
likely to side with Oklahoma, leaving Chief Justice John Roberts
as the key vote. And the Chief distinguished this case
from past Supreme Court decisions backing the use of public
(00:54):
money for religious schools.
Speaker 3 (00:56):
Trinity luther and Espinoza Carson, those involved fairly discreete state involvement.
In Trinity Lutheran, they're going to pave the or you know,
put woodchips on the playground. In Espinosa, it was a
tuition credit. In Carson again, tax credits. I mean, this
(01:16):
does strike me as a much more comprehensive involvement.
Speaker 2 (01:24):
The split means the Oklahoma Supreme Court ruling that rejected
the creation of Saint Isidore of Seville Catholic Virtual School
remains in place, and it leaves open the question of
whether states with taxpayer funded charter school programs are constitutionally
required to incorporate religious institutions. Joining me is religious liberty
(01:47):
expert Stephanie Barklay, a professor at Georgetown Law and faculty
co director at the Georgetown Center for the Constitution. How
important is this case? What would the consequences have been
in if the court had allowed the nation's first faith
based charter school.
Speaker 4 (02:06):
So there's really two questions there. The one question is
if the court had ruled in favor of the faith
based charter school, how important of a decision would it
have been? And that would have been a landmark case,
that would have been the first time that we had
a face based charter school and would have had some
significant implications, probably not just for faith based schools and
charter schools, but potentially in other states as well. Now
(02:29):
there's the second question, which is, Okay, well, how significant
is the court's decision given that it's just, you know,
a very brief order without an opinion for for split
affirming the lower court decision. And at that point the
answer is, as a matter of precedent, that precedent is
not particularly important. It's not going to tell us you
know much about anything besides the fact that they're affirming
(02:50):
this case. There weren't five votes to reverse the Supreme
Court in Oklahoma, and in that way, it's going to
be of limited presidential effect.
Speaker 2 (02:58):
Do the arguments from each side here reflect or involve
the tensions between the first amendments to religion clauses?
Speaker 4 (03:07):
I don't think there is a tension between the two
religion clauses, and the Supreme Court emphasize that in its
recent case in Kennedy versus Birmerton School District. But largely
those clauses work together in a mutually reinforcing way. But
this case does highlight the way in which you could
get a different outcome under either of those clauses, depending
on whether we're dealing with a private school or a
(03:29):
government school. Because if it's a government school, then it
is pretty clear that government doesn't get to run religious
programs where it's preferring one type of denomination over another,
or setting out religious liturgy and things like that would
be prohibited under the approach to the establishment clause. The
Court has been taking post Kennedy where it looks at
the six historical hallmarks of an established religion. Now, if
(03:51):
it's a private school, then the free exercise clause is
the relevant focus. Then the question is can the government
exclude the private school? And the trajection of cases that
it has had in Trindi, Lutheran, Espinoza, and Carson makes
pretty clear that the Court taks the free exercise clause
for hibbits governments from excluding religiouschools just on that basis.
So it is a case that highlights for an outcomes
(04:13):
depending on the government versus private nature of the entity.
Speaker 2 (04:17):
As you mentioned, we don't know how the justices voted.
The arguments suggested perhaps that the Chief Justice was the
pivotal vote who might have gone with the three liberals.
Speaker 4 (04:30):
I think that that's probably the most likely outcome. That
you had the Chief Justice, Sonoyer, Kagan, and Jackson that
do not feel comfortable overruling the Oklahoma Supreme Court, and
then you had the other four justices, Justice Thomas, Alito, Gorsich,
and Kavanaugh. It probably would have ruled to overrule the
(04:52):
Oklahoma Supreme Court, and then of course Justice spirit is recusing.
So if I had to guess, then of course we
don't know. But if I had to guess, I think
that's what I would speculate that the vote likely would
have been. And of course, because they only got to
four four, that means it's an automatic affirmance of the
previous judgment.
Speaker 2 (05:08):
The four to four tie was a product of Justice
amy Cony Barrett recusing herself. So since it's not a
nationwide precedent, is it likely that proponents of religious charter
schools will simply try again to create a school and
in a case where Justice Barrett can sit on the case.
Speaker 4 (05:30):
So I think that that is certainly not for close
by the Court's opinion in this case, and a possibility
at some point in the future. I think the most
likely next case that you will see in the school
choice movement is Saint Dominic Academy versus Macon, which would
be coming out of Maine. This is a Beckett case.
It's possible other cases could too, but this is one
(05:50):
that is already in the court system, and it is
essentially Carson two point zero. So the same government that
the Supreme Court ruled against and Carves and revised their
laws when the case was sent back down to try
and find other creative ways to keep faith based schools
out of what is not a charter school system, but
it's just a traditional sort of voucher based school choice system.
(06:13):
And there are faith based schools that are challenging that
right now, and that's making its way through the court system.
And in oral argument in Saint Isidor, the justices distinguished
the program in Maine, which has always included private schools
and operates more like a traditional tuition voucher program from
the program in Oklahoma creating public charter schools, where a
lot of the dispute was over difficult questions related to
(06:35):
whether charter schools are in fact private or government schools,
And that sort of sticky issue just is not present
in the same way in the same dominant case. So
I think we're the court to take another school choice
sort of case. I think that's a more likely next step.
There are no cases right now percolating that I'm aware
of where there's another faith based charter school that has
(06:55):
been approved or requested to be created and been denied,
and that they're doing over that right now.
Speaker 2 (07:00):
Has the Supreme Court in recent years expanded religious liberty
rights over other rights?
Speaker 4 (07:06):
I don't think that I would say they've expanded religious
liberty rights over other rights, but they have certainly given
a lot of attention to and been solicitous towards religious claims.
And although there are certainly religious claimants that have been
before the courts that didn't win their case, and this
is another one, so I think I think this is
a court that takes balanced and cautious approaches while still
(07:26):
being sympathetic towards religious liberty claims and wanting to ensure
that it's providing for best protection under our First Amendments.
Speaker 2 (07:33):
We're waiting for two more decisions from the Court in
religion cases. Tell us about those.
Speaker 4 (07:40):
One is a case called Mafood and that is another
case in the educational context coming out of Maryland. And
this is a case where this school district has instituted
a policy where books are being read to children down
to elementary school and preschool that deal with issues related
to sexuality, gender identity. And there are parents who aren't
(08:05):
objecting to those books being read broadly, but would like
to be able to opt their children out in the
school in that case has said that they are not
allowed to opt their children out. Their only option is
to drop out of school altogether if they don't like
that policy. So the Supreme Court has heard oral argument
in that case, and it seems likely from oral arguments
that they will rule in favor of a religious parents
(08:26):
whose Muslim parents, Jewish parents, and Christian parents in a
coalition in that case. Another case is the Catholic Charity
is case that the Court heard before that that is
a case where there is a question of whether a
Catholic constitution can qualify for a tax benefit in the state.
The decision from the state Supreme Court had said that
(08:47):
if the Catholic groups were engaging in more typical religious behavior,
and we're organized in a more typical way, and we're
doing things like proselytizing to other individuals as part of
their ministry, then they would qualify for the tax benefits.
But because this Catholic charity does not proselytize and that's
not part of their mission. They would serve people of
(09:08):
their religious groups or not all alike, and they don't
try and convert people to their theology. Because the Catholic
Ministry doesn't do that on that basis, they don't qualify
for the tax benefit. And that was another case where
the Court seems quite skeptical of the government action. Justice
Kagan in that case even asked like, isn't it pretty
clear is that government doesn't get to tell people what
(09:28):
ordinary religious practices and which practices are approved and which
are not. So I mean, it's even impossible in that
case the government might be facing unanimous defeat. Certainly something
is likely that they could get eight one or seven
two votes in that case.
Speaker 2 (09:43):
In today's Oklahoma case, were you surprised that there weren't
five votes for the religious charter school.
Speaker 4 (09:51):
I think it's unfortunate that there weren't five votes. I
think it's possible that the Chief was concerned about lack
of percolation. This is the first case of its kind.
There aren't others cases that have grappled with this yet,
so hard to read the tea leaves about exactly what
was the worry for him. But I think it's promising
that this court doesn't have an opinion from the chief
(10:11):
sort of taking it out in a way that suggests
that this would be a permanent position. But leaving the
door open to future challengers and future cases.
Speaker 2 (10:19):
So, then do you think that states that fund charter
schools should be required to fund religious charter schools.
Speaker 4 (10:29):
I think that if a state is operating such that
they're using the label of like a government school, that
they're really treating it like a voucher, then I think
probably the functional analysis matters more than the labels do.
But if the government is really operating charter schools like
other government schools, then I think government should be entitled
(10:49):
to make choices about running secular government schools. So it
really just the devils in the details of how is
that particular government operating at school system, how much oversight
is there being even handed in the way it's approaching
that overside with the different types of churtis schools and
public schools, those are all going to be questions that
will be certainly relevant to the court should a case
(11:10):
like this arrive.
Speaker 2 (11:10):
Again, thanks so much for joining me today. That's Professor
Stephanie Barklay of Georgetown Law coming up next on the
Bloomberg Law Show. The head of the Justice Department's Weaponization
Working Group says he'll name people who the Department was
unable to charge in order to shame them. You're listening
(11:30):
to Bloomberg. The Trump administration seems to be ratcheting up
its use of the legal system to target the president's
perceived enemies, including launching criminal investigations into New York Attorney
General Letitia James and former New York Governor Andrew Cuomo.
The Justice Department is also departing from its long held
(11:52):
policy by commenting publicly on cases that haven't been charged
yet and going one step further, promising to shame a
person publicly even if there's not enough evidence to charge them.
Here's Ed Martin, the new head of the DOJ's Weaponization
Working Group.
Speaker 1 (12:10):
There are some really bad actors, some people that did
some really bad things to the American people, and if
they can be charged, will charge them. But if they
can't be charged, we will name them, and we will
name them. And in a culture that respects shame, they
should be people that are shamed. And that's a fact.
That's the way things work.
Speaker 2 (12:29):
My guest is Barbara McQuaid, a professor at the University
of Michigan Law School and the former US Attorney for
the Eastern District of Michigan. Barbara. Attorney General Pam Bondi
has created this Weaponization Working Group that seems openly to
be designed to go after those that Trump claims weaponize
(12:51):
the legal system against him. Can you explain where they're
coming from here?
Speaker 5 (12:57):
Well, it's difficult to know where they're coming from because
so different from the way we have thought about the
Department of Justice, at least since the Watergate era, which
was fifty years ago.
Speaker 6 (13:08):
Now.
Speaker 5 (13:08):
I think one of the things that's most troubling to
me is this memo that Attorney General Pam Bondi issued
on day one creating a Weaponization Working Group. It takes
the position that the last administration abused its power of
bringing criminal prosecution and said that she was going to
work to hold those people accountable, and then it names
(13:28):
by name people like Special Council Jack Smith and New
York Attorney General Letitia James, Manhattan District Attorney Alvin Bragg.
Of course, these are all people who investigated Donald Trump
in the past, and so I think this is at
first a very significant piece of disinformation or propaganda to
suggests that they did something wrong, and then to suggest
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that by turning the tables on them and going after them.
All she's doing is evening the score and holding them
accountable for their misconduct. It is credible distortion of the
facts and the history and the traditions of the Justice Department,
which by policy neither confirms nor denies even the existence
of an investigation. So the idea that we're going to
(14:11):
go after these people and look at them as opposed
to saying, you know, we look at conduct when it
appears to violate the law, in my view, this itself
is what it means to weaponize the Justice Department.
Speaker 2 (14:23):
Ed Martin, the former interim DCUs attorney who has a
new role now as head of this weaponization working group,
made some remarkable statements that if they can't be charged,
we'll name them. Is that ethical and does that comport
with Justice Department policy?
Speaker 6 (14:44):
No?
Speaker 5 (14:45):
So, you know, the Ed Martin story is in some
ways a really bad story. There's parts of history that
are a good story. I think because Donald Trump, of
course put him in place as the interim UIs Attorney
in Washington, d C. But it appeared he was not
going to get the votes in the sense even by
Senate Republicans, and so his nomination was withdrawn and he
was moved over to be the parton attorney and to
(15:07):
head this weaponization working group. So the good nugget there,
I think is that there is a redline for Congress
that the Senate is not going to allow somebody who
engages in political activity in the guise of a prosecutor
from holding such an important office. So I think that's
good news. But to get to your question, no, this
is not at all the way prosecutors are supposed to
(15:29):
conduct themselves. The idea that I'm going to investigate and
even if I do not find sufficient evidence of the crime,
I am going to share whatever I found about you.
I'm going to put your name out there because my
goal is to bring you shame. So first, it is
unethical for a prosecutor to make extra judicial statements that
are harmful to a person that are not within the
(15:51):
four corners of a charging document. That's problematic. It has
also been the Department of Justice policy for the past
fifty years, as we said, to neither confirm nor deny
the existence of an investigation, so that a person's reputation
will not be harmed if no charges ever materialize. And
(16:11):
we saw this at lay when Jim Comey was run
out of his job as FBI director. You may recall
that Donald Trump claimed that the reason that Jim Comey
was fired as FBI director was because he received a
memo from Rod Rosenstein, who was the Deputy Attorney General
at the time, saying that James Comy had violated this
principle when he held that press conference castigating Hillary Clinton,
(16:36):
even though no charges were brought. He called her extremely careless,
and he complained about her publicly, which is inappropriate. Rod
Rosenstein said, so many others said so at the time,
and it's what cost Jim Comy his job. And now
the idea that Ed Martin, in this very prominent role,
is going to just use it as a place to
do the same even if there's no sufficient evidence to
(16:58):
bring charges, is in my view, an abuse of that
position of power.
Speaker 2 (17:02):
So the Justice Department has launched a criminal investigation into
New York Attorney General Letitia James, who had secured a
four hundred and fifty four million dollar judgment against Trump
and the Trump organization. So the criminal investigation is for
mortgage fraud, and the head of the FBI has already
called this a case of great public importance. So they're
(17:25):
going after her for something that has no relation to
her case against Trump.
Speaker 5 (17:31):
You know, in ordinary times, I would say that public
officials are not above the law, and that if they
have violated the law, they should expect to invite scrutiny
and be held accountable. But I think in light of
the track record this Trump administration has developed in the
past four months with this Weaponization Working Group, especially because
it names Letitia James in it, as well as President
(17:52):
Trump's statements during the campaign that he would seek retribution
cash Buttel, the FBI director, talking about coming after political
rival and journalists. All of these things together I think
cause us to lose confidence that the Justice Department is
acting in good faith. Now we'll see how it pans out.
When you bring in a criminal case, you have to
have evidence, you have to prove it in a court
(18:14):
of law, then the jury has to find guilt beyond.
Speaker 6 (18:16):
A reasonable doubt.
Speaker 5 (18:17):
If they've got the evidence, then I don't have a
problem with their bringing the case. But I'm really quite
skeptical that they coincidentally found a criminal charge against Litis
James right after saying they were going to go after her.
So it puts the Justice Department. I think in a
very dangerous place because it is supposed to be a
place that is not guided by partisan politics but by
(18:37):
fact in law. And I worry that if they are
using it, or even creating the appearance that they are
using it as a partisan tool, it will diminish the
public reputation of the Department for decades to come.
Speaker 2 (18:48):
Lititia James said this week, this investigation, to me, is
nothing more than retribution. It's baseless. Let's just suppose that
it does go to trial. Is there a problem with
the jury pool having been influenced by these statements by
Trump and others? Also just the damage to her reputation.
Speaker 5 (19:08):
Yeah, you know. And this is one of the things
that again traditionally, the Apartment of Justice is very careful
about charging high profile public officials. Requires typically high level approvals,
not because anybody is more deserving than anyone else under
the law, but because of the reputational harm that will
ensue because of their inability to do their jobs, and
sometimes the effect it might have on their election or
(19:30):
re election, and so caution should be used before raising
charges about that. The fact that we know about this
investigation is one of the things that so deeply troubles me. Ordinarily,
as we've said a couple of times now, prosecutors neither
confirm nor tonight, even the existence of an investigation. How
do we know that there's this investigation? Will somebody has
leaked it? And that alone is problematic. Ordinarily, if you're
(19:53):
investigating anyone, especially a prominent person, you do so quietly, secretly,
and if you can't make the case go away. It
is not the job of the Justice Department to harm
the reputations of individuals, especially public figures, and in prior
administrations they went to great pains to avoid doing that.
Speaker 2 (20:11):
And now we have the Justice Department reportedly opening an
investigation into Andrew Cuomo, who is currently the top candidate
for New York City mayor, apparently following a referral from
congressional Republicans who accused him of lying during an investigation
of his administration's COVID nineteen response. And this comes just
(20:35):
after the Trump Justice Department dropped the charges against Mayor
Eric Adams, who will be running against Cuomo. You know,
if they both get past the primary. I mean, you
talked about prior Justice departments being concerned about the possible
effects on elections.
Speaker 5 (20:52):
So again without knowing the underlying evidence. Maybe there's a
case there. We don't know he made statements. Now, of course,
the mere fact that you made a statement that might
be inconsistent with the testimony of other witnesses is not
alone a crime. You have to show that you made
a false statement, that you then in there knew the
statement was false at the time you were making it,
and that it is material to the investigation in some
(21:13):
way that it matters. And so I don't know whether
his efforts to make himself look better than he was
really mattered in the grand scheme of things. But leaving
that all aside, the merits of the case, maybe it
has merits, maybe it doesn't. Number One, the fact that
we know about this case is because two people familiar
with the investigation revealed it to the New York Times.
Speaker 6 (21:32):
So it's a leak.
Speaker 5 (21:33):
Somebody has leaked the fact that he is under investigation,
That alone, I think is suspect. And then the point
you raise about contrast this with the treatment of Eric Adams,
who had been under indictment in the last administration. It
was dismissed by this administration, and according to a judge
in exchange for cooperation in Donald Trump's policy agenda, which
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he called, you know, smacks of a bargain, seems to
be an effort to create leverage over Eric Adams, and
so you've got that situation. It really leaves the Department
in a place of lacking the importance of public trust
when it brings its cases. It all just seems too
convenient that once again they are targeting a prominent public
(22:15):
official whose interests they oppose. It's why the Justice Department
works so hard to maintain its reputation for integrity so
that when it does go on a limb and charge
somebody with a serious crime, the public takes it seriously.
In the past, the Justice Department has always enjoyed in
courts at least the benefit of the doubt and the
(22:37):
presumption of regularity. I think that's going to erode to
the detriment of prosecutors and FBI agents in the future,
and as a result, to the public safety of the
American people, because when a prosecutor or an FBI agent
testifies in court, I think jurors are going to be
far more skeptical about the accuracy of their statements than
they have been in the past.
Speaker 2 (22:58):
Also, President Trump defended the decision to charge New Jersey
Democratic Congresswoman la Monica mcgiver for a scuffle outside an
ice facility and said she was out of control.
Speaker 5 (23:12):
You know, if any other president had done this, there
would have been howls of protest from the public, from
the media, and rightly so. Because the president is the
chief executive of the entire executive branch, anything he says
can be seen as an unlawful command from the president
to direct people to pursue particular angles in cases. And
(23:36):
so as a result, most presidents are very careful to
scrupulously avoid commenting on not just pending cases, but investigations,
to let their Justice department do their job based on
the facts and the laws, and to stay out of
it because every time he comments on some rival who
finds themselves in the crossairs of the Department of Justice,
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it is creating the impression that the case is being
brought for partisan political reasons, which, according to the Justice
departments principles of federal prosecution, is absolutely prohibited. And so
I think it's a terrible thing. Maybe he does it
out of a place of ignorance, but he's been president
long enough now that he really ought to know better.
Speaker 2 (24:18):
Besides, you know, people winning these cases. Is there anything
that can be done about this new weaponization of the
Justice Department. I mean, career attorneys are leaving in droves
and others are being fired. The public Integrity section has
been whittled down to nothing. But is there any solution.
Speaker 5 (24:39):
I don't know that there's any quick fix, and I
am really worried about the long term ramifications to the
Department of Justice. Historically, it has been a plum job
to be able to work for the Department of Justice.
It has an honors program that is very selective and
recruits out of law schools. This year, all of the
students who agreed to take jobs there got their jobs
(25:00):
cut at the very last minute, long after it was
possible for them to secure other jobs, even though they
would have been highly sought after if they had done so.
That kind of pulled the rug out from under me.
Kind of behavior I think is going to cause problems
in attracting and retaining top talent, which is what we
would want with our Justice Department. I think running roughshot
(25:20):
over all of these norms is going to take time
to repair. I am hopeful that we will get through this,
and at some point we will have a new administration
that understands how important it is to correct all of
these egregious attacks on the Justice Department. But I don't
think it's going to be something that gets fixed overnight,
because I think once you breach the public trust, it
takes a long time to repair it.
Speaker 2 (25:42):
Thanks so much for joining me, Barbara. That's Professor Barbara
McQuaid of the University of Michigan Law School. Coming up,
nationwide injunctions, This is Bloomberg. During the oral arguments over
President Trump's executive orders to restrict birthright citizenship, the Court's
conservatives suggested they want to limit the use of so
(26:04):
called nationwide injunctions, but Key Justice's voiced concerns about doing
so in a way that would let Trump's plan birthright
citizenship restrictions take effect before the High Court can rule
on their legality. But in the Supreme Court's decision blocking
Trump from sending additional Venezuelans to a Salvador in prison,
(26:27):
there are significant language that could provide broad relief from
other administration policies. Even if the Justices do limit the
use of nationwide injunctions. My guest is Elijah Soohman, a
law professor at George Mason University, Will you explain how
the use of nationwide injunctions is being questioned?
Speaker 6 (26:47):
So obviously, the Trump's administration wants the Supreme Court to
rules that nationwide injunctions are inherently illegitimate, because, in their view,
courts only have jury fiction to issue remedies for the
parties actually before the court, as opposed to more universally.
(27:10):
There are some conservative Supreme Court justices who in the
past have expressed the more sentiments listening to the oral argument.
It is unclear to me whether there might be five
votes for that proposition, or whether instead the Court might
issue some sort of clarifying rules which clarify or perhaps
(27:30):
limit nationwide injunctions, but don't get rid of them entiroly.
Speaker 2 (27:34):
So some of the justices seem to suggest that an
alternative would be to have proposed class actions that produce
the same result as a nationwide injunction. What do you
think of that as an alternative?
Speaker 6 (27:49):
So it's certainly much better than nothing, But as the
world argument brought out, there can be difficulties with class certification.
And moreover, if we're taught about so called putative classes,
like in the air Key case that the Supreme Court
decided I think last Friday. Then a putative class, first,
(28:10):
it has the same issues that the administration claims exist
with nationwide injunctions, which is that amputative class necessarily includes
people who are not parties to litigation, and that a
putative class is not the same thing as a real class.
So at some point, if you want to get permanent
as opposed to temporary release, the court would have to
decide whether the putative class can become a real class
(28:33):
or not, and that brings back these same issues with certification.
Speaker 2 (28:37):
The court then, after hearing these oral arguments, the Court
then continued the injunction, the temporary injunction that blocked sending
Venezuelans to L Salvador. I mean, were they doing the
same thing that they discussed not doing in the birthright
citizenship case.
Speaker 6 (28:56):
In a certain sense, they were, because that injunction, which
is a temporary one, is for a putative class, and
so a class that has not been actually certified and
possibly may never be certified depending on how things go.
So it was definitely providing relief for non parties, which
is exactly the kind of thing that the Trump administration
(29:18):
says should not be permissible, and that you know, some
Supreme Court justices have said should not be permissible. It's
notable that Justice Gorsuch, who has expressed complaints about nationwide
adjuncts that pass, seems to have been in the majority
in the air P case. Only Thomas and Alito dissented
in theory in their shadow doctor case like this, they
(29:41):
don't have to announce where every single individual justice stood.
But I think I don't know for sure, obviously, but
I think if there were other dissenters, we would have
seen them.
Speaker 2 (29:51):
Tell me about the descent written by Alito and that
Thomas joined in.
Speaker 6 (29:55):
So the descent raises a number of points which are
not really reallyated to nationwide injunctions or class actions. But
one argument that he argues at lengthage if he doesn't
think that class certification should be permissible in a case
like that, and therefore by implication, you shouldn't have a
putative class either.
Speaker 2 (30:16):
In that decision, there's a language sort of encouraging using
putative class actions in these cases.
Speaker 6 (30:24):
So I don't know that you can really point to
specific language, but the very fact that the Court did
what it did should be encouraging new advocates of putative
classes in that, you know, they allowed the putative class
to go forward, and they even did sort of an
emergency intervention to enable it to do so. And you know,
that's not a conclusive determination, but it's a fairly strong signal.
(30:48):
I think that there is a majority in the Supreme
Court that is willing to accept putative classes, at least
in some situations. So again I emphasize, a putative class
is not ultimately the same thing as they do.
Speaker 2 (31:01):
I wonder why the Supreme Court decided to take the
birthright citizenship case, and you know, hear arguments on it
when it seems to be one of the cases that
proves that if you're ever going to have nationwide injunctions,
that would be the case where you would have them,
(31:21):
because otherwise there'll be different rules in different parts of
the country about whether babies are citizens.
Speaker 6 (31:29):
So in my case, you're preaching to the converted on that.
I think there are two possible theories, perhaps more than two,
but two did occur to me as to why the
Supreme Court specs the case. Which of them is true?
I do not know. One possibility is if you posit
that there's a faction that just wants to add nationwide injunctions,
(31:49):
then you know, fueling it in a case which is
sort of the best case scenario for supporters of those
kind of injunctions. That would show like we really mean
it when they say there should be no nationwide junction.
That's one possibility. The other possibility is you can imagine
that this the four justices it takes four to take
a case who wanted to take this one did so
(32:10):
because they're actually in favor of nationwide injunctions and want
to precedent saying that, and this would be a good
sort of sympathetic case and wish to do that. So
those are two possible theories. Which is true. I do
not know if you have inside sources and can tell
you which is true, Neil, I would be happy to
find out myself.
Speaker 2 (32:31):
So you already have a federal district judge who cited
the language in that May sixteenth ruling to temporarily certify
a class of alleged Venezuela and gang members. So once
one federal judge does so, others will likely follow.
Speaker 6 (32:51):
Yeah, So I think it's fairly obvious that if the
Supreme Court was willing to essentially bless this kind of
arrangement in this case that it can also be done
in other cases. I suspect this judge will not be
the last to do it, obviously. It's the Supreme Court
did not give us a lot of clarity on exactly
when putative classes are permitted and when they're not, for
(33:13):
how line they're permitted, and so on, and yield that
to those issues. They will have to be litigated in
future cases in the lower courts and perhaps also in
the Supreme Court. But the basic idea of putative classes,
it seems like there are seven Supreme Court justices who
are okay with it at least in some instances, and
lower court judges are not stupid. They can see us.
Speaker 2 (33:36):
So what's your take on nationwide injunctions?
Speaker 6 (33:39):
So I agree with what you said earlier, which is
that very valuable too in cases like the birthright citizenship
case where you have nationwide illegality. The reasons why you know,
the government actually illegals do not vary from place to
place or from case to case. Their uniform and the
rights of many thousands of people may be a stake.
(34:00):
It might be difficult or impossible for all when to
bring their own individual actions there might be, And so
it seemed to me that nationwide illegality requires a nationwide response.
At least in some cases, nationwide adjunctions are the appropriate response.
I do not agree that sort of the con turn
of the other side of lowiela Rose District judged block
of policy for the entire country. If he's truly a
(34:22):
road and here her reading is really bad, it can
be quickly overturned by the health court. Kind of power courts,
you have proceeadures for dealing with these kinds of cases
and extedited basis.
Speaker 2 (34:33):
So we will see by July whether the Supreme Court
actually makes a move to restrict nationwide injunctions. Thanks so
much for joining me. That's Professor Elias Sohman of George
Mason University. 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
(34:55):
them on Apple Podcasts, Spotify, and at www dot Bloomberg
dot dot com, slash podcast Slash Law, And remember to
tune into The Bloomberg Law Show every weeknight at ten
pm Wall Street time. I'm June Grosso and you're listening
to Bloomberg
This is Bloomberg Law with June Grossel from Bloomberg Radio.
Speaker 2 (00:08):
The Supreme Court deadlocked four to four today in a
major case over the separation of religion and government, thwarting
an effort to create the nation's first faith based charter
school in Oklahoma. The tie was the result of Justice
Amy Coney Barrett's recusal in the case. The Supreme Court's
one sentence order didn't reveal which justices were on which
(00:32):
side of the divide, but during the oral arguments it
seemed apparent that four conservative justices were likely to side
with the charter school and the three liberal justices were
likely to side with Oklahoma, leaving Chief Justice John Roberts
as the key vote. And the Chief distinguished this case
from past Supreme Court decisions backing the use of public
(00:54):
money for religious schools.
Speaker 3 (00:56):
Trinity luther and Espinoza Carson, those involved fairly discreete state involvement.
In Trinity Lutheran, they're going to pave the or you know,
put woodchips on the playground. In Espinosa, it was a
tuition credit. In Carson again, tax credits. I mean, this
(01:16):
does strike me as a much more comprehensive involvement.
Speaker 2 (01:24):
The split means the Oklahoma Supreme Court ruling that rejected
the creation of Saint Isidore of Seville Catholic Virtual School
remains in place, and it leaves open the question of
whether states with taxpayer funded charter school programs are constitutionally
required to incorporate religious institutions. Joining me is religious liberty
(01:47):
expert Stephanie Barklay, a professor at Georgetown Law and faculty
co director at the Georgetown Center for the Constitution. How
important is this case? What would the consequences have been
in if the court had allowed the nation's first faith
based charter school.
Speaker 4 (02:06):
So there's really two questions there. The one question is
if the court had ruled in favor of the faith
based charter school, how important of a decision would it
have been? And that would have been a landmark case,
that would have been the first time that we had
a face based charter school and would have had some
significant implications, probably not just for faith based schools and
charter schools, but potentially in other states as well. Now
(02:29):
there's the second question, which is, Okay, well, how significant
is the court's decision given that it's just, you know,
a very brief order without an opinion for for split
affirming the lower court decision. And at that point the
answer is, as a matter of precedent, that precedent is
not particularly important. It's not going to tell us you
know much about anything besides the fact that they're affirming
(02:50):
this case. There weren't five votes to reverse the Supreme
Court in Oklahoma, and in that way, it's going to
be of limited presidential effect.
Speaker 2 (02:58):
Do the arguments from each side here reflect or involve
the tensions between the first amendments to religion clauses?
Speaker 4 (03:07):
I don't think there is a tension between the two
religion clauses, and the Supreme Court emphasize that in its
recent case in Kennedy versus Birmerton School District. But largely
those clauses work together in a mutually reinforcing way. But
this case does highlight the way in which you could
get a different outcome under either of those clauses, depending
on whether we're dealing with a private school or a
(03:29):
government school. Because if it's a government school, then it
is pretty clear that government doesn't get to run religious
programs where it's preferring one type of denomination over another,
or setting out religious liturgy and things like that would
be prohibited under the approach to the establishment clause. The
Court has been taking post Kennedy where it looks at
the six historical hallmarks of an established religion. Now, if
(03:51):
it's a private school, then the free exercise clause is
the relevant focus. Then the question is can the government
exclude the private school? And the trajection of cases that
it has had in Trindi, Lutheran, Espinoza, and Carson makes
pretty clear that the Court taks the free exercise clause
for hibbits governments from excluding religiouschools just on that basis.
So it is a case that highlights for an outcomes
(04:13):
depending on the government versus private nature of the entity.
Speaker 2 (04:17):
As you mentioned, we don't know how the justices voted.
The arguments suggested perhaps that the Chief Justice was the
pivotal vote who might have gone with the three liberals.
Speaker 4 (04:30):
I think that that's probably the most likely outcome. That
you had the Chief Justice, Sonoyer, Kagan, and Jackson that
do not feel comfortable overruling the Oklahoma Supreme Court, and
then you had the other four justices, Justice Thomas, Alito, Gorsich,
and Kavanaugh. It probably would have ruled to overrule the
(04:52):
Oklahoma Supreme Court, and then of course Justice spirit is recusing.
So if I had to guess, then of course we
don't know. But if I had to guess, I think
that's what I would speculate that the vote likely would
have been. And of course, because they only got to
four four, that means it's an automatic affirmance of the
previous judgment.
Speaker 2 (05:08):
The four to four tie was a product of Justice
amy Cony Barrett recusing herself. So since it's not a
nationwide precedent, is it likely that proponents of religious charter
schools will simply try again to create a school and
in a case where Justice Barrett can sit on the case.
Speaker 4 (05:30):
So I think that that is certainly not for close
by the Court's opinion in this case, and a possibility
at some point in the future. I think the most
likely next case that you will see in the school
choice movement is Saint Dominic Academy versus Macon, which would
be coming out of Maine. This is a Beckett case.
It's possible other cases could too, but this is one
(05:50):
that is already in the court system, and it is
essentially Carson two point zero. So the same government that
the Supreme Court ruled against and Carves and revised their
laws when the case was sent back down to try
and find other creative ways to keep faith based schools
out of what is not a charter school system, but
it's just a traditional sort of voucher based school choice system.
(06:13):
And there are faith based schools that are challenging that
right now, and that's making its way through the court system.
And in oral argument in Saint Isidor, the justices distinguished
the program in Maine, which has always included private schools
and operates more like a traditional tuition voucher program from
the program in Oklahoma creating public charter schools, where a
lot of the dispute was over difficult questions related to
(06:35):
whether charter schools are in fact private or government schools,
And that sort of sticky issue just is not present
in the same way in the same dominant case. So
I think we're the court to take another school choice
sort of case. I think that's a more likely next step.
There are no cases right now percolating that I'm aware
of where there's another faith based charter school that has
(06:55):
been approved or requested to be created and been denied,
and that they're doing over that right now.
Speaker 2 (07:00):
Has the Supreme Court in recent years expanded religious liberty
rights over other rights?
Speaker 4 (07:06):
I don't think that I would say they've expanded religious
liberty rights over other rights, but they have certainly given
a lot of attention to and been solicitous towards religious claims.
And although there are certainly religious claimants that have been
before the courts that didn't win their case, and this
is another one, so I think I think this is
a court that takes balanced and cautious approaches while still
(07:26):
being sympathetic towards religious liberty claims and wanting to ensure
that it's providing for best protection under our First Amendments.
Speaker 2 (07:33):
We're waiting for two more decisions from the Court in
religion cases. Tell us about those.
Speaker 4 (07:40):
One is a case called Mafood and that is another
case in the educational context coming out of Maryland. And
this is a case where this school district has instituted
a policy where books are being read to children down
to elementary school and preschool that deal with issues related
to sexuality, gender identity. And there are parents who aren't
(08:05):
objecting to those books being read broadly, but would like
to be able to opt their children out in the
school in that case has said that they are not
allowed to opt their children out. Their only option is
to drop out of school altogether if they don't like
that policy. So the Supreme Court has heard oral argument
in that case, and it seems likely from oral arguments
that they will rule in favor of a religious parents
(08:26):
whose Muslim parents, Jewish parents, and Christian parents in a
coalition in that case. Another case is the Catholic Charity
is case that the Court heard before that that is
a case where there is a question of whether a
Catholic constitution can qualify for a tax benefit in the state.
The decision from the state Supreme Court had said that
(08:47):
if the Catholic groups were engaging in more typical religious behavior,
and we're organized in a more typical way, and we're
doing things like proselytizing to other individuals as part of
their ministry, then they would qualify for the tax benefits.
But because this Catholic charity does not proselytize and that's
not part of their mission. They would serve people of
(09:08):
their religious groups or not all alike, and they don't
try and convert people to their theology. Because the Catholic
Ministry doesn't do that on that basis, they don't qualify
for the tax benefit. And that was another case where
the Court seems quite skeptical of the government action. Justice
Kagan in that case even asked like, isn't it pretty
clear is that government doesn't get to tell people what
(09:28):
ordinary religious practices and which practices are approved and which
are not. So I mean, it's even impossible in that
case the government might be facing unanimous defeat. Certainly something
is likely that they could get eight one or seven
two votes in that case.
Speaker 2 (09:43):
In today's Oklahoma case, were you surprised that there weren't
five votes for the religious charter school.
Speaker 4 (09:51):
I think it's unfortunate that there weren't five votes. I
think it's possible that the Chief was concerned about lack
of percolation. This is the first case of its kind.
There aren't others cases that have grappled with this yet,
so hard to read the tea leaves about exactly what
was the worry for him. But I think it's promising
that this court doesn't have an opinion from the chief
(10:11):
sort of taking it out in a way that suggests
that this would be a permanent position. But leaving the
door open to future challengers and future cases.
Speaker 2 (10:19):
So, then do you think that states that fund charter
schools should be required to fund religious charter schools.
Speaker 4 (10:29):
I think that if a state is operating such that
they're using the label of like a government school, that
they're really treating it like a voucher, then I think
probably the functional analysis matters more than the labels do.
But if the government is really operating charter schools like
other government schools, then I think government should be entitled
(10:49):
to make choices about running secular government schools. So it
really just the devils in the details of how is
that particular government operating at school system, how much oversight
is there being even handed in the way it's approaching
that overside with the different types of churtis schools and
public schools, those are all going to be questions that
will be certainly relevant to the court should a case
(11:10):
like this arrive.
Speaker 2 (11:10):
Again, thanks so much for joining me today. That's Professor
Stephanie Barklay of Georgetown Law coming up next on the
Bloomberg Law Show. The head of the Justice Department's Weaponization
Working Group says he'll name people who the Department was
unable to charge in order to shame them. You're listening
(11:30):
to Bloomberg. The Trump administration seems to be ratcheting up
its use of the legal system to target the president's
perceived enemies, including launching criminal investigations into New York Attorney
General Letitia James and former New York Governor Andrew Cuomo.
The Justice Department is also departing from its long held
(11:52):
policy by commenting publicly on cases that haven't been charged
yet and going one step further, promising to shame a
person publicly even if there's not enough evidence to charge them.
Here's Ed Martin, the new head of the DOJ's Weaponization
Working Group.
Speaker 1 (12:10):
There are some really bad actors, some people that did
some really bad things to the American people, and if
they can be charged, will charge them. But if they
can't be charged, we will name them, and we will
name them. And in a culture that respects shame, they
should be people that are shamed. And that's a fact.
That's the way things work.
Speaker 2 (12:29):
My guest is Barbara McQuaid, a professor at the University
of Michigan Law School and the former US Attorney for
the Eastern District of Michigan. Barbara. Attorney General Pam Bondi
has created this Weaponization Working Group that seems openly to
be designed to go after those that Trump claims weaponize
(12:51):
the legal system against him. Can you explain where they're
coming from here?
Speaker 5 (12:57):
Well, it's difficult to know where they're coming from because
so different from the way we have thought about the
Department of Justice, at least since the Watergate era, which
was fifty years ago.
Speaker 6 (13:08):
Now.
Speaker 5 (13:08):
I think one of the things that's most troubling to
me is this memo that Attorney General Pam Bondi issued
on day one creating a Weaponization Working Group. It takes
the position that the last administration abused its power of
bringing criminal prosecution and said that she was going to
work to hold those people accountable, and then it names
(13:28):
by name people like Special Council Jack Smith and New
York Attorney General Letitia James, Manhattan District Attorney Alvin Bragg.
Of course, these are all people who investigated Donald Trump
in the past, and so I think this is at
first a very significant piece of disinformation or propaganda to
suggests that they did something wrong, and then to suggest
(13:50):
that by turning the tables on them and going after them.
All she's doing is evening the score and holding them
accountable for their misconduct. It is credible distortion of the
facts and the history and the traditions of the Justice Department,
which by policy neither confirms nor denies even the existence
of an investigation. So the idea that we're going to
(14:11):
go after these people and look at them as opposed
to saying, you know, we look at conduct when it
appears to violate the law, in my view, this itself
is what it means to weaponize the Justice Department.
Speaker 2 (14:23):
Ed Martin, the former interim DCUs attorney who has a
new role now as head of this weaponization working group,
made some remarkable statements that if they can't be charged,
we'll name them. Is that ethical and does that comport
with Justice Department policy?
Speaker 6 (14:44):
No?
Speaker 5 (14:45):
So, you know, the Ed Martin story is in some
ways a really bad story. There's parts of history that
are a good story. I think because Donald Trump, of
course put him in place as the interim UIs Attorney
in Washington, d C. But it appeared he was not
going to get the votes in the sense even by
Senate Republicans, and so his nomination was withdrawn and he
was moved over to be the parton attorney and to
(15:07):
head this weaponization working group. So the good nugget there,
I think is that there is a redline for Congress
that the Senate is not going to allow somebody who
engages in political activity in the guise of a prosecutor
from holding such an important office. So I think that's
good news. But to get to your question, no, this
is not at all the way prosecutors are supposed to
(15:29):
conduct themselves. The idea that I'm going to investigate and
even if I do not find sufficient evidence of the crime,
I am going to share whatever I found about you.
I'm going to put your name out there because my
goal is to bring you shame. So first, it is
unethical for a prosecutor to make extra judicial statements that
are harmful to a person that are not within the
(15:51):
four corners of a charging document. That's problematic. It has
also been the Department of Justice policy for the past
fifty years, as we said, to neither confirm nor deny
the existence of an investigation, so that a person's reputation
will not be harmed if no charges ever materialize. And
(16:11):
we saw this at lay when Jim Comey was run
out of his job as FBI director. You may recall
that Donald Trump claimed that the reason that Jim Comey
was fired as FBI director was because he received a
memo from Rod Rosenstein, who was the Deputy Attorney General
at the time, saying that James Comy had violated this
principle when he held that press conference castigating Hillary Clinton,
(16:36):
even though no charges were brought. He called her extremely careless,
and he complained about her publicly, which is inappropriate. Rod
Rosenstein said, so many others said so at the time,
and it's what cost Jim Comy his job. And now
the idea that Ed Martin, in this very prominent role,
is going to just use it as a place to
do the same even if there's no sufficient evidence to
(16:58):
bring charges, is in my view, an abuse of that
position of power.
Speaker 2 (17:02):
So the Justice Department has launched a criminal investigation into
New York Attorney General Letitia James, who had secured a
four hundred and fifty four million dollar judgment against Trump
and the Trump organization. So the criminal investigation is for
mortgage fraud, and the head of the FBI has already
called this a case of great public importance. So they're
(17:25):
going after her for something that has no relation to
her case against Trump.
Speaker 5 (17:31):
You know, in ordinary times, I would say that public
officials are not above the law, and that if they
have violated the law, they should expect to invite scrutiny
and be held accountable. But I think in light of
the track record this Trump administration has developed in the
past four months with this Weaponization Working Group, especially because
it names Letitia James in it, as well as President
(17:52):
Trump's statements during the campaign that he would seek retribution
cash Buttel, the FBI director, talking about coming after political
rival and journalists. All of these things together I think
cause us to lose confidence that the Justice Department is
acting in good faith. Now we'll see how it pans out.
When you bring in a criminal case, you have to
have evidence, you have to prove it in a court
(18:14):
of law, then the jury has to find guilt beyond.
Speaker 6 (18:16):
A reasonable doubt.
Speaker 5 (18:17):
If they've got the evidence, then I don't have a
problem with their bringing the case. But I'm really quite
skeptical that they coincidentally found a criminal charge against Litis
James right after saying they were going to go after her.
So it puts the Justice Department. I think in a
very dangerous place because it is supposed to be a
place that is not guided by partisan politics but by
(18:37):
fact in law. And I worry that if they are
using it, or even creating the appearance that they are
using it as a partisan tool, it will diminish the
public reputation of the Department for decades to come.
Speaker 2 (18:48):
Lititia James said this week, this investigation, to me, is
nothing more than retribution. It's baseless. Let's just suppose that
it does go to trial. Is there a problem with
the jury pool having been influenced by these statements by
Trump and others? Also just the damage to her reputation.
Speaker 5 (19:08):
Yeah, you know. And this is one of the things
that again traditionally, the Apartment of Justice is very careful
about charging high profile public officials. Requires typically high level approvals,
not because anybody is more deserving than anyone else under
the law, but because of the reputational harm that will
ensue because of their inability to do their jobs, and
sometimes the effect it might have on their election or
(19:30):
re election, and so caution should be used before raising
charges about that. The fact that we know about this
investigation is one of the things that so deeply troubles me. Ordinarily,
as we've said a couple of times now, prosecutors neither
confirm nor tonight, even the existence of an investigation. How
do we know that there's this investigation? Will somebody has
leaked it? And that alone is problematic. Ordinarily, if you're
(19:53):
investigating anyone, especially a prominent person, you do so quietly, secretly,
and if you can't make the case go away. It
is not the job of the Justice Department to harm
the reputations of individuals, especially public figures, and in prior
administrations they went to great pains to avoid doing that.
Speaker 2 (20:11):
And now we have the Justice Department reportedly opening an
investigation into Andrew Cuomo, who is currently the top candidate
for New York City mayor, apparently following a referral from
congressional Republicans who accused him of lying during an investigation
of his administration's COVID nineteen response. And this comes just
(20:35):
after the Trump Justice Department dropped the charges against Mayor
Eric Adams, who will be running against Cuomo. You know,
if they both get past the primary. I mean, you
talked about prior Justice departments being concerned about the possible
effects on elections.
Speaker 5 (20:52):
So again without knowing the underlying evidence. Maybe there's a
case there. We don't know he made statements. Now, of course,
the mere fact that you made a statement that might
be inconsistent with the testimony of other witnesses is not
alone a crime. You have to show that you made
a false statement, that you then in there knew the
statement was false at the time you were making it,
and that it is material to the investigation in some
(21:13):
way that it matters. And so I don't know whether
his efforts to make himself look better than he was
really mattered in the grand scheme of things. But leaving
that all aside, the merits of the case, maybe it
has merits, maybe it doesn't. Number One, the fact that
we know about this case is because two people familiar
with the investigation revealed it to the New York Times.
Speaker 6 (21:32):
So it's a leak.
Speaker 5 (21:33):
Somebody has leaked the fact that he is under investigation,
That alone, I think is suspect. And then the point
you raise about contrast this with the treatment of Eric Adams,
who had been under indictment in the last administration. It
was dismissed by this administration, and according to a judge
in exchange for cooperation in Donald Trump's policy agenda, which
(21:54):
he called, you know, smacks of a bargain, seems to
be an effort to create leverage over Eric Adams, and
so you've got that situation. It really leaves the Department
in a place of lacking the importance of public trust
when it brings its cases. It all just seems too
convenient that once again they are targeting a prominent public
(22:15):
official whose interests they oppose. It's why the Justice Department
works so hard to maintain its reputation for integrity so
that when it does go on a limb and charge
somebody with a serious crime, the public takes it seriously.
In the past, the Justice Department has always enjoyed in
courts at least the benefit of the doubt and the
(22:37):
presumption of regularity. I think that's going to erode to
the detriment of prosecutors and FBI agents in the future,
and as a result, to the public safety of the
American people, because when a prosecutor or an FBI agent
testifies in court, I think jurors are going to be
far more skeptical about the accuracy of their statements than
they have been in the past.
Speaker 2 (22:58):
Also, President Trump defended the decision to charge New Jersey
Democratic Congresswoman la Monica mcgiver for a scuffle outside an
ice facility and said she was out of control.
Speaker 5 (23:12):
You know, if any other president had done this, there
would have been howls of protest from the public, from
the media, and rightly so. Because the president is the
chief executive of the entire executive branch, anything he says
can be seen as an unlawful command from the president
to direct people to pursue particular angles in cases. And
(23:36):
so as a result, most presidents are very careful to
scrupulously avoid commenting on not just pending cases, but investigations,
to let their Justice department do their job based on
the facts and the laws, and to stay out of
it because every time he comments on some rival who
finds themselves in the crossairs of the Department of Justice,
(23:57):
it is creating the impression that the case is being
brought for partisan political reasons, which, according to the Justice
departments principles of federal prosecution, is absolutely prohibited. And so
I think it's a terrible thing. Maybe he does it
out of a place of ignorance, but he's been president
long enough now that he really ought to know better.
Speaker 2 (24:18):
Besides, you know, people winning these cases. Is there anything
that can be done about this new weaponization of the
Justice Department. I mean, career attorneys are leaving in droves
and others are being fired. The public Integrity section has
been whittled down to nothing. But is there any solution.
Speaker 5 (24:39):
I don't know that there's any quick fix, and I
am really worried about the long term ramifications to the
Department of Justice. Historically, it has been a plum job
to be able to work for the Department of Justice.
It has an honors program that is very selective and
recruits out of law schools. This year, all of the
students who agreed to take jobs there got their jobs
(25:00):
cut at the very last minute, long after it was
possible for them to secure other jobs, even though they
would have been highly sought after if they had done so.
That kind of pulled the rug out from under me.
Kind of behavior I think is going to cause problems
in attracting and retaining top talent, which is what we
would want with our Justice Department. I think running roughshot
(25:20):
over all of these norms is going to take time
to repair. I am hopeful that we will get through this,
and at some point we will have a new administration
that understands how important it is to correct all of
these egregious attacks on the Justice Department. But I don't
think it's going to be something that gets fixed overnight,
because I think once you breach the public trust, it
takes a long time to repair it.
Speaker 2 (25:42):
Thanks so much for joining me, Barbara. That's Professor Barbara
McQuaid of the University of Michigan Law School. Coming up,
nationwide injunctions, This is Bloomberg. During the oral arguments over
President Trump's executive orders to restrict birthright citizenship, the Court's
conservatives suggested they want to limit the use of so
(26:04):
called nationwide injunctions, but Key Justice's voiced concerns about doing
so in a way that would let Trump's plan birthright
citizenship restrictions take effect before the High Court can rule
on their legality. But in the Supreme Court's decision blocking
Trump from sending additional Venezuelans to a Salvador in prison,
(26:27):
there are significant language that could provide broad relief from
other administration policies. Even if the Justices do limit the
use of nationwide injunctions. My guest is Elijah Soohman, a
law professor at George Mason University, Will you explain how
the use of nationwide injunctions is being questioned?
Speaker 6 (26:47):
So obviously, the Trump's administration wants the Supreme Court to
rules that nationwide injunctions are inherently illegitimate, because, in their view,
courts only have jury fiction to issue remedies for the
parties actually before the court, as opposed to more universally.
(27:10):
There are some conservative Supreme Court justices who in the
past have expressed the more sentiments listening to the oral argument.
It is unclear to me whether there might be five
votes for that proposition, or whether instead the Court might
issue some sort of clarifying rules which clarify or perhaps
(27:30):
limit nationwide injunctions, but don't get rid of them entiroly.
Speaker 2 (27:34):
So some of the justices seem to suggest that an
alternative would be to have proposed class actions that produce
the same result as a nationwide injunction. What do you
think of that as an alternative?
Speaker 6 (27:49):
So it's certainly much better than nothing, But as the
world argument brought out, there can be difficulties with class certification.
And moreover, if we're taught about so called putative classes,
like in the air Key case that the Supreme Court
decided I think last Friday. Then a putative class, first,
(28:10):
it has the same issues that the administration claims exist
with nationwide injunctions, which is that amputative class necessarily includes
people who are not parties to litigation, and that a
putative class is not the same thing as a real class.
So at some point, if you want to get permanent
as opposed to temporary release, the court would have to
decide whether the putative class can become a real class
(28:33):
or not, and that brings back these same issues with certification.
Speaker 2 (28:37):
The court then, after hearing these oral arguments, the Court
then continued the injunction, the temporary injunction that blocked sending
Venezuelans to L Salvador. I mean, were they doing the
same thing that they discussed not doing in the birthright
citizenship case.
Speaker 6 (28:56):
In a certain sense, they were, because that injunction, which
is a temporary one, is for a putative class, and
so a class that has not been actually certified and
possibly may never be certified depending on how things go.
So it was definitely providing relief for non parties, which
is exactly the kind of thing that the Trump administration
(29:18):
says should not be permissible, and that you know, some
Supreme Court justices have said should not be permissible. It's
notable that Justice Gorsuch, who has expressed complaints about nationwide
adjuncts that pass, seems to have been in the majority
in the air P case. Only Thomas and Alito dissented
in theory in their shadow doctor case like this, they
(29:41):
don't have to announce where every single individual justice stood.
But I think I don't know for sure, obviously, but
I think if there were other dissenters, we would have
seen them.
Speaker 2 (29:51):
Tell me about the descent written by Alito and that
Thomas joined in.
Speaker 6 (29:55):
So the descent raises a number of points which are
not really reallyated to nationwide injunctions or class actions. But
one argument that he argues at lengthage if he doesn't
think that class certification should be permissible in a case
like that, and therefore by implication, you shouldn't have a
putative class either.
Speaker 2 (30:16):
In that decision, there's a language sort of encouraging using
putative class actions in these cases.
Speaker 6 (30:24):
So I don't know that you can really point to
specific language, but the very fact that the Court did
what it did should be encouraging new advocates of putative
classes in that, you know, they allowed the putative class
to go forward, and they even did sort of an
emergency intervention to enable it to do so. And you know,
that's not a conclusive determination, but it's a fairly strong signal.
(30:48):
I think that there is a majority in the Supreme
Court that is willing to accept putative classes, at least
in some situations. So again I emphasize, a putative class
is not ultimately the same thing as they do.
Speaker 2 (31:01):
I wonder why the Supreme Court decided to take the
birthright citizenship case, and you know, hear arguments on it
when it seems to be one of the cases that
proves that if you're ever going to have nationwide injunctions,
that would be the case where you would have them,
(31:21):
because otherwise there'll be different rules in different parts of
the country about whether babies are citizens.
Speaker 6 (31:29):
So in my case, you're preaching to the converted on that.
I think there are two possible theories, perhaps more than two,
but two did occur to me as to why the
Supreme Court specs the case. Which of them is true?
I do not know. One possibility is if you posit
that there's a faction that just wants to add nationwide injunctions,
(31:49):
then you know, fueling it in a case which is
sort of the best case scenario for supporters of those
kind of injunctions. That would show like we really mean
it when they say there should be no nationwide junction.
That's one possibility. The other possibility is you can imagine
that this the four justices it takes four to take
a case who wanted to take this one did so
(32:10):
because they're actually in favor of nationwide injunctions and want
to precedent saying that, and this would be a good
sort of sympathetic case and wish to do that. So
those are two possible theories. Which is true. I do
not know if you have inside sources and can tell
you which is true, Neil, I would be happy to
find out myself.
Speaker 2 (32:31):
So you already have a federal district judge who cited
the language in that May sixteenth ruling to temporarily certify
a class of alleged Venezuela and gang members. So once
one federal judge does so, others will likely follow.
Speaker 6 (32:51):
Yeah, So I think it's fairly obvious that if the
Supreme Court was willing to essentially bless this kind of
arrangement in this case that it can also be done
in other cases. I suspect this judge will not be
the last to do it, obviously. It's the Supreme Court
did not give us a lot of clarity on exactly
when putative classes are permitted and when they're not, for
(33:13):
how line they're permitted, and so on, and yield that
to those issues. They will have to be litigated in
future cases in the lower courts and perhaps also in
the Supreme Court. But the basic idea of putative classes,
it seems like there are seven Supreme Court justices who
are okay with it at least in some instances, and
lower court judges are not stupid. They can see us.
Speaker 2 (33:36):
So what's your take on nationwide injunctions?
Speaker 6 (33:39):
So I agree with what you said earlier, which is
that very valuable too in cases like the birthright citizenship
case where you have nationwide illegality. The reasons why you know,
the government actually illegals do not vary from place to
place or from case to case. Their uniform and the
rights of many thousands of people may be a stake.
(34:00):
It might be difficult or impossible for all when to
bring their own individual actions there might be, And so
it seemed to me that nationwide illegality requires a nationwide response.
At least in some cases, nationwide adjunctions are the appropriate response.
I do not agree that sort of the con turn
of the other side of lowiela Rose District judged block
of policy for the entire country. If he's truly a
(34:22):
road and here her reading is really bad, it can
be quickly overturned by the health court. Kind of power courts,
you have proceeadures for dealing with these kinds of cases
and extedited basis.
Speaker 2 (34:33):
So we will see by July whether the Supreme Court
actually makes a move to restrict nationwide injunctions. Thanks so
much for joining me. That's Professor Elias Sohman of George
Mason University. 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
(34:55):
them on Apple Podcasts, Spotify, and at www dot Bloomberg
dot dot com, slash podcast Slash Law, And remember to
tune into The Bloomberg Law Show every weeknight at ten
pm Wall Street time. I'm June Grosso and you're listening
to Bloomberg
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