Welcome to the Bloomberg Law Show. I'm June Grosso. The focus is on Supreme Court decisions. This week, the Court curbed federal agency power, striking down a forty year old precedent. It limited obstruction charges against January sixth defendants, including Donald Trump, and the Court allowed emergency abortions in Idaho for now. In a blockbuster ruling that will constrain environmental, consumer and financial watchdog agencies, A divided Supreme Court upended a forty year old legal doctrine that empowered federal regulators to interpret unclear laws. Conservatives have long targeted the Chevron doctrine in the so called War on the Administrative State, and the court's conservative justices reverse Chevron this week, effectively taking power away from executive branch agencies and shifting it to the courts. The Court has been chipping away at Chevron for years. As Chief Justice John Roberts pointed out in the oral arguments, how.

Welcome to the Bloomberg Law Show. I'm June Grosso. The focus is on Supreme Court decisions. This week, the Court curbed federal agency power, striking down a forty year old precedent. It limited obstruction charges against January sixth defendants, including Donald Trump, and the Court allowed emergency abortions in Idaho for now. In a blockbuster ruling that will constrain environmental, consumer and financial watchdog agencies, A divided Supreme Court upended a forty year old legal doctrine that empowered federal regulators to interpret unclear laws. Conservatives have long targeted the Chevron doctrine in the so called War on the Administrative State, and the court's conservative justices reverse Chevron this week, effectively taking power away from executive branch agencies and shifting it to the courts. The Court has been chipping away at Chevron for years. As Chief Justice John Roberts pointed out in the oral arguments, how.

Much of an actual question on the ground is this.

Much of an actual question on the ground is this.

I saw some study that said we haven't relied on Chevron for fourteen years. The three liberal justices dissented. Justice Elaina Kagan wrote that in One Fell Swoop, the majority today gives itself exclusive power over every open issue, no matter how expertise driven or policy laden. Kagan had emphasized the importance of the Chevron doctrine during the arguments.

I saw some study that said we haven't relied on Chevron for fourteen years. The three liberal justices dissented. Justice Elaina Kagan wrote that in One Fell Swoop, the majority today gives itself exclusive power over every open issue, no matter how expertise driven or policy laden. Kagan had emphasized the importance of the Chevron doctrine during the arguments.

You know, the best option is to listen carefully and to defer if it's reasonable and if it's consistent with everything that we know that Congress has said. To defer to people who actually know things about these things, but you know, to people who understand the way particular questions fit within a broader statutory and regular time skiam.

You know, the best option is to listen carefully and to defer if it's reasonable and if it's consistent with everything that we know that Congress has said. To defer to people who actually know things about these things, but you know, to people who understand the way particular questions fit within a broader statutory and regular time skiam.

Joining me is Michael Darff, a professor of constitutional law at Cornell Law School. Mike tell us about the Chevron doctrine and its importance for federal regulation.

Joining me is Michael Darff, a professor of constitutional law at Cornell Law School. Mike tell us about the Chevron doctrine and its importance for federal regulation.

Sure, so, as listeners probably know, the federal government includes not only Congress, the President, and the courts, but an alphabet soup of administrative agencies. The Federal Aviation Administration, the Environmental Protection Agency, Homeland Security, the Justice Department, Education Department. All of these various departments each staff by a political appointee at the head, unless it's the so called independent agency, in which case it's somebody who's appointed but then has various protections. And then with lots of experts, people who have expertise in the particular field, so scientists at the Nuclear Regulatory Commission. Congress right statutes that are hundreds of pages law, giving power to the agencies to regulate. So the National Highway Traffic Safety Administration, which is lies within the Department of Transportation, writes rules governing safety mechanisms for new automobiles. These statutes are often pretty detailed, but it is in the nature of the complexity of life and the limitations of human language that invariably situations arise in which it's not entirely clear what some term in a statute meant. The Chevron case announced the principle which it said, and I think persuasively was not new in that case, but it became the canonical citation. Announced the principle that said that when Congress uses an ambiguous term or leaves a gap in a statute, and it could be interpreted in a range of possible ways, when an agency acts to fill that gap or to resolve the ambiguity, so long as it does so reasonably, the courts will not invalidate what the agency has done. This was known as the Chevron deference. Doctrine deference because agencies got deference, that is, a court's deferred to their reasonable interpretations of ambiguous statutes.

Sure, so, as listeners probably know, the federal government includes not only Congress, the President, and the courts, but an alphabet soup of administrative agencies. The Federal Aviation Administration, the Environmental Protection Agency, Homeland Security, the Justice Department, Education Department. All of these various departments each staff by a political appointee at the head, unless it's the so called independent agency, in which case it's somebody who's appointed but then has various protections. And then with lots of experts, people who have expertise in the particular field, so scientists at the Nuclear Regulatory Commission. Congress right statutes that are hundreds of pages law, giving power to the agencies to regulate. So the National Highway Traffic Safety Administration, which is lies within the Department of Transportation, writes rules governing safety mechanisms for new automobiles. These statutes are often pretty detailed, but it is in the nature of the complexity of life and the limitations of human language that invariably situations arise in which it's not entirely clear what some term in a statute meant. The Chevron case announced the principle which it said, and I think persuasively was not new in that case, but it became the canonical citation. Announced the principle that said that when Congress uses an ambiguous term or leaves a gap in a statute, and it could be interpreted in a range of possible ways, when an agency acts to fill that gap or to resolve the ambiguity, so long as it does so reasonably, the courts will not invalidate what the agency has done. This was known as the Chevron deference. Doctrine deference because agencies got deference, that is, a court's deferred to their reasonable interpretations of ambiguous statutes.

Chief Justice John Roberts wrote the majority opinion for the court, saying Chevron was a judicial invention that required judges to disregard their statutory duties. Explain his reasoning and why the Conservative supermajority finally reverse Chevron.

Chief Justice John Roberts wrote the majority opinion for the court, saying Chevron was a judicial invention that required judges to disregard their statutory duties. Explain his reasoning and why the Conservative supermajority finally reverse Chevron.

So the Chief Justice points to two main principles. First, he says that going back to Marborie against Madison in eighteen oh three, famous case that establishes the principle of judicial review of federal statute, Chief Justice John Marshall in that case said that it is quote emphatically the province and duty of the judiciary to say what the law is. And so Roberts says that by deferring to agencies construction of ambiguous statutes, the judiciary was advocating its responsibility to say what the law is. It was giving that power over to the administrative agencies, which are either housed in the executive branch or quasi independent of the executive branch, suggesting that there is a problem there in terms of the checks and balances or the separation of powers set up by the Constitution. But that's the first basic idea, that it's the judiciary's function to say what the law is, not that of administrative agencies. The second claim he makes is he says that the Administrative Procedure Act, which is a federal statute that governs basically judicial review of agency action, says that courts are supposed to review decisions of agencies with respect to the law. And that means he says that it's up to the court, not the agency, to say what the law is. That is to say, he interprets this provision of the APA to give effect to what he says is this principle from Marbarie against Madison, And therefore he concludes, for the last forty years, the courts have not been living up to their obligation. They've been giving away authority that is properly invested in the judiciary to administrative agents.

So the Chief Justice points to two main principles. First, he says that going back to Marborie against Madison in eighteen oh three, famous case that establishes the principle of judicial review of federal statute, Chief Justice John Marshall in that case said that it is quote emphatically the province and duty of the judiciary to say what the law is. And so Roberts says that by deferring to agencies construction of ambiguous statutes, the judiciary was advocating its responsibility to say what the law is. It was giving that power over to the administrative agencies, which are either housed in the executive branch or quasi independent of the executive branch, suggesting that there is a problem there in terms of the checks and balances or the separation of powers set up by the Constitution. But that's the first basic idea, that it's the judiciary's function to say what the law is, not that of administrative agencies. The second claim he makes is he says that the Administrative Procedure Act, which is a federal statute that governs basically judicial review of agency action, says that courts are supposed to review decisions of agencies with respect to the law. And that means he says that it's up to the court, not the agency, to say what the law is. That is to say, he interprets this provision of the APA to give effect to what he says is this principle from Marbarie against Madison, And therefore he concludes, for the last forty years, the courts have not been living up to their obligation. They've been giving away authority that is properly invested in the judiciary to administrative agents.

The three liberal justices in Descent, Justice Elena Kagan wrote, the majority disdains restraint and grasps for power is. She write that with this case the descent the three liberal justices in Descent, Justice Elena Kagan wrote, the majority disdains restraint and grasps for power. Is she right that with this case the Supreme Court is giving more power to itself and to federal courts.

The three liberal justices in Descent, Justice Elena Kagan wrote, the majority disdains restraint and grasps for power is. She write that with this case the descent the three liberal justices in Descent, Justice Elena Kagan wrote, the majority disdains restraint and grasps for power. Is she right that with this case the Supreme Court is giving more power to itself and to federal courts.

Yeah, I think she has a pretty good point right. The theory behind Chevron was never that agencies should be saying what the law is. It was always that when Congress says what the law is, it doesn't have perfect foresight and so it leaves open certain questions. And then the question is when Congress has done that, either through inadvertence, incompetence, sometimes deliberately because there was a compromise, sometimes deliberately because they didn't trust themselves. Whenever it's done that, who should it be assumed, was meant to be the recipient of the discretion to fill in the statutory gaps and ambiguity. And what Justice Kagan says and what Chevron had been based on for the last forty some MyDD years, was that we should assume Congress would prefer that an expert agency decide what these often technical terms mean using their expertise, and in some circumstances, insofar as these ambiguities implicate policy questions, because the agency is ultimately accountable through the secretary of the agency and then to the president, there'd be a political input as opposed to judges who typically don't know much about the underlying regulatory issue and who are not accountable. And just to give you a kind of poignant example of this issue, the Supreme Court just issued an opinion in a case called Ohio against EPA, in which Justice Gorsuch, in his majority opinion, incorrectly referred to one of the key chemicals as nikes oxide, which is laughing gas, rather than the correct chemical name, showing that judges are not experts in all of the scientific and technical questions that regulators are experts in how could they be, and that therefore it's not surprising that sometimes the judges will get it wrong, and we are better off when they are these ambiguities having the experts at the agency's fill them out, and if they get it wrong in some sense or objectionable, Congress can always amend the statue.

Yeah, I think she has a pretty good point right. The theory behind Chevron was never that agencies should be saying what the law is. It was always that when Congress says what the law is, it doesn't have perfect foresight and so it leaves open certain questions. And then the question is when Congress has done that, either through inadvertence, incompetence, sometimes deliberately because there was a compromise, sometimes deliberately because they didn't trust themselves. Whenever it's done that, who should it be assumed, was meant to be the recipient of the discretion to fill in the statutory gaps and ambiguity. And what Justice Kagan says and what Chevron had been based on for the last forty some MyDD years, was that we should assume Congress would prefer that an expert agency decide what these often technical terms mean using their expertise, and in some circumstances, insofar as these ambiguities implicate policy questions, because the agency is ultimately accountable through the secretary of the agency and then to the president, there'd be a political input as opposed to judges who typically don't know much about the underlying regulatory issue and who are not accountable. And just to give you a kind of poignant example of this issue, the Supreme Court just issued an opinion in a case called Ohio against EPA, in which Justice Gorsuch, in his majority opinion, incorrectly referred to one of the key chemicals as nikes oxide, which is laughing gas, rather than the correct chemical name, showing that judges are not experts in all of the scientific and technical questions that regulators are experts in how could they be, and that therefore it's not surprising that sometimes the judges will get it wrong, and we are better off when they are these ambiguities having the experts at the agency's fill them out, and if they get it wrong in some sense or objectionable, Congress can always amend the statue.

Chevron was initially applauded by conservatives like the late Justice antonin Scalia. Why did conservatives come to loathe it so much?

Chevron was initially applauded by conservatives like the late Justice antonin Scalia. Why did conservatives come to loathe it so much?

So?

So?

I think there are three things worth saying about that. First, the original Chevron case upheld a deregulatory environmental program by the Environmental Protection Agency under the Reagan administration. That is to say, there was a rule by the Reagan EPA construing the statutory term stationary source in a way that allowed more pollution than had been allowed under the previous Parter administration, and what the Chevron case did was to say that rule was okay. So you're right that as a basic matter, there is nothing inherent in the Chevron doctrine that conservatives would dislike. There are cases in which it actually helps them get to the results they want, which is if we assume generally conservatives are more skeptical of regulation than liberals. The second thing I'll say, though, is that over the long run, if you sort of average out over all cases, it's probably true that Chevron leads to more liberal results than conservative results. Because most of the cases that end up going to court coming from agencies are cases in which somebody from industry is challenging a regulation of them, and then the question is do you defer as a court to the agency's regulation. That is to say, Chevron was an unusual case in which there was deference to a deregulatory action. In most cases, it's a matter of deferring to regulation. And so conservatives, insofar as they have an objection to regulation in general, came to dislike Chevron because they saw it as building up the administrative state. Think about, you know, Steve Bannon's attacks on the administrative state or even the so called deep states from Donald Trump by this idea that we are being regulated by bureaucrats. So in so far as Chevron gave some additional power to bureaucrats, to experts, to the agencies who are not necessarily directly controlled by politics and who are going to be regulating, they didn't like that. Third thing I'll say is I don't think it is from the perspective of the conservatives who support this move I don't think it is a bug so much as it is a feature. That it gives more power to judges, because if they look around, they will observe that conservatives dominate the federal judiciary in a way that they certainly don't dominate the executive branch. During a democratic administration, and even during Republican administrations, agencies can take actions at lower levels that are regulatory. So all of that suggests that a tightly disciplined conservative movement that is opposed to regulation would want to get rid of Chevron. And you saw that even before this decision in efforts by Republicans in Congress to introduce bills to elimination Chevron deference.

I think there are three things worth saying about that. First, the original Chevron case upheld a deregulatory environmental program by the Environmental Protection Agency under the Reagan administration. That is to say, there was a rule by the Reagan EPA construing the statutory term stationary source in a way that allowed more pollution than had been allowed under the previous Parter administration, and what the Chevron case did was to say that rule was okay. So you're right that as a basic matter, there is nothing inherent in the Chevron doctrine that conservatives would dislike. There are cases in which it actually helps them get to the results they want, which is if we assume generally conservatives are more skeptical of regulation than liberals. The second thing I'll say, though, is that over the long run, if you sort of average out over all cases, it's probably true that Chevron leads to more liberal results than conservative results. Because most of the cases that end up going to court coming from agencies are cases in which somebody from industry is challenging a regulation of them, and then the question is do you defer as a court to the agency's regulation. That is to say, Chevron was an unusual case in which there was deference to a deregulatory action. In most cases, it's a matter of deferring to regulation. And so conservatives, insofar as they have an objection to regulation in general, came to dislike Chevron because they saw it as building up the administrative state. Think about, you know, Steve Bannon's attacks on the administrative state or even the so called deep states from Donald Trump by this idea that we are being regulated by bureaucrats. So in so far as Chevron gave some additional power to bureaucrats, to experts, to the agencies who are not necessarily directly controlled by politics and who are going to be regulating, they didn't like that. Third thing I'll say is I don't think it is from the perspective of the conservatives who support this move I don't think it is a bug so much as it is a feature. That it gives more power to judges, because if they look around, they will observe that conservatives dominate the federal judiciary in a way that they certainly don't dominate the executive branch. During a democratic administration, and even during Republican administrations, agencies can take actions at lower levels that are regulatory. So all of that suggests that a tightly disciplined conservative movement that is opposed to regulation would want to get rid of Chevron. And you saw that even before this decision in efforts by Republicans in Congress to introduce bills to elimination Chevron deference.

I've heard a lot of doomsday scenarios about the end of the Chevron doctrine. That it will paralyze federal agencies, that will undermine important protections for the public, from the environment to workplace, that will open the floodgates of litigation. And that's just to name a few of the warnings. What do you think the effects will be?

I've heard a lot of doomsday scenarios about the end of the Chevron doctrine. That it will paralyze federal agencies, that will undermine important protections for the public, from the environment to workplace, that will open the floodgates of litigation. And that's just to name a few of the warnings. What do you think the effects will be?

So?

So?

I think the concern is a little bit overblown, but mostly because the Supreme Court at least was already raining in the agencies using other tools, the most powerful of which was created a while back but has been transformed in recent years, and that's the so called Major Questions doctrine, which was used, for example, to strike down the Biden administration OSHA mandate or vaccinations in the administration. They used the Major Questions to do that. They've used it to strike down environmental regulations, and that basically says that if Congress doesn't give an agency specific marching orders and the agency tries to do something quote major, then the courts will assume that's beyond the power of the agency, and that was already in place without overruling Chevron. Moreover, as to Justice Roberts says in his opinion, the Supreme Court itself hasn't applied Chevron deference in several years anyway, so they were already in effect not deferring to the agency.

I think the concern is a little bit overblown, but mostly because the Supreme Court at least was already raining in the agencies using other tools, the most powerful of which was created a while back but has been transformed in recent years, and that's the so called Major Questions doctrine, which was used, for example, to strike down the Biden administration OSHA mandate or vaccinations in the administration. They used the Major Questions to do that. They've used it to strike down environmental regulations, and that basically says that if Congress doesn't give an agency specific marching orders and the agency tries to do something quote major, then the courts will assume that's beyond the power of the agency, and that was already in place without overruling Chevron. Moreover, as to Justice Roberts says in his opinion, the Supreme Court itself hasn't applied Chevron deference in several years anyway, so they were already in effect not deferring to the agency.

Now.

Now.

That is not to say that this decision won't have any impact. After all, not every regulation that gets reviewed by the court goes up to the Supreme Court. And even though the US Supreme Court hasn't used Chevron to defer to agencies in several years, lower courts have. So I do think that this is going to have two effects. One is it will license lower court to invalidate agency actions a bit more frequently, and the other is it will have some kind of a chilling effect on the issuance of regulations by federal agents. I'll just say one further thing about it, which listeners que interesting that can find my write up of this point on my blog that's Scorf on law, and that is that there is some ambiguity in the majority opinion as to what the basis for the ruling is, as I said earlier, it's at least clear that Chief Justice Roberts and the Majority think that Chevron was inconsistent with the text of the Administrative Procedure Act. But Justice Thomas writes a concurrence in which he says not only that Chevron was unconstitutional. The Majority doesn't reject that, but they don't endorse it either. And the reason why it matters is if Chevron is unconstitutional, then that's it. There can never be deference to agencies under general principle. Again, however, if the Majority was only relying on this inconsistency with the statute and throwing in the constitutional points about Marbury against Madison merely as rhetoric, then there's a possibility that in the future a Congress could pass a law reinstating Chevron. That's extremely unlucky to happen with either House of Congress controlled by Republicans or with the Republican president, but you could imagine a future Democratic Congress and Democratic president wanting more robust power pre agencies and enacting such a statute. And we don't know after this decision whether a statutory requirement of deference would be upheld or not.

That is not to say that this decision won't have any impact. After all, not every regulation that gets reviewed by the court goes up to the Supreme Court. And even though the US Supreme Court hasn't used Chevron to defer to agencies in several years, lower courts have. So I do think that this is going to have two effects. One is it will license lower court to invalidate agency actions a bit more frequently, and the other is it will have some kind of a chilling effect on the issuance of regulations by federal agents. I'll just say one further thing about it, which listeners que interesting that can find my write up of this point on my blog that's Scorf on law, and that is that there is some ambiguity in the majority opinion as to what the basis for the ruling is, as I said earlier, it's at least clear that Chief Justice Roberts and the Majority think that Chevron was inconsistent with the text of the Administrative Procedure Act. But Justice Thomas writes a concurrence in which he says not only that Chevron was unconstitutional. The Majority doesn't reject that, but they don't endorse it either. And the reason why it matters is if Chevron is unconstitutional, then that's it. There can never be deference to agencies under general principle. Again, however, if the Majority was only relying on this inconsistency with the statute and throwing in the constitutional points about Marbury against Madison merely as rhetoric, then there's a possibility that in the future a Congress could pass a law reinstating Chevron. That's extremely unlucky to happen with either House of Congress controlled by Republicans or with the Republican president, but you could imagine a future Democratic Congress and Democratic president wanting more robust power pre agencies and enacting such a statute. And we don't know after this decision whether a statutory requirement of deference would be upheld or not.

Stay with me, Mike. Coming up next, I'm going to continue this conversation with Professor Michael Dorff of Cornell Law School. We'll discuss the court limiting obstruction charges against January sixth defendants. I'm June Grosso and you're listening to Bloomberg. The Supreme Court sided with a January sixth in a decision that will likely upend many capital riot prosecutions and perhaps even the DC criminal case against former President Donald Trump. The justices ruled six to three that the charge of obstructing an official proceeding enacted in response to the Enron collapse must include proof that defendants tried to tamper with or destroy documents During the oral argument. Several conservative justices like Neil Gorsuch had expressed skepticism about the scope of the obstruction charge and the kinds of conduct it could criminalize.

Stay with me, Mike. Coming up next, I'm going to continue this conversation with Professor Michael Dorff of Cornell Law School. We'll discuss the court limiting obstruction charges against January sixth defendants. I'm June Grosso and you're listening to Bloomberg. The Supreme Court sided with a January sixth in a decision that will likely upend many capital riot prosecutions and perhaps even the DC criminal case against former President Donald Trump. The justices ruled six to three that the charge of obstructing an official proceeding enacted in response to the Enron collapse must include proof that defendants tried to tamper with or destroy documents During the oral argument. Several conservative justices like Neil Gorsuch had expressed skepticism about the scope of the obstruction charge and the kinds of conduct it could criminalize.

Would a sit in that disrupts a trial for access to a federal courthouse qualify? Would a heckler in today's audience qualify? Or at the State of the Union address? Would pulling a fire alarm before a vote qualify? For twenty years in federal prison.

Would a sit in that disrupts a trial for access to a federal courthouse qualify? Would a heckler in today's audience qualify? Or at the State of the Union address? Would pulling a fire alarm before a vote qualify? For twenty years in federal prison.

The case divided the court along unusual lines, with liberal Justice Aie Brown Jackson joining the conservatives in the majority and conservative Justice Amy Cony Barrett joined the two other liberals in descent. I've been talking to constitutional law expert Michael Dorf, a professor at Cornell Law School, Mike tell us about the main issue in the case.

The case divided the court along unusual lines, with liberal Justice Aie Brown Jackson joining the conservatives in the majority and conservative Justice Amy Cony Barrett joined the two other liberals in descent. I've been talking to constitutional law expert Michael Dorf, a professor at Cornell Law School, Mike tell us about the main issue in the case.

So this is a case called Fisher against the United States. So Fisher was charged with participating in the January sixth insurrection, and he was charged under a number of statues, one of which is at issue in this case, and that is a provision that says that he was obstructing from an official proceeding. I'll read you the exact text. It says, whoever corruptly and then it has a bunch of examples alters, destroys, mutilates, or can feels a record, document or other objects, etc.

So this is a case called Fisher against the United States. So Fisher was charged with participating in the January sixth insurrection, and he was charged under a number of statues, one of which is at issue in this case, and that is a provision that says that he was obstructing from an official proceeding. I'll read you the exact text. It says, whoever corruptly and then it has a bunch of examples alters, destroys, mutilates, or can feels a record, document or other objects, etc.

Etc.

Etc.

Or quote otherwise obstruct, influences, or impedes any official proceeding, shall guilty of the crime. Fisher was charged under the second part, which says somebody who otherwise obstruct and official proceeding. And the question in the case was whether what Fisher did, which was basically to participate in mob violence, including against Capitol police, whether that counts as otherwise obstructing and official proceeding. Now, everybody in the case acknowledges that if you just take that language in isolation otherwise obstruct. Well, sure Fisher obstructed an official proceeding because he participated in this mob action, and the mob action delayed the certification of the electoral votes on January sixth, twenty twenty one. But Chief just As Roberts writes for a six to three majority that you can't read that term obstructs and official proceeding in isolation. You have to read it in conjunction with the previous sub paragraph part one, which is all about destroying records, documents, other physical items that are going to be used in an official proceeding, and not generally about obstructing. Now, one thing I should say is when I say it was six to three, listeners might assume that that was the usual six to three. It wasn't quite. Justice Katanji Brown Jackson joined in the majority, whereas Justice amy Cony Barrett wrote the descent for herself and Justices Soto, Mayor and Kagan. So in that sense, two justices sort of flipped from what you might think of as their usual ideological or partisan alignment. But it basically comes down to a case decided on ideological lines, and in.

Or quote otherwise obstruct, influences, or impedes any official proceeding, shall guilty of the crime. Fisher was charged under the second part, which says somebody who otherwise obstruct and official proceeding. And the question in the case was whether what Fisher did, which was basically to participate in mob violence, including against Capitol police, whether that counts as otherwise obstructing and official proceeding. Now, everybody in the case acknowledges that if you just take that language in isolation otherwise obstruct. Well, sure Fisher obstructed an official proceeding because he participated in this mob action, and the mob action delayed the certification of the electoral votes on January sixth, twenty twenty one. But Chief just As Roberts writes for a six to three majority that you can't read that term obstructs and official proceeding in isolation. You have to read it in conjunction with the previous sub paragraph part one, which is all about destroying records, documents, other physical items that are going to be used in an official proceeding, and not generally about obstructing. Now, one thing I should say is when I say it was six to three, listeners might assume that that was the usual six to three. It wasn't quite. Justice Katanji Brown Jackson joined in the majority, whereas Justice amy Cony Barrett wrote the descent for herself and Justices Soto, Mayor and Kagan. So in that sense, two justices sort of flipped from what you might think of as their usual ideological or partisan alignment. But it basically comes down to a case decided on ideological lines, and in.

The dissent, Justice Barrett wrote, the majority simply cannot believe that Congress meant what it said when writing this statute. So who do you think makes the better argument, meant the Chief or Barrett.

The dissent, Justice Barrett wrote, the majority simply cannot believe that Congress meant what it said when writing this statute. So who do you think makes the better argument, meant the Chief or Barrett.

I think it's actually a hard case. So if you put aside that this case involves January sixth, and just think about the statute, there's I think a decent argument on either side. Chief. Just as Robert invokes two Latin maxims which I won't try to pronounce, that basically say that if you have a list of things and then you have a catch all, the catch lol is limited by the idea behind what the specifics are. And he gives a couple of sort of amusing examples. One involves football, another involves sign at a zoo about not disturbing the animals, and he says that you take the specifics and then the catch lol means other things that are like the specifics but not too far distant. Now, what Justice Barrett does in it does not to deny the general principle, but to deny that the structure of the statutory provision parallels the examples that Chief Justice Roberts gives, and she says that language of otherwise obstruct really does stand more alone than he acknowledges that they're in two separate sub paragraphs that if you parse the language, are a little different. So I think she's right that, taken at face value, the language does cover what Fisher and other people did on January sixth, But I think the majority is also right that you can't take it just at face value. And so the hard question is on that sort of second level of disagreement, which is, to what extent does this statute fit the paradigm that the Chief Justice adopt where it's a casual at the end of a specific list. Because it doesn't fit it exactly, but it's kind of like that, And so I think reasonable minds could differ on that.

I think it's actually a hard case. So if you put aside that this case involves January sixth, and just think about the statute, there's I think a decent argument on either side. Chief. Just as Robert invokes two Latin maxims which I won't try to pronounce, that basically say that if you have a list of things and then you have a catch all, the catch lol is limited by the idea behind what the specifics are. And he gives a couple of sort of amusing examples. One involves football, another involves sign at a zoo about not disturbing the animals, and he says that you take the specifics and then the catch lol means other things that are like the specifics but not too far distant. Now, what Justice Barrett does in it does not to deny the general principle, but to deny that the structure of the statutory provision parallels the examples that Chief Justice Roberts gives, and she says that language of otherwise obstruct really does stand more alone than he acknowledges that they're in two separate sub paragraphs that if you parse the language, are a little different. So I think she's right that, taken at face value, the language does cover what Fisher and other people did on January sixth, But I think the majority is also right that you can't take it just at face value. And so the hard question is on that sort of second level of disagreement, which is, to what extent does this statute fit the paradigm that the Chief Justice adopt where it's a casual at the end of a specific list. Because it doesn't fit it exactly, but it's kind of like that, And so I think reasonable minds could differ on that.

Question, reasonable minds that are textualists. I mean, is this a showdown between textualist interpretations. Barrett wrote that the majority does textual backflips to find some way anyway to narrow the reach of the obstruction law, and Barrett has also recently disagreed with the way Justice Clarence Thomas has analyzed a case.

Question, reasonable minds that are textualists. I mean, is this a showdown between textualist interpretations. Barrett wrote that the majority does textual backflips to find some way anyway to narrow the reach of the obstruction law, and Barrett has also recently disagreed with the way Justice Clarence Thomas has analyzed a case.

I think it's fair to say that there is a developing risk between Justice Barrett and the other conservatives. She's still quite conservative overall, but there's a developing rerip over methodology. And you see this not only here where she says, you know, you're not really doing textualism, You're relying an awful lot on these Latin maxims rather than looking closely at the structure of the statue. But you also see this in her current in last week's Raheemi case. This is the case where the court upheld, as against a Second Amendment challenge, the federal statute that forbids people who are under domestic violence protection orders from obtaining firearms, and the Court upheld that eight to one. But there's a series of concurrences. And one of the things that Justice Barrett says in her concurrence is she distances herself from the so called tradition approach, which I think is more closely associated certainly with Justice Thomas and to some extent with Justice Kavanaugh. And she wants to say that no, no, we really as originalist textualists, want to focus on the meaning of the word and you know what laws were around at the time, what people's subjective intentions and expectations that might have been might be relevant in figuring out what the words mean, but they're not relevant in and of themselves in the way that some of the other more history and tradition focused conservatives seem to think. Now, I should say that that disagreement doesn't necessarily make her likely to be less conservative overall, but I do think it shows her to be somewhat more principled than some of the other conservatives, and really thinking through the consequences of her jurisprudential methodological commitment, and that in so being principled, she's likely more often to reach results that might be surprising ideologically. So I do think there is some prospect that we are going to see her be less reliably conservative over the coming years, not so much because she's becoming a liberal, but because she's sort of really sticking by the implications of her methodology, which will sometimes few liberal.

I think it's fair to say that there is a developing risk between Justice Barrett and the other conservatives. She's still quite conservative overall, but there's a developing rerip over methodology. And you see this not only here where she says, you know, you're not really doing textualism, You're relying an awful lot on these Latin maxims rather than looking closely at the structure of the statue. But you also see this in her current in last week's Raheemi case. This is the case where the court upheld, as against a Second Amendment challenge, the federal statute that forbids people who are under domestic violence protection orders from obtaining firearms, and the Court upheld that eight to one. But there's a series of concurrences. And one of the things that Justice Barrett says in her concurrence is she distances herself from the so called tradition approach, which I think is more closely associated certainly with Justice Thomas and to some extent with Justice Kavanaugh. And she wants to say that no, no, we really as originalist textualists, want to focus on the meaning of the word and you know what laws were around at the time, what people's subjective intentions and expectations that might have been might be relevant in figuring out what the words mean, but they're not relevant in and of themselves in the way that some of the other more history and tradition focused conservatives seem to think. Now, I should say that that disagreement doesn't necessarily make her likely to be less conservative overall, but I do think it shows her to be somewhat more principled than some of the other conservatives, and really thinking through the consequences of her jurisprudential methodological commitment, and that in so being principled, she's likely more often to reach results that might be surprising ideologically. So I do think there is some prospect that we are going to see her be less reliably conservative over the coming years, not so much because she's becoming a liberal, but because she's sort of really sticking by the implications of her methodology, which will sometimes few liberal.

In particular case, this case got a lot of attention because the charge has been used against Trump, but Special counsel Jack Smith has said that Trump's conduct would still be covered even under a narrower interpretation of the statute because, for example, it involved efforts to interfere with the electoral college certificates arriving at the desk to be counted.

In particular case, this case got a lot of attention because the charge has been used against Trump, but Special counsel Jack Smith has said that Trump's conduct would still be covered even under a narrower interpretation of the statute because, for example, it involved efforts to interfere with the electoral college certificates arriving at the desk to be counted.

Yeah, I think there's something to that. The court sends even Fisher's case back to the lower courts to figure out whether he can be charged under the narrower reading, because you know, you could say that all of the January sixth rioters were interfering with the arrival or counting or something to do with the physical certificates. In that case, then this case would be a bit of a sport right, having no real bearing on the January sixth prosecutions, but potentially having bearing on other cases rise under this statute in totally different setting. I think Smith has a stronger argument that Trump himself was obstructing with respect to the particular certificates in light of the allegations about the so called fake electors scheme, because there the goal was to get before Congress certificates from people purporting to be electors who really weren't, and you could say that then what they were doing was obstructing the official proceeding with respect to the availability for use of the real certificates. I don't think it's a slam dunk, but I think it's Smith has a pretty good case that even after the Fisher decision, the allegations against Trump's stand. And it's important to remember that Smith has charged Trump under other statutes as well, So it's not just that even if under this narrower view those counts against Trump are thrown out, there's still a case. Again. Of course, all of that would depend on the outcome that's coming down on Monday in the immunity case, the.

Yeah, I think there's something to that. The court sends even Fisher's case back to the lower courts to figure out whether he can be charged under the narrower reading, because you know, you could say that all of the January sixth rioters were interfering with the arrival or counting or something to do with the physical certificates. In that case, then this case would be a bit of a sport right, having no real bearing on the January sixth prosecutions, but potentially having bearing on other cases rise under this statute in totally different setting. I think Smith has a stronger argument that Trump himself was obstructing with respect to the particular certificates in light of the allegations about the so called fake electors scheme, because there the goal was to get before Congress certificates from people purporting to be electors who really weren't, and you could say that then what they were doing was obstructing the official proceeding with respect to the availability for use of the real certificates. I don't think it's a slam dunk, but I think it's Smith has a pretty good case that even after the Fisher decision, the allegations against Trump's stand. And it's important to remember that Smith has charged Trump under other statutes as well, So it's not just that even if under this narrower view those counts against Trump are thrown out, there's still a case. Again. Of course, all of that would depend on the outcome that's coming down on Monday in the immunity case, the.

Last day of the term, and the decision we've all been waiting for on whether or not Trump will win any part of his claim of presidential immunity. Now, as far as the hundreds of January sixth defendants who were prosecuted, the US Attorney's Office says this decision will most significantly affect about fifty two people convicted of obstruction and no other felony, with twenty seven of those defendants now serving a prison sentence. So will their lawyers now go to court and try to get the charges dismissed?

Last day of the term, and the decision we've all been waiting for on whether or not Trump will win any part of his claim of presidential immunity. Now, as far as the hundreds of January sixth defendants who were prosecuted, the US Attorney's Office says this decision will most significantly affect about fifty two people convicted of obstruction and no other felony, with twenty seven of those defendants now serving a prison sentence. So will their lawyers now go to court and try to get the charges dismissed?

Undoubtedly? Right, that is, you know, it would be incompetence not to that is to say, anybody serving any time for a conviction arising out of the January sixth events under this statute, their lawyer, would you know, now make a motion to have the conviction in sentence. They now at that point it would be open to the Justice Department to seek a new indictment, either under some other statute there are lesser offenses that can be charged, or potentially to ask to retry the defendants under this particular statute. But trying to meet the narrower definition given.

Undoubtedly? Right, that is, you know, it would be incompetence not to that is to say, anybody serving any time for a conviction arising out of the January sixth events under this statute, their lawyer, would you know, now make a motion to have the conviction in sentence. They now at that point it would be open to the Justice Department to seek a new indictment, either under some other statute there are lesser offenses that can be charged, or potentially to ask to retry the defendants under this particular statute. But trying to meet the narrower definition given.

In the Fisher case, this decision is certainly going to make a lot more work for the prosecutors. Thanks so much, Mike for taking us through these two major decisions this week. That's Professor Michael Dorf of Cornell Law School coming up next. The Supreme Court allows emergency abortions in Idaho for now. I'm June Grosso and you're listening to Bloomberg. The Supreme Court will allow Idaho hospitals to provide abortions in medical emergencies for the time being. Over three descents, the Court reinstated a trial court order that insures Idaho hospitals can perform a urgency abortions to protect the health of the mother. Despite the state's ban on abortions unless the mother's life is in danger. During the oral arguments, Justice Elena Kaigan explain the clash between Idaho's strict abortion law and federal law the Emergency Medical Treatment and Labor Act known as MTELLA.

In the Fisher case, this decision is certainly going to make a lot more work for the prosecutors. Thanks so much, Mike for taking us through these two major decisions this week. That's Professor Michael Dorf of Cornell Law School coming up next. The Supreme Court allows emergency abortions in Idaho for now. I'm June Grosso and you're listening to Bloomberg. The Supreme Court will allow Idaho hospitals to provide abortions in medical emergencies for the time being. Over three descents, the Court reinstated a trial court order that insures Idaho hospitals can perform a urgency abortions to protect the health of the mother. Despite the state's ban on abortions unless the mother's life is in danger. During the oral arguments, Justice Elena Kaigan explain the clash between Idaho's strict abortion law and federal law the Emergency Medical Treatment and Labor Act known as MTELLA.

Where the woman is her life is not imperiled, but she's going to lose her reproductive organs, she's going to lose the ability to have children in the future unless an abortion takes place. Now, that's the category of cases in which I'm talis, says, my gosh. Of course the abortion is necessary to assure that no material deterioration occurs, and yet Idaho says, sorry, no abortion here.

Where the woman is her life is not imperiled, but she's going to lose her reproductive organs, she's going to lose the ability to have children in the future unless an abortion takes place. Now, that's the category of cases in which I'm talis, says, my gosh. Of course the abortion is necessary to assure that no material deterioration occurs, and yet Idaho says, sorry, no abortion here.

The justices dismissed the case as improvidently granted, meaning they shouldn't have taken it in the first place. But this procedural order leaves key questions unanswered and likely means the issue will come back to the court again. Joining me is reproductive rights expert Mary Ziegler, a professor at UC Davis Law School. Mary, this is just a temporary victory for abortion rights. What's the importance of this decision.

The justices dismissed the case as improvidently granted, meaning they shouldn't have taken it in the first place. But this procedural order leaves key questions unanswered and likely means the issue will come back to the court again. Joining me is reproductive rights expert Mary Ziegler, a professor at UC Davis Law School. Mary, this is just a temporary victory for abortion rights. What's the importance of this decision.

It's short term significance is that it allows emergency procedures in Idaho to continue pursu into an injunction that the district court issued, other than that it primarily takes the can down the road. So questions about emergency access are going to continue to unfold in courts across the country, and they may eventually return to the US Supreme Court.

It's short term significance is that it allows emergency procedures in Idaho to continue pursu into an injunction that the district court issued, other than that it primarily takes the can down the road. So questions about emergency access are going to continue to unfold in courts across the country, and they may eventually return to the US Supreme Court.

So this case fractured the court three three and three, sort of illustrating the three wings of the court. The three liberal justices joined the three moderates in supporting the decision to allow emergency abortions, and the three most conservative justices dissented. And the Court as a whole didn't explain its decision. So what can we glean from this split?

So this case fractured the court three three and three, sort of illustrating the three wings of the court. The three liberal justices joined the three moderates in supporting the decision to allow emergency abortions, and the three most conservative justices dissented. And the Court as a whole didn't explain its decision. So what can we glean from this split?

Well, I mean, I think that we have the best clues from the the opinion offered by Justice Barrett that the three kind of swing conservative justices believed that the terms of the litigation had changed in what they saw as consequential ways since the Court agreed to hear the case. And I think the three were interested in this spending clause theory that Idaho had raised, but believed that it had never been heard by the lower courts. So I think it stands through the proposition that maybe those justices are willing to side with Idaho, maybe they're also interested in some kind of what they would view as a compromise ruling, but that in either case they weren't ready to reach a final conclusion before the election.

Well, I mean, I think that we have the best clues from the the opinion offered by Justice Barrett that the three kind of swing conservative justices believed that the terms of the litigation had changed in what they saw as consequential ways since the Court agreed to hear the case. And I think the three were interested in this spending clause theory that Idaho had raised, but believed that it had never been heard by the lower courts. So I think it stands through the proposition that maybe those justices are willing to side with Idaho, maybe they're also interested in some kind of what they would view as a compromise ruling, but that in either case they weren't ready to reach a final conclusion before the election.

The opinion by the three liberals talked about what's happening to women in Idaho who need abortions and didn't get them, sort of echoing what Justice Kagan said during the oral arguments.

The opinion by the three liberals talked about what's happening to women in Idaho who need abortions and didn't get them, sort of echoing what Justice Kagan said during the oral arguments.

From what I've gathered, there's evidence that there have been significant harms in Idaho, that patients have been, you know, airlifted to other states in a handful of circumstances. We know that there have been knock on effects in terms of people not choosing Idaho for their medical residencies, that having further effects on access to care for pregnantatients across the state. I think, obviously, in terms of scholarly documentation of that were just at the beginning. But there is data, I think, including data cited by Justice Jackson in her opinion, to the effect that even allowing the law to goat into effect when it did has had real world effects.

From what I've gathered, there's evidence that there have been significant harms in Idaho, that patients have been, you know, airlifted to other states in a handful of circumstances. We know that there have been knock on effects in terms of people not choosing Idaho for their medical residencies, that having further effects on access to care for pregnantatients across the state. I think, obviously, in terms of scholarly documentation of that were just at the beginning. But there is data, I think, including data cited by Justice Jackson in her opinion, to the effect that even allowing the law to goat into effect when it did has had real world effects.

And so it was only the three liberals who said that Imtala requires hospitals to provide abortions that Idaho's law prohibits. That you know, Idaho's laws preempted by the federal law.

And so it was only the three liberals who said that Imtala requires hospitals to provide abortions that Idaho's law prohibits. That you know, Idaho's laws preempted by the federal law.

Yeah, I mean, I think Justice Jackson clearly wanted to reach that conclusion. The other two liberals were willing to go along with the idea that it was okay to defer a decision essentially that the petition had been improvidently Granted, it's probably fair to assume that that was, you know, a compromise on the part of those liberal justices. But Justice Kagan did take it upon herself to respond to some of the conservative usice's points on preemption, and we can certainly gather from that that she doesn't think that the preemption arguments that Idaho had raised were very good.

Yeah, I mean, I think Justice Jackson clearly wanted to reach that conclusion. The other two liberals were willing to go along with the idea that it was okay to defer a decision essentially that the petition had been improvidently Granted, it's probably fair to assume that that was, you know, a compromise on the part of those liberal justices. But Justice Kagan did take it upon herself to respond to some of the conservative usice's points on preemption, and we can certainly gather from that that she doesn't think that the preemption arguments that Idaho had raised were very good.

Just as Samuel Alito wrote the Descent in part, echoing his questioning during the oral arguments.

Just as Samuel Alito wrote the Descent in part, echoing his questioning during the oral arguments.

How can you impose restrictions on what Idaho can criminalize simply because hospitals in Idaho have chosen to participate in Medicare. I don't understand how this swears with the whole theory of the spending clause.

How can you impose restrictions on what Idaho can criminalize simply because hospitals in Idaho have chosen to participate in Medicare. I don't understand how this swears with the whole theory of the spending clause.

So tell us about his descent.

So tell us about his descent.

Well, there was a lot there, and the justice Alito wrote about the spending clause argument, he also spent a lot of time on the fact that Antala uses the language unborn child, which Alito suggested created express protection for the unborn child, as he put it, and would by definition need no emergency access to abortion for patients. That's obviously an interesting and significant conclusion because the statue just used the word on warnchet didn't say anything more about unborn children than that. So Alito's conclusion seems to be if a statute uses language like that, it suggests a belief that an unborn child is an equal rights holding person or patient, at least for statutory purposes. So that's a pretty revealing reading of the statute again, even though that isn't going to be the legal upshot, at least for now.

Well, there was a lot there, and the justice Alito wrote about the spending clause argument, he also spent a lot of time on the fact that Antala uses the language unborn child, which Alito suggested created express protection for the unborn child, as he put it, and would by definition need no emergency access to abortion for patients. That's obviously an interesting and significant conclusion because the statue just used the word on warnchet didn't say anything more about unborn children than that. So Alito's conclusion seems to be if a statute uses language like that, it suggests a belief that an unborn child is an equal rights holding person or patient, at least for statutory purposes. So that's a pretty revealing reading of the statute again, even though that isn't going to be the legal upshot, at least for now.

Well, Alito has suggested in oral arguments and elsewhere this concept of fetal personhood before, hasn't he Yeah, I.

Well, Alito has suggested in oral arguments and elsewhere this concept of fetal personhood before, hasn't he Yeah, I.

Mean he's used personhood adjacent language in Dobbs, so we know that he's been at least open to this kind of question. He hasn't, of course, addressed constitutional questions of personhood in the sense of the conclusion that fetuses have Fourteenth Amendment rights clearly in any of these cases, but the way he's approaching the question certainly suggests that he may be open to that kind of argument.

Mean he's used personhood adjacent language in Dobbs, so we know that he's been at least open to this kind of question. He hasn't, of course, addressed constitutional questions of personhood in the sense of the conclusion that fetuses have Fourteenth Amendment rights clearly in any of these cases, but the way he's approaching the question certainly suggests that he may be open to that kind of argument.

He also chided the court. He said, the Court has simply lost the will to decide the easy, but emotional, and highly politicized question that the case present. And on the other side, Justice Katanji Brown Jackson said the Court was punting on the issue. Quote, while this court dawdles and the country weights, pregnant people experiencing emergency medical conditions remain in a precarious position as their doctors are kept in the dark about what the law requires.

He also chided the court. He said, the Court has simply lost the will to decide the easy, but emotional, and highly politicized question that the case present. And on the other side, Justice Katanji Brown Jackson said the Court was punting on the issue. Quote, while this court dawdles and the country weights, pregnant people experiencing emergency medical conditions remain in a precarious position as their doctors are kept in the dark about what the law requires.

Right. I mean, you do see that coming from both Jackson and the conservatives, essentially that the Court took this case and should have had the courage to definitively resolve it. Of course, you know, neither of those wings of the Court has the power to make that call. Though it's a reminder of kind of where the power in the Court lies at the moment.

Right. I mean, you do see that coming from both Jackson and the conservatives, essentially that the Court took this case and should have had the courage to definitively resolve it. Of course, you know, neither of those wings of the Court has the power to make that call. Though it's a reminder of kind of where the power in the Court lies at the moment.

The Justices took two abortion cases this term, and in neither did they reach the merits. In the mif of pristone abortion pill case, they went off on procedural grounds. So I mean, why take the cases, especially this case where they made an unusual move bypassing the Ninth Circuit.

The Justices took two abortion cases this term, and in neither did they reach the merits. In the mif of pristone abortion pill case, they went off on procedural grounds. So I mean, why take the cases, especially this case where they made an unusual move bypassing the Ninth Circuit.

It's it's hard to know why the Court took the case. I imagine that at least at some point the conservative justices thought they had the votes to side with Idaho and then realized that they didn't, potentially because the oral argument in the case was such a disaster for the state of Idaho. I think obviously Chief Justice Roberts has been concerned with the Court's reputation and the damage to it in the years since Dobbs, and may have argued that the time was not right given the procedural problems and complexities of both cases, And he may have found a more receptive audience in Justices Barrett and Kavanaugh than he had previously. Not only that because this is an election year, but also because there were procedural and strategic mistakes made by the conservative attorneys in both of these cases.

It's it's hard to know why the Court took the case. I imagine that at least at some point the conservative justices thought they had the votes to side with Idaho and then realized that they didn't, potentially because the oral argument in the case was such a disaster for the state of Idaho. I think obviously Chief Justice Roberts has been concerned with the Court's reputation and the damage to it in the years since Dobbs, and may have argued that the time was not right given the procedural problems and complexities of both cases, And he may have found a more receptive audience in Justices Barrett and Kavanaugh than he had previously. Not only that because this is an election year, but also because there were procedural and strategic mistakes made by the conservative attorneys in both of these cases.

So explain what happens now what this decision actually does.

So explain what happens now what this decision actually does.

Well, in the short term, this decision has the effect of reinstating an injunction that a district judge put in place in Idaho permitting emergency access. That litigation will continued through the Ninth Circuit Court of Appeals. The decision does nothing to disturb a ruling by the Fifth Circuit Court of Appeals upholding an injunction against the Biden administration and allowing Texas's law to be enforced as written with its very narrow abortion exceptions, and it doesn't do anything to change the situation on the ground in other states with very narrow exceptions, although there is some in Pala related litigation potentially proceeding in some other states, like Oklahoma, So essentially all of that will continue as if none of this ever happened. The Supreme Court may come back into the picture. Then again, it may not, because if polls are correct and Donald Trump wins the twenty twenty four presidential election, a Trump administration would almost certainly withdraw the Santala guidance and not really try to intervene on behalf of patients facing life threatening emergencies.

Well, in the short term, this decision has the effect of reinstating an injunction that a district judge put in place in Idaho permitting emergency access. That litigation will continued through the Ninth Circuit Court of Appeals. The decision does nothing to disturb a ruling by the Fifth Circuit Court of Appeals upholding an injunction against the Biden administration and allowing Texas's law to be enforced as written with its very narrow abortion exceptions, and it doesn't do anything to change the situation on the ground in other states with very narrow exceptions, although there is some in Pala related litigation potentially proceeding in some other states, like Oklahoma, So essentially all of that will continue as if none of this ever happened. The Supreme Court may come back into the picture. Then again, it may not, because if polls are correct and Donald Trump wins the twenty twenty four presidential election, a Trump administration would almost certainly withdraw the Santala guidance and not really try to intervene on behalf of patients facing life threatening emergencies.

In fact, in her opinion, Justice Jackson says that the United States has already petitioned for CIRT in the Fifth Circuit case.

In fact, in her opinion, Justice Jackson says that the United States has already petitioned for CIRT in the Fifth Circuit case.

Yeah, and I think that will be going up to the court, and I think the case from the Ninth Circuit may too again unless Biden lose the twenty twenty four election and Trump stops interpreting in Tala in this way and the case becomes moot.

Yeah, and I think that will be going up to the court, and I think the case from the Ninth Circuit may too again unless Biden lose the twenty twenty four election and Trump stops interpreting in Tala in this way and the case becomes moot.

Do you surmise that in these cases the justices or some of the justices are considering that there's an election coming up and they don't want to rock the vote At this point, it's hard.

Do you surmise that in these cases the justices or some of the justices are considering that there's an election coming up and they don't want to rock the vote At this point, it's hard.

To say certainly that's a reasonable assumption, given that John Roberts, the Chief Justice who is in all of these coalitions, is a well known institutionalist to spend concerned about the hit the Court's reputation has taken since the Dobbs decision. At the same time, there were actual flaws in all of these cases that gave the Court an out. There were actual grave standing problems in the Alliance for Hipocratic Medicine case. There were reasons that this litigation was unsettled enough for the Court to refrain from intervening early. So I think this is a scenario where the Court had plausible deniability, although it's reasonable to assume that the election definitely played a part.

To say certainly that's a reasonable assumption, given that John Roberts, the Chief Justice who is in all of these coalitions, is a well known institutionalist to spend concerned about the hit the Court's reputation has taken since the Dobbs decision. At the same time, there were actual flaws in all of these cases that gave the Court an out. There were actual grave standing problems in the Alliance for Hipocratic Medicine case. There were reasons that this litigation was unsettled enough for the Court to refrain from intervening early. So I think this is a scenario where the Court had plausible deniability, although it's reasonable to assume that the election definitely played a part.

What conclusions can we draw from this term where the Court took two abortion cases and decided neither on the merits.

What conclusions can we draw from this term where the Court took two abortion cases and decided neither on the merits.

Well, we can't conclude a lot about what's going to come from the Supreme Court. You know, we know that there are some divides within the court about abortion, but they concern primarily how much further to the right to move the court and how much federal intervention to limit voters' ability to decide for themselves which abortion rights protections they want. How much in that direction the court is going to head. We know that that's on the table. We don't know which way the court ultimately is going to go, because again, so many of these substantive questions were deferred. We can conclude obviously that the federal courts are not going to remove themselves from the equation. This is not a question that is going to be returned to the states. It's a question that the federal courts and the executive branch are very much going to have a say in. And beyond that, I think much remains to be seen.

Well, we can't conclude a lot about what's going to come from the Supreme Court. You know, we know that there are some divides within the court about abortion, but they concern primarily how much further to the right to move the court and how much federal intervention to limit voters' ability to decide for themselves which abortion rights protections they want. How much in that direction the court is going to head. We know that that's on the table. We don't know which way the court ultimately is going to go, because again, so many of these substantive questions were deferred. We can conclude obviously that the federal courts are not going to remove themselves from the equation. This is not a question that is going to be returned to the states. It's a question that the federal courts and the executive branch are very much going to have a say in. And beyond that, I think much remains to be seen.

So as far as looking back at this term, what conclusions can we make about abortions.

So as far as looking back at this term, what conclusions can we make about abortions.

Well, I think we can conclude. You know, we know that there are some divides within the court about abortion, but they concern primarily how much further to the right to move the court and how much federal intervention to limit voters' ability to decide for themselves which abortion rights protections they want. How much in that direction the court is going to head. We know that that's on the table. We don't know which way the court ultimately is going to go, because again, so many of these substantive questions were deferred.

Well, I think we can conclude. You know, we know that there are some divides within the court about abortion, but they concern primarily how much further to the right to move the court and how much federal intervention to limit voters' ability to decide for themselves which abortion rights protections they want. How much in that direction the court is going to head. We know that that's on the table. We don't know which way the court ultimately is going to go, because again, so many of these substantive questions were deferred.

Speaking about voting, which states have abortion measures on the ballot for November?

Speaking about voting, which states have abortion measures on the ballot for November?

There I think are four states that have confirmed ballot initiatives. Colorado, Florida, Maryland, and South Dakota are all guaranteed to be on the ballot, and there are several others where they have submitted signatures to get on the ballot and where they're further signatures being gathered. So several other possible, including Arizona, Arkansas, Missouri, Montana, Nebraska, Nevada, and Pennsylvania.

There I think are four states that have confirmed ballot initiatives. Colorado, Florida, Maryland, and South Dakota are all guaranteed to be on the ballot, and there are several others where they have submitted signatures to get on the ballot and where they're further signatures being gathered. So several other possible, including Arizona, Arkansas, Missouri, Montana, Nebraska, Nevada, and Pennsylvania.

And voters have sided with abortion rights every time the issue has been directly on the ballot. Thanks so much, Mary. That's Professor Mary Ziegler of UC Davis 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 tune into The Bloomberg Law Show every weeknight at ten pm Wall Street Time. I'm June Grosso and you're listening to Bloomberg

And voters have sided with abortion rights every time the issue has been directly on the ballot. Thanks so much, Mary. That's Professor Mary Ziegler of UC Davis 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 tune into The Bloomberg Law Show every weeknight at ten pm Wall Street Time. I'm June Grosso and you're listening to Bloomberg