July 3, 2025 • 37 mins
Former federal prosecutor Robert Mintz, a partner at McCarter & English, discusses what’s next for Sean “Diddy” Combs. Constitutional law expert Michael Dorf, a professor at Cornell Law School, analyzes the Supreme Court’s term. June Grasso hosts.
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Speaker 1 (00:02):
This is Bloomberg Law with June Grossel from Bloomberg Radio.
It's a great victory for Sean Combs. It's a great
victory for the jury system.
Speaker 2 (00:15):
You saw that the Southern District of New York prosecutors
came at him with all that they had.
Speaker 3 (00:21):
It was indeed a resounding victory for Sean Diddy Combs
and a resounding loss for federal prosecutors. After more than
six weeks of sometimes graphic and emotional testimony, the jury
acquitted Combs of the most serious charges against him, racketeering, conspiracy,
and sex trafficking, and convicted him only of the lesser
(00:43):
charges of transportation to engage in prostitution. After the verdict
was read, Combs mouthed the words thank you to the jurors,
dropped to his knees, and prayed with good reason. Instead
of facing a sentence of life in prison, he now
likely faces no more than six years, although the decision
(01:04):
on his sentence will ultimately be up to the judge.
My guest his former federal prosecutor, Robert Mintz, a partner
maccarter and English Bob. He was convicted of two felonies,
but Combs and his lawyers were elated with the verdict.
Speaker 4 (01:20):
Given the charges he was potentially facing, which included up
to life in prison for the racketeering conspiracy and a
minimum sentence of fifteen years to life for sex trafficking.
The fact that he was only convicted of two counts
of transportation to engaging prostitution can't be viewed as anything
other than a win by the defense and a bitter
(01:42):
loss for prosecutors.
Speaker 3 (01:44):
So the top count racketeering conspiracy, the charge has historically
been used to take down mob bosses like John Gotti.
Did the prosecutors overcharge him with this count?
Speaker 4 (01:56):
Well, I think that's going to be the question that
prosecutors will have to ask themselves when they look back
on this case, whether or not it was overcharged with
the rico conspiracy. Now, the rico conspiracy, as you say,
has been used traditionally in order to prosecute organized crime figures,
but it has been used more broadly in recent years
and was used in a high profile case just a
(02:19):
couple of years ago in the R. Kelly case where
that hip hop artist was also charged with RICO and
sex trafficking in twenty twenty one, and in that instance,
prosecutors did get a conviction, but here jurors ultimately concluded
that the Rico conspiracy was overcharged, that the prosecution did
not meet the burden of showing that Sean Combs had
(02:42):
used his business empire as a vehicle in orders to
commit further acts and in order to force his former
girlfriends into performing sexual acts against their will.
Speaker 3 (02:55):
Explain how when prosecutors overcharged it, it gives the defense
an opening to challenge their case.
Speaker 4 (03:03):
Well, that's ultimately where this case turned. It was really
an argument by the defense that although mister Combe had
committed some abhorrent acts, they had the video of him
picking Tasti Ventura by the elevator bank out in Beverly Hills.
That was undeniably bad behavior and painted mister Combs in
a very negative light. But when that was held up
(03:25):
against the more serious charges of racketeering conspiracy, which included
certain criminal acts such as forced labor, bribery, obstruction of justice,
all of that was thrown in and basically prosecutors were
stating that he used this vast empire that he built
up over many years simply as a means of forcing
(03:46):
these ex girlfriends to continue to perform these sexual acts
against their will, and all the while they were coerced
into doing this. The defense was able to effectively pick
that apart by showing text messages from both of the
victims which at various times suggested that they had participated
in these acts willfully, that they were not coerced, that
(04:09):
they could have left but chose not to, And ultimately
I think that was the downfall for the prostitution's case.
It really ultimately turned on whether they believed that the
victims were actually trapped in this relationship and had no
way out and were literally forced to commit these acts,
or whether this is more complex than that, and the
(04:30):
defense was able to show that these relationships, while toxic,
while not healthy, and while it involved bad behavior by
mister Colmbs, didn't rise to the level of racketeering conspiracy.
Speaker 3 (04:42):
The two acquittals for sex trafficking, which stemmed from allegations
that Colmbs forced his two ex girlfriends to engage in
these so called freak offs, and Ventura testified over four
days some very emotional testimony refer to this, But did
the jurors just not believe her.
Speaker 4 (05:03):
It's hard to say exactly what they were thinking that
testimony was compelling. That testimony had to be very emotional
for jurors to sit through, and yet at the end
of the day, they did not believe that she was
necessarily compelled to participate in commercial sex acts through force, fraud,
and coercion. The key here is there has to be
(05:25):
a link between the force, the fraud, and the coercion
and the acts of sex. And I think at the
end of the day, the evidence was just not clear
enough for them to meet that burden. Remember, prosecutors have
to prove their case beyond a reasonable doubt. Anything less
than that will result in an acquittal, as we saw
here and sex trafficking.
Speaker 3 (05:47):
Did those charges even fit the facts here? Aren't people
usually charged with sex trafficking when there's no connection to
the victims, not people in long term relationships like Combs
and his ex girlfriend.
Speaker 4 (06:00):
Yeah, that was I think one of the problems too,
because the victims here were involved in these long term relationships,
and they had written many messages, emails, text messages, other
writings evidencing their love for mister Combs at various times.
The fact that they willingly participated in some of these acts,
the fact that they did things in order to please him,
(06:21):
and the fact fact that after some of these sessions
they texted him saying that they enjoyed them. And I
think it was very difficult for jurors to necessarily conclude
that all of this was done against their will, that
none of it was consensual. And as you say, June,
it's a situation where the sex trafficking charge is typically
brought in an instance where the perpetrator does not have
(06:44):
a relationship with the victim. Here there was a long
term relationship, one that was very complicated, and also one
in which the victims had benefited financially from their relationship
with mister Combs. So it became, I think, very difficult
for jurres to sort out the true nature of those relationships.
I don't think they necessarily disbelieve the victims, but I
(07:07):
think they ultimately concluded that the fact as presented to
them in court did not meet the elements of the
sex trafficking charges.
Speaker 3 (07:15):
He was convicted of two counts of transportation to engage
in prostitution that stems from allegations that he paid sex
workers to come to his freak off parties. Tell us
about that that's a felony violation of the Federal Man Act.
Speaker 4 (07:32):
These were the charges that were really easiest for prosecutors
to prove, because all they have to show is that
individual's cross state lines with the intent to engage in prostitution.
And there was plenty of evidence presented at the trial
that mister Colms had made arrangements for these male prostitutes
to meet with his girlfriends. He bought plane tickets, there
(07:53):
were credit card statements, there were hotel records. These were
the charges that prosecutors were able to prove fairly readily,
and there wasn't really much of a defense to them.
I think the defense strategy was to focus on the
more serious charges, which they ultimately succeeded in convincing jurors
to quit their client on.
Speaker 3 (08:12):
The prosecution put on thirty four witnesses. The defense didn't
call any witnesses and elected instead to challenge the credibility
of the prosecution's witnesses through lengthy cross examinations that sometimes
were longer than the directs. Was that a risky move
by the defense, No, I.
Speaker 4 (08:33):
Think from the very start the defense strategy was always
to win their case through cross examination. I think they
correctly sized the case up and knew that it was
going to turn on the testimony of the two victims
and how compelling they were, and that by adding witnesses
for the defense, it was only going to complicate the
case and create a more complex narrative for them to
(08:56):
have to convince Durres ask exactly what was going on here.
They wanted the case ultimately to be about these two
victims and to show that the relationship that they were
in with mister Colmbs over many years was one in
which they gained financially, one in which they willingly participated.
In no doubt, they were ups and downs in those relationships,
and there were some domestic violence that went on, and
(09:18):
the defense readily admitted that. But the question is did
it really rise to the level of racketeering conspiracy? The
defense placed a large set that the jurors would answer
that question in the negative, and ultimately they prevailed.
Speaker 3 (09:31):
Were you surprised that the judge refused to release Colmbs
while he waits to be sentenced.
Speaker 4 (09:36):
I wasn't totally surprised. I think here there was some
sense from the judge that the defense team is really
trying to have it both ways on this issue. He
noted that the Combs defense team at trial admitted the
domestic violence claims and said that a confession was really
unnecessary here because the defendant's violence was starkly depicted in
(09:59):
the twenti sixteen Intercontinental video, referring to the video of
mister Holmes violently beating Cathy Ventura. This suggests to me
that the judge was very troubled by the violence he
witnessed in the video and led him to conclude that
mister Colmbs continues to pose a danger to the community,
which is why he decided to leave him in jail
(10:22):
pending sentencing.
Speaker 3 (10:23):
As far as sentencing, technically it's ten years on each
of the counts, colmb's lawyers said that under the federal
sentencing guidelines, he'd likely face twenty one to twenty seven months. Prosecutors,
citing his violence and other factors, said he'd likely face
fifty one to sixty three months. Considering what the judge
said in denying bail, mighty sentence Colmb's to more than that.
Speaker 4 (10:47):
Well, the upper limit that the judge can send them
to is actually twenty years. That's the statutory maximum the
sentencing guidelines govern these sentences to the extent that they
give guidance to the jug judge, but the judge has
full discretion to send mister Colmbs to whatever he wants,
theoretically up to twenty years. I think the fact that
(11:08):
he's decided to keep him in jail pending sentencing, even
though he's already been in jail for almost a year,
suggests that the judge does do this as a serious crime,
and they send them to something much closer to what
prosecutors are asking than what the defense is speaking here.
And it is even possible that the judge sends them
to something more than what prosecutors are asking for. It's
(11:32):
highly unusual, but it is within the judges' discretion to
really send mister Combs to whatever he believes is fair
and just given the circumstances.
Speaker 3 (11:41):
They'll be a hearing next Tuesday to discuss the sentencing process.
That should be interesting. Thanks so much, Bob. That's Robert
Mins of maccarter and English coming up next. The winners
and losers at the Supreme Court this term, I'm June gross.
When you're listening to Bloomberg, Chief Justice John Roberts repeatedly
stresses the importance of judicial independence as he did during
(12:05):
an interview in May.
Speaker 1 (12:06):
Its job is to.
Speaker 2 (12:09):
Obviously decide cases, but in the course of that check
the excesses of Congress or of the executive, and that
does require degree of independence.
Speaker 3 (12:18):
However, in the Supreme Court's recent term, it doesn't appear
that justices did much to check the excesses of the
current executive. In fact, the clear winner of the term
was President Donald Trump. The Court sided with him on
broad legal questions and emergency request to let his policies
take effect, from throwing transgender service members out of the
(12:42):
military to opening hundreds of thousands of migrants to deportation.
And for the second year in a row, the Court
ended the term with a decision handing Trump a major victory,
basically eliminating the main tool used to thwart his ambitious agenda,
the nation wide injunction.
Speaker 1 (13:01):
This was a big one, wasn't it.
Speaker 5 (13:03):
This was a big decision, an amazing decision, one that
we're very happy about.
Speaker 3 (13:09):
Like almost all the high profile cases this term, the
Court divided six to three down ideological lines, with the
conservatives in the majority and the liberals dissenting. Joining me
is constitutional law expert Michael Dorf, a professor at Cornell
Law School, Mike The finale of the term, if you will,
(13:29):
was the decision in the case over Trump's ban on
automatic birthright citizenship, where the Conservatives stripped the lower courts
of the power to grant nationwide injunctions, which have really
been the only effective check on the Trump agenda. Trump
thought the decision was important enough to call a press conference.
How important do you think.
Speaker 1 (13:50):
It is that remains to be seen? The prohibition on
most universal injunctions will have very serious bite if, but
only if, the Court makes it difficult for plaintiffs to
bring class actions and makes it difficult for states to
sue for statewide injunctions. Those are two potential workarounds, neither
(14:16):
of which the majority directly addressed is but both of which,
just as the Leto and his concurrence suggests, should be
only available under a heightened standard of sorts. So what
remains to be seen is whether plaintiffs challenging these executive actions.
Here it was the birthright citizenship order, but it applies
(14:39):
diversely everything, whether they can quickly convert to class actions,
whether states can bring these cases. If they can, then
I think this ends up not being such a big deal.
Speaker 3 (14:48):
Getting class action status is a lot more complicated, and
I think we've seen just in the last week how
confusing it is for the lower courts to parse through this.
Speaker 1 (14:59):
The Supreme Court could have, and in my view, should
have given more guidance on whether class actions are available
and under what standard. You know, one of the things
I think is easily overlooked is the ruling in the
case is not a constitutional holding. The court doesn't say
that the Constitution forbids this kind of equitable relief. What
(15:21):
it says is that this power was not conferred by
statute on the federal courts. Well, if that's the case,
it's possible that federal Rule of Civil Procedure twenty three,
which is the class action provision, is empowered by the
Rules Enabling Act that that does confer this power, and
that would be fully consistent. It would just lead to,
(15:42):
you know, the availability of similar relief under a different mechanism.
Speaker 3 (15:45):
President Trump says that the administration is going to move
to lift hold that judges have placed on a number
of his policies. He mentioned fights over refugee resettlement, federal spending,
and sanctuary cities. So you know, it's going to open
up a.
Speaker 1 (15:59):
Can of Oh, I think that's right. I mean, I
think this is in some ways the basic problem with
the Supreme Court these days, which is it's treating the
Trump administration like a normal administration rather than one that
is committed to sort of pushing the edge of the
envelope and getting away with whatever it can. And so,
(16:20):
you know, if you were thinking about the system as
a whole and what's good for the rule of law,
you would have been much clearer of your guidance and
in what you're allowing and not allowing justice.
Speaker 3 (16:30):
Sonya Sotomayor and one of her ascent said the Court
was rewarding lawlessness because the Trump administration has repeatedly, either
explicitly or not so explicitly, ignored court orders, particularly in
the cases of immigration orders.
Speaker 1 (16:46):
She is exactly right that it's one thing to stay,
as the Court has said in some of these cases. Well,
we think the lower courts went too far in issuing
this order. That doesn't mean that the administration was permitted
to violate the order while it was us in force.
The normal rule is if you don't like a court order,
you appeal it. But unless you get a stay of
(17:07):
that order, and until you get a stay of that order,
you have to comply with it.
Speaker 3 (17:11):
There were three cases involving LGBTQ rights that divided the
justices down ideological lines and ended up in losses for
the LGBTQ plus community. In the Scrimmeti case, which has
implications for transgender youth in more than half the states,
the Court's conservatives uphel Tennessee's ban on gender affirming care
(17:35):
for transgender miners, and advocates say the decision is devastating
for transgender youth and their families in the twenty seven
states that have similar bands. Here's Kelly Robinson, the president
of the Human Rights Campaign.
Speaker 1 (17:50):
You're going to have families, families that have been in
states that they live in for generations.
Speaker 2 (17:55):
I know family has been in Arizona for generations and generations.
Speaker 1 (17:58):
They are Arizonas. They're going to have to leave their
states just to get access to care for their kids.
Speaker 3 (18:05):
Justice Sonya Sotomayor wrote that she dissented in sadness. She
said this decision will open the door to more state
discrimination against trans tenes and authorize, in her words, untold
harm to these families. Mike, this was an equal protection argument.
Speaker 1 (18:22):
As it came to the Supreme Court, the only issue
was whether this was a violation of equal protection, and
the Court, in a sense I wouldn't say, duck that issue,
but sort of mooted it by saying, well, there isn't
a sex based classification or even a transgender identity based
classification at issue here, so we don't have to apply
(18:45):
the intermediate scrutiny that would normally apply to such laws,
and therefore we only have to say whether it's rational.
And of course states get to make all sorts of
medical judgments, and you subject those to rational basis scrutiny,
they're almost always going to survive. So, in a sense,
the case doesn't tell us that much about the status
(19:06):
of discrimination of the basis of transgender status under the
Constitution going forward, because the Court said, well, we don't
have to address that here, except that several justices in
concurring opinions didn't address that and said, even if it
is transgender based discrimination, that's okay because that kind of
discrimination doesn't trigger any heightened scrutiny.
Speaker 3 (19:29):
Would those three concurring justices Clarence Thomas, Samuel Alito, and
Amy Cony Barrett reject heightened scrutiny for any anti trans laws.
Speaker 1 (19:41):
I think that's right. I mean Justice Barrett actually is
the one who writes most extensively on this, and she says, look,
we have criteria for deciding whether something is a suspect
of sent me susie classification, and transgender status doesn't meet
those criteria. Now, I think she applies them a little
bit strangely. One of the thing she says is that
in order for something to be so called immutable characteristic,
(20:04):
it has to be identifiable at birth, and transgender status
doesn't emerge until later. Well, that's a kind of backwards analysis,
because of course, the whole point of someone wanting to
transition to address their gender dysparrior or other mismatch between
their experience of themselves and the sex assigned at birth
(20:25):
is that what they were treated as at birth was
you know, not accurate. And so it's a very odd
odd thing to say, Well, because when you were an
infant you didn't realize or other people didn't realize, that
you were a male inside of a female body, or
vice versa, then that's not real in some sense. So
(20:46):
there's a way in which it's a kind of you know,
denial of the existence of transgender persons at all. I mean,
she doesn't say that, but I think that's the logical
implication of that particular criterion.
Speaker 3 (20:57):
I mean, the same drugs that Tennessee ban for the
purpose of gender firming care for transitioning miners are allowed
for a number of other purposes in non transminers. How
do they get away from saying that's not an equal
protection violation?
Speaker 1 (21:15):
So the plaintiffs and just the state of my orin descent,
I think, are very clear. Look, if a boy wants
to take this drug to give himself facial hair, you
allow it. If a transgender boy who's assigned female at
birth wants to take it, you disallow. It's the same
same effect. How could that be anything other than sex discrimination?
(21:35):
And what the court says is, well, it's not the
same treatment if it's being prescribed for a different condition.
In the boy who's taking this to give himself facial hair,
it's being prescribed because he has low testosterone. In the
transgender boy who's signed female at birth, it's being given
(21:58):
to facilitate sex transition. And that the course says is
a different treatment. Now they analogize to something like, you know,
different off label uses, so that something might be approved
as a treatment for hypertension and people discover heness also
can cure baldness mormally. If a drug is approved for
(22:19):
one purpose, it can be prescribed off label, but states
can forbid certain off label uses if they think the
risks and benefits are different. So that's the analogy that
the majority draws. The difficulty with that as I think
just the studyment are convincingly, says in dissent, is well, here,
what makes this a different treatment is simply the sex
(22:40):
assigned birth of the person taking it, And you're sort
of building the lily or double counting by working that in.
Speaker 3 (22:47):
On Monday, the Court ordered federal appeals courts in four
states to re examine their rulings in favor of transgender
people in clashes over healthcare and birth certificates in light
of the Scrimmette decision. Can we read anything into that?
Speaker 1 (23:02):
Oh yes, So I was trying to be a little
bit hopeful there to say that, you know, as a
matter of the official holdings, the court has not or
closed the possibility that sometime in the future it could
say transgender status ecrimination is sort of presumptively invalid in
the same way that sex discrimination is. But reading the
(23:25):
tea leaves, I think it's pretty clear that that's not
the direction of this Court is going. And another way
to put that is that they are going to increasingly
treat the boss Stock decision, the case that held that
sexual orientation and transgender status discrimination or sex discrimination for
purposes of Title seven. They're going to treat that decision
(23:46):
as a kind of outlier, the case that gets distinguished,
and they specifically say, Inscremmetti, well, we're not addressing this
Bostock analogy. Title seven might be different. So I think
they're teeing that up and so cutting back, you know,
anti trends backlash that we've been seeing in the political
realm I think is now flowering in the Supreme Court
(24:06):
as well.
Speaker 3 (24:07):
And LGBTQ rights may be further curb next term because
on Thursday, the Court agreed to decide whether states can
ban transgender girls and women from competing for their schools
on female athletic teams. Coming up next on the Bloomberg
Law Show, I'll continue this analysis of the just completed
term with Cornell law professor Michael Darf How far to
(24:29):
the right. Has the conservative super majority moved the court.
I'm June Grosso, and you're listening to Bloomberg. The Supreme
Court waded into the culture wars this term, and that
showed up nowhere more than in a case where the
six Conservatives ruled that religious public school parents have the
right to opt their children out of classroom lessons that
(24:51):
involved the reading of LGBTQ themed storybooks. In the majority opinion,
Justice Samuel Alito took issue some of the books, for example,
saying that the book entitled Uncle Bobby's Wedding presents a
subtle message about gay marriage.
Speaker 1 (25:08):
Quote.
Speaker 3 (25:08):
It asserts that two people can get married regardless of
whether they are of the same or the opposite sex,
as long as they love each other, an echo of
the concerns you raised when questioning the attorney for the
school district, Alan Schoenfeld, during the oral arguments.
Speaker 5 (25:25):
But it expresses the idea this is a good thing, Mommy,
said Chloe. I don't understand why is Uncle Bobby getting married.
Bobby and Jamie love each other, said Mummy. When people,
when grown up, people love each other that much, sometimes
they get married. I mean that's not sending subtly sending
a message this is a good thing.
Speaker 2 (25:46):
I think that's a way of a mother consoling her
daughter who's annoyed that her favorite uncle is distracted and
doesn't have time for her. But even if the message
were some people are gay, some people get married, I
don't think there's anything impermissive normative about that.
Speaker 3 (26:02):
I've been talking to constitutional law professor Michael Dorf of
Cornell Law School, Mike, when religion comes up against other rights,
in particular LGBTQ rights, religion always wins at the Roberts Court.
Speaker 1 (26:15):
Yeah, that's right. I mean, you can think of this
as sort of the finale, for now of a trilogy
that began with the Masterpiece Cake Shop case, continued with
the three or three Creative case, and now here we
have a similar situation where the religious claim wins out
as against the effort to in this case have an
(26:38):
LGBTQ plus inclusive curriculum. To my mind, what's so surprising
about this case is how quickly and easily the court
dismisses the administrative burden that it's placing on school districts. Right,
what the court says is, if there is a burden
(27:01):
on religion, then the government school district has to give
an exemption unless it can statisfy scrutiny. And the burden
on religion here is as the descent points out, that
kids are being exposed to ideas that are contrary to
(27:23):
what their parents want to teach them as a matter
of religious faith. And if you just think about that
for a moment, you quickly realize, well, that could cover
a lot of things. You know, there are great many
people in this country who, as a matter of religious faith,
don't believe that humans descended from other animals through revolution.
Does that mean that religious parents can op their kids
(27:45):
out of biology? People believe in the millions that the
Earth is only six thousand years old, even though you know,
geology suggests that it's four and a half billion years old.
Can parents op their kids out of geology? I think
those issues are probably unlikely to arise in large numbers,
(28:05):
But the real impact will be to these concerned efforts
to have parents object to what they see as some
woke curricula on religious grounds. And because the administrative burden
is so great, the school district might conclude, well, you
know what, it's just easier not to teach this stuff.
(28:25):
At all, and that is the point that the descent makes,
I think very effectively.
Speaker 3 (28:29):
You mentioned the trilogy of cases, and this reminds me
of the three to H three Creative case, which involved
a website designer who didn't want to design websites for
gay marriages. However, she'd never been asked to. And here
you have a case where the curriculum for using these
(28:51):
LGBTQ books isn't even established yet. It seems like the
Court is just jumping in before there's a real controverse.
Speaker 1 (29:00):
I think a fair criticism of the Court would be
that in these cases where there are religious objections to
aay rights, trans rights, etc. That are statutory, the court's
standing rules seem to be flexible. You know, you can
make a case that there is standing both in three
(29:21):
or three Creative and here. But again, some of the
same justices who might be sticklers in other contexts in
this context tend to say, well, of course you can challenge.
Speaker 3 (29:32):
This policy, and the Court isn't stepping away from the
culture wars. Next term, it's going to hear a challenge
to Colorado's ban on conversion therapy, and the challenge is
from a licensed counselor who says she views her work
as an outgrowth of her Christian faith. So I think
we're going to see the same result in that case.
(29:54):
Maybe I'm jumping the gun bill.
Speaker 1 (29:55):
I don't think you are. And you know, if you
want to sort of juxtapose that with skir Many right,
so INSCRIMMENTI the court is all about giving deference to
Tennessee's ostensibly medical determination that it's not in the interests
of miners and they're not sort of fully able to
(30:16):
give and form consent to have puberty blockers and hormone therapy.
I don't think you'll see the same kind of deference
given to Colorado in its judgment that this kind of
therapy is not in the interests of miners.
Speaker 3 (30:33):
There were three Second Amendment cases, and the justices upheld
federal regulations for build at home ghost gun kits, refuse
to give gun manufacturers broad immunity from civil suits, and
turned away constitutional challenges to state bans on assault weapons
and high capacity magazines. Does this signal that the Court
(30:56):
won't eviscerate gun control measures or is it too soon
to tell?
Speaker 1 (31:01):
I think it's a little of both. The Vanderstock case
that's the ghost guns case there. The statute is pretty specific,
and you look at that versus the bump stock case
that they had where they came out the other way.
You can just see those as a statutory construction. You know.
The same thing goes for Smith and Weston. I mean,
after all, Mexico did lose that case, so they're unable
(31:24):
to bring the lawsuits. I don't count that one as
a pure victory for gun regulation. And then Henston, which
is the case where they denied cert from the District
of Columbia CIRT denial doesn't set a precedent, and I
think they're the case involved a limit of ten rounds
on a gun. You can make an argument that the
(31:46):
gun that is in common use, that's the term for
Second Amendment purposes, is the handgun. And then you ask, well,
is it consistent with the history of regulation of guns
to limit them to ten rounds. Well, you're not going
to find guns that were capable of firing more than
ten rounds at the founding, so there's a way to
get to this result. But I think is consistent with
(32:07):
what they've said before, and I think it's far too
soon to say that the court is sort of easing
up on the Second Amendment revolution that it began in
two thousand and eight with the Heller case.
Speaker 3 (32:20):
The Trump administration repeatedly went to the court on an
emergency basis, and the conservative justice is repeatedly reinstated Trump
policies found by lower courts to be illegal. A few examples,
the court allowed Trump to discharge transgender people from the military,
fire top officials at government agencies, and open hundreds of
(32:42):
thousands of migrants to deportation. How do you read all
his wins on the emergency docket?
Speaker 1 (32:48):
I guess I'd say a few things. First. One of
the things we didn't talk about when we're taling about
Trump against KASA is Justice Kavanaugh's concurrence, in which he says, well,
the solution to the problem of universal injunctions is for
us to get these cases up here really fast, and
then for us to decide them because we can lay
down the law that will be binding nationally. Well, one
(33:11):
of the odd things is, if that's true, how come
they're not doing that that in a lot of these cases.
They're not actually saying, well, here's the rule, and we're
deciding on the emergency docket. They're just sort of reversing
the lower courts giving either no guidance or very scant guidance.
And that's to say nothing of whether Justice Kavanaugh's proposed
solution makes any sense, given that putting something on the
(33:32):
emergency docket means they don't really have that much time
to decide the case, and they don't have full briefing
in full oral argument. So you had this remarkable decision
where they essentially overrule the Humphreys executor case, which is,
you know, a very old president banding for the proposition
that Congress can create independent agencies. And you know, Justice
(33:54):
Kagan in the sense says, what are you doing? You
barely even mentioned the case and you're off ruling it,
and we haven't had a full briefing in argument on this,
and you're reversing the lower court for following our established president,
which we've told them they're supposed to do. So one
remarkable thing about what they're doing on the emergency donket
is timply, you know how much law they're making. And
(34:14):
now that's not an entirely new phenomenon. They did that
in a bunch of religion cases during the pandemic, and
they continue to do that, but it is the very
strange thing for them to be doing. It is striking
how different a position the Court is staking out from
that of the lower Court. One of the interesting phenomena
in this court this year is if you look at
(34:36):
the statistics on their plenary docket, they reverse the Fifth Circuit,
which is the most conservative circuit, quite a lot. So
the Fifth Circuit is getting how to head of the
Supreme Court and beings very very conservative. But on their
emergency docket in these cases challenging coup administration actions, the
Court is basically saying, well, the lower court are too liberal. Now.
(34:59):
Part of that I think is forum shopping by plenty TIFFs. Right,
if you're going to challenge the Trump administration policy, you're
not going to go to Judge Kasmiric or one of
the other judges that Republicans go to to challenge democratic administrations.
But I think it also suggests again that this court is,
you know, not all that skeptical of a lot of
(35:20):
what the Trump administration is doing on the merits.
Speaker 3 (35:23):
So how far to the right has the conservative super
majority moved the law?
Speaker 1 (35:29):
I mean, I think the answer to that question is
very far. I don't think there's any question about that.
I mean, you know, they did most of the work
in prior terms. They overturn roep Wade, they got rid
of the permative Action, the religion cases go very far.
They invigorated the Second Amendment. So in that sense, their
work is basically done on what traditional conservatives care about.
To my mind, the question that is most pressing and
(35:53):
sort of remains open is not how far to the
right the Court is moving the law, but how far
to the sort of maga direction is the Court moving
the law or at least allowing the Trump administration to go.
You know, a lot of what President Trump and his
administration are doing doesn't fall within traditional left right boundaries.
(36:16):
It's just sort of you know, authoritarian, for lack of
a better term. So it's not surprising to me that,
you know, if the Trump administration wants to peel back
transgender rights, that conservatives on the Supreme Court would be
on board with that. What is surprising, and I think
frankly alarming, is the extent to which the Roberts Court
(36:40):
is facilitating the Trump administration's challenges to the rule of law.
So what we were talking about a little earlier with
defiance of court orders and other things that fall outside
the left right spectrum. As we've understood, it's for the
last hundred years or so, and are on a sort
of democracy and rule of law on the one hand
(37:00):
versus authoritarianism on the other.
Speaker 3 (37:02):
Thanks so much for your analysis, Mike. That's Professor Michael
Dorf of Cornell Law School. And on Friday, another win
for the Trump administration on the emergency docket, a divided
court rule the administration can send eight migrants to South Sudan,
where they've said their risk of torture and death. I'm
June Grosso and that's it for this edition of the
(37:22):
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 weeknight at ten pm
Wall Street Time. You're listening to Bloomberg
This is Bloomberg Law with June Grossel from Bloomberg Radio.
It's a great victory for Sean Combs. It's a great
victory for the jury system.
Speaker 2 (00:15):
You saw that the Southern District of New York prosecutors
came at him with all that they had.
Speaker 3 (00:21):
It was indeed a resounding victory for Sean Diddy Combs
and a resounding loss for federal prosecutors. After more than
six weeks of sometimes graphic and emotional testimony, the jury
acquitted Combs of the most serious charges against him, racketeering, conspiracy,
and sex trafficking, and convicted him only of the lesser
(00:43):
charges of transportation to engage in prostitution. After the verdict
was read, Combs mouthed the words thank you to the jurors,
dropped to his knees, and prayed with good reason. Instead
of facing a sentence of life in prison, he now
likely faces no more than six years, although the decision
(01:04):
on his sentence will ultimately be up to the judge.
My guest his former federal prosecutor, Robert Mintz, a partner
maccarter and English Bob. He was convicted of two felonies,
but Combs and his lawyers were elated with the verdict.
Speaker 4 (01:20):
Given the charges he was potentially facing, which included up
to life in prison for the racketeering conspiracy and a
minimum sentence of fifteen years to life for sex trafficking.
The fact that he was only convicted of two counts
of transportation to engaging prostitution can't be viewed as anything
other than a win by the defense and a bitter
(01:42):
loss for prosecutors.
Speaker 3 (01:44):
So the top count racketeering conspiracy, the charge has historically
been used to take down mob bosses like John Gotti.
Did the prosecutors overcharge him with this count?
Speaker 4 (01:56):
Well, I think that's going to be the question that
prosecutors will have to ask themselves when they look back
on this case, whether or not it was overcharged with
the rico conspiracy. Now, the rico conspiracy, as you say,
has been used traditionally in order to prosecute organized crime figures,
but it has been used more broadly in recent years
and was used in a high profile case just a
(02:19):
couple of years ago in the R. Kelly case where
that hip hop artist was also charged with RICO and
sex trafficking in twenty twenty one, and in that instance,
prosecutors did get a conviction, but here jurors ultimately concluded
that the Rico conspiracy was overcharged, that the prosecution did
not meet the burden of showing that Sean Combs had
(02:42):
used his business empire as a vehicle in orders to
commit further acts and in order to force his former
girlfriends into performing sexual acts against their will.
Speaker 3 (02:55):
Explain how when prosecutors overcharged it, it gives the defense
an opening to challenge their case.
Speaker 4 (03:03):
Well, that's ultimately where this case turned. It was really
an argument by the defense that although mister Combe had
committed some abhorrent acts, they had the video of him
picking Tasti Ventura by the elevator bank out in Beverly Hills.
That was undeniably bad behavior and painted mister Combs in
a very negative light. But when that was held up
(03:25):
against the more serious charges of racketeering conspiracy, which included
certain criminal acts such as forced labor, bribery, obstruction of justice,
all of that was thrown in and basically prosecutors were
stating that he used this vast empire that he built
up over many years simply as a means of forcing
(03:46):
these ex girlfriends to continue to perform these sexual acts
against their will, and all the while they were coerced
into doing this. The defense was able to effectively pick
that apart by showing text messages from both of the
victims which at various times suggested that they had participated
in these acts willfully, that they were not coerced, that
(04:09):
they could have left but chose not to, And ultimately
I think that was the downfall for the prostitution's case.
It really ultimately turned on whether they believed that the
victims were actually trapped in this relationship and had no
way out and were literally forced to commit these acts,
or whether this is more complex than that, and the
(04:30):
defense was able to show that these relationships, while toxic,
while not healthy, and while it involved bad behavior by
mister Colmbs, didn't rise to the level of racketeering conspiracy.
Speaker 3 (04:42):
The two acquittals for sex trafficking, which stemmed from allegations
that Colmbs forced his two ex girlfriends to engage in
these so called freak offs, and Ventura testified over four
days some very emotional testimony refer to this, But did
the jurors just not believe her.
Speaker 4 (05:03):
It's hard to say exactly what they were thinking that
testimony was compelling. That testimony had to be very emotional
for jurors to sit through, and yet at the end
of the day, they did not believe that she was
necessarily compelled to participate in commercial sex acts through force, fraud,
and coercion. The key here is there has to be
(05:25):
a link between the force, the fraud, and the coercion
and the acts of sex. And I think at the
end of the day, the evidence was just not clear
enough for them to meet that burden. Remember, prosecutors have
to prove their case beyond a reasonable doubt. Anything less
than that will result in an acquittal, as we saw
here and sex trafficking.
Speaker 3 (05:47):
Did those charges even fit the facts here? Aren't people
usually charged with sex trafficking when there's no connection to
the victims, not people in long term relationships like Combs
and his ex girlfriend.
Speaker 4 (06:00):
Yeah, that was I think one of the problems too,
because the victims here were involved in these long term relationships,
and they had written many messages, emails, text messages, other
writings evidencing their love for mister Combs at various times.
The fact that they willingly participated in some of these acts,
the fact that they did things in order to please him,
(06:21):
and the fact fact that after some of these sessions
they texted him saying that they enjoyed them. And I
think it was very difficult for jurors to necessarily conclude
that all of this was done against their will, that
none of it was consensual. And as you say, June,
it's a situation where the sex trafficking charge is typically
brought in an instance where the perpetrator does not have
(06:44):
a relationship with the victim. Here there was a long
term relationship, one that was very complicated, and also one
in which the victims had benefited financially from their relationship
with mister Combs. So it became, I think, very difficult
for jurres to sort out the true nature of those relationships.
I don't think they necessarily disbelieve the victims, but I
(07:07):
think they ultimately concluded that the fact as presented to
them in court did not meet the elements of the
sex trafficking charges.
Speaker 3 (07:15):
He was convicted of two counts of transportation to engage
in prostitution that stems from allegations that he paid sex
workers to come to his freak off parties. Tell us
about that that's a felony violation of the Federal Man Act.
Speaker 4 (07:32):
These were the charges that were really easiest for prosecutors
to prove, because all they have to show is that
individual's cross state lines with the intent to engage in prostitution.
And there was plenty of evidence presented at the trial
that mister Colms had made arrangements for these male prostitutes
to meet with his girlfriends. He bought plane tickets, there
(07:53):
were credit card statements, there were hotel records. These were
the charges that prosecutors were able to prove fairly readily,
and there wasn't really much of a defense to them.
I think the defense strategy was to focus on the
more serious charges, which they ultimately succeeded in convincing jurors
to quit their client on.
Speaker 3 (08:12):
The prosecution put on thirty four witnesses. The defense didn't
call any witnesses and elected instead to challenge the credibility
of the prosecution's witnesses through lengthy cross examinations that sometimes
were longer than the directs. Was that a risky move
by the defense, No, I.
Speaker 4 (08:33):
Think from the very start the defense strategy was always
to win their case through cross examination. I think they
correctly sized the case up and knew that it was
going to turn on the testimony of the two victims
and how compelling they were, and that by adding witnesses
for the defense, it was only going to complicate the
case and create a more complex narrative for them to
(08:56):
have to convince Durres ask exactly what was going on here.
They wanted the case ultimately to be about these two
victims and to show that the relationship that they were
in with mister Colmbs over many years was one in
which they gained financially, one in which they willingly participated.
In no doubt, they were ups and downs in those relationships,
and there were some domestic violence that went on, and
(09:18):
the defense readily admitted that. But the question is did
it really rise to the level of racketeering conspiracy? The
defense placed a large set that the jurors would answer
that question in the negative, and ultimately they prevailed.
Speaker 3 (09:31):
Were you surprised that the judge refused to release Colmbs
while he waits to be sentenced.
Speaker 4 (09:36):
I wasn't totally surprised. I think here there was some
sense from the judge that the defense team is really
trying to have it both ways on this issue. He
noted that the Combs defense team at trial admitted the
domestic violence claims and said that a confession was really
unnecessary here because the defendant's violence was starkly depicted in
(09:59):
the twenti sixteen Intercontinental video, referring to the video of
mister Holmes violently beating Cathy Ventura. This suggests to me
that the judge was very troubled by the violence he
witnessed in the video and led him to conclude that
mister Colmbs continues to pose a danger to the community,
which is why he decided to leave him in jail
(10:22):
pending sentencing.
Speaker 3 (10:23):
As far as sentencing, technically it's ten years on each
of the counts, colmb's lawyers said that under the federal
sentencing guidelines, he'd likely face twenty one to twenty seven months. Prosecutors,
citing his violence and other factors, said he'd likely face
fifty one to sixty three months. Considering what the judge
said in denying bail, mighty sentence Colmb's to more than that.
Speaker 4 (10:47):
Well, the upper limit that the judge can send them
to is actually twenty years. That's the statutory maximum the
sentencing guidelines govern these sentences to the extent that they
give guidance to the jug judge, but the judge has
full discretion to send mister Colmbs to whatever he wants,
theoretically up to twenty years. I think the fact that
(11:08):
he's decided to keep him in jail pending sentencing, even
though he's already been in jail for almost a year,
suggests that the judge does do this as a serious crime,
and they send them to something much closer to what
prosecutors are asking than what the defense is speaking here.
And it is even possible that the judge sends them
to something more than what prosecutors are asking for. It's
(11:32):
highly unusual, but it is within the judges' discretion to
really send mister Combs to whatever he believes is fair
and just given the circumstances.
Speaker 3 (11:41):
They'll be a hearing next Tuesday to discuss the sentencing process.
That should be interesting. Thanks so much, Bob. That's Robert
Mins of maccarter and English coming up next. The winners
and losers at the Supreme Court this term, I'm June gross.
When you're listening to Bloomberg, Chief Justice John Roberts repeatedly
stresses the importance of judicial independence as he did during
(12:05):
an interview in May.
Speaker 1 (12:06):
Its job is to.
Speaker 2 (12:09):
Obviously decide cases, but in the course of that check
the excesses of Congress or of the executive, and that
does require degree of independence.
Speaker 3 (12:18):
However, in the Supreme Court's recent term, it doesn't appear
that justices did much to check the excesses of the
current executive. In fact, the clear winner of the term
was President Donald Trump. The Court sided with him on
broad legal questions and emergency request to let his policies
take effect, from throwing transgender service members out of the
(12:42):
military to opening hundreds of thousands of migrants to deportation.
And for the second year in a row, the Court
ended the term with a decision handing Trump a major victory,
basically eliminating the main tool used to thwart his ambitious agenda,
the nation wide injunction.
Speaker 1 (13:01):
This was a big one, wasn't it.
Speaker 5 (13:03):
This was a big decision, an amazing decision, one that
we're very happy about.
Speaker 3 (13:09):
Like almost all the high profile cases this term, the
Court divided six to three down ideological lines, with the
conservatives in the majority and the liberals dissenting. Joining me
is constitutional law expert Michael Dorf, a professor at Cornell
Law School, Mike The finale of the term, if you will,
(13:29):
was the decision in the case over Trump's ban on
automatic birthright citizenship, where the Conservatives stripped the lower courts
of the power to grant nationwide injunctions, which have really
been the only effective check on the Trump agenda. Trump
thought the decision was important enough to call a press conference.
How important do you think.
Speaker 1 (13:50):
It is that remains to be seen? The prohibition on
most universal injunctions will have very serious bite if, but
only if, the Court makes it difficult for plaintiffs to
bring class actions and makes it difficult for states to
sue for statewide injunctions. Those are two potential workarounds, neither
(14:16):
of which the majority directly addressed is but both of which,
just as the Leto and his concurrence suggests, should be
only available under a heightened standard of sorts. So what
remains to be seen is whether plaintiffs challenging these executive actions.
Here it was the birthright citizenship order, but it applies
(14:39):
diversely everything, whether they can quickly convert to class actions,
whether states can bring these cases. If they can, then
I think this ends up not being such a big deal.
Speaker 3 (14:48):
Getting class action status is a lot more complicated, and
I think we've seen just in the last week how
confusing it is for the lower courts to parse through this.
Speaker 1 (14:59):
The Supreme Court could have, and in my view, should
have given more guidance on whether class actions are available
and under what standard. You know, one of the things
I think is easily overlooked is the ruling in the
case is not a constitutional holding. The court doesn't say
that the Constitution forbids this kind of equitable relief. What
(15:21):
it says is that this power was not conferred by
statute on the federal courts. Well, if that's the case,
it's possible that federal Rule of Civil Procedure twenty three,
which is the class action provision, is empowered by the
Rules Enabling Act that that does confer this power, and
that would be fully consistent. It would just lead to,
(15:42):
you know, the availability of similar relief under a different mechanism.
Speaker 3 (15:45):
President Trump says that the administration is going to move
to lift hold that judges have placed on a number
of his policies. He mentioned fights over refugee resettlement, federal spending,
and sanctuary cities. So you know, it's going to open
up a.
Speaker 1 (15:59):
Can of Oh, I think that's right. I mean, I
think this is in some ways the basic problem with
the Supreme Court these days, which is it's treating the
Trump administration like a normal administration rather than one that
is committed to sort of pushing the edge of the
envelope and getting away with whatever it can. And so,
(16:20):
you know, if you were thinking about the system as
a whole and what's good for the rule of law,
you would have been much clearer of your guidance and
in what you're allowing and not allowing justice.
Speaker 3 (16:30):
Sonya Sotomayor and one of her ascent said the Court
was rewarding lawlessness because the Trump administration has repeatedly, either
explicitly or not so explicitly, ignored court orders, particularly in
the cases of immigration orders.
Speaker 1 (16:46):
She is exactly right that it's one thing to stay,
as the Court has said in some of these cases. Well,
we think the lower courts went too far in issuing
this order. That doesn't mean that the administration was permitted
to violate the order while it was us in force.
The normal rule is if you don't like a court order,
you appeal it. But unless you get a stay of
(17:07):
that order, and until you get a stay of that order,
you have to comply with it.
Speaker 3 (17:11):
There were three cases involving LGBTQ rights that divided the
justices down ideological lines and ended up in losses for
the LGBTQ plus community. In the Scrimmeti case, which has
implications for transgender youth in more than half the states,
the Court's conservatives uphel Tennessee's ban on gender affirming care
(17:35):
for transgender miners, and advocates say the decision is devastating
for transgender youth and their families in the twenty seven
states that have similar bands. Here's Kelly Robinson, the president
of the Human Rights Campaign.
Speaker 1 (17:50):
You're going to have families, families that have been in
states that they live in for generations.
Speaker 2 (17:55):
I know family has been in Arizona for generations and generations.
Speaker 1 (17:58):
They are Arizonas. They're going to have to leave their
states just to get access to care for their kids.
Speaker 3 (18:05):
Justice Sonya Sotomayor wrote that she dissented in sadness. She
said this decision will open the door to more state
discrimination against trans tenes and authorize, in her words, untold
harm to these families. Mike, this was an equal protection argument.
Speaker 1 (18:22):
As it came to the Supreme Court, the only issue
was whether this was a violation of equal protection, and
the Court, in a sense I wouldn't say, duck that issue,
but sort of mooted it by saying, well, there isn't
a sex based classification or even a transgender identity based
classification at issue here, so we don't have to apply
(18:45):
the intermediate scrutiny that would normally apply to such laws,
and therefore we only have to say whether it's rational.
And of course states get to make all sorts of
medical judgments, and you subject those to rational basis scrutiny,
they're almost always going to survive. So, in a sense,
the case doesn't tell us that much about the status
(19:06):
of discrimination of the basis of transgender status under the
Constitution going forward, because the Court said, well, we don't
have to address that here, except that several justices in
concurring opinions didn't address that and said, even if it
is transgender based discrimination, that's okay because that kind of
discrimination doesn't trigger any heightened scrutiny.
Speaker 3 (19:29):
Would those three concurring justices Clarence Thomas, Samuel Alito, and
Amy Cony Barrett reject heightened scrutiny for any anti trans laws.
Speaker 1 (19:41):
I think that's right. I mean Justice Barrett actually is
the one who writes most extensively on this, and she says, look,
we have criteria for deciding whether something is a suspect
of sent me susie classification, and transgender status doesn't meet
those criteria. Now, I think she applies them a little
bit strangely. One of the thing she says is that
in order for something to be so called immutable characteristic,
(20:04):
it has to be identifiable at birth, and transgender status
doesn't emerge until later. Well, that's a kind of backwards analysis,
because of course, the whole point of someone wanting to
transition to address their gender dysparrior or other mismatch between
their experience of themselves and the sex assigned at birth
(20:25):
is that what they were treated as at birth was
you know, not accurate. And so it's a very odd
odd thing to say, Well, because when you were an
infant you didn't realize or other people didn't realize, that
you were a male inside of a female body, or
vice versa, then that's not real in some sense. So
(20:46):
there's a way in which it's a kind of you know,
denial of the existence of transgender persons at all. I mean,
she doesn't say that, but I think that's the logical
implication of that particular criterion.
Speaker 3 (20:57):
I mean, the same drugs that Tennessee ban for the
purpose of gender firming care for transitioning miners are allowed
for a number of other purposes in non transminers. How
do they get away from saying that's not an equal
protection violation?
Speaker 1 (21:15):
So the plaintiffs and just the state of my orin descent,
I think, are very clear. Look, if a boy wants
to take this drug to give himself facial hair, you
allow it. If a transgender boy who's assigned female at
birth wants to take it, you disallow. It's the same
same effect. How could that be anything other than sex discrimination?
(21:35):
And what the court says is, well, it's not the
same treatment if it's being prescribed for a different condition.
In the boy who's taking this to give himself facial hair,
it's being prescribed because he has low testosterone. In the
transgender boy who's signed female at birth, it's being given
(21:58):
to facilitate sex transition. And that the course says is
a different treatment. Now they analogize to something like, you know,
different off label uses, so that something might be approved
as a treatment for hypertension and people discover heness also
can cure baldness mormally. If a drug is approved for
(22:19):
one purpose, it can be prescribed off label, but states
can forbid certain off label uses if they think the
risks and benefits are different. So that's the analogy that
the majority draws. The difficulty with that as I think
just the studyment are convincingly, says in dissent, is well, here,
what makes this a different treatment is simply the sex
(22:40):
assigned birth of the person taking it, And you're sort
of building the lily or double counting by working that in.
Speaker 3 (22:47):
On Monday, the Court ordered federal appeals courts in four
states to re examine their rulings in favor of transgender
people in clashes over healthcare and birth certificates in light
of the Scrimmette decision. Can we read anything into that?
Speaker 1 (23:02):
Oh yes, So I was trying to be a little
bit hopeful there to say that, you know, as a
matter of the official holdings, the court has not or
closed the possibility that sometime in the future it could
say transgender status ecrimination is sort of presumptively invalid in
the same way that sex discrimination is. But reading the
(23:25):
tea leaves, I think it's pretty clear that that's not
the direction of this Court is going. And another way
to put that is that they are going to increasingly
treat the boss Stock decision, the case that held that
sexual orientation and transgender status discrimination or sex discrimination for
purposes of Title seven. They're going to treat that decision
(23:46):
as a kind of outlier, the case that gets distinguished,
and they specifically say, Inscremmetti, well, we're not addressing this
Bostock analogy. Title seven might be different. So I think
they're teeing that up and so cutting back, you know,
anti trends backlash that we've been seeing in the political
realm I think is now flowering in the Supreme Court
(24:06):
as well.
Speaker 3 (24:07):
And LGBTQ rights may be further curb next term because
on Thursday, the Court agreed to decide whether states can
ban transgender girls and women from competing for their schools
on female athletic teams. Coming up next on the Bloomberg
Law Show, I'll continue this analysis of the just completed
term with Cornell law professor Michael Darf How far to
(24:29):
the right. Has the conservative super majority moved the court.
I'm June Grosso, and you're listening to Bloomberg. The Supreme
Court waded into the culture wars this term, and that
showed up nowhere more than in a case where the
six Conservatives ruled that religious public school parents have the
right to opt their children out of classroom lessons that
(24:51):
involved the reading of LGBTQ themed storybooks. In the majority opinion,
Justice Samuel Alito took issue some of the books, for example,
saying that the book entitled Uncle Bobby's Wedding presents a
subtle message about gay marriage.
Speaker 1 (25:08):
Quote.
Speaker 3 (25:08):
It asserts that two people can get married regardless of
whether they are of the same or the opposite sex,
as long as they love each other, an echo of
the concerns you raised when questioning the attorney for the
school district, Alan Schoenfeld, during the oral arguments.
Speaker 5 (25:25):
But it expresses the idea this is a good thing, Mommy,
said Chloe. I don't understand why is Uncle Bobby getting married.
Bobby and Jamie love each other, said Mummy. When people,
when grown up, people love each other that much, sometimes
they get married. I mean that's not sending subtly sending
a message this is a good thing.
Speaker 2 (25:46):
I think that's a way of a mother consoling her
daughter who's annoyed that her favorite uncle is distracted and
doesn't have time for her. But even if the message
were some people are gay, some people get married, I
don't think there's anything impermissive normative about that.
Speaker 3 (26:02):
I've been talking to constitutional law professor Michael Dorf of
Cornell Law School, Mike, when religion comes up against other rights,
in particular LGBTQ rights, religion always wins at the Roberts Court.
Speaker 1 (26:15):
Yeah, that's right. I mean, you can think of this
as sort of the finale, for now of a trilogy
that began with the Masterpiece Cake Shop case, continued with
the three or three Creative case, and now here we
have a similar situation where the religious claim wins out
as against the effort to in this case have an
(26:38):
LGBTQ plus inclusive curriculum. To my mind, what's so surprising
about this case is how quickly and easily the court
dismisses the administrative burden that it's placing on school districts. Right,
what the court says is, if there is a burden
(27:01):
on religion, then the government school district has to give
an exemption unless it can statisfy scrutiny. And the burden
on religion here is as the descent points out, that
kids are being exposed to ideas that are contrary to
(27:23):
what their parents want to teach them as a matter
of religious faith. And if you just think about that
for a moment, you quickly realize, well, that could cover
a lot of things. You know, there are great many
people in this country who, as a matter of religious faith,
don't believe that humans descended from other animals through revolution.
Does that mean that religious parents can op their kids
(27:45):
out of biology? People believe in the millions that the
Earth is only six thousand years old, even though you know,
geology suggests that it's four and a half billion years old.
Can parents op their kids out of geology? I think
those issues are probably unlikely to arise in large numbers,
(28:05):
But the real impact will be to these concerned efforts
to have parents object to what they see as some
woke curricula on religious grounds. And because the administrative burden
is so great, the school district might conclude, well, you
know what, it's just easier not to teach this stuff.
(28:25):
At all, and that is the point that the descent makes,
I think very effectively.
Speaker 3 (28:29):
You mentioned the trilogy of cases, and this reminds me
of the three to H three Creative case, which involved
a website designer who didn't want to design websites for
gay marriages. However, she'd never been asked to. And here
you have a case where the curriculum for using these
(28:51):
LGBTQ books isn't even established yet. It seems like the
Court is just jumping in before there's a real controverse.
Speaker 1 (29:00):
I think a fair criticism of the Court would be
that in these cases where there are religious objections to
aay rights, trans rights, etc. That are statutory, the court's
standing rules seem to be flexible. You know, you can
make a case that there is standing both in three
(29:21):
or three Creative and here. But again, some of the
same justices who might be sticklers in other contexts in
this context tend to say, well, of course you can challenge.
Speaker 3 (29:32):
This policy, and the Court isn't stepping away from the
culture wars. Next term, it's going to hear a challenge
to Colorado's ban on conversion therapy, and the challenge is
from a licensed counselor who says she views her work
as an outgrowth of her Christian faith. So I think
we're going to see the same result in that case.
(29:54):
Maybe I'm jumping the gun bill.
Speaker 1 (29:55):
I don't think you are. And you know, if you
want to sort of juxtapose that with skir Many right,
so INSCRIMMENTI the court is all about giving deference to
Tennessee's ostensibly medical determination that it's not in the interests
of miners and they're not sort of fully able to
(30:16):
give and form consent to have puberty blockers and hormone therapy.
I don't think you'll see the same kind of deference
given to Colorado in its judgment that this kind of
therapy is not in the interests of miners.
Speaker 3 (30:33):
There were three Second Amendment cases, and the justices upheld
federal regulations for build at home ghost gun kits, refuse
to give gun manufacturers broad immunity from civil suits, and
turned away constitutional challenges to state bans on assault weapons
and high capacity magazines. Does this signal that the Court
(30:56):
won't eviscerate gun control measures or is it too soon
to tell?
Speaker 1 (31:01):
I think it's a little of both. The Vanderstock case
that's the ghost guns case there. The statute is pretty specific,
and you look at that versus the bump stock case
that they had where they came out the other way.
You can just see those as a statutory construction. You know.
The same thing goes for Smith and Weston. I mean,
after all, Mexico did lose that case, so they're unable
(31:24):
to bring the lawsuits. I don't count that one as
a pure victory for gun regulation. And then Henston, which
is the case where they denied cert from the District
of Columbia CIRT denial doesn't set a precedent, and I
think they're the case involved a limit of ten rounds
on a gun. You can make an argument that the
(31:46):
gun that is in common use, that's the term for
Second Amendment purposes, is the handgun. And then you ask, well,
is it consistent with the history of regulation of guns
to limit them to ten rounds. Well, you're not going
to find guns that were capable of firing more than
ten rounds at the founding, so there's a way to
get to this result. But I think is consistent with
(32:07):
what they've said before, and I think it's far too
soon to say that the court is sort of easing
up on the Second Amendment revolution that it began in
two thousand and eight with the Heller case.
Speaker 3 (32:20):
The Trump administration repeatedly went to the court on an
emergency basis, and the conservative justice is repeatedly reinstated Trump
policies found by lower courts to be illegal. A few examples,
the court allowed Trump to discharge transgender people from the military,
fire top officials at government agencies, and open hundreds of
(32:42):
thousands of migrants to deportation. How do you read all
his wins on the emergency docket?
Speaker 1 (32:48):
I guess I'd say a few things. First. One of
the things we didn't talk about when we're taling about
Trump against KASA is Justice Kavanaugh's concurrence, in which he says, well,
the solution to the problem of universal injunctions is for
us to get these cases up here really fast, and
then for us to decide them because we can lay
down the law that will be binding nationally. Well, one
(33:11):
of the odd things is, if that's true, how come
they're not doing that that in a lot of these cases.
They're not actually saying, well, here's the rule, and we're
deciding on the emergency docket. They're just sort of reversing
the lower courts giving either no guidance or very scant guidance.
And that's to say nothing of whether Justice Kavanaugh's proposed
solution makes any sense, given that putting something on the
(33:32):
emergency docket means they don't really have that much time
to decide the case, and they don't have full briefing
in full oral argument. So you had this remarkable decision
where they essentially overrule the Humphreys executor case, which is,
you know, a very old president banding for the proposition
that Congress can create independent agencies. And you know, Justice
(33:54):
Kagan in the sense says, what are you doing? You
barely even mentioned the case and you're off ruling it,
and we haven't had a full briefing in argument on this,
and you're reversing the lower court for following our established president,
which we've told them they're supposed to do. So one
remarkable thing about what they're doing on the emergency donket
is timply, you know how much law they're making. And
(34:14):
now that's not an entirely new phenomenon. They did that
in a bunch of religion cases during the pandemic, and
they continue to do that, but it is the very
strange thing for them to be doing. It is striking
how different a position the Court is staking out from
that of the lower Court. One of the interesting phenomena
in this court this year is if you look at
(34:36):
the statistics on their plenary docket, they reverse the Fifth Circuit,
which is the most conservative circuit, quite a lot. So
the Fifth Circuit is getting how to head of the
Supreme Court and beings very very conservative. But on their
emergency docket in these cases challenging coup administration actions, the
Court is basically saying, well, the lower court are too liberal. Now.
(34:59):
Part of that I think is forum shopping by plenty TIFFs. Right,
if you're going to challenge the Trump administration policy, you're
not going to go to Judge Kasmiric or one of
the other judges that Republicans go to to challenge democratic administrations.
But I think it also suggests again that this court is,
you know, not all that skeptical of a lot of
(35:20):
what the Trump administration is doing on the merits.
Speaker 3 (35:23):
So how far to the right has the conservative super
majority moved the law?
Speaker 1 (35:29):
I mean, I think the answer to that question is
very far. I don't think there's any question about that.
I mean, you know, they did most of the work
in prior terms. They overturn roep Wade, they got rid
of the permative Action, the religion cases go very far.
They invigorated the Second Amendment. So in that sense, their
work is basically done on what traditional conservatives care about.
To my mind, the question that is most pressing and
(35:53):
sort of remains open is not how far to the
right the Court is moving the law, but how far
to the sort of maga direction is the Court moving
the law or at least allowing the Trump administration to go.
You know, a lot of what President Trump and his
administration are doing doesn't fall within traditional left right boundaries.
(36:16):
It's just sort of you know, authoritarian, for lack of
a better term. So it's not surprising to me that,
you know, if the Trump administration wants to peel back
transgender rights, that conservatives on the Supreme Court would be
on board with that. What is surprising, and I think
frankly alarming, is the extent to which the Roberts Court
(36:40):
is facilitating the Trump administration's challenges to the rule of law.
So what we were talking about a little earlier with
defiance of court orders and other things that fall outside
the left right spectrum. As we've understood, it's for the
last hundred years or so, and are on a sort
of democracy and rule of law on the one hand
(37:00):
versus authoritarianism on the other.
Speaker 3 (37:02):
Thanks so much for your analysis, Mike. That's Professor Michael
Dorf of Cornell Law School. And on Friday, another win
for the Trump administration on the emergency docket, a divided
court rule the administration can send eight migrants to South Sudan,
where they've said their risk of torture and death. I'm
June Grosso and that's it for this edition of the
(37:22):
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 weeknight at ten pm
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