November 14, 2025 • 37 mins
June Grasso speaks with Judge John E Jones III, Columbia Law School Professor Suzanne Goldberg and Notre Dame Law Professor John Meiser about the top legal stories of the week.
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Speaker 1 (00:02):
This is Bloomberg Law with June Grossel from Bloomberg Radio.
It's a war man.
Speaker 2 (00:11):
That's Todd Blanche, the second in command at the Justice Department,
saying the department is at war with federal judges. Blanche
echoed President Donald Trump and Attorney General Pam Bondi's attacks
on so called rogue judges who handed down decisions against
the Trump administration.
Speaker 1 (00:30):
These activist judges that they have a RoboN, but they
are more political, or certainly as political as the most
liberal governor of da.
Speaker 2 (00:42):
The Deputy Attorney General, who was formerly Trump's lawyer, defended
the Justice Department against claims of weaponization, but then urged
young lawyers to join the war against judges.
Speaker 1 (00:55):
There has got to be a couple dozen young lawyers
who are thirsty and hungry and ready to work because
we need you, because it is a war.
Speaker 2 (01:07):
A group of retired federal judges is warning that the
language Blanche used poses a grave threat to the rule
of law and the judiciary joining me from the Article
three coalition is Judge Johnny Jones, the third. He was
appointed by George W. Bush and served for two decades
on the US District Court for the Middle District of Pennsylvania.
(01:29):
Judge Jones, First, your reaction to the Deputy Attorney General
saying that the Justice Department is at war with the judiciary.
Speaker 3 (01:37):
I think that the comment is at minimum men opportunity,
and I think writ large, it's grossly irresponsible for the
number two individual at the Department of Justice to characterize
anything involving the federal judiciary as a war at war
against so called rogue judges. It is highly problematic and
(02:00):
I think it's causing a great deal of consternation among
the judiciary, not just active judges, but retired judges as well.
Speaker 2 (02:06):
He said, we have judges literally telling the president the
executive what he can and cannot do. We have seen
judges not following the law on the Constitution, and he
said they have a row bomb. But they are more political,
or certainly as political as the most liberal governor or
da Well.
Speaker 3 (02:24):
June, here's a newsflash. That's exactly what judges are supposed
to do, is say what the law is. They've been
interpreting the law, of course since Marbury versus Madison, and
I think he's protesting too much. What he's really striking
out against our decisions that are in the judges view
in accordance with the law and legal precedent. Simply because
(02:45):
you disagree with the decision doesn't mean that you're at
war with the judge who made the call. The government
is fully able to exercise its appellate rights, and in
fact they have in any number of these cases. So
you know, to say that judges are political simply because
they rendered a decision that you don't agree with is
really a baseless allegation. I guess red meat if you will,
(03:08):
for the conservative lawyers in the federalist society, But I
would suspect that a lot of those lawyers entertained, though
they may have been no better.
Speaker 2 (03:19):
So his target was sort of on the district court judges,
the trial court level, and he said that when it
gets to the Supreme Court, the Supreme Court has reversed
them except for one or two times, which is true.
But that assumes that the conservative majority on the Supreme
Court is right and the federal district judges are wrong.
(03:39):
And these decisions were all made on the emergency docket
without full briefing or oral arguments.
Speaker 3 (03:46):
Well, a couple of things I'd say about that there
are far more decisions that are standing than ones that
are appealed to the Supreme Court. As you know, that
court has a discretionary docket. So some of these lower
court decisions have stood up simply because the Supreme Court
hasn't taken them. Now, it is noteworthy that the Supreme
Court has placed on its emergency dock at a number
(04:07):
of different cases. And yes, the government has been successful.
I don't know that it's necessary under the circumstances for
mister blanche, you know, to be a sore winner and
do a sort of victory dance about that and castigate
lower court judges. You know, the Supreme Court gets the
final word on these cases. But I can go over
any number of cases that district courts have heard and
(04:28):
have indicated that those decisions are in accordance with precedent
and the law under the circumstances. You know, these are
close questions in some cases as well. But again, this
sort of sore winner thing is pretty wearying and unbecoming. Again,
I'd say the Department of Justice that I knew and
worked with was very professional during my nearly two decades
(04:49):
on the federal bench.
Speaker 2 (04:51):
The number of threats against federal judges have skyrocketed. As
you know, what does it do when you have the
second in command saying things like this, saying, you know,
we're at war, saying that judges are not following the law,
They're not following what the Supreme Court says. What's the
effect when the general public, who may not know about
the underlying cases, here's something like that from the number
(05:14):
two person at Justice.
Speaker 3 (05:17):
Well, you have to take it in concert June with
what's been happening for this entire year since January twentieth,
which is that judges are being singled out by name,
their families are being singled out, they're being docksed. Anybody
can find the location of a judge, even though there's
been legislation to redact and hide some of their personal information.
And I think fairly judges are frightened. It puts a
(05:40):
bullseye on judges. And you correctly cite the US Martial
Service as indicated that threats against judges there were five
hundred plus bona fide threats in the last fiscal year,
and they're growing exponentially. I've always said that, you know,
there are a lot of people that disagree with judges' decisions.
That's the nature of the business. But it's that small
(06:00):
percentage of unbalanced people who kind of hear this as
a dog whistle. And I have said for years, because
of this employmentatory rhetoric, that we're going to get a
judge hurt or killed. You need only look back at
my former colleague, Ester Sallus's tragedy. You know where son
Danny was shot and killed back in twenty twenty. I
fear that's going to happen again if we don't dial
(06:21):
down the rhetoric again. This goes to the irresponsibility of
mister Blanche's comments. We need to level set here instead
of making it worse.
Speaker 2 (06:29):
And to put this in context, these weren't casual remarks
because we've heard similar remarks from the Attorney General Pam Bondy.
She's actually called out individual judges by name for their decisions,
and of course so has President Trump. Is there some
kind of strategy at play here by the Justice Department?
Are they trying to scare judges?
Speaker 4 (06:51):
What's at play?
Speaker 3 (06:52):
Well, if they're trying to scare judges, that won't work
because I think fairly my friends and former colleagues and
the judiciary are not easily frightened. Sure, I mean there
may be a motivation to have them look over their shoulders.
I think what it is is it tears down the
integrity of the judicial system. All three branches, I think,
at bottom, have a responsibility to uphold the integrity of
(07:15):
their existence as coequal branches of government. We are seeing
this unitary president going wild. Now there's another problem here, June,
and I think it's that we are losing any line
of distinction between the President and the Department of Justice.
Of course, not naive. There's always some interaction between the
President and the Department of Justice, but they've almost become
(07:38):
one and the same, which I think is truly troubling.
Speaker 5 (07:41):
So this is the.
Speaker 3 (07:42):
Number two man, and in fact the Attorney General doing
the bidding for the President of the United States and
simply parroting his view of federal judges and carrying out
We know this now because we've seen some of the
things that the President has written and thought that he
was playing to an audience of for example General Bondi
and instructing them to prosecute people. I think my conservative
(08:06):
lawyer friends, you know, for example, who listened to Todd
Blanche ought to be careful what they wish for, because
in a world like that, I don't think anybody is
particularly safe.
Speaker 2 (08:15):
And Blanche denied that the Justice Department was being weaponized,
and he said the Department was weaponized before during the
Biden administration. Then he talked about the prosecutions of President Trump. However,
he did not mention that the current Justice Department is
prosecuting former FBI Director James Comey and New York Attorney
(08:40):
General Letitia James.
Speaker 3 (08:42):
By response to that, June is there was a statement
baded by the New York Bar Association criticizing Blanche and
his response was lol to that, well, my response to
what mister Blanche said about weaponization is LOL. You know,
it's the same thing. If this isn't weaponizing the Justice Department.
You know, people may disagree or agree about weaponization during
the Biden administration. I'm talking about the here and now.
(09:04):
I don't think we've seen a stark a weaponization of
the Department of Justice ever. Think about the DOJ as
it participated in the efforts the executive orders against law firms.
They litigated those cases. You know, it was lawyer on
lawyer through that. You know, think about mister Blanche traveling
to federal prison to see Elaine Maxwell and getting a
(09:26):
statement from her. We know now that he probably had
access to emails that directly contradicted what she apparently told him,
looking like every bit the president's personal lawyer instead of
the number two man at Justice. I mean, we're in
a world that is vastly different than anything I've ever
seen in terms of the interaction between the Justice Department
(09:47):
and the courts. When I was a judge, by the way,
you know, I thought federal judges had pretty enormous power
to be used very sparingly and carefully. We're now living
in a time when essentially the President of the United
States and the depart and a justice they're saying, in
as many words, just disregard district court judgments. They're not worth,
you know, the electronic ink that's being used to render them.
(10:08):
I don't think that that's helpful or appropriate in any
way in terms of integrity of the third branch of government.
Speaker 2 (10:16):
He didn't just attack judges. He also attacked the bar associations,
and he vowed to take away the bar association's oversight power.
Now complaints have been filed against Justice Department lawyers with
bar associations, but does the Justice Department have any power
over that.
Speaker 3 (10:33):
I confess June to confusion as well about how that
could be accomplished, because you're a member of a bar association,
and for example, the Pennsylvania Bar Association police is its
own and they can suspend you on the Supreme Court
of Pennsylvania can get involved and suspend your right to
practice for a period, or they can disbar you. So
good luck with that. You know. Not only is it
(10:54):
I think an overreach from a rhetorical standpoint, but I
think it's it's mission impossible.
Speaker 2 (11:00):
That's why the Article three coalition decided it had to
issue a warning about Blanche's statements.
Speaker 3 (11:06):
This is something that we feel in unanimity that is
really injurious to the rule of law. And you know,
if you can get fifty retired judges, you know, thoughtful
appointed by different presidents, folks at different viewpoints, going the
same direction like this, you've got something that is really
really problematic. And you know, I was proud to join
(11:28):
that group. I fear it's going to get worse before
it gets better, and that's really troubling.
Speaker 2 (11:33):
Thanks so much, Judge Jones for sharing your insights and
concerns with us. That's Judge John E. Jones the third
coming up next, another setback for transgender rights at the
Supreme Court. I'm June Grosso and you're listening to Bloomberg.
It's the twenty fourth win for the Trump administration and
the second blow to transgender rights on the Supreme Court's
(11:57):
emergency docket in the last six months. It was a
vote down ideological lines, and the Court's conservatives are allowing
the Trump administration to require that passports be marked with
a person's sex assigned at birth. This is a reversal
of the policy that's been in place since nineteen ninety two,
which allowed passports to reflect a person's gender identity. But
(12:20):
President Trump made it clear when he was campaigning that
he would reverse transgender rights.
Speaker 6 (12:26):
With a stroke of my pen on day one. We're
going to stop the transgender lunacy, and I will sign
executive orders to end child sexual mutilation, get transgender out
of the military and out of our elementary schools, at
(12:47):
middle schools and high.
Speaker 2 (12:48):
School And back in May, when Trump issued a transgender
military ban, the Supreme Court's conservatives allowed him to discharge
thousands of transgender some of US members who've been serving
openly for years. My guest is Suzanne Goldberg, a professor
at Columbia Law School and director of the school Sexuality
(13:10):
and Gender Law Clinic. Suzan, will you explain the change
in passport policy by the Trump administration.
Speaker 4 (13:17):
For thirty three years, across six presidential administrations, transgender Americans
have been able to get US passports with their gender
marker that accurately matches their gender identity. So transgender man
can get M on his passport and a transgender woman
can get AS on her passport, which is important for
(13:37):
many reasons, including so that the person looks like they
match their passports. From basically nineteen ninety two to twenty ten,
there was an eligibility requirement related to a surgical transition
that has changed over time. The point is, for thirty
three years this has been the same. But on the
first day of his administration, Donald Trump is an executive
(14:01):
order saying that transgender people are corrosive to the United States.
In so many words, he used the word corrosive and
directing the State Department to no longer issue passports to
people that would be consistent with their gender identity. If
they're transgender, and so the Trump executive order led the
State Department to take two steps, first to stop issuing
(14:24):
passports to transgender people consistent with their gender identity, and
second to remove the ex gender marker, which was an
option for anyone who does not fit the M or
the F or someone who doesn't want to share their
gender identity with the US government. So, put into a
simple terms, the Trump administration changed policy on the first
(14:46):
day of the administration and the State Department followed two
days later to prevent transgender Americans from obtaining passports consistent
with their gender identity.
Speaker 2 (14:56):
This was an unsigned order and the Conservative justices very
short explanation seems to me like it's ignoring the facts
that were presented in the case. The Justice has said
displaying passport holders sex at births no more offense equal
protection principles than displaying their country of births. In both cases,
(15:16):
the government is merely attesting to historical fact without subjecting
anyone to differential treatment.
Speaker 4 (15:23):
It is stunning because the plaintiffs in the case explained
to the district court, which agreed as did the Court
of Appeals, that if you are a transgender man and
you have a passport that says f on it, it
does have real world harmful consequences every time you have
(15:44):
to show that passport to someone, because the person receiving
the passport may say, as has happened to some of
the plaintiffs, you're using fraudulent documents because you don't appear
to match your passport gender marker. So this has led
to some of the plaintiffs being accused of fraud, one
of the plaintiffs being strip searched, other plaintifsts facing all
(16:06):
sorts of problems as they've tried to cross borders. So,
for one, the Supreme Court's kind of casual remark that
this is as insignificant as somebody's sort of national origin
arch place of citizenship is just untrue. In addition, the
country of birth is not anything that affects somebody when
(16:26):
they're using their passport and passing through security. But the
gender marker is used to check accuracy, and so even
on its face, the Supreme Court's analysis is wrong. The
Supreme Court's description, I can't really call it analysis. The
Supreme Court statement is wrong, and a dissent for Justice
Jackson points that out as well.
Speaker 2 (16:45):
The Court also found that the administration is likely to
win on the merits, and the administration faced irreparable injury.
I'm not sure where the irreparable injury is since this
policy is a new one that's changing what's been in place.
But the conservative justices have found irreparable injury in almost
(17:07):
all of President Trump's emergency requests.
Speaker 4 (17:12):
There is no irreparable injury in the traditional way that
courts look at a reparable harm. To let me explain.
When a statute comes over from Congress and is challenged
in the court, it is given a presumption of constitutionality
right to the court assumes it's constitutional, but sometimes plaintiffs
(17:33):
can show actually it's on constitutional, and the court will
strike it down. And there's understood to be some arguable
harm to government when a statute is put on hold.
But when a government policy is put on hold, like
an executive order or a preference of the president, that's
a different situation that is not entitled to the same
(17:53):
presumption of constitutionality as a statute that has been passed
by Congress. And the shot is just saying, well, the
government is irreparably harmed by not being able to put
in place its desired passport policy is akin to saying
the government is irreparably harmed whenever it is stopped from
(18:13):
doing something that it would like to do, And that
is akin to having no judicial review over government actions
at all, at least not at this preliminary stage. So
that's a very serious problem from a sort of basic
approach to constitutional analysis of executive actions.
Speaker 2 (18:31):
Justice Jackson wrote that the Court has once again paved
the way for the immediate infliction of injury without adequate
or really any justification. This is also a pattern of
the Court at this point basically allowing the Trump administration
anything it asked for on the emergency docket and saying, well,
this is while litigation is pending.
Speaker 4 (18:53):
Yes, this is the twenty fourth consecutive grant of emergency
relief to the government. And this process of the Supreme
Court staining rulings of lower courts finding constitutional or other
problems with government policies, this phenomenon of the Supreme Court
repeatedly saying, oh, we're going to put those lower court
(19:15):
rulings on hold, has had the effect of basically giving
the Trump administration a free path to continue enforcing policies
and taking actions that lower courts have held to be
not only likely unconstitutional, but also causing irreparable harm to the.
Speaker 3 (19:34):
People who have been affected.
Speaker 4 (19:36):
So this is certainly part of a larger trend. The
stricond thing about this case is that the harm to
the individuals who are denied passports that accurately reflect their
gender identity is stunningly clear. Another problem here is that
the government is obligated anytime it changes a policy that
collect information from the American people. The government is obligated
(20:00):
under the Paperwork Reduction Act, which was passed by Congress,
to spend sixty days collecting information and public comment on
whether it can make this sort of a change. And
of course, changing its passport rule two days after the
president was inaugurated and issued his executive order is fully
out of compliance with this law that is supposed to
(20:22):
apply to all of the government's actions.
Speaker 2 (20:24):
As I mentioned, this order stays in place as a
litigation below continues. So how much of a blow is
it to the rights of transgender people?
Speaker 4 (20:35):
This is a tremendous blow in terms of the human cost.
One only has to think about the named plaintiff, Ashton Orr,
who needed to travel out of the country, needed a
new passport. Ashton orders a man. He's a transgender man.
The only passport he is able to get to cross
borders has an S gender marker on it that reveals
(20:58):
Ashton to be transgend and not only as he crosses
the border out of the United States, but as he
crosses into other countries, possibly putting him in danger of
harm from other governments and now as well as our own.
The harms are very serious, very painful to individuals, and
also are reflective of a broader harm to people who
(21:20):
are not transgender, which is that the government can, for
irrational reasons, possibly hostile reasons, towards this group of people,
or any group of people more generally, choose to withdraw
passport right, choose to do any number of things that
cause harm. And the Supreme Court is unwilling to say
hold on government. The lower court has found a problem
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with this law or this new policy, and we need
to hold while this case is being litigated. So there
are real world problems, there are constitutional problems, There are
traditional separation of power problems that we're seeing.
Speaker 2 (21:55):
In May, the Supreme Court allowed Trump to discharge transgender
people serving in the military. In June, the Court upheld
a Tennessee law that bans gender firming care for minors,
and now the Court is allowing this passport policy to
go into effect. In all these cases, the conservatives were
in the majority and the liberals in descent. It's hard
(22:17):
to ignore that the Court has been ruling against transgender
rights at least since a case in twenty twenty.
Speaker 4 (22:24):
Yeah, I mean, there has been a current of policies,
you know, from the Trump administration and laws at the
state level that restrict the lives or try to restrict
the lives of transgender people in every imaginable way, from
getting identity documents to using the bathroom, to participating fully
(22:44):
at school, to serving the country in the military, and
so far, when these issues have been presented, the Court
has said, it's okay to create this legal barrier. Really
like a legal burden that harms transgender people. In twenty
the Court took a different tack. This involved in an
employment discrimination case. A transgender woman was fired from a
(23:06):
role at a funeral home where she had served for
many years, and she sued the employer, saying it was
sex discrimination that she was treated differently because of her sex,
being fired based on that. She is transgender, and in
that case Bostock versus Clayton County, which also involved two
other cases with sexual orientation discrimination at issue. In that case,
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the court said it is sex discrimination to buyer a
transgender person because there's no way to understand this other
than they're being fired because of their sex. One of
the big questions before the court is that case came
under Title seven, which is a federal law that prohibits
sex discrimination as well as other forms of discrimination and employment.
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And a question is whether it's a logic of understanding
sex discrimination in that Bosstoc ruling from twenty twenty is
going to carry over to these other areas, or will
the Court say, as it may appear to be inclined
to do, oh no, that might be six discrimination, but
this isn't.
Speaker 2 (24:08):
We'll see if the pattern holds or not, because in January,
the Court is going to hear arguments on whether states
can ban transgender girls and women from competing on female
athletic teams. Thanks so much, Suzanne. That's Columbia Law School
professor Suzanne Goldberg coming up next. The Conservative Justice is
(24:29):
appere skeptical of a Rastafarian's religious liberty suit I'm June
Grosso and you're listening to Bloomberg.
Speaker 7 (24:37):
It is undisputed that my client has alleged an assault
that is just brazenly illegal. He was at respondent's mercy
in federally funded custody when he handed them a copy
of controlling precedent holding that ralupa protected his right to
keep his hair long. They threw it away, handcuffed him
to a chair, and shaved him bald.
Speaker 2 (24:56):
Damon Landor is a devout Rustafarian who hadn't cut his
hair for nearly twenty years, following his faith, in which
dreadlocks are a sacred symbol. When Landor was transferred to
a new prison in Louisiana with just weeks left on
his five month sentence, he handed a prison guard a
copy of an appeals court decision that held that cutting
(25:19):
a religious prisoner's dreadlocks violated federal law. The guard threw
the ruling into the trash, and despite Landor's please, he
was handcuffed to a chair and held down by two
guards while a third cut his knee length dreadlocks and
shaved his head. No one disputes the glaring violation of
(25:39):
his religious rights. As justice Amy Coney Barrett noted, Look.
Speaker 8 (25:44):
The facts of this case are egregious.
Speaker 7 (25:46):
So if on the facts we were looking for a
case in which there should be money damages, this is it.
Speaker 2 (25:52):
But it's not just about the facts. It's about the
law and whether Landor can sue the guards and prison
officials for damage under the Religious land Use and Institutionalized
Persons Act, better known as RALUPA. The Supreme Court has
repeatedly cided with religious litigants, but a majority of the
Conservative justices, led by Justice Neil Gorsuch, appeared skeptical that
(26:17):
Landor could sue for damages.
Speaker 7 (26:20):
The circuits are unanimously against you and have been for many, many,
many years. So saying that something awful's going to happen,
it's all.
Speaker 8 (26:28):
Whatever's happened has happened, right.
Speaker 2 (26:30):
And the Conservatives question whether the prison guards had been
given proper notice that they could be held personally lible,
but the liberal justice has said it was clear that
the guards understood that. Here are Chief Justice John Roberts
and Justice Sonya. So to Mayor, if you're.
Speaker 5 (26:47):
Hired as a prison guard in Louisiana, you don't sit down.
And I don't even know if Louisiana does saying, oh,
here's our agreement with the federal government, which probably goes
on for how many pages, and you should look at
it carefully because you're bound by it.
Speaker 8 (27:03):
Generally speaking, if you're a prison official, you know you're
working in a prison, and you bound by law to
big damages if you violate the law, do you get
an out?
Speaker 2 (27:16):
Because what my guest is John Neezer, a professor at
Notre Dame Law School and director of the school's Religious
Liberty Clinic, John tell us about the law that Lendor
is suing under.
Speaker 9 (27:29):
That act, which you know shorthand is called RELOOPA was
passed in two thousand in conjunction with an act that
was pasted a few years earlier, their Religious Freedom Restoration Act,
and both of them sort of target the same goal,
which is to, as a matter of federal statutory law,
to restore a more robust set of protections for a
(27:49):
religious exercise which previously had been available under the US Constitution,
but then siminal case in nineteen ninety sort of restricted
some of those as a matter of constitutional law, and
then Congress acted to restore them as a matter of
statutory law.
Speaker 2 (28:05):
So RALUPA was designed to protect the religious rights of inmates.
What's the problem with landor using it here?
Speaker 9 (28:13):
So RALUPA focuses on two areas of state and local
government activity. One is in land use, you know, decisions
about how you can use your property. And then the
one relevant here is about religious exercise and jails and prisons.
And so there's no doubt that the law RELUPA protects
mister Landor's rights here. He's a state prisoner and so
(28:34):
therefore safeguards is right while incarcerated to exercise his religion.
And the only question in this case is one of remedies.
So the effects are egregious. I don't think anyone really
doubts that while he was in prison his rights were
blatantly violated. He's a Rastafarian, which among other things, requires
him not to cut his hair. He actually had a
(28:54):
judicial decision when he entered the prison that held the
prison policy requires, you know, they normally require forced shaving
of all the inmates hair. He h had a decision
saying that couldn't be enforced against Rostafarians like him, But
the guards literally threw away that decision hand kept him
to a chair and shaved his head anyway, So there's
no doubt his rights were violated, and the question now
is only what sort of remedies does RELUPA allow for
(29:18):
him to address that violation.
Speaker 2 (29:20):
Justice Katanji Brown Jackson read from Reloopa and said, it
seems pretty clear. And five years ago the Supreme Court
unanimously ruled that the sister statute, the Religious Freedom Restoration Act,
permits money damages against federal officials. In that case, Muslims
were allowed to sue over their inclusion on the FBI's
(29:42):
no fly list. So why doesn't that analysis work for
the law here Reloopa.
Speaker 9 (29:48):
Yeah, So the legal question out of heart is a
pretty technical one of congressional power. So what both REFRA
and RALUPA, what these laws allow is for someone who's
been injured, whose rights have been violated, to a lawsuit
in federal court against those who cause the violation. The
statute the words of the law allow you, in that
lawsuit to get all appropriate relief. So then the whole
(30:10):
question becomes, well what does Congress mean by appropriate relief?
One thing that's undisputed is appropriatelyef certainly includes a judicial
order that would prevent an ongoing violation of religious rights.
So if the jail were continuing to threaten to violate
mister Landorre's rights, say they are shaving his head every week,
you can get a court order telling them to stop
doing that. The question that is, as you just touched
(30:31):
on there is but what about one time harms? What
about harms that aren't ongoing? They're over now? How do
you remedy those? Does the law allow you to get,
you know, monetary damages, which would be the normal way
in a lawsuit if you've been harmed, The normal recourse
in the law is you're able to get monetary damages
to get money to help in some way remedy or
repair that harm. But the question here is is RELOPA
(30:54):
allow that you're right riff for out of the Sister's
statue was held to allow monetary damages, and the question
of well RELUPA allow the same turns out a very
particular idea of the congressional power issue here, which is
Congress's use of its spending power. Does the spending clause
require something more for a statute to authorize monetary damages?
(31:15):
Does appropriate relief clearly enough convey that when a state
accepts federal spending it might open itself up or open
its officers up to suits for money damages.
Speaker 2 (31:26):
Did it seem fairly apparent that most of the conservative
justices thought that lender couldn't sue for money damages under
the statute.
Speaker 9 (31:35):
I don't know how clear it is, but I do
think a number of justices certainly express skepticism about that.
There's a couple different things going on. One is, what
does the statute mean? You know, what does appropriate relief
mean in context of laws like this the statute itself,
is it clear enough that it allows monetary damages? And
then the other is, well, okay, even if it is,
does the Constitution let Congress do that through a spending
(31:55):
clause law like this? And several justices I think express
some skepticism on one or both of those questions. But
I think this skepticism all came back to a similar idea,
which is, spending clause legislation opens up money for state
governments to take part in federal programs or to receive
federal subsidies for different types of things. Here jails and prisons,
and the federal government can attach conditions to those, and
(32:16):
the Court's concern is that states are coming into that
bargain with their eyes open, that they understand the conditions
they're agreeing to. It's one of notice. I don't think
it's so much about whether it would make sense to
apply these substantive religious rights in prison. And everyone agrees
actually that the prison and its officials are bound substantively
to protect the rights that reloopid demands. But what some
(32:38):
of the justices in the court were really struggling with
was how clear was it. Were individuals who work within
those prisons really on notice that by signing up to
work in the prison they might be sued for things
like this.
Speaker 2 (32:48):
It seemed like a lot of the conservative justices didn't
think that there was notice here. At one point, Chief
Justice John Roberts said, it's a legal fiction to say
that a prison guard knows what he's signing up for here.
But the liberals, particularly just as Soda Mayor said, when
you sign up to work as a corrections official in
(33:11):
a prison, doesn't that mean you're signing up to obey
the law? And you know, the act here was so
obviously brutal, and the guard took the law that was
handed to him and not only ignored it, but threw
it in the garbage.
Speaker 9 (33:25):
I agree with that, and I think mister Landor has
very good argument here. Right. So it's of course true,
as the Chief Justice pointed out, that there's something of
a legal fiction here, but that's you know, these legal
fictions run throughout the law. We're all presumed to have
knowledge and be aware of the contents of criminal law.
You know, is any given person on the street actually
aware of everything that's prohibited by federal or state criminal law. No,
(33:46):
of course, not right, but ignorance of the law, even
if actually true, we don't allow that ignorance of the
law to be excuse to defy it.
Speaker 3 (33:52):
Right.
Speaker 9 (33:53):
And so you know, just as sod my Or's point here,
which is echoed throughout the argument by mister Landor's council,
is that, at least in this context where we're talking
about people who sign up to work in a prison
or a jail, these officers, we all the time presume
they understand their obligations under federal law, under constitutional law,
under state law, and they understand that if they violate
(34:15):
those obligations, these demands that they protect our rights, that
they might be sued for it. And again I don't
think there's any doubt in the case, and I think
the state actually concedes that as a substantive matter, the
state and its officers were bound to follow the demands
of RELOOPA. So then the only question is, well, if
they knew they had to follow RELOOPA, they knew they
could get sued under RELOOPA, they knew they could be
(34:36):
held subject to injunctive relief under RELOOPA. Do they also
need to know that they could be sued for money
under aloopa. Well, even if that's a separate question, I
agree with mister Landor here, that's not a very hard one,
because again, as soon as you're understanding that you might
be sued as an individual, the normal recourse is that
if you're found to have violated the law, you might
(34:58):
have to pay money damage.
Speaker 2 (35:00):
And do you have a feel for how the court
might come out in this case?
Speaker 9 (35:04):
No, I don't have a feel. I mean, I think
it's a complicated case. It was obvious to me that
in the argument a lot of the justices were really
struggling with how to draw these lines and these concerns
over notice and keeping Congress from overstepping its enumerated powers,
which is, which itself is a rights protecting idea typically,
but with the recognition that here is a seminal piece
(35:24):
of legislation to protect religious freedom, a piece of legislation
in the Court has repeatedly been sure to safeguard and uphold.
And I think there's real tensions with how best to
weigh those, you know, competing sort of priorities of the court.
So I do think the case is harder than it
might appear at first blush. But I also would hope
(35:46):
that the Court would ultimately align the reading of the
two statutes, and it would be at least a somewhat
unusual result if refer and Raulupa, these sister statutes passed
for the same purposes, allowed different remedies, and it would
leave people like mister Landor without any recourse to remedy
what all agree was an egregious violation of his rights.
And it would leave no ability to hold the individuals
(36:07):
who literally threw away a copy of a court decision
and to hold them accountable, And I think that would
be regrettable. Certainly.
Speaker 2 (36:14):
I admit I initially thought that the Court took this
case to reverse the lower courts and allow land Or
to sue for damages, especially considering how solicitous the justices
usually are about protecting religious liberties and the facts here.
How often do you have the plaintiff showing the law
to the defendant and the defendant just tossing it out.
(36:37):
You can't make these things up.
Speaker 9 (36:38):
I mean, I agree, and I think at the end
of the day, the simplest reading of the case is
what you're saying. This is a blatant violation of this
man's rights. It doesn't seem real. They literally threw away
the decision. They handcuffed him, they forcibly shaved him, and
now the claim is brought under a law that's nearly
identical to him that the court just said allows lawsuits
(36:59):
for damages. This simplest thing is, yeah, you take it
to reverse and do to make clear. Yes, RALUPA is
just like REFERRA. It allows these damages, and I think
that's the right outcome. I do agree though that from
the argument, it seems the court is certainly struggling with
more complications than that.
Speaker 2 (37:13):
Thanks so much, John. That's professor John Meser of Notre
Dame Law School. 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
(37:34):
tune into the Bloomberg Law Show every weeknight at ten
pm Wall Street Time. I'm Junie Grosso and you're listening
to Bloomberg
This is Bloomberg Law with June Grossel from Bloomberg Radio.
It's a war man.
Speaker 2 (00:11):
That's Todd Blanche, the second in command at the Justice Department,
saying the department is at war with federal judges. Blanche
echoed President Donald Trump and Attorney General Pam Bondi's attacks
on so called rogue judges who handed down decisions against
the Trump administration.
Speaker 1 (00:30):
These activist judges that they have a RoboN, but they
are more political, or certainly as political as the most
liberal governor of da.
Speaker 2 (00:42):
The Deputy Attorney General, who was formerly Trump's lawyer, defended
the Justice Department against claims of weaponization, but then urged
young lawyers to join the war against judges.
Speaker 1 (00:55):
There has got to be a couple dozen young lawyers
who are thirsty and hungry and ready to work because
we need you, because it is a war.
Speaker 2 (01:07):
A group of retired federal judges is warning that the
language Blanche used poses a grave threat to the rule
of law and the judiciary joining me from the Article
three coalition is Judge Johnny Jones, the third. He was
appointed by George W. Bush and served for two decades
on the US District Court for the Middle District of Pennsylvania.
(01:29):
Judge Jones, First, your reaction to the Deputy Attorney General
saying that the Justice Department is at war with the judiciary.
Speaker 3 (01:37):
I think that the comment is at minimum men opportunity,
and I think writ large, it's grossly irresponsible for the
number two individual at the Department of Justice to characterize
anything involving the federal judiciary as a war at war
against so called rogue judges. It is highly problematic and
(02:00):
I think it's causing a great deal of consternation among
the judiciary, not just active judges, but retired judges as well.
Speaker 2 (02:06):
He said, we have judges literally telling the president the
executive what he can and cannot do. We have seen
judges not following the law on the Constitution, and he
said they have a row bomb. But they are more political,
or certainly as political as the most liberal governor or
da Well.
Speaker 3 (02:24):
June, here's a newsflash. That's exactly what judges are supposed
to do, is say what the law is. They've been
interpreting the law, of course since Marbury versus Madison, and
I think he's protesting too much. What he's really striking
out against our decisions that are in the judges view
in accordance with the law and legal precedent. Simply because
(02:45):
you disagree with the decision doesn't mean that you're at
war with the judge who made the call. The government
is fully able to exercise its appellate rights, and in
fact they have in any number of these cases. So
you know, to say that judges are political simply because
they rendered a decision that you don't agree with is
really a baseless allegation. I guess red meat if you will,
(03:08):
for the conservative lawyers in the federalist society, But I
would suspect that a lot of those lawyers entertained, though
they may have been no better.
Speaker 2 (03:19):
So his target was sort of on the district court judges,
the trial court level, and he said that when it
gets to the Supreme Court, the Supreme Court has reversed
them except for one or two times, which is true.
But that assumes that the conservative majority on the Supreme
Court is right and the federal district judges are wrong.
(03:39):
And these decisions were all made on the emergency docket
without full briefing or oral arguments.
Speaker 3 (03:46):
Well, a couple of things I'd say about that there
are far more decisions that are standing than ones that
are appealed to the Supreme Court. As you know, that
court has a discretionary docket. So some of these lower
court decisions have stood up simply because the Supreme Court
hasn't taken them. Now, it is noteworthy that the Supreme
Court has placed on its emergency dock at a number
(04:07):
of different cases. And yes, the government has been successful.
I don't know that it's necessary under the circumstances for
mister blanche, you know, to be a sore winner and
do a sort of victory dance about that and castigate
lower court judges. You know, the Supreme Court gets the
final word on these cases. But I can go over
any number of cases that district courts have heard and
(04:28):
have indicated that those decisions are in accordance with precedent
and the law under the circumstances. You know, these are
close questions in some cases as well. But again, this
sort of sore winner thing is pretty wearying and unbecoming. Again,
I'd say the Department of Justice that I knew and
worked with was very professional during my nearly two decades
(04:49):
on the federal bench.
Speaker 2 (04:51):
The number of threats against federal judges have skyrocketed. As
you know, what does it do when you have the
second in command saying things like this, saying, you know,
we're at war, saying that judges are not following the law,
They're not following what the Supreme Court says. What's the
effect when the general public, who may not know about
the underlying cases, here's something like that from the number
(05:14):
two person at Justice.
Speaker 3 (05:17):
Well, you have to take it in concert June with
what's been happening for this entire year since January twentieth,
which is that judges are being singled out by name,
their families are being singled out, they're being docksed. Anybody
can find the location of a judge, even though there's
been legislation to redact and hide some of their personal information.
And I think fairly judges are frightened. It puts a
(05:40):
bullseye on judges. And you correctly cite the US Martial
Service as indicated that threats against judges there were five
hundred plus bona fide threats in the last fiscal year,
and they're growing exponentially. I've always said that, you know,
there are a lot of people that disagree with judges' decisions.
That's the nature of the business. But it's that small
(06:00):
percentage of unbalanced people who kind of hear this as
a dog whistle. And I have said for years, because
of this employmentatory rhetoric, that we're going to get a
judge hurt or killed. You need only look back at
my former colleague, Ester Sallus's tragedy. You know where son
Danny was shot and killed back in twenty twenty. I
fear that's going to happen again if we don't dial
(06:21):
down the rhetoric again. This goes to the irresponsibility of
mister Blanche's comments. We need to level set here instead
of making it worse.
Speaker 2 (06:29):
And to put this in context, these weren't casual remarks
because we've heard similar remarks from the Attorney General Pam Bondy.
She's actually called out individual judges by name for their decisions,
and of course so has President Trump. Is there some
kind of strategy at play here by the Justice Department?
Are they trying to scare judges?
Speaker 4 (06:51):
What's at play?
Speaker 3 (06:52):
Well, if they're trying to scare judges, that won't work
because I think fairly my friends and former colleagues and
the judiciary are not easily frightened. Sure, I mean there
may be a motivation to have them look over their shoulders.
I think what it is is it tears down the
integrity of the judicial system. All three branches, I think,
at bottom, have a responsibility to uphold the integrity of
(07:15):
their existence as coequal branches of government. We are seeing
this unitary president going wild. Now there's another problem here, June,
and I think it's that we are losing any line
of distinction between the President and the Department of Justice.
Of course, not naive. There's always some interaction between the
President and the Department of Justice, but they've almost become
(07:38):
one and the same, which I think is truly troubling.
Speaker 5 (07:41):
So this is the.
Speaker 3 (07:42):
Number two man, and in fact the Attorney General doing
the bidding for the President of the United States and
simply parroting his view of federal judges and carrying out
We know this now because we've seen some of the
things that the President has written and thought that he
was playing to an audience of for example General Bondi
and instructing them to prosecute people. I think my conservative
(08:06):
lawyer friends, you know, for example, who listened to Todd
Blanche ought to be careful what they wish for, because
in a world like that, I don't think anybody is
particularly safe.
Speaker 2 (08:15):
And Blanche denied that the Justice Department was being weaponized,
and he said the Department was weaponized before during the
Biden administration. Then he talked about the prosecutions of President Trump. However,
he did not mention that the current Justice Department is
prosecuting former FBI Director James Comey and New York Attorney
(08:40):
General Letitia James.
Speaker 3 (08:42):
By response to that, June is there was a statement
baded by the New York Bar Association criticizing Blanche and
his response was lol to that, well, my response to
what mister Blanche said about weaponization is LOL. You know,
it's the same thing. If this isn't weaponizing the Justice Department.
You know, people may disagree or agree about weaponization during
the Biden administration. I'm talking about the here and now.
(09:04):
I don't think we've seen a stark a weaponization of
the Department of Justice ever. Think about the DOJ as
it participated in the efforts the executive orders against law firms.
They litigated those cases. You know, it was lawyer on
lawyer through that. You know, think about mister Blanche traveling
to federal prison to see Elaine Maxwell and getting a
(09:26):
statement from her. We know now that he probably had
access to emails that directly contradicted what she apparently told him,
looking like every bit the president's personal lawyer instead of
the number two man at Justice. I mean, we're in
a world that is vastly different than anything I've ever
seen in terms of the interaction between the Justice Department
(09:47):
and the courts. When I was a judge, by the way,
you know, I thought federal judges had pretty enormous power
to be used very sparingly and carefully. We're now living
in a time when essentially the President of the United
States and the depart and a justice they're saying, in
as many words, just disregard district court judgments. They're not worth,
you know, the electronic ink that's being used to render them.
(10:08):
I don't think that that's helpful or appropriate in any
way in terms of integrity of the third branch of government.
Speaker 2 (10:16):
He didn't just attack judges. He also attacked the bar associations,
and he vowed to take away the bar association's oversight power.
Now complaints have been filed against Justice Department lawyers with
bar associations, but does the Justice Department have any power
over that.
Speaker 3 (10:33):
I confess June to confusion as well about how that
could be accomplished, because you're a member of a bar association,
and for example, the Pennsylvania Bar Association police is its
own and they can suspend you on the Supreme Court
of Pennsylvania can get involved and suspend your right to
practice for a period, or they can disbar you. So
good luck with that. You know. Not only is it
(10:54):
I think an overreach from a rhetorical standpoint, but I
think it's it's mission impossible.
Speaker 2 (11:00):
That's why the Article three coalition decided it had to
issue a warning about Blanche's statements.
Speaker 3 (11:06):
This is something that we feel in unanimity that is
really injurious to the rule of law. And you know,
if you can get fifty retired judges, you know, thoughtful
appointed by different presidents, folks at different viewpoints, going the
same direction like this, you've got something that is really
really problematic. And you know, I was proud to join
(11:28):
that group. I fear it's going to get worse before
it gets better, and that's really troubling.
Speaker 2 (11:33):
Thanks so much, Judge Jones for sharing your insights and
concerns with us. That's Judge John E. Jones the third
coming up next, another setback for transgender rights at the
Supreme Court. I'm June Grosso and you're listening to Bloomberg.
It's the twenty fourth win for the Trump administration and
the second blow to transgender rights on the Supreme Court's
(11:57):
emergency docket in the last six months. It was a
vote down ideological lines, and the Court's conservatives are allowing
the Trump administration to require that passports be marked with
a person's sex assigned at birth. This is a reversal
of the policy that's been in place since nineteen ninety two,
which allowed passports to reflect a person's gender identity. But
(12:20):
President Trump made it clear when he was campaigning that
he would reverse transgender rights.
Speaker 6 (12:26):
With a stroke of my pen on day one. We're
going to stop the transgender lunacy, and I will sign
executive orders to end child sexual mutilation, get transgender out
of the military and out of our elementary schools, at
(12:47):
middle schools and high.
Speaker 2 (12:48):
School And back in May, when Trump issued a transgender
military ban, the Supreme Court's conservatives allowed him to discharge
thousands of transgender some of US members who've been serving
openly for years. My guest is Suzanne Goldberg, a professor
at Columbia Law School and director of the school Sexuality
(13:10):
and Gender Law Clinic. Suzan, will you explain the change
in passport policy by the Trump administration.
Speaker 4 (13:17):
For thirty three years, across six presidential administrations, transgender Americans
have been able to get US passports with their gender
marker that accurately matches their gender identity. So transgender man
can get M on his passport and a transgender woman
can get AS on her passport, which is important for
(13:37):
many reasons, including so that the person looks like they
match their passports. From basically nineteen ninety two to twenty ten,
there was an eligibility requirement related to a surgical transition
that has changed over time. The point is, for thirty
three years this has been the same. But on the
first day of his administration, Donald Trump is an executive
(14:01):
order saying that transgender people are corrosive to the United States.
In so many words, he used the word corrosive and
directing the State Department to no longer issue passports to
people that would be consistent with their gender identity. If
they're transgender, and so the Trump executive order led the
State Department to take two steps, first to stop issuing
(14:24):
passports to transgender people consistent with their gender identity, and
second to remove the ex gender marker, which was an
option for anyone who does not fit the M or
the F or someone who doesn't want to share their
gender identity with the US government. So, put into a
simple terms, the Trump administration changed policy on the first
(14:46):
day of the administration and the State Department followed two
days later to prevent transgender Americans from obtaining passports consistent
with their gender identity.
Speaker 2 (14:56):
This was an unsigned order and the Conservative justices very
short explanation seems to me like it's ignoring the facts
that were presented in the case. The Justice has said
displaying passport holders sex at births no more offense equal
protection principles than displaying their country of births. In both cases,
(15:16):
the government is merely attesting to historical fact without subjecting
anyone to differential treatment.
Speaker 4 (15:23):
It is stunning because the plaintiffs in the case explained
to the district court, which agreed as did the Court
of Appeals, that if you are a transgender man and
you have a passport that says f on it, it
does have real world harmful consequences every time you have
(15:44):
to show that passport to someone, because the person receiving
the passport may say, as has happened to some of
the plaintiffs, you're using fraudulent documents because you don't appear
to match your passport gender marker. So this has led
to some of the plaintiffs being accused of fraud, one
of the plaintiffs being strip searched, other plaintifsts facing all
(16:06):
sorts of problems as they've tried to cross borders. So,
for one, the Supreme Court's kind of casual remark that
this is as insignificant as somebody's sort of national origin
arch place of citizenship is just untrue. In addition, the
country of birth is not anything that affects somebody when
(16:26):
they're using their passport and passing through security. But the
gender marker is used to check accuracy, and so even
on its face, the Supreme Court's analysis is wrong. The
Supreme Court's description, I can't really call it analysis. The
Supreme Court statement is wrong, and a dissent for Justice
Jackson points that out as well.
Speaker 2 (16:45):
The Court also found that the administration is likely to
win on the merits, and the administration faced irreparable injury.
I'm not sure where the irreparable injury is since this
policy is a new one that's changing what's been in place.
But the conservative justices have found irreparable injury in almost
(17:07):
all of President Trump's emergency requests.
Speaker 4 (17:12):
There is no irreparable injury in the traditional way that
courts look at a reparable harm. To let me explain.
When a statute comes over from Congress and is challenged
in the court, it is given a presumption of constitutionality
right to the court assumes it's constitutional, but sometimes plaintiffs
(17:33):
can show actually it's on constitutional, and the court will
strike it down. And there's understood to be some arguable
harm to government when a statute is put on hold.
But when a government policy is put on hold, like
an executive order or a preference of the president, that's
a different situation that is not entitled to the same
(17:53):
presumption of constitutionality as a statute that has been passed
by Congress. And the shot is just saying, well, the
government is irreparably harmed by not being able to put
in place its desired passport policy is akin to saying
the government is irreparably harmed whenever it is stopped from
(18:13):
doing something that it would like to do, And that
is akin to having no judicial review over government actions
at all, at least not at this preliminary stage. So
that's a very serious problem from a sort of basic
approach to constitutional analysis of executive actions.
Speaker 2 (18:31):
Justice Jackson wrote that the Court has once again paved
the way for the immediate infliction of injury without adequate
or really any justification. This is also a pattern of
the Court at this point basically allowing the Trump administration
anything it asked for on the emergency docket and saying, well,
this is while litigation is pending.
Speaker 4 (18:53):
Yes, this is the twenty fourth consecutive grant of emergency
relief to the government. And this process of the Supreme
Court staining rulings of lower courts finding constitutional or other
problems with government policies, this phenomenon of the Supreme Court
repeatedly saying, oh, we're going to put those lower court
(19:15):
rulings on hold, has had the effect of basically giving
the Trump administration a free path to continue enforcing policies
and taking actions that lower courts have held to be
not only likely unconstitutional, but also causing irreparable harm to the.
Speaker 3 (19:34):
People who have been affected.
Speaker 4 (19:36):
So this is certainly part of a larger trend. The
stricond thing about this case is that the harm to
the individuals who are denied passports that accurately reflect their
gender identity is stunningly clear. Another problem here is that
the government is obligated anytime it changes a policy that
collect information from the American people. The government is obligated
(20:00):
under the Paperwork Reduction Act, which was passed by Congress,
to spend sixty days collecting information and public comment on
whether it can make this sort of a change. And
of course, changing its passport rule two days after the
president was inaugurated and issued his executive order is fully
out of compliance with this law that is supposed to
(20:22):
apply to all of the government's actions.
Speaker 2 (20:24):
As I mentioned, this order stays in place as a
litigation below continues. So how much of a blow is
it to the rights of transgender people?
Speaker 4 (20:35):
This is a tremendous blow in terms of the human cost.
One only has to think about the named plaintiff, Ashton Orr,
who needed to travel out of the country, needed a
new passport. Ashton orders a man. He's a transgender man.
The only passport he is able to get to cross
borders has an S gender marker on it that reveals
(20:58):
Ashton to be transgend and not only as he crosses
the border out of the United States, but as he
crosses into other countries, possibly putting him in danger of
harm from other governments and now as well as our own.
The harms are very serious, very painful to individuals, and
also are reflective of a broader harm to people who
(21:20):
are not transgender, which is that the government can, for
irrational reasons, possibly hostile reasons, towards this group of people,
or any group of people more generally, choose to withdraw
passport right, choose to do any number of things that
cause harm. And the Supreme Court is unwilling to say
hold on government. The lower court has found a problem
(21:42):
with this law or this new policy, and we need
to hold while this case is being litigated. So there
are real world problems, there are constitutional problems, There are
traditional separation of power problems that we're seeing.
Speaker 2 (21:55):
In May, the Supreme Court allowed Trump to discharge transgender
people serving in the military. In June, the Court upheld
a Tennessee law that bans gender firming care for minors,
and now the Court is allowing this passport policy to
go into effect. In all these cases, the conservatives were
in the majority and the liberals in descent. It's hard
(22:17):
to ignore that the Court has been ruling against transgender
rights at least since a case in twenty twenty.
Speaker 4 (22:24):
Yeah, I mean, there has been a current of policies,
you know, from the Trump administration and laws at the
state level that restrict the lives or try to restrict
the lives of transgender people in every imaginable way, from
getting identity documents to using the bathroom, to participating fully
(22:44):
at school, to serving the country in the military, and
so far, when these issues have been presented, the Court
has said, it's okay to create this legal barrier. Really
like a legal burden that harms transgender people. In twenty
the Court took a different tack. This involved in an
employment discrimination case. A transgender woman was fired from a
(23:06):
role at a funeral home where she had served for
many years, and she sued the employer, saying it was
sex discrimination that she was treated differently because of her sex,
being fired based on that. She is transgender, and in
that case Bostock versus Clayton County, which also involved two
other cases with sexual orientation discrimination at issue. In that case,
(23:30):
the court said it is sex discrimination to buyer a
transgender person because there's no way to understand this other
than they're being fired because of their sex. One of
the big questions before the court is that case came
under Title seven, which is a federal law that prohibits
sex discrimination as well as other forms of discrimination and employment.
(23:51):
And a question is whether it's a logic of understanding
sex discrimination in that Bosstoc ruling from twenty twenty is
going to carry over to these other areas, or will
the Court say, as it may appear to be inclined
to do, oh no, that might be six discrimination, but
this isn't.
Speaker 2 (24:08):
We'll see if the pattern holds or not, because in January,
the Court is going to hear arguments on whether states
can ban transgender girls and women from competing on female
athletic teams. Thanks so much, Suzanne. That's Columbia Law School
professor Suzanne Goldberg coming up next. The Conservative Justice is
(24:29):
appere skeptical of a Rastafarian's religious liberty suit I'm June
Grosso and you're listening to Bloomberg.
Speaker 7 (24:37):
It is undisputed that my client has alleged an assault
that is just brazenly illegal. He was at respondent's mercy
in federally funded custody when he handed them a copy
of controlling precedent holding that ralupa protected his right to
keep his hair long. They threw it away, handcuffed him
to a chair, and shaved him bald.
Speaker 2 (24:56):
Damon Landor is a devout Rustafarian who hadn't cut his
hair for nearly twenty years, following his faith, in which
dreadlocks are a sacred symbol. When Landor was transferred to
a new prison in Louisiana with just weeks left on
his five month sentence, he handed a prison guard a
copy of an appeals court decision that held that cutting
(25:19):
a religious prisoner's dreadlocks violated federal law. The guard threw
the ruling into the trash, and despite Landor's please, he
was handcuffed to a chair and held down by two
guards while a third cut his knee length dreadlocks and
shaved his head. No one disputes the glaring violation of
(25:39):
his religious rights. As justice Amy Coney Barrett noted, Look.
Speaker 8 (25:44):
The facts of this case are egregious.
Speaker 7 (25:46):
So if on the facts we were looking for a
case in which there should be money damages, this is it.
Speaker 2 (25:52):
But it's not just about the facts. It's about the
law and whether Landor can sue the guards and prison
officials for damage under the Religious land Use and Institutionalized
Persons Act, better known as RALUPA. The Supreme Court has
repeatedly cided with religious litigants, but a majority of the
Conservative justices, led by Justice Neil Gorsuch, appeared skeptical that
(26:17):
Landor could sue for damages.
Speaker 7 (26:20):
The circuits are unanimously against you and have been for many, many,
many years. So saying that something awful's going to happen,
it's all.
Speaker 8 (26:28):
Whatever's happened has happened, right.
Speaker 2 (26:30):
And the Conservatives question whether the prison guards had been
given proper notice that they could be held personally lible,
but the liberal justice has said it was clear that
the guards understood that. Here are Chief Justice John Roberts
and Justice Sonya. So to Mayor, if you're.
Speaker 5 (26:47):
Hired as a prison guard in Louisiana, you don't sit down.
And I don't even know if Louisiana does saying, oh,
here's our agreement with the federal government, which probably goes
on for how many pages, and you should look at
it carefully because you're bound by it.
Speaker 8 (27:03):
Generally speaking, if you're a prison official, you know you're
working in a prison, and you bound by law to
big damages if you violate the law, do you get
an out?
Speaker 2 (27:16):
Because what my guest is John Neezer, a professor at
Notre Dame Law School and director of the school's Religious
Liberty Clinic, John tell us about the law that Lendor
is suing under.
Speaker 9 (27:29):
That act, which you know shorthand is called RELOOPA was
passed in two thousand in conjunction with an act that
was pasted a few years earlier, their Religious Freedom Restoration Act,
and both of them sort of target the same goal,
which is to, as a matter of federal statutory law,
to restore a more robust set of protections for a
(27:49):
religious exercise which previously had been available under the US Constitution,
but then siminal case in nineteen ninety sort of restricted
some of those as a matter of constitutional law, and
then Congress acted to restore them as a matter of
statutory law.
Speaker 2 (28:05):
So RALUPA was designed to protect the religious rights of inmates.
What's the problem with landor using it here?
Speaker 9 (28:13):
So RALUPA focuses on two areas of state and local
government activity. One is in land use, you know, decisions
about how you can use your property. And then the
one relevant here is about religious exercise and jails and prisons.
And so there's no doubt that the law RELUPA protects
mister Landor's rights here. He's a state prisoner and so
(28:34):
therefore safeguards is right while incarcerated to exercise his religion.
And the only question in this case is one of remedies.
So the effects are egregious. I don't think anyone really
doubts that while he was in prison his rights were
blatantly violated. He's a Rastafarian, which among other things, requires
him not to cut his hair. He actually had a
(28:54):
judicial decision when he entered the prison that held the
prison policy requires, you know, they normally require forced shaving
of all the inmates hair. He h had a decision
saying that couldn't be enforced against Rostafarians like him, But
the guards literally threw away that decision hand kept him
to a chair and shaved his head anyway, So there's
no doubt his rights were violated, and the question now
is only what sort of remedies does RELUPA allow for
(29:18):
him to address that violation.
Speaker 2 (29:20):
Justice Katanji Brown Jackson read from Reloopa and said, it
seems pretty clear. And five years ago the Supreme Court
unanimously ruled that the sister statute, the Religious Freedom Restoration Act,
permits money damages against federal officials. In that case, Muslims
were allowed to sue over their inclusion on the FBI's
(29:42):
no fly list. So why doesn't that analysis work for
the law here Reloopa.
Speaker 9 (29:48):
Yeah, So the legal question out of heart is a
pretty technical one of congressional power. So what both REFRA
and RALUPA, what these laws allow is for someone who's
been injured, whose rights have been violated, to a lawsuit
in federal court against those who cause the violation. The
statute the words of the law allow you, in that
lawsuit to get all appropriate relief. So then the whole
(30:10):
question becomes, well what does Congress mean by appropriate relief?
One thing that's undisputed is appropriatelyef certainly includes a judicial
order that would prevent an ongoing violation of religious rights.
So if the jail were continuing to threaten to violate
mister Landorre's rights, say they are shaving his head every week,
you can get a court order telling them to stop
doing that. The question that is, as you just touched
(30:31):
on there is but what about one time harms? What
about harms that aren't ongoing? They're over now? How do
you remedy those? Does the law allow you to get,
you know, monetary damages, which would be the normal way
in a lawsuit if you've been harmed, The normal recourse
in the law is you're able to get monetary damages
to get money to help in some way remedy or
repair that harm. But the question here is is RELOPA
(30:54):
allow that you're right riff for out of the Sister's
statue was held to allow monetary damages, and the question
of well RELUPA allow the same turns out a very
particular idea of the congressional power issue here, which is
Congress's use of its spending power. Does the spending clause
require something more for a statute to authorize monetary damages?
(31:15):
Does appropriate relief clearly enough convey that when a state
accepts federal spending it might open itself up or open
its officers up to suits for money damages.
Speaker 2 (31:26):
Did it seem fairly apparent that most of the conservative
justices thought that lender couldn't sue for money damages under
the statute.
Speaker 9 (31:35):
I don't know how clear it is, but I do
think a number of justices certainly express skepticism about that.
There's a couple different things going on. One is, what
does the statute mean? You know, what does appropriate relief
mean in context of laws like this the statute itself,
is it clear enough that it allows monetary damages? And
then the other is, well, okay, even if it is,
does the Constitution let Congress do that through a spending
(31:55):
clause law like this? And several justices I think express
some skepticism on one or both of those questions. But
I think this skepticism all came back to a similar idea,
which is, spending clause legislation opens up money for state
governments to take part in federal programs or to receive
federal subsidies for different types of things. Here jails and prisons,
and the federal government can attach conditions to those, and
(32:16):
the Court's concern is that states are coming into that
bargain with their eyes open, that they understand the conditions
they're agreeing to. It's one of notice. I don't think
it's so much about whether it would make sense to
apply these substantive religious rights in prison. And everyone agrees
actually that the prison and its officials are bound substantively
to protect the rights that reloopid demands. But what some
(32:38):
of the justices in the court were really struggling with
was how clear was it. Were individuals who work within
those prisons really on notice that by signing up to
work in the prison they might be sued for things
like this.
Speaker 2 (32:48):
It seemed like a lot of the conservative justices didn't
think that there was notice here. At one point, Chief
Justice John Roberts said, it's a legal fiction to say
that a prison guard knows what he's signing up for here.
But the liberals, particularly just as Soda Mayor said, when
you sign up to work as a corrections official in
(33:11):
a prison, doesn't that mean you're signing up to obey
the law? And you know, the act here was so
obviously brutal, and the guard took the law that was
handed to him and not only ignored it, but threw
it in the garbage.
Speaker 9 (33:25):
I agree with that, and I think mister Landor has
very good argument here. Right. So it's of course true,
as the Chief Justice pointed out, that there's something of
a legal fiction here, but that's you know, these legal
fictions run throughout the law. We're all presumed to have
knowledge and be aware of the contents of criminal law.
You know, is any given person on the street actually
aware of everything that's prohibited by federal or state criminal law. No,
(33:46):
of course, not right, but ignorance of the law, even
if actually true, we don't allow that ignorance of the
law to be excuse to defy it.
Speaker 3 (33:52):
Right.
Speaker 9 (33:53):
And so you know, just as sod my Or's point here,
which is echoed throughout the argument by mister Landor's council,
is that, at least in this context where we're talking
about people who sign up to work in a prison
or a jail, these officers, we all the time presume
they understand their obligations under federal law, under constitutional law,
under state law, and they understand that if they violate
(34:15):
those obligations, these demands that they protect our rights, that
they might be sued for it. And again I don't
think there's any doubt in the case, and I think
the state actually concedes that as a substantive matter, the
state and its officers were bound to follow the demands
of RELOOPA. So then the only question is, well, if
they knew they had to follow RELOOPA, they knew they
could get sued under RELOOPA, they knew they could be
(34:36):
held subject to injunctive relief under RELOOPA. Do they also
need to know that they could be sued for money
under aloopa. Well, even if that's a separate question, I
agree with mister Landor here, that's not a very hard one,
because again, as soon as you're understanding that you might
be sued as an individual, the normal recourse is that
if you're found to have violated the law, you might
(34:58):
have to pay money damage.
Speaker 2 (35:00):
And do you have a feel for how the court
might come out in this case?
Speaker 9 (35:04):
No, I don't have a feel. I mean, I think
it's a complicated case. It was obvious to me that
in the argument a lot of the justices were really
struggling with how to draw these lines and these concerns
over notice and keeping Congress from overstepping its enumerated powers,
which is, which itself is a rights protecting idea typically,
but with the recognition that here is a seminal piece
(35:24):
of legislation to protect religious freedom, a piece of legislation
in the Court has repeatedly been sure to safeguard and uphold.
And I think there's real tensions with how best to
weigh those, you know, competing sort of priorities of the court.
So I do think the case is harder than it
might appear at first blush. But I also would hope
(35:46):
that the Court would ultimately align the reading of the
two statutes, and it would be at least a somewhat
unusual result if refer and Raulupa, these sister statutes passed
for the same purposes, allowed different remedies, and it would
leave people like mister Landor without any recourse to remedy
what all agree was an egregious violation of his rights.
And it would leave no ability to hold the individuals
(36:07):
who literally threw away a copy of a court decision
and to hold them accountable, And I think that would
be regrettable. Certainly.
Speaker 2 (36:14):
I admit I initially thought that the Court took this
case to reverse the lower courts and allow land Or
to sue for damages, especially considering how solicitous the justices
usually are about protecting religious liberties and the facts here.
How often do you have the plaintiff showing the law
to the defendant and the defendant just tossing it out.
(36:37):
You can't make these things up.
Speaker 9 (36:38):
I mean, I agree, and I think at the end
of the day, the simplest reading of the case is
what you're saying. This is a blatant violation of this
man's rights. It doesn't seem real. They literally threw away
the decision. They handcuffed him, they forcibly shaved him, and
now the claim is brought under a law that's nearly
identical to him that the court just said allows lawsuits
(36:59):
for damages. This simplest thing is, yeah, you take it
to reverse and do to make clear. Yes, RALUPA is
just like REFERRA. It allows these damages, and I think
that's the right outcome. I do agree though that from
the argument, it seems the court is certainly struggling with
more complications than that.
Speaker 2 (37:13):
Thanks so much, John. That's professor John Meser of Notre
Dame Law School. 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
(37:34):
tune into the Bloomberg Law Show every weeknight at ten
pm Wall Street Time. I'm Junie Grosso and you're listening
to Bloomberg
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