January 10, 2025 • 37 mins
Bloomberg legal reporter Erik Larson discusses President-elect Donald Trump asking the Supreme Court to intervene to stop his sentencing in the hush money case. Christopher Yoo, a professor at the University of Pennsylvania Carey Law School who has written extensively on administrative and telecommunications law, discusses the appeals court decision striking down net neutrality laws. Alex Ebert, Bloomberg Law senior correspondent, discusses a case that turns the tables on the movement to kill diversity, equity and inclusion programs. 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):
President elect Donald Trump is scheduled to be sentenced this
Fronde for his conviction on criminal charges in the New
York hush money case. A jury convicted him back in
May of thirty four felony counts in a scheme to
hide hush money payments to a porn star during his
twenty sixteen campaign, so clearly before he became president. The
(00:31):
conviction made Trump the first US president, whether sitting or former,
to be convicted of a crime, and now he's basically
trying to erase the conviction so that he doesn't become
the first felon to be sworn in as the president
of the United States. Both the New York trial judge
and an appellate judge have refused to put off his
(00:52):
sentencing based on his arguments that a president elect is
entitled to the same sweeping immunity that a sitting gets.
So now Trump is going to the Supreme Court, which
has been friendly to his claims of presidential immunity. He's
asking the justices to intervene in the state hush money
criminal case to prevent his sentencing from going forward quote,
(01:16):
the Court should enter an immediate stay of further proceedings
in the New York Trial Court to prevent grave injustice
and harm to the institution of the Presidency and the
operations of the federal government. Joining me is Bloomberg Legal
reporter Eric Larson, who's been covering all the proceedings in
New York and there have been many Eric tell us
(01:37):
about Trump's latest filing with the Supreme Court.
Speaker 3 (01:41):
So late last night, his lawyers filed a petition with
the Supreme Court asking for a stay of the sentencing
hearing that is scheduled for Friday morning here in Manhattan.
So this was sort of a fast track, sort of
unexpected that he was going to go this quickly to
the Supreme Court. But earlier a New York appellate judge
(02:03):
in Manhattan had agreed with the trial judge and that
the sense things should go forward. So with that ruling,
he went ahead and went straight to the Supreme Court
to request a stay while he continues to press his
appeal in New York State Court.
Speaker 2 (02:19):
So what are the grounds for him asking the Supreme
Court to step in.
Speaker 3 (02:25):
So they're the same arguments that he made with the
New York Appellate Court, and with the judge who oversaw
the hush money trial, it is all about his interpretation
of presidential immunity. Of course, that the broad legal doctrine
that was expanded by the Supreme Court last year or
in a different criminal case against Trump, where they held
for the first time that former presidents have brought immunity
(02:47):
from criminal charges related to their official conduct in office.
So even though this hush money case relates to his
actions before he was elected in twenty sixteen, and even
though he was tried convicted last year while he was
just a private citizen, I mean, before he was even
elected in the November election, notwithstanding all that, he argues
(03:09):
that he's protected from this guilty verdict by the concept
of presidential immunity. He argues that having this verdict the
hanging over him would undermine his authorities and his credibility
with world leaders and things like this, all of the
reasons that the Supreme Court has previously granted this kind
of immunity to presidents to begin with, to make sure
(03:30):
that the office of the presidency is powerful and protected
and whatnot. Clearly that is not how the Manhattan District
Attorney sees it, and that's also not how the judge
thought or the appellate judge who ruled against him. Will
see what the Supreme Court thinks. But for now, he's
saying that even though he's just president elect, this immunity
should be extended to him.
Speaker 2 (03:52):
The judge in this case has already said that he's
not going to sentence him to time or probation or anything.
It's sort of like a formality, but it will put
on the record that he's been convicted of felonies.
Speaker 3 (04:07):
It's an unconditional discharge, is what Judge Murchon called it.
It means that, you know, because of these unusual circumstances
with a defendant being convicted but then winning a presidential
election before being sentenced, the judge went ahead and said, look,
I'm not actually going to sentence you to any time
behind bars, or probation or a fine or anything. He's
(04:28):
getting an unconditional discharge, which means zero penalty other than
having the conviction remain intact. But it's that that Trump
wants to stop from happening. He doesn't even want that
hanging over him, you know. His lawyer also made the
argument that the appellate judge said was pretty weak. But
his lawyer did argue that there's always the chance that
(04:50):
Judge Mrchan could backtrack and sentence him to time in prison,
even though he said he wouldn't. But the judge didn't
really buy that argument. You know, if this this thing
goes ahead on Friday, clearly Trump is not at any.
Speaker 2 (05:02):
Risk of going to jail, and he doesn't have to
even be at the sentencing, right, that's right.
Speaker 3 (05:07):
Jes Mareschawan told him that he had the option to
appear virtually according to court papers, Trump is already indicated
that that is what he would do.
Speaker 1 (05:14):
What's unusual here.
Speaker 2 (05:16):
One unusual thing is that normally you have to wait
until a case is litigated in the state courts before
you go to the Supreme Court.
Speaker 1 (05:27):
And in this case, he's still appealing to the Court.
Speaker 3 (05:29):
Of Appeals, right, right, He does plan to continue to
press the appeal through the New York state court system.
He did say in his filing with the Supreme Court
last night that he was filing a similar petition for
a state simultaneously with the New York Court of Appeals,
the highest court in New York. We couldn't verify that
that had been filed. In fact, the court that it
(05:51):
hadn't been, but it seems that Trump is at least
planning to file something there to sort of connect the
dots to the Supreme Court, as it were. But clearly
time is of the essence and Trump's view, that's what
they've said all along here, So that might be one
of the reasons why they just trumped straight to the
Supreme Court. Of course, Trump is due to be inaugurated
just ten days after this sentencing hearing exept for Friday.
Speaker 2 (06:14):
Right now, since the Second Circuit is in the purview
of Justice Sonya Soto Mayor, she's asked the Manhattan District
attorney for papers.
Speaker 3 (06:24):
That's right. She directed Alvin Bragg, the district's attorney, to
respond to Trump's filing by tomorrow morning. So we would expect,
or we hope, that we'll get some ruling from the
Supreme Court by tomorrow night. Given that the sentencing hearing
is happening Friday morning, it would.
Speaker 2 (06:43):
Take five Supreme Court justices to grant to stay. In
the case, of course, there were six justices who voted
to give him that broad presidential immunity from criminal prosecution.
And another point is that it's Trump that's been asking
for these delays in sentencing.
Speaker 1 (07:03):
It's been the.
Speaker 2 (07:04):
Strategy of delay, delayed, delay, and now that he's been
elected president, he doesn't want to just delay the sentencing.
Speaker 1 (07:11):
He wants to eliminate the sentencing.
Speaker 3 (07:14):
That's right. That's one of the points that the appellate
judge made at the hearing yesterday. She said that, you know,
this timing was so inconvenient for Trump that he should
have gone ahead and went through with the sentencing earlier.
It's been delayed at least a couple of times, and
the most recent delay was as a result of the election,
but it could have happened months before the election, so
(07:36):
that that is a strong argument in favor of the prosecution.
But you know, Trump has had good luck with the
Supreme Court in previous arguments around presidential immunity, so it's
impossible to know how much weight they'll give that particular
argument exactly.
Speaker 2 (07:52):
And he has been using that controversial ruling on presidential
immunity to try to get this New York hush money
conviction thrown out, but the judge has denied his motions twice.
Speaker 3 (08:08):
So there's really two separate orders from Judge Marschan that
Trump is appealing that both relates to presidential immunity. The
first decision was from December, when Judge Mrshan rejected Trump's
argument that presidential immunity ruling from the Supreme Court undermines
the verdict. He claims that the trial itself had been
painted by witness testimony and other evidence that would not
(08:31):
have been allowed at trial if that Supreme Court standard
on presidential meunity had been in place, which it wasn't.
It wasn't handed down until a few months later. So
this is attorney argues that no, whatever evidence might have
been disallowed under that standard wouldn't have effected the outcome
of the verdict, that the remaining evidence was so strong,
(08:51):
And then indeed that's what the judge agreed and ruled
against Trump on that. The other argument was the sort
of broader argument that the judge ruled earlier this month,
you know, rejecting Trump's argument that the broad presidential immunity
extends to a president elect. That was the bigger argument, Trump,
(09:12):
that I won the election. Therefore, this whole criminal case
should be thrown out, including the jury's verdict.
Speaker 1 (09:19):
This is the only case that went to trial.
Speaker 2 (09:22):
And the only prosecution really that that has been successful
against Trump.
Speaker 1 (09:29):
He's he's managed to.
Speaker 2 (09:32):
Get rid of the federal cases and the Atlantic case
is also in doubt.
Speaker 3 (09:38):
Right, So the Atlanta case is still hanging out there,
although it's definitely in limbo. It's suffering its own problem.
But the two big federal prosecutions of Trump, they were
both dropped by the Justice Department after Trump won the election,
simply because of the long standing policy of not prosecuting
a sitting president. They knew that the cases wouldn't be
(09:59):
able to proceed trial while Trump was in office, and
therefore they dropped those charges. But even before he won,
that case over the twenty twenty election was significantly narrowed
during that Supreme Court decision that we discussed, where they
gave him broad immunity from criminal charges over anything related
to his official conduct. But yeah, the presidential immunity doctrine
(10:22):
is very broad, and that's why those two criminal cases
were dropped by the Justice Department. That's also while he'll
argue to have that Georgia State case, which is also
over the twenty twenty election, will argue to have that
one tossed out as well. But like they said, that
case is already suffering from it from his own problems
because the prosecutor was thrown out of the case by
an appealed court over an affair she was having with
(10:45):
an investigator. So totally separate drama.
Speaker 1 (10:48):
From a purely legal perspective.
Speaker 2 (10:50):
It's going to be fascinating to see what the Supreme
Court does here.
Speaker 3 (10:55):
No one really knows what's going to happen, but it
could be an interesting test to see how far the
Supreme Court is going to go to help Trump out
even before he takes office.
Speaker 2 (11:05):
Well, at least this should be resolved quickly one way
or the other. Thanks so much, Eric, That's Bloomberg Legal
reporter Eric Larson coming up next on the Bloomberg Law Show.
Net neutrality appears to be dead after a Court of
Appeals ruling deals a blow to the FCC. I'm June
Grosso and you're listening to Bloomberg. After decades of fighting,
(11:29):
it appears that the battle over net neutrality rules is over.
The US Court of Appeals for the Sixth Circuit has
acts the Federal Communications Commissions net neutrality rules, saying the
agency didn't have the authority to issue the rules. The
decision demonstrates the impact of the Supreme Court's ruling in
(11:50):
June doing away with the Chevron doctrine and holding that
judges shouldn't yield to agency's readings of unclear laws. Joining
me is Christopher You, a professor at the University of
Pennsylvania's Carrie Law School who's written extensively on administrative and
telecommunications law. Will you start by explaining just what net
(12:11):
neutrality is.
Speaker 4 (12:12):
Net neutrality is a political fight that's been going on
since the early two thousands. On the one side are
people who believe that ISPs provide Internet service to homes
and businesses shouldn't exercise any editorial control over the content
that they provide access to. Opponents of network neutrality argue
(12:37):
that in the modern Internet, it has become important for
ISPs to filter certain content, sometimes for security reasons, sometimes
to avoid spam and unwanted content, sometimes to enforce copyright laws,
but it can also be to provide a more refined
(12:58):
and tailored service to customers who want increasingly more diverse
offerings from the Internet. So, for example, online gamers are
extremely sensitive to delay, and they may want content that's
prioritized over other content. Another example is if you're on
your cell phone and you're taking a voice call. If
(13:20):
you're in a low bandwidth spot, you might want the
system to hold your email and continue to give you
your voice call to make sure that you get good
quality voice communications, and the fact that you have to
wait for your email is not a big deal.
Speaker 2 (13:35):
So the Sixth Circuit rule that the FCC doesn't have
the authority to issue the net neutrality rules?
Speaker 1 (13:42):
What did they base their determination on?
Speaker 4 (13:45):
The Sixth Circuit basis determination on a Supreme Court decision
that change the rules that courts will use to determine
the legality of an agency's interpretation of a statute. Before
this decision Loperbrite, which the Supreme Court rendered in June
twenty twenty four, courts tended to defer to the agency's
(14:07):
interpretation of the statute. That is, as long as it
was reasonable within the broad range of possibility, courts would
accept the agency interpretation. And on the basis of this principle,
we've seen agencies flip flop and their interpretations of the
legality of net neutrality rules, saying that initially that they
(14:29):
should adopt a more deregulatory approach starting in two thousand
and two, then changing in twenty ten to a more
regulatory approach, then back to a more deregulatory approach in
twenty eighteen, and back to a more regulatory approach in
twenty twenty four. And what the Supreme Court held is
that this sort of flip flopping is inconsistent with the
rule of law, inconsistent with the role of courts and agencies,
(14:52):
and is actually hurting consumers and people who have to
comply with law by creating a great deal of uncertainty.
And after June twenty twenty four, instead of deferring to
agency interpretations, courts are supposed to exercise their own judgment
as to the best reading of the statute and apply that.
And that's what the Sixth Circuit did.
Speaker 1 (15:13):
Is it the fault of.
Speaker 2 (15:14):
The FCC for flip flopping on its.
Speaker 1 (15:18):
Readings of the statute?
Speaker 2 (15:20):
The Court said, applying low or bright means we can
and the FCC's vacillations.
Speaker 4 (15:26):
The fact that the FCC was vacillating on the right
interpretation of the statute when deciding whether to apply that
neutrality isn't really the fault of the FCC. In fact,
that complied with the law that existed at the time.
The decision that called for courts to defer to agency
decisions that's called Chevron and has been in place since
(15:46):
nineteen eighty six explicitly recognized that agencies are likely to
change their minds and in fact endorse that idea. So
what the prior regime envisioned is that vrocations of statutes
were policy decisions, and just like say, for example, foreign
policy changes with the advent of a new administration, we
(16:09):
would expect this degree of policy to change as well.
The problem the Supreme Court had with that is statutes
aren't policy. Statutes are law, and the change of administration
does not involve the change in the statute or change
in the law. It's a change in the interpretation of
the law. And that opens the door to the claim
that interpreting law is policy, not lawmaking. And that's where
(16:35):
the Supreme Court said, we don't do that anymore. If
you want to change the statute, you need to actually
amend it. It's not open for reinterpretation just because someone
else occupies the White House.
Speaker 2 (16:45):
Lober Bright said that prior decisions that relied on that
doctor the Chevron doctrine still have binding power, starry decisives.
How did the Sixth Circuit get around that?
Speaker 4 (16:57):
The issue you're raising has been around owned with us
since certainly the days of the war in court. I
mean to give you a simple example. Gideon versus Wainwright
announced that all criminal defendants must be provided with defense
counsel provided by the government. And you know we had
never as a country it provided that to indigence. And
(17:18):
it raised a question, so does that mean every single
conviction going back to the beginning of the Republic was
inherently suspect? And what the Supreme Court has developed is
a doctrine which is, we will apply our best understanding
of the law to all cases that are ongoing, but
to cases that are final. We're not going to overturn
(17:41):
convictions going back hundreds of years. So the real question is,
in a particular matter, if the courts have resolved the issue,
the Supreme Court said, we will not disturb that decision,
but for new matters involving cases that are still ongoing
or cases that are newly submitted, they will apply a
(18:02):
new set of principles. Here, every prior decision about net
neutrality regarded a different net neutrality order either the declaratory
judgment in two thousand and two or orders in twenty ten,
twenty fifteen, twenty eighteen, and all of those have been
resolved under law, and all of those decisions are now final.
The decision in front of the Sixth Circuit involved a
(18:24):
order that came out of twenty twenty four that had
never been resolved or addressed by a court, and as
a result, it was still a live issue, and under
the Supreme Court's guidance, the Sixth Circuit applied the current
rules that have been placed ince June twenty twenty four
to address the legality of the twenty twenty four action.
So all they're saying really is that we're not going
(18:45):
to upset the decisions regarding the twenty ten, twenty fifteen,
twenty eighteen orders. We are going to look at the
twenty twenty four order with new eyes under the Supreme
Court's current rules for how courts should evaluate agency interpretations
of the statue.
Speaker 2 (19:00):
Does this decision end the legal battle over net neutrality rules?
Brendan Carr, who Trump has named as an incoming FCC chair,
has been a strong critic of net neutrality.
Speaker 4 (19:12):
So is this the end the Sixth Circuit decision most
likely ends the controversy over the legality of net neutrality.
The parties who support the twenty twenty four order that
the Sixth Circuit overturned could still appeal the issue to
the Supreme Court, and so there remain some possibility that
(19:33):
there will be further review of the Sixth Circuit decision.
But honestly, having clorked on the court myself and having
some experience in how they operate, my guess is that
this is not likely to be the kind of case
that they take. It doesn't bear the kinds of conflicts
between different courts and different parts of the country that
has been the hallmark of the types of cases the
(19:55):
Supreme Court takes.
Speaker 1 (19:55):
Theseis as far as lowbribright.
Speaker 2 (19:58):
In general, are the courts around the country interpreting the
decision there differently, are their conflicting decisions out there?
Speaker 4 (20:08):
There are no conflicting decisions on the net neutrality order,
And in fact, the parties who litigated that case before
the Sixth Circuit are now bound by that decision and
are really obligated to follow it, so they're not really
in a position to bring a new challenge to the
twenty twenty four order. From a broader perspective, the Sixth
Circuit has taken the approach that gives it a great
(20:30):
deal of latitude to deviate from prior judicial decisions that
presented the same issue but arose from a different agency order.
And that actually opens the door to a fairly broad
scope of action for courts to revisit issues that had
been adjusted by prior courts and hadn't been resolved now.
(20:53):
I don't think that's improper for the Sixth Circuit, and
in fact, the Supreme Court, by changing the interpretive rules,
expects there to be different outcomes. And in fact, if
there was too little latitude for courts to apply their
own judgment as to the best reading of the statute
and instead to continue to defer to what agencies thought
were the best reading, that would actually create a very
(21:14):
little room for the kinds of changes in law that
the Supreme Court has called for. And it's during twenty
twenty four decision. I think the Sixth Circuit's opinion, while
one of the first to address this issue, is likely
to be borne out by further decisions in the future.
Speaker 1 (21:28):
And do you.
Speaker 2 (21:29):
Think that we're going to see more federal regulations at
the FCC and other agencies followed out or you know,
disregarded agencies.
Speaker 4 (21:41):
Like the FCC are certainly facing a more challenging environment
in which courts are likely to be more skeptical of
the actions they take. The previous regime gave them deference
and so therefore they had a pretty wide latitude to
follow the policies that they preferred. Now they're going to
have to justify their actions a bit more specifically, and
(22:05):
that's going to represent a clear challenge to them.
Speaker 2 (22:07):
There have been fights over net neutrality for decades. Does
it seem odd that now this one court is going
to put the whole issue to rest.
Speaker 4 (22:17):
Courts have to decide close cases all the time, and
even if it's a very very narrow issue, they generally
don't shy away from resolving those issues, and I think
that sort of characterizes what's going on with net neutrality.
I think there are good arguments on both sides. I
personally agree with the way the Six Circuit resolve the issue,
(22:38):
but I understand why other people feel differently. The bigger
issue that the Supreme Court addressed is to eliminate the
possibility or in this case, the net neutrality. The reality
that we saw what was the laws flip flop every
time the White House changed party. And in fact, many
people would say, if there's a close issue, we're better
(23:01):
off having courts resolving it once on the best terms
it can and then letting that interpretation stand until Congress
sees fit to amend it or not. The world in
which we're in where we saw policy flip flop multiple times,
is not one that's conducive to creating great Internet connectivity
(23:25):
or to creating stable expectations for consumers and Internet users
to understand what they're getting. And so, in fact, I
think that the fact that there are tough cases is
not a reason for courts to shy away from making
tough decisions. It doesn't justify allowing judicial decisions to change
back and forth with the political wins.
Speaker 2 (23:46):
Thanks so much for joining me on the show. That's
Professor Christopher You of the University of Pennsylvania carry Law School.
Coming up next, a new Jersey decision turns the tables
on the move to kill DEI programs.
Speaker 1 (23:59):
This is Bloomberg.
Speaker 2 (24:01):
The First Amendment right of free association has led to
court rulings allowing a gay softball league to strike straight
guys from teams, lineups, student groups to bar their doors
to members who disagree with their mission, and even some
religiously affiliated employers to fire workers who support abortion rights,
while a new Jersey Appeals Court ruling is turning the
(24:23):
tables by saying that the reverse is true as well,
and that private organizations can also deliberately include certain people
in their groups. It's the first decision of its kind
in the country. A counter to the movement to kill diversity,
equity and inclusion programs. Joining me is Alex Ebert Bloomberg
(24:44):
Law Senior correspondent who's written about this. Tell us about
this new Jersey decision that turned the tables on the
movement to n DEI programs.
Speaker 5 (24:54):
So this decision is groundbreaking and that it flips in away.
The Supreme Court's ru is that groups can discriminate when
they pick their leaders, and the new Jersey Court is saying, well,
if you can discriminate when you pick your leaders exclude people,
that means you can discriminate to include people as well.
If you're going to get to pick the leadership that
(25:14):
will guide your group and enforce your values, like let's
say the boy Scouts of America can when it excludes
certain people, then that means that you can include specific
people for specific leadership position that essentially is DEI.
Speaker 1 (25:29):
And this had to do with a bar association.
Speaker 5 (25:32):
It did. Yeah, so bar association litigation is popping up
all over the country. You have conservative and libertarian groups
in particular, bringing cases against DEI work that bar associations
are doing. They're going to sue over leadership spots, over
programs for particular attorney groups, and basically anything that sort
(25:53):
of looks at race, gender orientation, things like that in
order to elevate particular jorneyes that have maybe been disadvantaged
in the past. That's what happened here. New Jersey for
many years has had a program where they reserve at
large leadership positions on committee is for people that are
certain disadvantaged groups. So you'll see black lawyer positions reserved.
(26:17):
You'll see positions reserved for women, for people that are elderly,
for people with disabilities, for people in the LGBTQ community.
And this lawsuit was saying, hey, what you're doing is
violating this really powerful New Jersey loginst discrimination.
Speaker 1 (26:33):
So now you're right.
Speaker 2 (26:34):
It all comes back to one of the first amendments
extremely undervalued benefits, the right to tell people to get lost,
tell us about some cases in that arena.
Speaker 5 (26:46):
Yeah, absolutely so. An undervalued part of the First Amendment
is this power to associate with people that you want
to right. This boils down to if you're starting a club,
if you've got a group, you've got the right to association.
You can't be forced to join up with people that
you don't want to hang out with. Now, courts have
(27:06):
interpreted that as saying student groups can bar the doors
to students that don't agree with their value system, or
certain religious employers can exclude from job positions people that
are for abortion rights. Or you can have a court say, hey,
this case, softball league doesn't have to put into the
lineup straight players. And it boils down to this First
(27:30):
Amendment right that if you want to exclude people because
you want to create a community, you get to do
that if you're a private organization.
Speaker 2 (27:38):
To what does in perspective, where have we seen suits
against DEI programs.
Speaker 5 (27:44):
So we've seen lawsuits against DEI pop up across the country.
We've seen them against the American Bar Association, We've seen
them against the Wisconsin Bar. We've seen a lot of
activity around the even places without lawsuits, including Florida, where
the STAKEHOURT system has basically done a one to eighty
on being very pro DEI for certain years, and then
(28:07):
now they're removing THEI entirely, both from the way it
communicates to its members and from the way it spends
money and organizes groups. So you've seen this issue pop
up across the United States, from big states to even
tiny ones like West Virginia, where there's a new lawsuit
challenging an at large member of a leadership community for a.
Speaker 2 (28:30):
Lawyer that is black bars from Wisconsin to Florida. Are
they rolling back diversity programs and also you see corporations
rolling back diversity programs. Are they doing that because they're
afraid of a lawsuit or are they doing that because
the law has changed.
Speaker 5 (28:48):
I think it's a little bit of both. Jude. So
if we think about it, sometimes they're under the gun
of a lawsuit to alter programs, and sometimes they'll say
that their changes of programs won't reduce the ability, you know,
for groups to access certain benefits. But then there's some
states like Florida which are proactively doing this. They have
a more conservative judiciary that the Santus has put in
(29:09):
place and they're rolling back things and they have been
for several years even without litigation in their state. So
it really depends on whether or not the impetus is
coming from the judiciary and the judges, or if it's
coming from a conservative or libertarian oriented legal community that
is set up with DEI and wants to see it gone.
Speaker 2 (29:28):
This case is being appealed to the New Jersey Supreme Court.
Where does that court stand as far as being conservative
or liberal.
Speaker 5 (29:37):
So we've done big stories on the New Jersey Supreme
Court recently, and I've even spoken with you in the
past on this where the court is extremely tough to gauge.
They have unwritten rules which require partisan balance for lack
of a better term on it. So it's unclear. But
the Bar itself is a very pro DEI and it
has been running this kind of program with a large
(29:59):
seats for decades and only recently was their legal challenge
brought against it, something that's kind of been in place
for a long time, and the bar has been expanding.
So we see the appeals court here potentially keying up
a broader fight before that New Jersey Supreme Court about
whether or not their state judicial system, which is one
(30:20):
of the largest by attorney number in the country, will
allow this sort of minority participation.
Speaker 2 (30:26):
Benefit and explain the difference between private organizations and DEI
and public organizations.
Speaker 5 (30:33):
Yeah, there's going to be nuanced differences between a lot
of these, right. The key thing here is that bar
associations are often private associations. They're the same thing is
you know, if you have a club that supports your
local river cleanup, or if you have, you know, a
big national organization like the NRA. You know, these people
get to pick who's on their leadership board based on
(30:55):
the value systems that they hold deer right, so that
into a value system for the New Jersey State Bar Association,
which is liberal and has had d programs for a
long time. It might be different than a bar association
somewhere else, but that is different from a corporation right
where you have federal accommodation and employment laws that prohibit
(31:19):
outright quotas or discrimination in that way, or a government
organization where you have the same thing. You know, the
government can't discriminate, but if you're a private group. If
you're just an association, then yeah, you can pick your leadership.
Speaker 2 (31:32):
Hard to believe it's been twenty four years since the
Supreme Court ruling the Boy Scouts case. Remind us what
that ruling was about and the impact it's had.
Speaker 5 (31:42):
The ruling was really, at its bottom about the power
of the First Amendment for groups to tell other people
to get lost. You know, if you want to pick
the people that are at the top of your organization,
they're going to be communicating to the public, they're going
to be showing your values. You really get to choose
who that is. And the Conservative Justices they laid down
(32:02):
this line in a five to four decision that private
groups like the Boy Scouts of America can exclude Scout
masters who are gay from their organization. That lawsuit was
brought under the new Jersey log and discrimination. This very
same anti discrimination suit that is being levied against the
State bar right now, And the Justice has said, listen,
(32:26):
you know the New Jersey logins discrimination. Sure it's broad,
but you know it can't go this far when it
deals with private association. So in the twenty four years
since then, you haven't seen this flipped in the same
way as much, and it looks like it's an opportunity
for progressive groups to use this conservative court's opinion to
(32:46):
lean into di to do more to pick the leaders
that they want in positions to communicate their values to
the public, and that could mean adding more people of
different gender identities or you know, people of color to
board positions and leadership positions. I think that it comes
down to this general thing that what's good for the
(33:07):
goose is good for the gander. So the question with
discrimination with private groups, right, is if you get to
discriminate by telling people they can't come in, how far
are you able to use that to say only certain
people can come in for this particular job. We're going
to see an appeal of this case the New Jersey
Supreme Court, and it's still an open question how far
(33:28):
that First Amendment is going to protect this novel theory.
Speaker 2 (33:31):
Let's turn to another interesting legal issue. The North Carolina
Supreme Court has blocked the certification of reelection for one
of its own sitting justices.
Speaker 1 (33:43):
Tell us about this.
Speaker 5 (33:44):
We had a big decision out of North Carolina yesterday
and we also have the development today the North Carolina
Supreme Court decided to pause the certification for votes given
to Alison Riggs, who's a sitting member of that very court.
A challenger of hers, the Republican, who's down roughly seven
(34:05):
hundred votes, brought up claims to the state's election board
that there should be about fifty six thousand voters excluded,
and they're both not counted. Those voters were different groups.
Old voting requirements in the state didn't necessarily mandate that
(34:27):
a voter would have the driver's license number or their
Social Security number logged with the state to register. Since
that sign things have changed and the state isn't going
to hold you know, that against particular voters. They're not
going to exclude them after the fact because of that.
There's also issues dealing with overseas voters, where the Republican
(34:48):
claims that, you know, these folks never actually came to
North Carolina, so they shouldn't be considered residents. You know,
they might be army brats that were born at base
or things like that, or just living abroad. And then
there's a se with service members overseas sending in their
ballots and his claims are that several hundred of these
perhaps thousands didn't include photo copies of their ideas that
(35:09):
are necessary under North Carolina law. The state election board said, no,
we're not going to move forward with this. The vote
should be certified, and the Republican challenger sued. His name
is Judge Griffin, and he sued first in state court
and then state appeals Court and then the state Supreme Court.
That was taken out to federal court by the Justice,
(35:33):
and the North Carolina Supreme Court took it back yesterday
they decided that they were going to put a pause
on certification for that election. And today Justice Riggs, who
recused herself from the decision yesterday, she's now appealed that
to the Fourth Circuit asking them to say, no, we're
going to introject ourselves here. We're going to demand that
(35:55):
the state certified.
Speaker 1 (35:56):
That's crazy stuff.
Speaker 5 (35:58):
It is in it. It raises a whole most of
really interesting state and federal constitutional issues.
Speaker 3 (36:04):
So if you were to.
Speaker 5 (36:05):
Exclude these votes, does that mean that you now have
treated voters desperately because all of the other races that
were impacted by these votes weren't excluded. So does that
mean local races have to get toss you know, county
states other statewide races are impacted because the challenger here
is only asking them to be tossed in this one case,
(36:26):
and that raises federal constitution issues, you know, for equal
treatment and equal protection.
Speaker 1 (36:31):
You'll have to come back Alex to tell us what
happens in this case. Thanks so much.
Speaker 2 (36:36):
That's Alex Ebert, Bloomberg Law Senior Correspondent, and that's it
for this edition of The Bloomberg Law Show. Remember you
can always get the latest legal news on our Bloomberg
Law Podcast. You can find them on Apple Podcasts, Spotify,
and at www dot Bloomberg dot com, slash podcast Slash Law,
And remember to tune into The Bloomberg Law Show every
(36:57):
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):
President elect Donald Trump is scheduled to be sentenced this
Fronde for his conviction on criminal charges in the New
York hush money case. A jury convicted him back in
May of thirty four felony counts in a scheme to
hide hush money payments to a porn star during his
twenty sixteen campaign, so clearly before he became president. The
(00:31):
conviction made Trump the first US president, whether sitting or former,
to be convicted of a crime, and now he's basically
trying to erase the conviction so that he doesn't become
the first felon to be sworn in as the president
of the United States. Both the New York trial judge
and an appellate judge have refused to put off his
(00:52):
sentencing based on his arguments that a president elect is
entitled to the same sweeping immunity that a sitting gets.
So now Trump is going to the Supreme Court, which
has been friendly to his claims of presidential immunity. He's
asking the justices to intervene in the state hush money
criminal case to prevent his sentencing from going forward quote,
(01:16):
the Court should enter an immediate stay of further proceedings
in the New York Trial Court to prevent grave injustice
and harm to the institution of the Presidency and the
operations of the federal government. Joining me is Bloomberg Legal
reporter Eric Larson, who's been covering all the proceedings in
New York and there have been many Eric tell us
(01:37):
about Trump's latest filing with the Supreme Court.
Speaker 3 (01:41):
So late last night, his lawyers filed a petition with
the Supreme Court asking for a stay of the sentencing
hearing that is scheduled for Friday morning here in Manhattan.
So this was sort of a fast track, sort of
unexpected that he was going to go this quickly to
the Supreme Court. But earlier a New York appellate judge
(02:03):
in Manhattan had agreed with the trial judge and that
the sense things should go forward. So with that ruling,
he went ahead and went straight to the Supreme Court
to request a stay while he continues to press his
appeal in New York State Court.
Speaker 2 (02:19):
So what are the grounds for him asking the Supreme
Court to step in.
Speaker 3 (02:25):
So they're the same arguments that he made with the
New York Appellate Court, and with the judge who oversaw
the hush money trial, it is all about his interpretation
of presidential immunity. Of course, that the broad legal doctrine
that was expanded by the Supreme Court last year or
in a different criminal case against Trump, where they held
for the first time that former presidents have brought immunity
(02:47):
from criminal charges related to their official conduct in office.
So even though this hush money case relates to his
actions before he was elected in twenty sixteen, and even
though he was tried convicted last year while he was
just a private citizen, I mean, before he was even
elected in the November election, notwithstanding all that, he argues
(03:09):
that he's protected from this guilty verdict by the concept
of presidential immunity. He argues that having this verdict the
hanging over him would undermine his authorities and his credibility
with world leaders and things like this, all of the
reasons that the Supreme Court has previously granted this kind
of immunity to presidents to begin with, to make sure
(03:30):
that the office of the presidency is powerful and protected
and whatnot. Clearly that is not how the Manhattan District
Attorney sees it, and that's also not how the judge
thought or the appellate judge who ruled against him. Will
see what the Supreme Court thinks. But for now, he's
saying that even though he's just president elect, this immunity
should be extended to him.
Speaker 2 (03:52):
The judge in this case has already said that he's
not going to sentence him to time or probation or anything.
It's sort of like a formality, but it will put
on the record that he's been convicted of felonies.
Speaker 3 (04:07):
It's an unconditional discharge, is what Judge Murchon called it.
It means that, you know, because of these unusual circumstances
with a defendant being convicted but then winning a presidential
election before being sentenced, the judge went ahead and said, look,
I'm not actually going to sentence you to any time
behind bars, or probation or a fine or anything. He's
(04:28):
getting an unconditional discharge, which means zero penalty other than
having the conviction remain intact. But it's that that Trump
wants to stop from happening. He doesn't even want that
hanging over him, you know. His lawyer also made the
argument that the appellate judge said was pretty weak. But
his lawyer did argue that there's always the chance that
(04:50):
Judge Mrchan could backtrack and sentence him to time in prison,
even though he said he wouldn't. But the judge didn't
really buy that argument. You know, if this this thing
goes ahead on Friday, clearly Trump is not at any.
Speaker 2 (05:02):
Risk of going to jail, and he doesn't have to
even be at the sentencing, right, that's right.
Speaker 3 (05:07):
Jes Mareschawan told him that he had the option to
appear virtually according to court papers, Trump is already indicated
that that is what he would do.
Speaker 1 (05:14):
What's unusual here.
Speaker 2 (05:16):
One unusual thing is that normally you have to wait
until a case is litigated in the state courts before
you go to the Supreme Court.
Speaker 1 (05:27):
And in this case, he's still appealing to the Court.
Speaker 3 (05:29):
Of Appeals, right, right, He does plan to continue to
press the appeal through the New York state court system.
He did say in his filing with the Supreme Court
last night that he was filing a similar petition for
a state simultaneously with the New York Court of Appeals,
the highest court in New York. We couldn't verify that
that had been filed. In fact, the court that it
(05:51):
hadn't been, but it seems that Trump is at least
planning to file something there to sort of connect the
dots to the Supreme Court, as it were. But clearly
time is of the essence and Trump's view, that's what
they've said all along here, So that might be one
of the reasons why they just trumped straight to the
Supreme Court. Of course, Trump is due to be inaugurated
just ten days after this sentencing hearing exept for Friday.
Speaker 2 (06:14):
Right now, since the Second Circuit is in the purview
of Justice Sonya Soto Mayor, she's asked the Manhattan District
attorney for papers.
Speaker 3 (06:24):
That's right. She directed Alvin Bragg, the district's attorney, to
respond to Trump's filing by tomorrow morning. So we would expect,
or we hope, that we'll get some ruling from the
Supreme Court by tomorrow night. Given that the sentencing hearing
is happening Friday morning, it would.
Speaker 2 (06:43):
Take five Supreme Court justices to grant to stay. In
the case, of course, there were six justices who voted
to give him that broad presidential immunity from criminal prosecution.
And another point is that it's Trump that's been asking
for these delays in sentencing.
Speaker 1 (07:03):
It's been the.
Speaker 2 (07:04):
Strategy of delay, delayed, delay, and now that he's been
elected president, he doesn't want to just delay the sentencing.
Speaker 1 (07:11):
He wants to eliminate the sentencing.
Speaker 3 (07:14):
That's right. That's one of the points that the appellate
judge made at the hearing yesterday. She said that, you know,
this timing was so inconvenient for Trump that he should
have gone ahead and went through with the sentencing earlier.
It's been delayed at least a couple of times, and
the most recent delay was as a result of the election,
but it could have happened months before the election, so
(07:36):
that that is a strong argument in favor of the prosecution.
But you know, Trump has had good luck with the
Supreme Court in previous arguments around presidential immunity, so it's
impossible to know how much weight they'll give that particular
argument exactly.
Speaker 2 (07:52):
And he has been using that controversial ruling on presidential
immunity to try to get this New York hush money
conviction thrown out, but the judge has denied his motions twice.
Speaker 3 (08:08):
So there's really two separate orders from Judge Marschan that
Trump is appealing that both relates to presidential immunity. The
first decision was from December, when Judge Mrshan rejected Trump's
argument that presidential immunity ruling from the Supreme Court undermines
the verdict. He claims that the trial itself had been
painted by witness testimony and other evidence that would not
(08:31):
have been allowed at trial if that Supreme Court standard
on presidential meunity had been in place, which it wasn't.
It wasn't handed down until a few months later. So
this is attorney argues that no, whatever evidence might have
been disallowed under that standard wouldn't have effected the outcome
of the verdict, that the remaining evidence was so strong,
(08:51):
And then indeed that's what the judge agreed and ruled
against Trump on that. The other argument was the sort
of broader argument that the judge ruled earlier this month,
you know, rejecting Trump's argument that the broad presidential immunity
extends to a president elect. That was the bigger argument, Trump,
(09:12):
that I won the election. Therefore, this whole criminal case
should be thrown out, including the jury's verdict.
Speaker 1 (09:19):
This is the only case that went to trial.
Speaker 2 (09:22):
And the only prosecution really that that has been successful
against Trump.
Speaker 1 (09:29):
He's he's managed to.
Speaker 2 (09:32):
Get rid of the federal cases and the Atlantic case
is also in doubt.
Speaker 3 (09:38):
Right, So the Atlanta case is still hanging out there,
although it's definitely in limbo. It's suffering its own problem.
But the two big federal prosecutions of Trump, they were
both dropped by the Justice Department after Trump won the election,
simply because of the long standing policy of not prosecuting
a sitting president. They knew that the cases wouldn't be
(09:59):
able to proceed trial while Trump was in office, and
therefore they dropped those charges. But even before he won,
that case over the twenty twenty election was significantly narrowed
during that Supreme Court decision that we discussed, where they
gave him broad immunity from criminal charges over anything related
to his official conduct. But yeah, the presidential immunity doctrine
(10:22):
is very broad, and that's why those two criminal cases
were dropped by the Justice Department. That's also while he'll
argue to have that Georgia State case, which is also
over the twenty twenty election, will argue to have that
one tossed out as well. But like they said, that
case is already suffering from it from his own problems
because the prosecutor was thrown out of the case by
an appealed court over an affair she was having with
(10:45):
an investigator. So totally separate drama.
Speaker 1 (10:48):
From a purely legal perspective.
Speaker 2 (10:50):
It's going to be fascinating to see what the Supreme
Court does here.
Speaker 3 (10:55):
No one really knows what's going to happen, but it
could be an interesting test to see how far the
Supreme Court is going to go to help Trump out
even before he takes office.
Speaker 2 (11:05):
Well, at least this should be resolved quickly one way
or the other. Thanks so much, Eric, That's Bloomberg Legal
reporter Eric Larson coming up next on the Bloomberg Law Show.
Net neutrality appears to be dead after a Court of
Appeals ruling deals a blow to the FCC. I'm June
Grosso and you're listening to Bloomberg. After decades of fighting,
(11:29):
it appears that the battle over net neutrality rules is over.
The US Court of Appeals for the Sixth Circuit has
acts the Federal Communications Commissions net neutrality rules, saying the
agency didn't have the authority to issue the rules. The
decision demonstrates the impact of the Supreme Court's ruling in
(11:50):
June doing away with the Chevron doctrine and holding that
judges shouldn't yield to agency's readings of unclear laws. Joining
me is Christopher You, a professor at the University of
Pennsylvania's Carrie Law School who's written extensively on administrative and
telecommunications law. Will you start by explaining just what net
(12:11):
neutrality is.
Speaker 4 (12:12):
Net neutrality is a political fight that's been going on
since the early two thousands. On the one side are
people who believe that ISPs provide Internet service to homes
and businesses shouldn't exercise any editorial control over the content
that they provide access to. Opponents of network neutrality argue
(12:37):
that in the modern Internet, it has become important for
ISPs to filter certain content, sometimes for security reasons, sometimes
to avoid spam and unwanted content, sometimes to enforce copyright laws,
but it can also be to provide a more refined
(12:58):
and tailored service to customers who want increasingly more diverse
offerings from the Internet. So, for example, online gamers are
extremely sensitive to delay, and they may want content that's
prioritized over other content. Another example is if you're on
your cell phone and you're taking a voice call. If
(13:20):
you're in a low bandwidth spot, you might want the
system to hold your email and continue to give you
your voice call to make sure that you get good
quality voice communications, and the fact that you have to
wait for your email is not a big deal.
Speaker 2 (13:35):
So the Sixth Circuit rule that the FCC doesn't have
the authority to issue the net neutrality rules?
Speaker 1 (13:42):
What did they base their determination on?
Speaker 4 (13:45):
The Sixth Circuit basis determination on a Supreme Court decision
that change the rules that courts will use to determine
the legality of an agency's interpretation of a statute. Before
this decision Loperbrite, which the Supreme Court rendered in June
twenty twenty four, courts tended to defer to the agency's
(14:07):
interpretation of the statute. That is, as long as it
was reasonable within the broad range of possibility, courts would
accept the agency interpretation. And on the basis of this principle,
we've seen agencies flip flop and their interpretations of the
legality of net neutrality rules, saying that initially that they
(14:29):
should adopt a more deregulatory approach starting in two thousand
and two, then changing in twenty ten to a more
regulatory approach, then back to a more deregulatory approach in
twenty eighteen, and back to a more regulatory approach in
twenty twenty four. And what the Supreme Court held is
that this sort of flip flopping is inconsistent with the
rule of law, inconsistent with the role of courts and agencies,
(14:52):
and is actually hurting consumers and people who have to
comply with law by creating a great deal of uncertainty.
And after June twenty twenty four, instead of deferring to
agency interpretations, courts are supposed to exercise their own judgment
as to the best reading of the statute and apply that.
And that's what the Sixth Circuit did.
Speaker 1 (15:13):
Is it the fault of.
Speaker 2 (15:14):
The FCC for flip flopping on its.
Speaker 1 (15:18):
Readings of the statute?
Speaker 2 (15:20):
The Court said, applying low or bright means we can
and the FCC's vacillations.
Speaker 4 (15:26):
The fact that the FCC was vacillating on the right
interpretation of the statute when deciding whether to apply that
neutrality isn't really the fault of the FCC. In fact,
that complied with the law that existed at the time.
The decision that called for courts to defer to agency
decisions that's called Chevron and has been in place since
(15:46):
nineteen eighty six explicitly recognized that agencies are likely to
change their minds and in fact endorse that idea. So
what the prior regime envisioned is that vrocations of statutes
were policy decisions, and just like say, for example, foreign
policy changes with the advent of a new administration, we
(16:09):
would expect this degree of policy to change as well.
The problem the Supreme Court had with that is statutes
aren't policy. Statutes are law, and the change of administration
does not involve the change in the statute or change
in the law. It's a change in the interpretation of
the law. And that opens the door to the claim
that interpreting law is policy, not lawmaking. And that's where
(16:35):
the Supreme Court said, we don't do that anymore. If
you want to change the statute, you need to actually
amend it. It's not open for reinterpretation just because someone
else occupies the White House.
Speaker 2 (16:45):
Lober Bright said that prior decisions that relied on that
doctor the Chevron doctrine still have binding power, starry decisives.
How did the Sixth Circuit get around that?
Speaker 4 (16:57):
The issue you're raising has been around owned with us
since certainly the days of the war in court. I
mean to give you a simple example. Gideon versus Wainwright
announced that all criminal defendants must be provided with defense
counsel provided by the government. And you know we had
never as a country it provided that to indigence. And
(17:18):
it raised a question, so does that mean every single
conviction going back to the beginning of the Republic was
inherently suspect? And what the Supreme Court has developed is
a doctrine which is, we will apply our best understanding
of the law to all cases that are ongoing, but
to cases that are final. We're not going to overturn
(17:41):
convictions going back hundreds of years. So the real question is,
in a particular matter, if the courts have resolved the issue,
the Supreme Court said, we will not disturb that decision,
but for new matters involving cases that are still ongoing
or cases that are newly submitted, they will apply a
(18:02):
new set of principles. Here, every prior decision about net
neutrality regarded a different net neutrality order either the declaratory
judgment in two thousand and two or orders in twenty ten,
twenty fifteen, twenty eighteen, and all of those have been
resolved under law, and all of those decisions are now final.
The decision in front of the Sixth Circuit involved a
(18:24):
order that came out of twenty twenty four that had
never been resolved or addressed by a court, and as
a result, it was still a live issue, and under
the Supreme Court's guidance, the Sixth Circuit applied the current
rules that have been placed ince June twenty twenty four
to address the legality of the twenty twenty four action.
So all they're saying really is that we're not going
(18:45):
to upset the decisions regarding the twenty ten, twenty fifteen,
twenty eighteen orders. We are going to look at the
twenty twenty four order with new eyes under the Supreme
Court's current rules for how courts should evaluate agency interpretations
of the statue.
Speaker 2 (19:00):
Does this decision end the legal battle over net neutrality rules?
Brendan Carr, who Trump has named as an incoming FCC chair,
has been a strong critic of net neutrality.
Speaker 4 (19:12):
So is this the end the Sixth Circuit decision most
likely ends the controversy over the legality of net neutrality.
The parties who support the twenty twenty four order that
the Sixth Circuit overturned could still appeal the issue to
the Supreme Court, and so there remain some possibility that
(19:33):
there will be further review of the Sixth Circuit decision.
But honestly, having clorked on the court myself and having
some experience in how they operate, my guess is that
this is not likely to be the kind of case
that they take. It doesn't bear the kinds of conflicts
between different courts and different parts of the country that
has been the hallmark of the types of cases the
(19:55):
Supreme Court takes.
Speaker 1 (19:55):
Theseis as far as lowbribright.
Speaker 2 (19:58):
In general, are the courts around the country interpreting the
decision there differently, are their conflicting decisions out there?
Speaker 4 (20:08):
There are no conflicting decisions on the net neutrality order,
And in fact, the parties who litigated that case before
the Sixth Circuit are now bound by that decision and
are really obligated to follow it, so they're not really
in a position to bring a new challenge to the
twenty twenty four order. From a broader perspective, the Sixth
Circuit has taken the approach that gives it a great
(20:30):
deal of latitude to deviate from prior judicial decisions that
presented the same issue but arose from a different agency order.
And that actually opens the door to a fairly broad
scope of action for courts to revisit issues that had
been adjusted by prior courts and hadn't been resolved now.
(20:53):
I don't think that's improper for the Sixth Circuit, and
in fact, the Supreme Court, by changing the interpretive rules,
expects there to be different outcomes. And in fact, if
there was too little latitude for courts to apply their
own judgment as to the best reading of the statute
and instead to continue to defer to what agencies thought
were the best reading, that would actually create a very
(21:14):
little room for the kinds of changes in law that
the Supreme Court has called for. And it's during twenty
twenty four decision. I think the Sixth Circuit's opinion, while
one of the first to address this issue, is likely
to be borne out by further decisions in the future.
Speaker 1 (21:28):
And do you.
Speaker 2 (21:29):
Think that we're going to see more federal regulations at
the FCC and other agencies followed out or you know,
disregarded agencies.
Speaker 4 (21:41):
Like the FCC are certainly facing a more challenging environment
in which courts are likely to be more skeptical of
the actions they take. The previous regime gave them deference
and so therefore they had a pretty wide latitude to
follow the policies that they preferred. Now they're going to
have to justify their actions a bit more specifically, and
(22:05):
that's going to represent a clear challenge to them.
Speaker 2 (22:07):
There have been fights over net neutrality for decades. Does
it seem odd that now this one court is going
to put the whole issue to rest.
Speaker 4 (22:17):
Courts have to decide close cases all the time, and
even if it's a very very narrow issue, they generally
don't shy away from resolving those issues, and I think
that sort of characterizes what's going on with net neutrality.
I think there are good arguments on both sides. I
personally agree with the way the Six Circuit resolve the issue,
(22:38):
but I understand why other people feel differently. The bigger
issue that the Supreme Court addressed is to eliminate the
possibility or in this case, the net neutrality. The reality
that we saw what was the laws flip flop every
time the White House changed party. And in fact, many
people would say, if there's a close issue, we're better
(23:01):
off having courts resolving it once on the best terms
it can and then letting that interpretation stand until Congress
sees fit to amend it or not. The world in
which we're in where we saw policy flip flop multiple times,
is not one that's conducive to creating great Internet connectivity
(23:25):
or to creating stable expectations for consumers and Internet users
to understand what they're getting. And so, in fact, I
think that the fact that there are tough cases is
not a reason for courts to shy away from making
tough decisions. It doesn't justify allowing judicial decisions to change
back and forth with the political wins.
Speaker 2 (23:46):
Thanks so much for joining me on the show. That's
Professor Christopher You of the University of Pennsylvania carry Law School.
Coming up next, a new Jersey decision turns the tables
on the move to kill DEI programs.
Speaker 1 (23:59):
This is Bloomberg.
Speaker 2 (24:01):
The First Amendment right of free association has led to
court rulings allowing a gay softball league to strike straight
guys from teams, lineups, student groups to bar their doors
to members who disagree with their mission, and even some
religiously affiliated employers to fire workers who support abortion rights,
while a new Jersey Appeals Court ruling is turning the
(24:23):
tables by saying that the reverse is true as well,
and that private organizations can also deliberately include certain people
in their groups. It's the first decision of its kind
in the country. A counter to the movement to kill diversity,
equity and inclusion programs. Joining me is Alex Ebert Bloomberg
(24:44):
Law Senior correspondent who's written about this. Tell us about
this new Jersey decision that turned the tables on the
movement to n DEI programs.
Speaker 5 (24:54):
So this decision is groundbreaking and that it flips in away.
The Supreme Court's ru is that groups can discriminate when
they pick their leaders, and the new Jersey Court is saying, well,
if you can discriminate when you pick your leaders exclude people,
that means you can discriminate to include people as well.
If you're going to get to pick the leadership that
(25:14):
will guide your group and enforce your values, like let's
say the boy Scouts of America can when it excludes
certain people, then that means that you can include specific
people for specific leadership position that essentially is DEI.
Speaker 1 (25:29):
And this had to do with a bar association.
Speaker 5 (25:32):
It did. Yeah, so bar association litigation is popping up
all over the country. You have conservative and libertarian groups
in particular, bringing cases against DEI work that bar associations
are doing. They're going to sue over leadership spots, over
programs for particular attorney groups, and basically anything that sort
(25:53):
of looks at race, gender orientation, things like that in
order to elevate particular jorneyes that have maybe been disadvantaged
in the past. That's what happened here. New Jersey for
many years has had a program where they reserve at
large leadership positions on committee is for people that are
certain disadvantaged groups. So you'll see black lawyer positions reserved.
(26:17):
You'll see positions reserved for women, for people that are elderly,
for people with disabilities, for people in the LGBTQ community.
And this lawsuit was saying, hey, what you're doing is
violating this really powerful New Jersey loginst discrimination.
Speaker 1 (26:33):
So now you're right.
Speaker 2 (26:34):
It all comes back to one of the first amendments
extremely undervalued benefits, the right to tell people to get lost,
tell us about some cases in that arena.
Speaker 5 (26:46):
Yeah, absolutely so. An undervalued part of the First Amendment
is this power to associate with people that you want
to right. This boils down to if you're starting a club,
if you've got a group, you've got the right to association.
You can't be forced to join up with people that
you don't want to hang out with. Now, courts have
(27:06):
interpreted that as saying student groups can bar the doors
to students that don't agree with their value system, or
certain religious employers can exclude from job positions people that
are for abortion rights. Or you can have a court say, hey,
this case, softball league doesn't have to put into the
lineup straight players. And it boils down to this First
(27:30):
Amendment right that if you want to exclude people because
you want to create a community, you get to do
that if you're a private organization.
Speaker 2 (27:38):
To what does in perspective, where have we seen suits
against DEI programs.
Speaker 5 (27:44):
So we've seen lawsuits against DEI pop up across the country.
We've seen them against the American Bar Association, We've seen
them against the Wisconsin Bar. We've seen a lot of
activity around the even places without lawsuits, including Florida, where
the STAKEHOURT system has basically done a one to eighty
on being very pro DEI for certain years, and then
(28:07):
now they're removing THEI entirely, both from the way it
communicates to its members and from the way it spends
money and organizes groups. So you've seen this issue pop
up across the United States, from big states to even
tiny ones like West Virginia, where there's a new lawsuit
challenging an at large member of a leadership community for a.
Speaker 2 (28:30):
Lawyer that is black bars from Wisconsin to Florida. Are
they rolling back diversity programs and also you see corporations
rolling back diversity programs. Are they doing that because they're
afraid of a lawsuit or are they doing that because
the law has changed.
Speaker 5 (28:48):
I think it's a little bit of both. Jude. So
if we think about it, sometimes they're under the gun
of a lawsuit to alter programs, and sometimes they'll say
that their changes of programs won't reduce the ability, you know,
for groups to access certain benefits. But then there's some
states like Florida which are proactively doing this. They have
a more conservative judiciary that the Santus has put in
(29:09):
place and they're rolling back things and they have been
for several years even without litigation in their state. So
it really depends on whether or not the impetus is
coming from the judiciary and the judges, or if it's
coming from a conservative or libertarian oriented legal community that
is set up with DEI and wants to see it gone.
Speaker 2 (29:28):
This case is being appealed to the New Jersey Supreme Court.
Where does that court stand as far as being conservative
or liberal.
Speaker 5 (29:37):
So we've done big stories on the New Jersey Supreme
Court recently, and I've even spoken with you in the
past on this where the court is extremely tough to gauge.
They have unwritten rules which require partisan balance for lack
of a better term on it. So it's unclear. But
the Bar itself is a very pro DEI and it
has been running this kind of program with a large
(29:59):
seats for decades and only recently was their legal challenge
brought against it, something that's kind of been in place
for a long time, and the bar has been expanding.
So we see the appeals court here potentially keying up
a broader fight before that New Jersey Supreme Court about
whether or not their state judicial system, which is one
(30:20):
of the largest by attorney number in the country, will
allow this sort of minority participation.
Speaker 2 (30:26):
Benefit and explain the difference between private organizations and DEI
and public organizations.
Speaker 5 (30:33):
Yeah, there's going to be nuanced differences between a lot
of these, right. The key thing here is that bar
associations are often private associations. They're the same thing is
you know, if you have a club that supports your
local river cleanup, or if you have, you know, a
big national organization like the NRA. You know, these people
get to pick who's on their leadership board based on
(30:55):
the value systems that they hold deer right, so that
into a value system for the New Jersey State Bar Association,
which is liberal and has had d programs for a
long time. It might be different than a bar association
somewhere else, but that is different from a corporation right
where you have federal accommodation and employment laws that prohibit
(31:19):
outright quotas or discrimination in that way, or a government
organization where you have the same thing. You know, the
government can't discriminate, but if you're a private group. If
you're just an association, then yeah, you can pick your leadership.
Speaker 2 (31:32):
Hard to believe it's been twenty four years since the
Supreme Court ruling the Boy Scouts case. Remind us what
that ruling was about and the impact it's had.
Speaker 5 (31:42):
The ruling was really, at its bottom about the power
of the First Amendment for groups to tell other people
to get lost. You know, if you want to pick
the people that are at the top of your organization,
they're going to be communicating to the public, they're going
to be showing your values. You really get to choose
who that is. And the Conservative Justices they laid down
(32:02):
this line in a five to four decision that private
groups like the Boy Scouts of America can exclude Scout
masters who are gay from their organization. That lawsuit was
brought under the new Jersey log and discrimination. This very
same anti discrimination suit that is being levied against the
State bar right now, And the Justice has said, listen,
(32:26):
you know the New Jersey logins discrimination. Sure it's broad,
but you know it can't go this far when it
deals with private association. So in the twenty four years
since then, you haven't seen this flipped in the same
way as much, and it looks like it's an opportunity
for progressive groups to use this conservative court's opinion to
(32:46):
lean into di to do more to pick the leaders
that they want in positions to communicate their values to
the public, and that could mean adding more people of
different gender identities or you know, people of color to
board positions and leadership positions. I think that it comes
down to this general thing that what's good for the
(33:07):
goose is good for the gander. So the question with
discrimination with private groups, right, is if you get to
discriminate by telling people they can't come in, how far
are you able to use that to say only certain
people can come in for this particular job. We're going
to see an appeal of this case the New Jersey
Supreme Court, and it's still an open question how far
(33:28):
that First Amendment is going to protect this novel theory.
Speaker 2 (33:31):
Let's turn to another interesting legal issue. The North Carolina
Supreme Court has blocked the certification of reelection for one
of its own sitting justices.
Speaker 1 (33:43):
Tell us about this.
Speaker 5 (33:44):
We had a big decision out of North Carolina yesterday
and we also have the development today the North Carolina
Supreme Court decided to pause the certification for votes given
to Alison Riggs, who's a sitting member of that very court.
A challenger of hers, the Republican, who's down roughly seven
(34:05):
hundred votes, brought up claims to the state's election board
that there should be about fifty six thousand voters excluded,
and they're both not counted. Those voters were different groups.
Old voting requirements in the state didn't necessarily mandate that
(34:27):
a voter would have the driver's license number or their
Social Security number logged with the state to register. Since
that sign things have changed and the state isn't going
to hold you know, that against particular voters. They're not
going to exclude them after the fact because of that.
There's also issues dealing with overseas voters, where the Republican
(34:48):
claims that, you know, these folks never actually came to
North Carolina, so they shouldn't be considered residents. You know,
they might be army brats that were born at base
or things like that, or just living abroad. And then
there's a se with service members overseas sending in their
ballots and his claims are that several hundred of these
perhaps thousands didn't include photo copies of their ideas that
(35:09):
are necessary under North Carolina law. The state election board said, no,
we're not going to move forward with this. The vote
should be certified, and the Republican challenger sued. His name
is Judge Griffin, and he sued first in state court
and then state appeals Court and then the state Supreme Court.
That was taken out to federal court by the Justice,
(35:33):
and the North Carolina Supreme Court took it back yesterday
they decided that they were going to put a pause
on certification for that election. And today Justice Riggs, who
recused herself from the decision yesterday, she's now appealed that
to the Fourth Circuit asking them to say, no, we're
going to introject ourselves here. We're going to demand that
(35:55):
the state certified.
Speaker 1 (35:56):
That's crazy stuff.
Speaker 5 (35:58):
It is in it. It raises a whole most of
really interesting state and federal constitutional issues.
Speaker 3 (36:04):
So if you were to.
Speaker 5 (36:05):
Exclude these votes, does that mean that you now have
treated voters desperately because all of the other races that
were impacted by these votes weren't excluded. So does that
mean local races have to get toss you know, county
states other statewide races are impacted because the challenger here
is only asking them to be tossed in this one case,
(36:26):
and that raises federal constitution issues, you know, for equal
treatment and equal protection.
Speaker 1 (36:31):
You'll have to come back Alex to tell us what
happens in this case. Thanks so much.
Speaker 2 (36:36):
That's Alex Ebert, Bloomberg Law Senior Correspondent, and that's it
for this edition of The Bloomberg Law Show. Remember you
can always get the latest legal news on our Bloomberg
Law Podcast. You can find them on Apple Podcasts, Spotify,
and at www dot Bloomberg dot com, slash podcast Slash Law,
And remember to tune into The Bloomberg Law Show every
(36:57):
weeknight at ten pm Wall Street Time. I'm June Grosso
and you're listening to Bloomberg
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