September 10, 2025 • 35 mins
Elliott Stein, Bloomberg Intelligence senior litigation analyst, discusses President Trump appealing a court order blocking him from firing Federal Reserve Governor Lisa Cook. Constitutional law professor Eric Segall of the Georgia State University, discusses how the Roberts court has changed the law over the past two decades. June Grasso hosts.
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Speaker 1 (00:02):
This is Bloomberg Law with June Brossel from Bloomberg Radio.
Speaker 2 (00:08):
Yesterday, a federal judge temporarily blocked President Trump from ousting
Federal Reserve Governor Lisa Cook over allegations of mortgage fraud,
an order that allows Cook to attend a highly anticipated
FED policy meeting next week to vote on whether to
lower interest rates. Today, the Trump administration appealed that order
(00:30):
to the DC Circuit Court of Appeals, joining me is
Bloomberg Intelligence senior litigation analyst Elliott Stein.
Speaker 1 (00:37):
Elliott.
Speaker 2 (00:38):
Federal Judge Ga Cobb found that Trump likely violated the
Federal Reserve Act and Cook's due process rights. Start by
telling us about her reasoning under the Federal Reserve Act.
Speaker 1 (00:50):
Sure So, on that issue, she said that the four
cause standard wasn't met because, even though it's not defined
in the statute, based on the history and the context
around its insertion into the Federal Reserve Act, it suggested
strongly that cause requires some sort of event while the
(01:12):
person is in office that can affect how they carry
out their duties in that role, and in this case,
she said that wasn't met because the allegations pertain to
conduct in twenty twenty one, before Lisa Cook was confirmed
to the Federal Reserve Board.
Speaker 2 (01:32):
The judge said, moreover, it would incentivize the president and
subordinates to dig up prior conduct, however insubstantial to justify
removal from the board, even where the board member has
been up to that point performing their statutory duties impeccably.
Was that sort of a shot at what happened here
(01:52):
where Federal Housing Finance Agency Director Bill Poulty dug up
these allegations from mortgages that Cook obtained in twenty twenty one.
Speaker 1 (02:03):
Yeah, yeah, I think that's a fair interpretation. And in
other parts of the opinion, Judge Cobb said, you know,
cause can't mean sort of vague, unsubstantiated allegations without any
form of investigation. But I thought what was interesting in
the opinion was that Judge Cobb did say there could
be circumstances where the conducted issue takes place before the
(02:25):
person is in office. But then let's say that person
is convicted while they're in office. Judge Cobbs suggested that
conviction could meet the four cause standards, So you know,
that scenario could also incentivize people to dig up dirt
from years ago. So I'm not really sure that example
that Judge Cobb used would eliminate the possibility of, you know,
(02:46):
political opponents trying to dig up dirt.
Speaker 2 (02:49):
Did she comment at all on the explanations from Cook's
lawyers that if there were any eras, she didn't mean
to deceive anyone, No one was harmed, and perhaps that
even this was a raical error.
Speaker 1 (03:00):
She did sort of allude to that, I think in
a footnote if I recall correctly. But that sort of
goes to the due process part of the opinion, right
where Judge Cobb said that in addition to the statutory violation,
there was a constitutional violation because Lisa Cook didn't get
proper notice or an opportunity to be heard before she
(03:22):
was removed, And.
Speaker 2 (03:23):
So the judge was saying that finding out from Trump
on social media.
Speaker 1 (03:28):
Was not enough, right exactly. Yeah, that went to the
notice part of the equation. And then you know, an
opportunity to be heard also has to be satisfied, and
for that there has to be some sort of formal
hearing essentially, and Judge Cob cited to other cases where
officials were removed for cause and there usually was some
(03:49):
sort of formal hearing where the official could present their
side of the story.
Speaker 2 (03:53):
Tell us a little bit about Cook's allegations that Trump's
moved to auster is politely motivated.
Speaker 1 (04:01):
Cook's point is you can't separate allegations against Lisa Cook
from the months of accusations against Jerome Powell and then
other comments President Trump has made about trying to gain
a majority on the Federal Reserve Board. And so that's
the context that Lisa Cook is pointing to as to
(04:22):
why she thinks the mortgage frount accusations are a pretext
just trying to remove Federal Reserve Board governors for policy disagreements, essentially,
because even the Trump administration conceded that you can't satisfy
the four cause requirement by removing someone for a policy disagreement.
Speaker 2 (04:41):
So that ruling came down yesterday and today already the
Trump administration is appealing.
Speaker 1 (04:48):
Yep, no surprise there.
Speaker 2 (04:49):
No surprise. But have they stated their grounds for appeal yet?
Speaker 1 (04:53):
So I've only seen the notice of appeal so far,
and I've been trying to refresh at dock it to
get others are Yeah, I've been refreshing that frantically. And
this will go to an emergency motions panel on the
DC's circuit. It seems from a different case where I
was able to track down the emergency Motions panel in
that case, it seems like it'll be a favorable panel
(05:14):
to Lisa Cook in the sense that it's the Biden
appoint and an Obama appoint and then a trumpet point e,
so sort of two judges that are probably going to
be more sympathetic to Lisa Cook's arguments. And then from there,
assuming the government loses at the DC Circuit panel stage,
I presume the administration will go to the Supreme Court.
Speaker 2 (05:34):
The FED Board meeting, the highly anticipated FED Board meeting.
So Cook will be able to go to that meeting
if this decision is upheld.
Speaker 1 (05:44):
Right, yeah, exactly. Unless this decision is stayed, she will
serve at that meeting. And I do think it's possible
that the DC Circuit Emergency Motions Panel can rule by then,
and again, if it's a favorable panel to Lisa Cook,
as I suspect it will be, I don't envision Judge Cobbs'
decision being put on hold, in which case Lisa Cook
(06:06):
would be able to participate at that meeting. I don't
think we'll get anything from the Supreme Court by the
September sixteenth date, unless the DC Circuit moves even faster
than I think they're going to. I mean, it's possible,
It's true they you know, you could get a DC
Circuit panel ruling on let's say Monday the fifteenth, and
(06:26):
an administrative to stay by the Supreme Court like the
next day or even that day. So it's not out
of the realm of possibility. But I still think the
more important dates are in February, not next week, because
next week Lisa Cook's only one vote out of twelve,
and I don't think it will make all that much
of a difference. But in February, you know, if President
(06:48):
Trump can get a more favorable balance on the Federal
Reserve Board, let's say he's able to move Lisa Cook
out of her role and Stephen Miron get confirmed as
he's expected to, you know, you could potentially have a
three to three balance on the Federal Reserve Board, the
three who are sympathetic to Trump and three who aren't.
And at that point you may not get the regional
(07:10):
Reserve Bank presidents reappointed in February, in which case you
potentially could get a shift on the FMC in a
direction that's more favorable to President Trump.
Speaker 2 (07:22):
And what are the odds of Cook prevailing when this
does get to the Supreme Court? If when I think
when is a safe.
Speaker 1 (07:30):
Bed, I mean, I think it's an extremely close case,
but I do give her the slight edge. It's a
Supreme Court. The three justices appointed by Democrats are likely
to rule in her favor because they'll be more concerned
about FED independence and be more concerned about an expensive
executive authority. I think Justice is Thomas Alito and probably
(07:52):
Gorsicic are more likely to rule for President Trump. And
then you have sort of the three who have now
become the middle Roberts Kavanaugh and Amy Cony Barrett. And
you know, at that point Lisa Cook needs to get
two of them, and I think she has a pretty
good shot at that. Justice Kavanaugh in the past has
written in opinions concerning the four cause removal restriction that
(08:16):
he scented strongly that the FED is different from other agencies,
similar to what the Supreme Court said in May and
the Wilcox decision, and given that they do seem to
distinguish the FED from other agencies. They have to give
some sort of effect to the four cause removal restriction
so that it's not rendered meaningless. And with that in mind,
(08:39):
I think they probably would agree with parts of Dudge
Cobb's decision that the four cause removal restriction has to
mean something and that the mere allegations here didn't need it.
Speaker 2 (08:52):
And Elliott, has the FED made any more statements since
the judge's decision.
Speaker 1 (08:57):
I haven't seen a statement today. I may have missed one,
I know. Pass he said they were just abide by
the court decision, which makes sense. And that's essentially why
Lisa Cook named care Powell and the Federal Reserve Board
both individually and collectively as defendants, because in Judge Cobb's ruling,
(09:19):
you know, she essentially enjoined the Federal Reserve Board from
a sectuating President Trump's termination letter. So, you know, I
don't think the FED necessary anything other than simply abide
by the decision.
Speaker 2 (09:34):
So we'll see now how fast the DC Circuit Emergency
Panel acts. Thanks so much, Elliott. That's Elliott Stein, Bloomberg
Intelligence Senior Litigation analyst. Coming up next on The Bloomberg
Law Show later this month. Chief Justice John Roberts celebrates
twenty years being the chief and in that time, the
(09:56):
Roberts Court has moved far to the right, changing the
law in areas from abortion and guns to race and
presidential power. I'm June Grosso and you're listening to Bloomberg.
Chief Justice John Roberts famously compared judges to umpires during
his confirmation hearings in twenty ten.
Speaker 3 (10:16):
Judges are like umpires. Umpires don't make the rules, they
apply them. The role of an umpire and a judge
is critical. They make sure everybody plays by the rules,
but it is a limited role. Nobody ever went to
a ballgame to see the umpire.
Speaker 2 (10:34):
Now, twenty years later, looking at the Court's decisions under
roberts stewardship, just applying the rules in a limited role
doesn't seem to have been the practice of the Roberts Court.
With its conservative majority and now super majority, the Court
has changed the law on abortion, gun rights, religious rights, race,
(10:58):
agency authority, and residential power, overturning precedent along the way
and moving more and more to the right. My guest
is constitutional law professor Eric Siegel of Georgia State University.
Let's start with the Court itself. Is the Roberts Court
the most conservative Supreme Court in our history.
Speaker 4 (11:20):
You know, it is challenging to compare across decades, and
also I think to some degree what is conservative is
in the eye of the beholder. It is certainly the
most conservative court of my lifetime, which is sixty seven years.
And if I was living in nineteen thirty four, I
(11:41):
would be very mad to Supreme Court if I was
a liberal or a progressive. They were really mad to
Supreme Court, so much so that FDR went on the
biggest media of the day and said, we have to
save the country from the court and save the Constitution
from the Court. So it's a little difficult for me
to say liberals and progressive today are angrier than liberals
(12:02):
and progressives were in nineteen thirty four when the New
Deal was a catastrophe for America. It is certainly as
conservative at any court I think in American history.
Speaker 2 (12:11):
Roberts famously said during his confirmation hearing that judges are
like umpires. Umpires don't make the rules, they apply them.
Has he behaved like an umpire?
Speaker 1 (12:24):
Well?
Speaker 4 (12:24):
Justice Kavanaugh repeated that years later as well, despite the
mockery and laughter of virtually all court watchers pundits across
the political spectrum on that statement by Justice Roberts. They're
not umpires. They've never been umpires. In eighteen fifty seven,
Congress wanted to end slavery in the territories. Congress had
the power to do that under the Constitution. The Court
(12:46):
made up a new rule and said no. From nineteen
hundred to nineteen thirty six, the Court struck down hundreds
of laws about minimum wages, overtime rules, labor conditions. The
Constitution allows Congress to do that. The Court wasn't playing
like an empire. And I think conservatives would fairly say
that cases like Grow versus Late were not the justices
acting like umpires. So no, it was a silly statement
(13:08):
when he made it. It was even sillier for Justice
Kavanaughs to repeat it during this confirmation airing. The Constitution
is a very vague document when it comes to litigation.
There are some specific things. The president has to be
thirty five to centers from every state. Inauguration day is
January twentieth, which by the way, is too long from November,
you know, But we don't litigate those clauses. We litigate
(13:30):
due process, equal protection, cruel and usual punishment, unreasonable searchers
and seizures, and so on. It'd be saying to an umpire,
you get to decide what's fair in a baseball game.
That's not what umpires do in baseball. They have some discretion.
Of course, we've told the Supreme Court in effect make
the constitutional rules for America, and that has nothing to
(13:50):
do with sports.
Speaker 2 (13:51):
Someone There are a lot of areas where the Supreme
Court has changed or reshaped the law. Most people know
about abortion rights and gun rights, But how has the
Court changed the law around race? And what's been Roberts's
role in changing the.
Speaker 4 (14:08):
Rules other than the presidential immunity decision in Trump versus
United States, which almost no legal scholars predicted liberal, moderate
or conservative and has run of the worst opinions in
Supreme Court history. In my opinion and many others, leaving
aside that opinion written by Justice Roberts, I think he's
done the most damage to America when it comes to race,
(14:30):
and it started in his very first term when the
cities of Seattle and Louisville. Let's take Louisville for a minute.
Louisville had segregation under the law for many, many years,
those schools were still segregated. So at the very local level,
students and teachers and parents and school board members and
(14:51):
voters got together and came up with a very limited
plan to make sure that the public schools in Louisville
had some minimal degree of desegregation so that white kids
and black kids in Louisville could go to school together.
And no judge ordered this. This was volunteer and in
his very first term, the Roberts Court struck that down.
(15:11):
And that's when Justice Roberts said the famous line, the
way to stop discrimination based on race is to stop
discriminating based on race. In the context of Louisville, Kentucky,
which discriminated in the basis of race legally for a century, that's,
in my opinion, a very bizarre statement. And even Justice Kennedy,
who was a fifth vote in that case, disagreed with
that statement. So it started there. Everybody knows that Justice
(15:34):
Roberts does not like voting rights. As a young attorney
in the Reagan administration in nineteen eighty one, he wrote
some scathing things about the Voting Rights Act, and then,
of course, in Shelby County versus holder. He was able
to concoct a new rule that Congress can't treat different
states differently without a strong reason, and struck down a
law that was passed by a unanimous Senate and signed
(15:57):
by a Republican president. That law was struck down, and
then the very next day Texas and North Carolina passed
voting rules they could not have passed prior to that
law being struck down. They've also interpreted the Voting Rights
Act very narrowly, and I think this next year even
more narrowly again. And then, of course there's the Affirmative
Action case, which overturned fifty years of president and said
(16:19):
colleges and universities are not allowed to use race at
all in their admissions process. It says, if Justice Roberts
thinks America started in two thousand and six when he
became Chief Justice, from maybe nineteen eighty one when he
was an attorney for the Justice Department and race was
never a problem in this country, it's as if he
thinks we can just snap our fingers and all of
(16:40):
our racial divisions will go away, when all the data
shows that black Americans today economically are really not any
significantly better off than they wore twenty thirty, forty fifty
years ago, and our justice system is infected with racism,
and Justice Roberts has really turned a cold shoulder to
dealing with those problems.
Speaker 2 (17:02):
You mentioned presidential immunity and that decision, which I agree
no one predicted and which was written by the Chief Justice.
How has it changed the powers of the president.
Speaker 4 (17:14):
I'm teaching that case tonight and I had a little
bit of a new observation this morning about that case.
It's a little bit wonky, but some people remember that
a Supreme Court with nine Democrats in nineteen fifty two
told a Democrat president, Harry Truman, that he couldn't seize
the steel mills in time of war. That's nine Democrats.
(17:36):
Six of them voted, you can't do that, mister president,
and he said, very serious things are why you wanted
to do it. And in that case, there's a famous
opinion by Justice Jackson, again little bit wonky, but not really,
where he divided these kind of cases into three categories,
where Congress tells the president he can do something, where
Congress tells the president he can't, and a twilight zone
in between. Now, not Justice Roberts's immunity decision to me
(18:00):
that he thought he was doing something statesmanlike. That case
had three buckets, and that case is still good law
for official action, and that case is known as one
of the most important cases in separation of power system.
Justice Roberts divided presidential immunity into three buckets as well
for actions that he takes in his core executive functions
like commander in chief. He's absolutely immune from future criminal
(18:24):
prosecution for unofficial conduct, private conduct. He has no immunity
at all. He goes out to a bar, drinks and
punches somebody. He has no immunity for things that are
in between that where Congress has authorized him to act
or not sure if he has the authority. He has
a strong presumptive immunity, but that would depend on the
fact it's three categories. And I think he is trying
(18:45):
to mirror what Justice Jackson is a very popular justice
among all people, liberal, conservative and moderate, was trying to do.
And if he had stopped there, I think we all
would have said, Okay, that kind of makes sense. But
he didn't. They two wrinkles, and this was five justices.
Amy Coney Barrett did not agree with this, he said,
how do we distinguish between official conduct and unofficial conduct?
(19:09):
And what he said was two things. He can't question
motives and you can't use obviously official acts to prove
unofficial acts. Those two evidentiary rules make the president effectively
immune from prosecution real quickly. If the president and the
Attorney general are walking down the street and they see
Segull walking down the street and they say, you know what,
(19:31):
he's a national security risk, and that president takes out
his gun and shoots me in cold blood, that three
retires from the presidency, they prosecute him for murder. His
motive for shooting me cannot be examined. So when he
says I did it for national security reasons, we're done.
The attorney general might testify, ask not why he did it.
He did it. Doesn't like Siegel, that testimony doesn't come
(19:54):
in because testimony about the evidence that he has with
his advisors about any kind of conduct is basically an admissive.
All of that, as a long way of saying, puts
the president above the law. And there is no effective
way to criminally prosecute a president unless the conduct, well
even if the conduct is unofficial, he's going to say
he had an official reason for doing it, and we're
(20:15):
not allowed to talk about his motive. That's what confused everybody,
and that's a real problem going for I was shocked
the other day when an interviewer asked Justice Amy Coney Barrett,
who's doing her book tour, if the president ordered Seal
Team six to kill a political rival, would that be
immunized by the Trump decision? Now, in any sane world,
(20:37):
the answer would be, of course not. The President can't
go around ordering the Seals themes to kill his political rivals,
and so she should have said, of course not. But
what she said was, I don't know. And that's the
country we're living in right now, and that's the effect
of the immunity decision, and that's just really a shame.
Speaker 2 (20:56):
And looking at the emergency docket, or the so called
shadow docket, the Supreme Court has sided with the administration
in almost all the emergency cases since January, on everything
from mass federal layoffs to banning transgender people from the
military to lifting restrictions on immigration stops. Even though administration
(21:20):
officials have been so critical of federal judges and went
so far as to sue the entire bench of federal
judges in Maryland.
Speaker 4 (21:32):
I don't know what's happening. It is my view that
Supreme Court justices are and have always been ideological. If
you had life tenure, an effectively unreviewable power, if you've
got four of your committee members to agree with you,
or court members, you would impose your ideology, and so
would I. We felt strongly about But the Court has
(21:53):
not always been partisan. The Casey decision which affirmed Rovers's
wead had seven Republicans. I just mentioned that a court
with nine Democrats to the Democrat president, you can't do
something during time of war. So the Court's always been ideological,
but not partisans. The Roberts Court, from the very beginning,
it's overwhelming ideological value is partisanship. They want to help
(22:16):
the Republican Party, and almost everything they've done can be
explained if you see the Court through the lens of
an institution that is trying to help the Republican part.
And so this doesn't surprise me at all. What's happening.
Some of us thought maybe because Donald Trump was president,
the Court would be less partisan than it has been.
(22:37):
If anything, has been more partisan this time around, without
giving us reasons. As Professor Steve Loddick has repeatedly pointed
out in his book The Shadow Docket and other places,
they don't give us reasons for many of these decisions.
And we must remember three of these people represented George
Bush during Bush Bush's Corps. They all came up through
core Republican Party rank, and I will say the three
(22:59):
Democratic nominees also favorite Democrats. But usually there's a balance
of values between partisanship and personal ideology. Justice Kennedy famously
voted for gay rights. Justice O'Connor kept affirmative action a lot.
Justice White, a Democrat, voted conservative many many times. These
justices are Republicans first, foremost, and almost always, which doesn't
(23:22):
mean Republicans always win, because the court sometimes wants to
throw people a bone, and also because on little issues
they might disagree with the Republican Party platform, but on
all the big issues, this is the Republican court.
Speaker 2 (23:35):
Coming up next, is Roberts really an institutionalist? This is Bloomberg.
I've been talking to constitutional law professor Eric Siegel of
the Georgia State University about Chief Justice John Roberts celebrating
twenty years as Chief Justice. Come the end of the
month and how the Roberts Court has changed the law.
(23:58):
Roberts did write the opinions, say saving Obamacare, and in
the Dobbs decision, he wouldn't have gone so far as
to actually overturn Roe v. Wade. So is it Roberts
that's moving the Court to the right or is it
the presence of the three Trump appointees that gave the
conservatives a super majority that the liberals just can't fight.
Speaker 4 (24:23):
There's no question those three Trump appointees have played and
will continue to play a significant role in moving the
court far to the right. But it's also a little
bit of a myth that Justice Roberts was ever anything
less than an extremely conservative justice. Yes, he did save
(24:46):
part of Obamacare. Remember he did not save the medicaid
part of Obamacare, which was actually a key part of
that law. And by striking down that part of the law,
the Court did serious damage to Obamacare in complicated ways
that health policy experts could explain. Now, when I say
that in public, people often say, but that was seven
to two. But we all know from reporting done that
(25:09):
Justice Roberts coerced Kagan and Bryer to join that part
of the opinion so he did save Obamacare as a whole,
but he cut out a big part of it, which
really hurt that law. Before twenty twelve, in the seven
years preceding that case, he had never joined with the
liberals in a five to four opinion. Since then, he
has done it. He's joined the liberals a few times,
and you're right about Dobbs, but there is no question
(25:32):
that he would have eventually voted to overturn Row. Justice
Roberts's formula has been consistently in voting rights race cases
and abortion cases and separation of powers cases. Punch holes
in the precedent, punch holes in the precedent, then reverse
the president. There is no doubt he would have eventually
voted to overturn Roe versus Ways. So I think even
(25:55):
a five to four court run by Justice Roberts would
be an extremely concerned court, And with the exception of
Justice Kennedy's votes on affirmative action in gay rights, was
an extremely conservative court for most of Justice Roberts's court.
Speaker 2 (26:09):
So then do you buy the theories that Roberts is
an institutionalist and an incrementalist.
Speaker 4 (26:16):
He is an incrementalist and strategy He is absolutely not
an institutionalist, and I back wrote an article for the
wake Forest Law Review saying that this is going to
sound personal, So I apologize to your listeners if it
sounds personal.
Speaker 1 (26:31):
It's not.
Speaker 4 (26:32):
I'm just kind of a scholar trying to figure things out.
Justice Roberts leads with Huberts, the way to stop discrimination
based on race is to stop discriminating based on rapes.
His state is one of the most huboristic statements I've
ever heard, because I don't know how to solve America's
racial problems. Frankly, you don't know how to solve America's
(26:53):
racial problems. I don't think Justice Roberts knows how to
solve America's racial problems. They're complex. Maybe affirmative action is good,
maybe it's bad. You know, I'm not an expert on
that kind of thing. I'm an expert on constitutional law.
But the idea that simple statement captures all of the
complexities is full of hubrits. His striking down as the
voting writes that based on a principle that was completely
(27:16):
inconsistent with a major Supreme Court presidence from nineteen sixty five, Again,
a law passed by a unanimous Senate signed by a
Republican president was full of hubris and his separation of
powers decisions, and he is the person who normally writes them.
Where he is telling the Congress, you're not allowed to
limit the ways the president can fire the heads of
(27:40):
independent agencies. Is overturning presents that go back to the
New Deal and changing the way the American governmental system works.
That's not what umpires do, and that's not what an
institutionalist does. I don't think he's an institutionalist at all.
I do think he's an incrementalist as a matter of strategy,
(28:01):
not as a matter of substance.
Speaker 2 (28:03):
Another area where there seems to be a lot of
activity lately and more changes to come is federal regulatory authority.
Tell us a little of what's been happening there.
Speaker 4 (28:16):
So in November of twenty sixteen, after President Trump was
elected the first time, I wrote an essay saying that
he's going to appoint justices if he gets the opportunity
to overturn Row because that was a campaign promise, But
I don't think President Trump really cared about that. What
I wrote was he wants to end the regulatory state,
(28:38):
the administrative state, meaning most of the laws that govern
American private conduct and companies, environmental regulations, food and drug regulations.
They all come from the executive branch. Congress passes a
very broad law saying pollution is bad. President, go fix it.
Congress passes the law saying we want to have state food.
(28:58):
Everybody wants state food. Executive branch, you go ahead and
fix that. Well, Donald Trump's a businessman who doesn't like regulations.
He appointed three justices who don't like regulations, and they
are doing everything they can to make it harder for
the executive branch to pass regulations such as environmental and
food and drug laws. And it's very hard for Congress
(29:19):
to do it because they don't want to politically take
the hit. So it's not a surprise that this Supreme
Court is trying to really go back to a nineteen
thirty's pre New Deal understanding of federal power over the
economy because these are people who believe, you know, in
a totally free marketplace, not burdened by government regulation. And
(29:42):
of course not just in the court, but this is
filtering down all through the Trump administration. But the justices
share that political goal, and that's what we're seeing.
Speaker 2 (29:52):
Roberts is the Chief Justice, but his vote is just
one of nine votes, So how much power does he.
Speaker 4 (29:59):
We So, a very famous lower court judge, maybe the
most famous lower court judge of our lifetimes, Judge Richard Posner,
used to say that the Chief Justice really has no
power except, you know, to decide who writes the opinion
when he's in the majority, and maybe some administrative rules.
So I have a theory about Chief Justice Roberts' vote
(30:22):
in the Obamacare case, which is going to sound crazy
to you and your listeners, which is that from two
thousand and five, when Justice Roberts became the chief to
twenty twelve, he had no power at all because Justice
Kennedy held all the power. In that first term, Justice
Kennedy was in the majority of one hundred percent of
five vortises, and for the next seven years the Court
(30:44):
went the way Justice Kennedy went. If you check the
reporting in May of twenty twelve April of twenty twelve,
before the Obamacare decision came out, you will see reporters saying,
how Justice Kennedy goes, the Court will go. Supreme Court
justice is a human being. They are people like us.
Now they have better jobs than most of us, but
they aren't like us. And you know, Chief Justice Roberts,
(31:07):
I think, always wanted to be on the Supreme Court
and always wanted to be Chief Justice. It was the
fulfillment of his I'm not saying he thought he would
ever get that, but you can't go any higher in
the law than he went. And he had no power
because Justice Kennedy had all the power. I think psychologically
that was a factor in his decision in twenty twelve.
So the story after twenty twelve became oh, Justice Roberts
(31:30):
is a swing vote also wasn't really true. Today he
has very very little power. He has to get either
Justice Barrett or Justice Cavanaugh or Justice Gorsich to agree
with him when he doesn't want to rule in a
conservative fashion because he's never getting the Leado and Thomas
to rule with him. So I would say he has
no more power than Corsic, Kavanaugh, and Barrett. And I'm
(31:53):
not even sure he's more power than Justice Barrett with
the exception, and it's a big deal when he's in
the majority he gets to a in the opinion, but
other than that, his vote counts the same. And frankly,
I think he was a little bit scarred in the
first seven years on the bench when his vote counted
much less than Justice Kennedy's vote.
Speaker 2 (32:14):
So how do you think he ranks as far as
chief justices who've led the Court?
Speaker 4 (32:21):
Well, I think if our country gets back to some
sense of normalcy eventually, I don't think we're living in
normal times for better or for works. You know, I'm
not going to be partizant about that, but we're living
through times that are changing very quickly. But assuming we
get back to some degree of stability in America, my
guess is he's going to go down as one of
the worst Chief Justices. And I say this for the
(32:42):
following reason. History has shown that when the Supreme Court
lurches far to the left or to the right, eventually
the political system goes the other direction. So when the
war in court went too far to the left, and
I'm a liberal progressive who will say I think the
war and Court went too far to the left, then
(33:03):
Richard Nixon runs on a law and order campaign, run
a Reagan runs on Roe versus Wade, you know, and
Republicans hold power for most of that time period in
the political sphere. This Supreme Court, I think, and I
think political scientists think is far to the right of
the median Republican voter, leaving a side of the median
(33:23):
Democrat voter. So my guess is eventually there will be
a cycle where the political system lurches in the other direction,
and then we will see just how conservative his court
has been. It has been very, very conservative, and there
are even conservatives today, scholars, even from federalist society folks,
(33:44):
who are saying things like this, this respect for precedent
is not a conservative value. Right Conservatives like the status quo.
Progressives want to change the status quote. The Roberts Court
has been reversing important pre at I think a rate
that's probably unheard of in American history. I'm not saying
(34:05):
they're reversing more cases, but that doesn't matter, because the
importance is are the reversing important cases? Guns, abortion, affirmative action,
separation of church and state, separation of powers, and even federalism,
which traditionally has been a very conservative value. Those areas
(34:25):
of the law have been dramatically reshaped in two short decades.
There's no definition of conservative that I know that suggests
that judges should be the ones doing that.
Speaker 2 (34:37):
Thanks so much for joining me on the show.
Speaker 3 (34:39):
Eric.
Speaker 2 (34:39):
That's Eric Siegel, a professor of law at the Georgia
State 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
them on Apple Podcasts, Spotify, and at www dot bloomberg
dot com, slash podcast, Slash Law. And remember to to
(35:00):
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 Brossel from Bloomberg Radio.
Speaker 2 (00:08):
Yesterday, a federal judge temporarily blocked President Trump from ousting
Federal Reserve Governor Lisa Cook over allegations of mortgage fraud,
an order that allows Cook to attend a highly anticipated
FED policy meeting next week to vote on whether to
lower interest rates. Today, the Trump administration appealed that order
(00:30):
to the DC Circuit Court of Appeals, joining me is
Bloomberg Intelligence senior litigation analyst Elliott Stein.
Speaker 1 (00:37):
Elliott.
Speaker 2 (00:38):
Federal Judge Ga Cobb found that Trump likely violated the
Federal Reserve Act and Cook's due process rights. Start by
telling us about her reasoning under the Federal Reserve Act.
Speaker 1 (00:50):
Sure So, on that issue, she said that the four
cause standard wasn't met because, even though it's not defined
in the statute, based on the history and the context
around its insertion into the Federal Reserve Act, it suggested
strongly that cause requires some sort of event while the
(01:12):
person is in office that can affect how they carry
out their duties in that role, and in this case,
she said that wasn't met because the allegations pertain to
conduct in twenty twenty one, before Lisa Cook was confirmed
to the Federal Reserve Board.
Speaker 2 (01:32):
The judge said, moreover, it would incentivize the president and
subordinates to dig up prior conduct, however insubstantial to justify
removal from the board, even where the board member has
been up to that point performing their statutory duties impeccably.
Was that sort of a shot at what happened here
(01:52):
where Federal Housing Finance Agency Director Bill Poulty dug up
these allegations from mortgages that Cook obtained in twenty twenty one.
Speaker 1 (02:03):
Yeah, yeah, I think that's a fair interpretation. And in
other parts of the opinion, Judge Cobb said, you know,
cause can't mean sort of vague, unsubstantiated allegations without any
form of investigation. But I thought what was interesting in
the opinion was that Judge Cobb did say there could
be circumstances where the conducted issue takes place before the
(02:25):
person is in office. But then let's say that person
is convicted while they're in office. Judge Cobbs suggested that
conviction could meet the four cause standards, So you know,
that scenario could also incentivize people to dig up dirt
from years ago. So I'm not really sure that example
that Judge Cobb used would eliminate the possibility of, you know,
(02:46):
political opponents trying to dig up dirt.
Speaker 2 (02:49):
Did she comment at all on the explanations from Cook's
lawyers that if there were any eras, she didn't mean
to deceive anyone, No one was harmed, and perhaps that
even this was a raical error.
Speaker 1 (03:00):
She did sort of allude to that, I think in
a footnote if I recall correctly. But that sort of
goes to the due process part of the opinion, right
where Judge Cobb said that in addition to the statutory violation,
there was a constitutional violation because Lisa Cook didn't get
proper notice or an opportunity to be heard before she
(03:22):
was removed, And.
Speaker 2 (03:23):
So the judge was saying that finding out from Trump
on social media.
Speaker 1 (03:28):
Was not enough, right exactly. Yeah, that went to the
notice part of the equation. And then you know, an
opportunity to be heard also has to be satisfied, and
for that there has to be some sort of formal
hearing essentially, and Judge Cob cited to other cases where
officials were removed for cause and there usually was some
(03:49):
sort of formal hearing where the official could present their
side of the story.
Speaker 2 (03:53):
Tell us a little bit about Cook's allegations that Trump's
moved to auster is politely motivated.
Speaker 1 (04:01):
Cook's point is you can't separate allegations against Lisa Cook
from the months of accusations against Jerome Powell and then
other comments President Trump has made about trying to gain
a majority on the Federal Reserve Board. And so that's
the context that Lisa Cook is pointing to as to
(04:22):
why she thinks the mortgage frount accusations are a pretext
just trying to remove Federal Reserve Board governors for policy disagreements, essentially,
because even the Trump administration conceded that you can't satisfy
the four cause requirement by removing someone for a policy disagreement.
Speaker 2 (04:41):
So that ruling came down yesterday and today already the
Trump administration is appealing.
Speaker 1 (04:48):
Yep, no surprise there.
Speaker 2 (04:49):
No surprise. But have they stated their grounds for appeal yet?
Speaker 1 (04:53):
So I've only seen the notice of appeal so far,
and I've been trying to refresh at dock it to
get others are Yeah, I've been refreshing that frantically. And
this will go to an emergency motions panel on the
DC's circuit. It seems from a different case where I
was able to track down the emergency Motions panel in
that case, it seems like it'll be a favorable panel
(05:14):
to Lisa Cook in the sense that it's the Biden
appoint and an Obama appoint and then a trumpet point e,
so sort of two judges that are probably going to
be more sympathetic to Lisa Cook's arguments. And then from there,
assuming the government loses at the DC Circuit panel stage,
I presume the administration will go to the Supreme Court.
Speaker 2 (05:34):
The FED Board meeting, the highly anticipated FED Board meeting.
So Cook will be able to go to that meeting
if this decision is upheld.
Speaker 1 (05:44):
Right, yeah, exactly. Unless this decision is stayed, she will
serve at that meeting. And I do think it's possible
that the DC Circuit Emergency Motions Panel can rule by then,
and again, if it's a favorable panel to Lisa Cook,
as I suspect it will be, I don't envision Judge Cobbs'
decision being put on hold, in which case Lisa Cook
(06:06):
would be able to participate at that meeting. I don't
think we'll get anything from the Supreme Court by the
September sixteenth date, unless the DC Circuit moves even faster
than I think they're going to. I mean, it's possible,
It's true they you know, you could get a DC
Circuit panel ruling on let's say Monday the fifteenth, and
(06:26):
an administrative to stay by the Supreme Court like the
next day or even that day. So it's not out
of the realm of possibility. But I still think the
more important dates are in February, not next week, because
next week Lisa Cook's only one vote out of twelve,
and I don't think it will make all that much
of a difference. But in February, you know, if President
(06:48):
Trump can get a more favorable balance on the Federal
Reserve Board, let's say he's able to move Lisa Cook
out of her role and Stephen Miron get confirmed as
he's expected to, you know, you could potentially have a
three to three balance on the Federal Reserve Board, the
three who are sympathetic to Trump and three who aren't.
And at that point you may not get the regional
(07:10):
Reserve Bank presidents reappointed in February, in which case you
potentially could get a shift on the FMC in a
direction that's more favorable to President Trump.
Speaker 2 (07:22):
And what are the odds of Cook prevailing when this
does get to the Supreme Court? If when I think
when is a safe.
Speaker 1 (07:30):
Bed, I mean, I think it's an extremely close case,
but I do give her the slight edge. It's a
Supreme Court. The three justices appointed by Democrats are likely
to rule in her favor because they'll be more concerned
about FED independence and be more concerned about an expensive
executive authority. I think Justice is Thomas Alito and probably
(07:52):
Gorsicic are more likely to rule for President Trump. And
then you have sort of the three who have now
become the middle Roberts Kavanaugh and Amy Cony Barrett. And
you know, at that point Lisa Cook needs to get
two of them, and I think she has a pretty
good shot at that. Justice Kavanaugh in the past has
written in opinions concerning the four cause removal restriction that
(08:16):
he scented strongly that the FED is different from other agencies,
similar to what the Supreme Court said in May and
the Wilcox decision, and given that they do seem to
distinguish the FED from other agencies. They have to give
some sort of effect to the four cause removal restriction
so that it's not rendered meaningless. And with that in mind,
(08:39):
I think they probably would agree with parts of Dudge
Cobb's decision that the four cause removal restriction has to
mean something and that the mere allegations here didn't need it.
Speaker 2 (08:52):
And Elliott, has the FED made any more statements since
the judge's decision.
Speaker 1 (08:57):
I haven't seen a statement today. I may have missed one,
I know. Pass he said they were just abide by
the court decision, which makes sense. And that's essentially why
Lisa Cook named care Powell and the Federal Reserve Board
both individually and collectively as defendants, because in Judge Cobb's ruling,
(09:19):
you know, she essentially enjoined the Federal Reserve Board from
a sectuating President Trump's termination letter. So, you know, I
don't think the FED necessary anything other than simply abide
by the decision.
Speaker 2 (09:34):
So we'll see now how fast the DC Circuit Emergency
Panel acts. Thanks so much, Elliott. That's Elliott Stein, Bloomberg
Intelligence Senior Litigation analyst. Coming up next on The Bloomberg
Law Show later this month. Chief Justice John Roberts celebrates
twenty years being the chief and in that time, the
(09:56):
Roberts Court has moved far to the right, changing the
law in areas from abortion and guns to race and
presidential power. I'm June Grosso and you're listening to Bloomberg.
Chief Justice John Roberts famously compared judges to umpires during
his confirmation hearings in twenty ten.
Speaker 3 (10:16):
Judges are like umpires. Umpires don't make the rules, they
apply them. The role of an umpire and a judge
is critical. They make sure everybody plays by the rules,
but it is a limited role. Nobody ever went to
a ballgame to see the umpire.
Speaker 2 (10:34):
Now, twenty years later, looking at the Court's decisions under
roberts stewardship, just applying the rules in a limited role
doesn't seem to have been the practice of the Roberts Court.
With its conservative majority and now super majority, the Court
has changed the law on abortion, gun rights, religious rights, race,
(10:58):
agency authority, and residential power, overturning precedent along the way
and moving more and more to the right. My guest
is constitutional law professor Eric Siegel of Georgia State University.
Let's start with the Court itself. Is the Roberts Court
the most conservative Supreme Court in our history.
Speaker 4 (11:20):
You know, it is challenging to compare across decades, and
also I think to some degree what is conservative is
in the eye of the beholder. It is certainly the
most conservative court of my lifetime, which is sixty seven years.
And if I was living in nineteen thirty four, I
(11:41):
would be very mad to Supreme Court if I was
a liberal or a progressive. They were really mad to
Supreme Court, so much so that FDR went on the
biggest media of the day and said, we have to
save the country from the court and save the Constitution
from the Court. So it's a little difficult for me
to say liberals and progressive today are angrier than liberals
(12:02):
and progressives were in nineteen thirty four when the New
Deal was a catastrophe for America. It is certainly as
conservative at any court I think in American history.
Speaker 2 (12:11):
Roberts famously said during his confirmation hearing that judges are
like umpires. Umpires don't make the rules, they apply them.
Has he behaved like an umpire?
Speaker 1 (12:24):
Well?
Speaker 4 (12:24):
Justice Kavanaugh repeated that years later as well, despite the
mockery and laughter of virtually all court watchers pundits across
the political spectrum on that statement by Justice Roberts. They're
not umpires. They've never been umpires. In eighteen fifty seven,
Congress wanted to end slavery in the territories. Congress had
the power to do that under the Constitution. The Court
(12:46):
made up a new rule and said no. From nineteen
hundred to nineteen thirty six, the Court struck down hundreds
of laws about minimum wages, overtime rules, labor conditions. The
Constitution allows Congress to do that. The Court wasn't playing
like an empire. And I think conservatives would fairly say
that cases like Grow versus Late were not the justices
acting like umpires. So no, it was a silly statement
(13:08):
when he made it. It was even sillier for Justice
Kavanaughs to repeat it during this confirmation airing. The Constitution
is a very vague document when it comes to litigation.
There are some specific things. The president has to be
thirty five to centers from every state. Inauguration day is
January twentieth, which by the way, is too long from November,
you know, But we don't litigate those clauses. We litigate
(13:30):
due process, equal protection, cruel and usual punishment, unreasonable searchers
and seizures, and so on. It'd be saying to an umpire,
you get to decide what's fair in a baseball game.
That's not what umpires do in baseball. They have some discretion.
Of course, we've told the Supreme Court in effect make
the constitutional rules for America, and that has nothing to
(13:50):
do with sports.
Speaker 2 (13:51):
Someone There are a lot of areas where the Supreme
Court has changed or reshaped the law. Most people know
about abortion rights and gun rights, But how has the
Court changed the law around race? And what's been Roberts's
role in changing the.
Speaker 4 (14:08):
Rules other than the presidential immunity decision in Trump versus
United States, which almost no legal scholars predicted liberal, moderate
or conservative and has run of the worst opinions in
Supreme Court history. In my opinion and many others, leaving
aside that opinion written by Justice Roberts, I think he's
done the most damage to America when it comes to race,
(14:30):
and it started in his very first term when the
cities of Seattle and Louisville. Let's take Louisville for a minute.
Louisville had segregation under the law for many, many years,
those schools were still segregated. So at the very local level,
students and teachers and parents and school board members and
(14:51):
voters got together and came up with a very limited
plan to make sure that the public schools in Louisville
had some minimal degree of desegregation so that white kids
and black kids in Louisville could go to school together.
And no judge ordered this. This was volunteer and in
his very first term, the Roberts Court struck that down.
(15:11):
And that's when Justice Roberts said the famous line, the
way to stop discrimination based on race is to stop
discriminating based on race. In the context of Louisville, Kentucky,
which discriminated in the basis of race legally for a century, that's,
in my opinion, a very bizarre statement. And even Justice Kennedy,
who was a fifth vote in that case, disagreed with
that statement. So it started there. Everybody knows that Justice
(15:34):
Roberts does not like voting rights. As a young attorney
in the Reagan administration in nineteen eighty one, he wrote
some scathing things about the Voting Rights Act, and then,
of course, in Shelby County versus holder. He was able
to concoct a new rule that Congress can't treat different
states differently without a strong reason, and struck down a
law that was passed by a unanimous Senate and signed
(15:57):
by a Republican president. That law was struck down, and
then the very next day Texas and North Carolina passed
voting rules they could not have passed prior to that
law being struck down. They've also interpreted the Voting Rights
Act very narrowly, and I think this next year even
more narrowly again. And then, of course there's the Affirmative
Action case, which overturned fifty years of president and said
(16:19):
colleges and universities are not allowed to use race at
all in their admissions process. It says, if Justice Roberts
thinks America started in two thousand and six when he
became Chief Justice, from maybe nineteen eighty one when he
was an attorney for the Justice Department and race was
never a problem in this country, it's as if he
thinks we can just snap our fingers and all of
(16:40):
our racial divisions will go away, when all the data
shows that black Americans today economically are really not any
significantly better off than they wore twenty thirty, forty fifty
years ago, and our justice system is infected with racism,
and Justice Roberts has really turned a cold shoulder to
dealing with those problems.
Speaker 2 (17:02):
You mentioned presidential immunity and that decision, which I agree
no one predicted and which was written by the Chief Justice.
How has it changed the powers of the president.
Speaker 4 (17:14):
I'm teaching that case tonight and I had a little
bit of a new observation this morning about that case.
It's a little bit wonky, but some people remember that
a Supreme Court with nine Democrats in nineteen fifty two
told a Democrat president, Harry Truman, that he couldn't seize
the steel mills in time of war. That's nine Democrats.
(17:36):
Six of them voted, you can't do that, mister president,
and he said, very serious things are why you wanted
to do it. And in that case, there's a famous
opinion by Justice Jackson, again little bit wonky, but not really,
where he divided these kind of cases into three categories,
where Congress tells the president he can do something, where
Congress tells the president he can't, and a twilight zone
in between. Now, not Justice Roberts's immunity decision to me
(18:00):
that he thought he was doing something statesmanlike. That case
had three buckets, and that case is still good law
for official action, and that case is known as one
of the most important cases in separation of power system.
Justice Roberts divided presidential immunity into three buckets as well
for actions that he takes in his core executive functions
like commander in chief. He's absolutely immune from future criminal
(18:24):
prosecution for unofficial conduct, private conduct. He has no immunity
at all. He goes out to a bar, drinks and
punches somebody. He has no immunity for things that are
in between that where Congress has authorized him to act
or not sure if he has the authority. He has
a strong presumptive immunity, but that would depend on the
fact it's three categories. And I think he is trying
(18:45):
to mirror what Justice Jackson is a very popular justice
among all people, liberal, conservative and moderate, was trying to do.
And if he had stopped there, I think we all
would have said, Okay, that kind of makes sense. But
he didn't. They two wrinkles, and this was five justices.
Amy Coney Barrett did not agree with this, he said,
how do we distinguish between official conduct and unofficial conduct?
(19:09):
And what he said was two things. He can't question
motives and you can't use obviously official acts to prove
unofficial acts. Those two evidentiary rules make the president effectively
immune from prosecution real quickly. If the president and the
Attorney general are walking down the street and they see
Segull walking down the street and they say, you know what,
(19:31):
he's a national security risk, and that president takes out
his gun and shoots me in cold blood, that three
retires from the presidency, they prosecute him for murder. His
motive for shooting me cannot be examined. So when he
says I did it for national security reasons, we're done.
The attorney general might testify, ask not why he did it.
He did it. Doesn't like Siegel, that testimony doesn't come
(19:54):
in because testimony about the evidence that he has with
his advisors about any kind of conduct is basically an admissive.
All of that, as a long way of saying, puts
the president above the law. And there is no effective
way to criminally prosecute a president unless the conduct, well
even if the conduct is unofficial, he's going to say
he had an official reason for doing it, and we're
(20:15):
not allowed to talk about his motive. That's what confused everybody,
and that's a real problem going for I was shocked
the other day when an interviewer asked Justice Amy Coney Barrett,
who's doing her book tour, if the president ordered Seal
Team six to kill a political rival, would that be
immunized by the Trump decision? Now, in any sane world,
(20:37):
the answer would be, of course not. The President can't
go around ordering the Seals themes to kill his political rivals,
and so she should have said, of course not. But
what she said was, I don't know. And that's the
country we're living in right now, and that's the effect
of the immunity decision, and that's just really a shame.
Speaker 2 (20:56):
And looking at the emergency docket, or the so called
shadow docket, the Supreme Court has sided with the administration
in almost all the emergency cases since January, on everything
from mass federal layoffs to banning transgender people from the
military to lifting restrictions on immigration stops. Even though administration
(21:20):
officials have been so critical of federal judges and went
so far as to sue the entire bench of federal
judges in Maryland.
Speaker 4 (21:32):
I don't know what's happening. It is my view that
Supreme Court justices are and have always been ideological. If
you had life tenure, an effectively unreviewable power, if you've
got four of your committee members to agree with you,
or court members, you would impose your ideology, and so
would I. We felt strongly about But the Court has
(21:53):
not always been partisan. The Casey decision which affirmed Rovers's
wead had seven Republicans. I just mentioned that a court
with nine Democrats to the Democrat president, you can't do
something during time of war. So the Court's always been ideological,
but not partisans. The Roberts Court, from the very beginning,
it's overwhelming ideological value is partisanship. They want to help
(22:16):
the Republican Party, and almost everything they've done can be
explained if you see the Court through the lens of
an institution that is trying to help the Republican part.
And so this doesn't surprise me at all. What's happening.
Some of us thought maybe because Donald Trump was president,
the Court would be less partisan than it has been.
(22:37):
If anything, has been more partisan this time around, without
giving us reasons. As Professor Steve Loddick has repeatedly pointed
out in his book The Shadow Docket and other places,
they don't give us reasons for many of these decisions.
And we must remember three of these people represented George
Bush during Bush Bush's Corps. They all came up through
core Republican Party rank, and I will say the three
(22:59):
Democratic nominees also favorite Democrats. But usually there's a balance
of values between partisanship and personal ideology. Justice Kennedy famously
voted for gay rights. Justice O'Connor kept affirmative action a lot.
Justice White, a Democrat, voted conservative many many times. These
justices are Republicans first, foremost, and almost always, which doesn't
(23:22):
mean Republicans always win, because the court sometimes wants to
throw people a bone, and also because on little issues
they might disagree with the Republican Party platform, but on
all the big issues, this is the Republican court.
Speaker 2 (23:35):
Coming up next, is Roberts really an institutionalist? This is Bloomberg.
I've been talking to constitutional law professor Eric Siegel of
the Georgia State University about Chief Justice John Roberts celebrating
twenty years as Chief Justice. Come the end of the
month and how the Roberts Court has changed the law.
(23:58):
Roberts did write the opinions, say saving Obamacare, and in
the Dobbs decision, he wouldn't have gone so far as
to actually overturn Roe v. Wade. So is it Roberts
that's moving the Court to the right or is it
the presence of the three Trump appointees that gave the
conservatives a super majority that the liberals just can't fight.
Speaker 4 (24:23):
There's no question those three Trump appointees have played and
will continue to play a significant role in moving the
court far to the right. But it's also a little
bit of a myth that Justice Roberts was ever anything
less than an extremely conservative justice. Yes, he did save
(24:46):
part of Obamacare. Remember he did not save the medicaid
part of Obamacare, which was actually a key part of
that law. And by striking down that part of the law,
the Court did serious damage to Obamacare in complicated ways
that health policy experts could explain. Now, when I say
that in public, people often say, but that was seven
to two. But we all know from reporting done that
(25:09):
Justice Roberts coerced Kagan and Bryer to join that part
of the opinion so he did save Obamacare as a whole,
but he cut out a big part of it, which
really hurt that law. Before twenty twelve, in the seven
years preceding that case, he had never joined with the
liberals in a five to four opinion. Since then, he
has done it. He's joined the liberals a few times,
and you're right about Dobbs, but there is no question
(25:32):
that he would have eventually voted to overturn Row. Justice
Roberts's formula has been consistently in voting rights race cases
and abortion cases and separation of powers cases. Punch holes
in the precedent, punch holes in the precedent, then reverse
the president. There is no doubt he would have eventually
voted to overturn Roe versus Ways. So I think even
(25:55):
a five to four court run by Justice Roberts would
be an extremely concerned court, And with the exception of
Justice Kennedy's votes on affirmative action in gay rights, was
an extremely conservative court for most of Justice Roberts's court.
Speaker 2 (26:09):
So then do you buy the theories that Roberts is
an institutionalist and an incrementalist.
Speaker 4 (26:16):
He is an incrementalist and strategy He is absolutely not
an institutionalist, and I back wrote an article for the
wake Forest Law Review saying that this is going to
sound personal, So I apologize to your listeners if it
sounds personal.
Speaker 1 (26:31):
It's not.
Speaker 4 (26:32):
I'm just kind of a scholar trying to figure things out.
Justice Roberts leads with Huberts, the way to stop discrimination
based on race is to stop discriminating based on rapes.
His state is one of the most huboristic statements I've
ever heard, because I don't know how to solve America's
racial problems. Frankly, you don't know how to solve America's
(26:53):
racial problems. I don't think Justice Roberts knows how to
solve America's racial problems. They're complex. Maybe affirmative action is good,
maybe it's bad. You know, I'm not an expert on
that kind of thing. I'm an expert on constitutional law.
But the idea that simple statement captures all of the
complexities is full of hubrits. His striking down as the
voting writes that based on a principle that was completely
(27:16):
inconsistent with a major Supreme Court presidence from nineteen sixty five, Again,
a law passed by a unanimous Senate signed by a
Republican president was full of hubris and his separation of
powers decisions, and he is the person who normally writes them.
Where he is telling the Congress, you're not allowed to
limit the ways the president can fire the heads of
(27:40):
independent agencies. Is overturning presents that go back to the
New Deal and changing the way the American governmental system works.
That's not what umpires do, and that's not what an
institutionalist does. I don't think he's an institutionalist at all.
I do think he's an incrementalist as a matter of strategy,
(28:01):
not as a matter of substance.
Speaker 2 (28:03):
Another area where there seems to be a lot of
activity lately and more changes to come is federal regulatory authority.
Tell us a little of what's been happening there.
Speaker 4 (28:16):
So in November of twenty sixteen, after President Trump was
elected the first time, I wrote an essay saying that
he's going to appoint justices if he gets the opportunity
to overturn Row because that was a campaign promise, But
I don't think President Trump really cared about that. What
I wrote was he wants to end the regulatory state,
(28:38):
the administrative state, meaning most of the laws that govern
American private conduct and companies, environmental regulations, food and drug regulations.
They all come from the executive branch. Congress passes a
very broad law saying pollution is bad. President, go fix it.
Congress passes the law saying we want to have state food.
(28:58):
Everybody wants state food. Executive branch, you go ahead and
fix that. Well, Donald Trump's a businessman who doesn't like regulations.
He appointed three justices who don't like regulations, and they
are doing everything they can to make it harder for
the executive branch to pass regulations such as environmental and
food and drug laws. And it's very hard for Congress
(29:19):
to do it because they don't want to politically take
the hit. So it's not a surprise that this Supreme
Court is trying to really go back to a nineteen
thirty's pre New Deal understanding of federal power over the
economy because these are people who believe, you know, in
a totally free marketplace, not burdened by government regulation. And
(29:42):
of course not just in the court, but this is
filtering down all through the Trump administration. But the justices
share that political goal, and that's what we're seeing.
Speaker 2 (29:52):
Roberts is the Chief Justice, but his vote is just
one of nine votes, So how much power does he.
Speaker 4 (29:59):
We So, a very famous lower court judge, maybe the
most famous lower court judge of our lifetimes, Judge Richard Posner,
used to say that the Chief Justice really has no
power except, you know, to decide who writes the opinion
when he's in the majority, and maybe some administrative rules.
So I have a theory about Chief Justice Roberts' vote
(30:22):
in the Obamacare case, which is going to sound crazy
to you and your listeners, which is that from two
thousand and five, when Justice Roberts became the chief to
twenty twelve, he had no power at all because Justice
Kennedy held all the power. In that first term, Justice
Kennedy was in the majority of one hundred percent of
five vortises, and for the next seven years the Court
(30:44):
went the way Justice Kennedy went. If you check the
reporting in May of twenty twelve April of twenty twelve,
before the Obamacare decision came out, you will see reporters saying,
how Justice Kennedy goes, the Court will go. Supreme Court
justice is a human being. They are people like us.
Now they have better jobs than most of us, but
they aren't like us. And you know, Chief Justice Roberts,
(31:07):
I think, always wanted to be on the Supreme Court
and always wanted to be Chief Justice. It was the
fulfillment of his I'm not saying he thought he would
ever get that, but you can't go any higher in
the law than he went. And he had no power
because Justice Kennedy had all the power. I think psychologically
that was a factor in his decision in twenty twelve.
So the story after twenty twelve became oh, Justice Roberts
(31:30):
is a swing vote also wasn't really true. Today he
has very very little power. He has to get either
Justice Barrett or Justice Cavanaugh or Justice Gorsich to agree
with him when he doesn't want to rule in a
conservative fashion because he's never getting the Leado and Thomas
to rule with him. So I would say he has
no more power than Corsic, Kavanaugh, and Barrett. And I'm
(31:53):
not even sure he's more power than Justice Barrett with
the exception, and it's a big deal when he's in
the majority he gets to a in the opinion, but
other than that, his vote counts the same. And frankly,
I think he was a little bit scarred in the
first seven years on the bench when his vote counted
much less than Justice Kennedy's vote.
Speaker 2 (32:14):
So how do you think he ranks as far as
chief justices who've led the Court?
Speaker 4 (32:21):
Well, I think if our country gets back to some
sense of normalcy eventually, I don't think we're living in
normal times for better or for works. You know, I'm
not going to be partizant about that, but we're living
through times that are changing very quickly. But assuming we
get back to some degree of stability in America, my
guess is he's going to go down as one of
the worst Chief Justices. And I say this for the
(32:42):
following reason. History has shown that when the Supreme Court
lurches far to the left or to the right, eventually
the political system goes the other direction. So when the
war in court went too far to the left, and
I'm a liberal progressive who will say I think the
war and Court went too far to the left, then
(33:03):
Richard Nixon runs on a law and order campaign, run
a Reagan runs on Roe versus Wade, you know, and
Republicans hold power for most of that time period in
the political sphere. This Supreme Court, I think, and I
think political scientists think is far to the right of
the median Republican voter, leaving a side of the median
(33:23):
Democrat voter. So my guess is eventually there will be
a cycle where the political system lurches in the other direction,
and then we will see just how conservative his court
has been. It has been very, very conservative, and there
are even conservatives today, scholars, even from federalist society folks,
(33:44):
who are saying things like this, this respect for precedent
is not a conservative value. Right Conservatives like the status quo.
Progressives want to change the status quote. The Roberts Court
has been reversing important pre at I think a rate
that's probably unheard of in American history. I'm not saying
(34:05):
they're reversing more cases, but that doesn't matter, because the
importance is are the reversing important cases? Guns, abortion, affirmative action,
separation of church and state, separation of powers, and even federalism,
which traditionally has been a very conservative value. Those areas
(34:25):
of the law have been dramatically reshaped in two short decades.
There's no definition of conservative that I know that suggests
that judges should be the ones doing that.
Speaker 2 (34:37):
Thanks so much for joining me on the show.
Speaker 3 (34:39):
Eric.
Speaker 2 (34:39):
That's Eric Siegel, a professor of law at the Georgia
State 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
them on Apple Podcasts, Spotify, and at www dot bloomberg
dot com, slash podcast, Slash Law. And remember to to
(35:00):
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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