20 Burst results for "Justice Kagan"
Bloomberg Radio New York
"justice kagan" Discussed on Bloomberg Radio New York
"This is Bloomberg businessweek, with Carol messer and Tim stenbeck from Bloomberg radio. I am pretty certain that if we're going to try, even to put our toe in, even to begin to limit that power as we have done, we better know something about what we're talking about. And that means know something about the nature of national security problems and the ones that come up. Know something about the needs for particular rules that might infringe traditional civil liberties. Know something about the effects and know something about how other places deal with similar problems. We're not the only people in the world that have problems of national security and that have a long tradition of civil liberties. That's the voice of then Supreme Court Justice Stephen Breyer in a Bloomberg interview from 2016. And those comments were in response to a question about the judiciary stance on national security policy. His words were prescient in the context of our next story. With technology seeping into every walk of life and increasing proportion of high court decisions require at least a basic literacy in subjects that may not come naturally to its aging members. So writes Bloomberg's Greg store in the technology section of the current double issue of the magazine. Greg is Supreme Court reporter here at Bloomberg news. He joined me, Madison mills, and Bloomberg business week editor Joel Weber. On the question of whether our justices fully understand the complex technical issues that they are legislating. Well, that's what Greg came to us with. And this is just one of those ones where he really picked up the phone. He was very excited. He was like, Joel, I got to talk to you about this idea. And it turns out that this is not a totally new idea, but it's really relevant right now because of the case they're going to hear next year, which will basically focus on section two 30 and what that means for the future of the Internet. So rewind the clock a little bit for us, Greg. What happens when Elena Kagan and Stephen Breyer sit down and play Grand Theft Auto like they did about a decade ago? We just soak in that moment for go ahead. Yeah. I wish I could have been a fly on the wall for that one. Yeah, this is a case about a decade ago. It was a California law that banned the sale of violent video games to minors. And so justice Breyer, who was then in his early 70s in justice Kagan decided, we don't know a whole lot about violent video games. So we're going to check them out. And so they had it set up in justice Breyer's chambers and went down there and played Grand Theft Auto to try to learn a little bit about it. And as it turns out, according to justice Kagan, she was a lot more enthusiastic about it than he was. He thought it was really awful and disgusting, and she was like, next round, next round. We have more, we have more reporting to do on Kagan's video game obsession. If it became that, you know, including maybe what console she's into, but to keep it back on the Supreme Court. Obviously, Breyer is not going to be on the bench when they hear this case next week. But what do they have to do in order to get ready for a big case like the one they're going to hear when maybe they don't have as much expertise as people in the industry might. Well, the short answer is they do a lot of research with a lot of help from people around the court. You know, all of them have four 20 something are generally 20 something law clerks who can help them out. They've also got a whole courthouse full of people. So there is a case back in the late 1990s having to do with restrictions on posting adult oriented material in a way that children might see them. And so that was back before the court was really connected to the Internet. And so they set up a computer in the library where justices and their clerks would go there and put in searches to see if pornography popped up or something like that. In a more recent case, I actually talked to justice Breyer had interviewed him last week, and he said, this was a copyright case involving Google and Oracle. And he said, he just spent a lot of time trying to understand the Java programming language and how it worked. Because that was central to the case whether Google infringed oracle's copyright and spent a lot of time, he has a very lengthy explanation in his opinion siding with Google. For the most part, it was pretty well received in terms of understanding the technology at issue in the case. I would love to be on the fly on the wall when they try to teach lawmakers about TikTok and the importance of that moving forward. So there's this thing called an app. You got to open it and spend about 5 hours a day on it. But in all seriousness, Greg, to be fair to scotus, this is an issue that plagues a lot of lawmakers. We always hear these funny sound bites for members of Congress, too, when they're in a social media hearing or crypto hearing, for example, we remember doji coin from the FTX hearing. The Internet runs on tubes, medicine. Yes, exactly. Exactly. So how does scotus compare to Congress when it comes to understanding the Internet? Yes, that's a good question, Madison. There are certainly some examples of the Supreme Court saying similar type things. Maybe not quite as bad as the Internet being a collection of tubes. But over the years, the Supreme Court has asked some questions during arguments that suggest, yeah, they may not understand the technology. But I think there are a couple of important points. One, the court has gotten younger. So you have more justices who are in their 50s rather than in their 70s and 80s. We may be understanding the technology a little better. They have kids as well. And secondly, regardless of the age of the justices, for the most part, when I talk to people, actually almost entirely, when I talk to people, they said, despite some occasionally confused sounding questions, the court generally does a pretty good job by the end of the day when it puts out the really
Bloomberg Radio New York
"justice kagan" Discussed on Bloomberg Radio New York
"This is Bloomberg businessweek, with Carol mezger and Tim stenbeck from Bloomberg radio. I am pretty certain that if we're going to try, even to put our toe in, even to begin to limit that power as we have done, we better know something about what we're talking about. And that means know something about the nature of national security problems and the ones that come up. Know something about the needs for particular rules that might infringe traditional civil liberties. Know something about the effects and know something about how other places deal with similar problems. We're not the only people in the world that have problems of national security, and that have a long tradition of civil liberties. That's the voice of then Supreme Court Justice Stephen Breyer in a Bloomberg interview from 2016. And those comments were in response to a question about the judiciary stance on national security policy. His words were prescient in the context of our next story. With technology seeping into every walk of life and increasing proportion of high court decisions require at least a basic literacy and subjects that may not come naturally to its aging members So writes Bloomberg's Greg store in the technology section of the current double issue of the magazine. Greg is Supreme Court reporter here at Bloomberg news. He joined me, Madison mills, and Bloomberg business week editor Joel Weber. On the question of whether our justices fully understand the complex technical issues that they are legislating. Well, that's what Greg came to us with. And this is just one of those ones where he really picked up the phone. He was very excited and he was like Joel children. I got to talk to you about this idea. And it turns out that this is not a totally new idea, but it's really relevant right now because of the case they're going to hear next year, which will basically focus on section two 30 and what that means for the future of the Internet. So rewind the clock a little bit for us, Greg. What happens when Alina and Steven Breyer sit down and play Grand Theft Auto? Like they did about a decade ago. We just soak in that moment for go ahead. Yeah. I wish I could have been a fly on the wall for that one. Yeah, this is a case about a decade ago. It was a California law that banned the sale of violent video games to minors. And so justice Breyer, who was then in his early 70s in justice Kagan decided, we don't know a whole lot about violent video games. So we're going to check them out. And so they had it set up in justice Breyer's chambers and went down there and played Grand Theft Auto to try to learn a little bit about it. And as it turns out, according to justice Kagan, she was a lot more enthusiastic about it than he was. He thought it was really awful and disgusting, and she was like, next round, next round. We have more, we have more reporting to do on Kagan's video game obsession if it became that including maybe what console she's into, but to keep it back on the Supreme Court. Obviously, Breyer is not going to be on the bench when they hear this case next week. But what do they have to do in order to get ready for a big case like the one they're going to hear when maybe they don't have as much expertise as people in the industry might? Well, the short answer is that they do a lot of research with a lot of help from people around the court. You know, all of them have four 20 something are generally 20 something law clerks who can help them out. They've also got a whole courthouse full of people. So there's a case back in the late 1990s having to do with restrictions on posting adult oriented material in a way that children might see them. And so that was back before the court was really connected to the Internet. And so they set up a computer in the library where justices and their clerks would go there and put in searches to see if pornography popped up or something like that. In a more recent case, I actually talked to justice Breyer had interviewed him last week, and he said, this was a copyright case involving Google and Oracle. And he said, he just spent a lot of time trying to understand the Java programming language and how it worked. Because that was central to the case whether Google infringed oracle's copyright and spent a lot of time, he has a very lengthy explanation in his opinion siding with Google. For the most part, it was pretty well received in terms of understanding the technology at issue in the case. I would love to be on the fly, a fly on the wall when they try to teach lawmakers about TikTok and the importance of that moving forward. So there's this thing called an app. You got to open it and spend about 5 hours a day on it. But in all seriousness, Greg, you know, to be fair to scotus. This is an issue that plagues a lot of lawmakers. We always hear these funny sound bites for members of Congress, too, when they're in a social media hearing or crypto hearing, for example, we remember doji coin from the FTX hearing. The Internet runs on tubes, medicine. Yes, exactly. Exactly. So how does scotus compare to Congress when it comes to understanding
The Eric Metaxas Show
"justice kagan" Discussed on The Eric Metaxas Show
"Welcome back. I'm talking to Jenna Ellis. Jenna, you have a podcast. It's the Jenna Ellis show dot com. Is that where people can find it? Yes, on the Salem podcast network. And so rumble or our non friends at YouTube or anywhere you stream audio. The Jenna Ellis show dot com. Okay, you did an in depth show recently on the Supreme Court and this argument on Monday about yet another Colorado situation. So I want to talk about that. But you were teeing it up a moment ago while we were off the year by saying that thanks to Donald Trump actually doing what he said and appointing constitutionalists and originalists to the Supreme Court and fighting for them, including for Kavanaugh. Because of that, we have a Supreme Court that actually believes in the constitution, which gives us a fighting chance going forward when loony people in places like Colorado decide to go full on Marxist, thank goodness we can appeal to the Supreme Court, which is effectively what just happened. Absolutely. And the greatest generational win of my lifetime and possibly even your lifetime Eric, of course, was the overturn of roe versus wade, which would never have happened, but for Donald Trump and you talk about contrast and clarity to have a Supreme Court that was willing to recognize state sovereignty and the limits of power on the federal level is truly remarkable. And so when we look at this case, it's three O three creative versus Elena's. And the issue in that case, I'm from Colorado, so I am very familiar and actually was part of the team that sincerely advocated for the state legislature at that time where we had just one seat majority in the Senate for Republicans to have a sunset, meaning a total defunding of the Colorado civil rights commission,
Bloomberg Radio New York
"justice kagan" Discussed on Bloomberg Radio New York
"But that's a different thing than writing a memo for people. And so what justice Roberts says is, look, and we just say there's a world where you can't write a memo, but you just do your best within the limited constraints that you have. And I think that is an important discussion, but then it gets balanced with the question of, okay, let's say that's true. What now? What is the agency due now? Do you actually let it sort of run as this rudderless agency without any priorities or does this thing affect us actually get the right priorities for does a judge get the right to priority Verizon force them to support specific default? And I think that's where this thing falls apart. That's where I think you'll see a cobbled together coalition of justices. Say, look, you can't write a memo that de prioritizes people that Congress prioritize, AKA people with certain criminal convictions. But within the categories of people where there's clearly not enough funding, those you can actually create a prioritization given the historical basis of immigration law and the broad authority it gives to the federal government. The executive branch to deal with these issues. I thought it was really interesting that justice Kagan brought out the fact that has been forum shopping for judges that will issue nationwide injunctions in these cases. In Texas, there are divisions within districts. You can pick your trial court judge. You know, you play by the rules, that's fine. But you pick your trial court judge, one judge stops a federal immigration policy in its tracks. It certainly an issue that no matter who's doing it
Bloomberg Radio New York
"justice kagan" Discussed on Bloomberg Radio New York
"The judge might rely on, but the judge said, I think you were responsible for this death. I think because of that I have to increase your guideline range and give the guideline range was even in the 30 year rate and the judge decided to only put that in air quote give 20 and the rich long detailed backstory is there's a case from almost 25 years ago now with the Supreme Court said a judge is consideration of evidence even related to counts on which a defendant has been acquitted doesn't violate due process and that older decision came before some more recent rulings about the right to jury trial and the reach of the Sixth Amendment. And so there's been lots of complaints by me and lots of other people saying we don't think that's good precedent anymore. And the Clinton case is being pressed as an opportunity for the court to reconsider that older president. I know you filed an amicus brief asking the court to take this case. This so called acquitted conduct issue generated an unusual coalition back in 2014, when the court rejected a similar case to this and justices Ruth Bader Ginsburg and clarence Thomas joined justice Antonin Scalia's descent saying that the court should have granted review. It was a case called Joan. Really the same basic issue where was this drug setting where the prosecution claimed a series of defendants were involved in all sorts of drug dealing, the jury came back with a very mixed and limited verdict and then the prosecution went back to the judge sentencing and said, all the drug dealing we led should be considered for deciding what the guideline range is and adjust concluded at sentencing. Yeah, I guess I'm convinced that it's more likely than not. And so I've got to drive up the guidelines sentencing range. In that case, in the 2014 case, they needed one more vote to take the case. Why do you think they didn't have the vote of justice Sotomayor or justice Kagan? Well, thanks for queuing that up because this gets back to our earlier points about justice Breyer has been consistently concerned about extending very trial rights
Bloomberg Radio New York
"justice kagan" Discussed on Bloomberg Radio New York
"For this death. I think because of that I have to increase your guideline range and give the guideline range was even in the 30 year rate and the judge decided to only put that in air quote give 20 and the rich long detailed backstory is there's a case from almost 25 years ago now with the Supreme Court said a judge is consideration of evidence even related to count on which a defendant has been acquitted doesn't violate due process. And that older decision came before some more recent rulings about the right to jury trial and the reach of the Sixth Amendment. And so there's been lots of complaints by me and lots of other people saying, we don't think that's good precedent anymore. And the mcclinton case is being pressed as an opportunity for the court to reconsider that older president. I know you filed an amicus brief asking the court to take this case. This so called acquitted conduct issue generated an unusual coalition back in 2014, when the court rejected a similar case to this and justices Ruth Bader Ginsburg and clarence Thomas joined justice Antonin Scalia's descent saying that the court should have granted review. It was a case called Joan. Really the same basic issue where was this drug setting where the prosecution claimed a series of defendants were involved in all sorts of drug dealing, the jury came back with a very mixed and limited verdict and then the prosecution went back to the judge sentencing and said, all the drug dealing we led should be considered for deciding what the guideline range is and adjust concluded at sentencing. Yeah, I guess I'm convinced that that's more likely than not. And so I've got to drive up the guidelines sentencing range. In that case, in the 2014 case, they needed one more vote to take the case. Why do you think they didn't have the vote of justice Sotomayor justice Kagan? Well, thanks for queuing that up because this gets back to our earlier points about justice Breyer has been consistently concerned about extending jury trial rights that would limit
Bloomberg Radio New York
"justice kagan" Discussed on Bloomberg Radio New York
"Us to Supreme Court first day hadn't shown any harm that had resulted by bids of that district court. And so as justice kavian pointed out to her dissent in that case, it is called Louisiana versus American rivers. If the court is going to use the shadow docket in cases that just aren't emergencies like that case, then the shadow dock is not for emergencies at all. And all that's really happening is that these are thinly disguised and even more thinly recent. And that's imply there are folks like me who have become so much more publicly critical of what the courts do in this context. Yeah, that caught my eye undoing an EPA rule on water quality standards. How did they even justify or they don't have to justify guests taking that on emergency basis, it seems outlandish. And this is exactly where we are. I mean, I think that case is such a perfect crystallization where the hard to see what the emergency was, given that it had been 5 months since the district court had ruled, even if right the court was sympathetic to Louisiana's claims on the merits, the district court had misread the clean water act or misapplied relevant precedents about administrative law. Why not just put that on the bed? And deal with it in due course. And what's so striking about that decision June is you ask why did they do it? Well, we don't know. Because there was no majority opinion. There was no concurrent opinion. We know it was 5 to four, only because four justices publicly joined in the dissent and not just the three democratic appointees, chief assistant Roberts, joined justice Kagan's descending opinion, which called out the majority for in justice Kagan's words abusing the shadow docket. So I think what we're seeing is more and more public awareness of a trend that really started in 2017. And the clean water act is especially a gallon because the decision came just two days after justice Barrett gave this speech at the Ronald Reagan presidential library where she says, you know, if you really think we're politicians in robes and not judges, read our opinion. Read the opinion and see for yourself if there are legal principles driving our decision making, while two days later, she is the decisive vote in the clean water act case in which there was no opinion to read. And in some of these cases, you have lower courts having trials on these issues, and then the Supreme Court comes along and says, no, we're reversing that. Without oral argument without any explanation, it's troubling as far as the rule of law. The key is that, I think there are a lot of folks out there who think that all that matters at the bottom line. And so if I save the bottom line is okay, then I don't care about how the court copied it. But the process matters here. There's a more recent Louisiana case about redistricting that I think is really instructive here. So Louisiana, like a number of states, redrawing its congressional district after and in light of the 2020 census, a district court after an extensive hearing 152 page decision that carefully sets out why he believed Louisiana's maps violated the Voting Rights Act. Why we believed Louisiana was required to draw at least one more so called majority minority district to avoid violating section two of the Voting Rights Act. And it is a full bore full sort of analysis
The Charlie Kirk Show
Radical Left Organizations Encourage the Targeting of SCOTUS Homes
"Yesterday we talked about the group rise up for abortion, which is really just a front for a shadowy revolutionary Communist Party group. A Maoist organization founded in the 60s by bob, avakian. Now, interestingly enough, some on the left don't like that group because they call it a cult. Which seems very apropos. Now, another group that's actually getting probably more attention because they were the ones that actually doxxed the 5 out of the 6 conservative justices, Samuel Alito, Amy Coney Barrett, clarence Thomas, Brett Kavanaugh, Neil Gorsuch, is a group called Ruth sent us. Ruth sent us is asking activists to target Supreme Court Justices who may overturn roe V roe V wade with demonstrations at their private homes. Now, can we just state it? As a simple, clean fact here that you should not protest at private homes. You should not confront or get in their faces as Maxine water says, when people are out in public with their families, this is not appropriate. If you don't like somebody, you vote them out of office. If you don't like somebody, you can go on Twitter and say something mean and nasty to them. That's fine. And there might actually be free speech on Twitter moving forward with Elon Musk taking down. You do not, and I repeat, again, do not protest at private homes. I think it's just important to say that it's idiotic. It's stupid. If you're a conservative and you're considering protesting in front of, I don't know, justice Kagan's house because you think it's respect that she or one of her clerks were the leaker. Don't do it. Stop. It looks bad.
Bloomberg Radio New York
"justice kagan" Discussed on Bloomberg Radio New York
"Would be my impression with all the caveats that justice has asked questions all the time that don't necessarily tell us which way they're going to rule The first of this series of cases I mentioned Trinity Lutheran from Missouri That was 7 to two It wasn't an ideologically divided case The more recent one Espinosa that was 5 to four And so I suppose it wouldn't be surprising if this case out of Maine was also 5 to four or 6 to three given new membership But the questions that the more conservative justice we're asking seem to be pressing main on the claim that this isn't really discrimination against religion So there were a lot of hypos and kind of intriguing questions trying to flesh out the question whether what Maine is doing here is really just kind of a neutral way of deciding what it wants to fund or is this really the same kind of exclusion on the basis of religion that the court has already said is impermissible And tell us about the liberal justices concerns Justice breyer said look the state of Maine has an interest in deciding that it will reduce the possibilities of political strife political division if main just says look we are going to have a policy of only sending public funds to non religious schools That that will be a way of kind of preserving peace and a pluralistic society Justice Kagan proposed that when you're talking about funding that in that particular context states should have the leeway to decide whether or not they want to fund certain kinds of education or not It's a fascinating question that comes up in law a lot How do you decide when what the government is doing is penalizing somebody versus simply declining to benefit them Is that a tomato tomato kind of thing Or are there meaningful distinctions there Some look at this as a slippery slope that could lead to public funds being used for church sponsored charter schools To really intriguing question is whether a charter school program is analogous to the benefits program here Charter schools at least in theory our government schools And so because they're going to regard them as public schools It follows that they're not going to be religious schools But of course if we think of a charter school authorization program as being more like a general scholarship or school choice program well then it would look kind of weird if having a charter where a benefit but it was being denied to religious would be charter school operators but being granted to charter school operators who wanted to have stem schools or art schools or what have you So that will be a question Thanks Rick That's Richard Garnett of Notre-Dame law school coming up next Boston appears to be on the losing side of a Christian flag dispute This is Bloomberg.
Opening Arguments
"justice kagan" Discussed on Opening Arguments
"This is not a hard ask. This would have been a hard ask in 1955. Again, not a hard ask today. And so the court issued an injunction against using the existing map for the 2022 election. All seems sensible. Not if you are a Republican activist, and you are doing the math. And again, there is no, I just want to emphasize there is no reason to do what the Supreme Court did, except that you know politically you are watching your staying up to follow the midterms and you know that every house seat matters. And this is a potentially a two vote shift taking Alabama from 6 Republicans and one Democrat. That's plus 5 to 5 Republicans and two Democrats. That's plus three. That's the only reason for the Supreme Court to do what they did, which was, take the two things. They vacated the lower court's injunction. They said, eh, why don't you just stick with the racist thing while you're working it out? Because, you know, 7 weeks is way too much time to have to redraw map. And by the way, we are also going to grant certiorari before judgment. We're going to bypass the lower courts adjudicating this case. Take it all the way up to the Supreme Court and let you brief and argue the case before the Supreme Court, which, by the way, couldn't possibly happen in 7 weeks, right? That is going to take all the way into the next term. So it is incredibly pernicious because if you were going to do that, you would defer to the lower court's fact finding. That's the burn. Unbelievable. It's unbelievable. Breyer would be rolling around his grave if he were still around to see that, oh wait, he's still on the court. What did he say? Yeah, does he, is he starting to maybe regret his book tour about how legitimate this court is? This is a naked electoral grab by the Supreme Court something that's not supposed to do that at all. Yeah. And I want to point out, I have called this 5 four. The three same justices on the Supreme Court. What is called the court's liberal wing? Penned a separate dissent written by justice Kagan. Again, I want us to time travel to an alternate universe in which Hillary Clinton won in 2016. Can we do that? Yeah. Stay there, right? I have a child. In that alternate universe, we're doing a show about how conservative justice Kagan is. And again, it's hard to imagine that now. But seriously, by comparison to the rest of the court's liberal wing, Elena Kagan is the most conservative member of that liberal wing. It just doesn't matter. It hasn't she gone the wrong way on some of the religious questions that we've talked about. And so as you were evaluating that, this is now this has pushed the center left justice such that we can't really even see the distinctions anymore into describing nakedly what the Supreme Court is doing. John Roberts did not join that descent. John Roberts penned a separate descent to say we should not be deciding this on the shadow docket. And he says, we should still grant certiorari before judgment. We should still take up this case on the merits without letting its letting it wind its way through the courts. And we should consider broader challenges. He says this in his dissent to that long-standing rule that I alluded to the 1986. Again, not exactly the heyday of Supreme Court liberalism, right? Ronald Reagan's America, 1986 rehnquist court decision called thornburgh versus jingles. Robert says, yeah, I'm on board with revisiting jingles. Way too delightful a name for this topic. I'm just saying. Don't overturn jingles. It starts with the G so I suppose you could call it gingles if you wanted, but I'm pretty sure it's pronounced jingles. The jingles case, at Robert says, hey, you want to take this case up on bypass certiorari and overrule jingles cool. I'm here for that all day long. But let's not do that and also overturn the injunction. That is literally all his dissent says. So yeah, I mean, this is just the only reason, again, I'm not sure I made this as crystal clear as I would have liked on il 45. The only reason procedurally to behave in this fashion is because what you want to do is allow Alabama to use the map that has been determined by an independent three judge panel after a week's worth of testimony to be racist. You want them to be able to use the racist map in the 2022 elections. It is mind boggling. People should be more outraged than they are about this. I'm doing my best. I'm trying to pull everybody along with the outrage. I can only do so much on one man. Do I want to talk about it on this show, especially I mean, it's just it's incredible. It's an illegitimate court. And I wish, you know, it's not gonna happen, but I do wish the liberals on the court would just start saying that. This is actually we become with this decision in our descent, we say, this is not legitimate. This is fake. Sorry, everybody. We don't have a court anymore. I will say, if you read Kagan's descent, if you read some of the Sotomayor descents in some of the shadow docket cases involving, quote, religious liberty to sneeze on people. You will see the beginnings of that. And look like that's a tough ask for any Supreme Court Justice, it's a tough ass when you want at least three votes for that, right? And you have to say this and also not have justice can't we all just get along Stephen breyer signed on. He has signed on to those as well. So, you know, we're starting to have Supreme Court Justices that are calling this out. But yeah, we need to continue that practice. We need to get OA listeners as Supreme Court clerks out there. And I know we do, right? And begin encouraging right in your memos, sight to the New York rifle and pistol association, The White House brief. That's senator Sheldon whitehouse. Start describing in stark terms so that the press has no choice, but to pick up and say, in a blistering dissent, justice Sotomayor, right? Or in a blistering dissent, justice Brown Jackson. We got to do it. In a happier note, as you were saying that I was thinking about eventually, maybe we can have an OA listener like Hall of Fame. You know what, like a high school or something or college? Alumni of the show. If you start listening to the show, and you become a lawyer during the show or something, and you go become a judge somewhere. Let us know. Tell us and we'll get a little get some portraits going or something. I would love to do that. That would be amazing. While I'm happier news, let's talk to Andrew Seidel about Christian nationalism taking over the country. Unhappier news, let's talk to Andrew Seidel. I can find that sense. And we're joined by Andrew Seidel, welcome back. You've got the golden jacket of however many times being the guest on the show. Probably ten. Great to have you today..
Bloomberg Radio New York
"justice kagan" Discussed on Bloomberg Radio New York
"That would be my impression with all the caveats that justice asked questions all the time that don't necessarily tell us which way they're going to rule The first of the series of cases I mentioned Trinity Lutheran from Missouri That was 7 to two It wasn't an ideologically divided case the more recent one Espinosa that was 5 to four And so I suppose it wouldn't be surprising if this case out of Maine was also 5 to four or 6 to three giving the membership The questions that the more conservative justice we're asking seem to be pressing main on the claim that this isn't really discrimination against religion So there were a lot of hypos and kind of intriguing questions trying to flesh out the question whether what main is doing here is really just kind of a neutral way of deciding what it wants to fund or is this really the same kind of exclusion on the basis of religion that the court has already said is impermissible And tell us about the liberal justices concerns Just as far as to look at the state of Maine has an interest in deciding that it will reduce the possibilities of political strife political division if main just says look we are going to have a policy of only sending public funds to non religious schools That will be a way of kind of preserving peace in a pluralistic society Justice Kagan proposed that when you're talking about funding that in that particular context states should have the leeway to decide whether or not they want to fund certain kinds of education or not It's a fascinating question that comes up in law a lot How do you decide when what the government's doing is penalizing somebody versus simply declining to benefit them Is that a tomato tomato kind of thing Or are there other meaningful distinctions there Some look at this as a slippery slope that could lead to public funds being used for church sponsored charter schools To really intriguing question is whether a charter school program is analogous to the benefits program here Charter schools at least in theory our government schools And so because they're going to regard them as public schools it follows that they're not going to be religious schools But of course if we think of a charter school authorization program as being more like a general scholarship or school choice program well then it would look kind of weird if having a charter were a benefit but it was being denied to religious would be charter school operators but being granted to charter school operators who wanted to have stem schools or art schools or what have you So that will be a question Thanks Rick That's Richard Garnett of Notre-Dame law school Coming up miramax versus Tarantino This is Bloomberg Go.
Bloomberg Radio New York
"justice kagan" Discussed on Bloomberg Radio New York
"That would be my impression with all the caveats that justice has asked questions all the time that don't necessarily tell us which way they're going to rule The first of this series of cases I mentioned Trinity Lutheran from Missouri That was 7 to two It wasn't an ideologically divided case the more recent one Espinosa that was 5 to four And so I suppose it wouldn't be surprising if this case out of Maine was also 5 to four or 6 to three giving the membership The questions that the more conservative justice we're asking seem to be pressing main on the claim that this isn't really discrimination against religion So there were a lot of hypos and kind of intriguing questions trying to flesh out the question whether what main is doing here is really just kind of a neutral way of deciding what it wants to fund or is this really the same kind of exclusion on the basis of religion that the court has already said is impermissible And tell us about the liberal justices concerns Justice breyers said look at the state of Maine has an interest in deciding that it will reduce the possibilities of political strife political division if main just says look we are going to have a policy of only sending public funds to non religious schools That will be a way of kind of preserving peace in a pluralistic society Justice Kagan proposed that when you're talking about funding that in that particular context states should have the leeway to decide whether or not they want to fund certain kinds of education or not It's a fact the only question that comes up in law a lot is how do you decide when what the government's doing is penalizing somebody versus simply declining to benefit them Is that a tomato tomato kind of thing Or are there meaningful distinctions there Some will get this as a slippery slope that could lead to public funds being used for church sponsored charter schools They're really intriguing question is whether a charter school program is analogous to the benefits program here Charter schools at least in theory our government schools And so because they're going to regard them as public schools it follows that they're not going to be religious schools But of course if we think of a charter school authorization program as being more like a general scholarship or school choice program well then it would look kind of weird Having a charter were a benefit but it was being denied to religious would be charter school operators but being granted to charter school operators who wanted to have stem schools or art schools or what have you So that will be a question Thanks Rick That's Richard Garnett of Notre-Dame law school Coming up miramax versus Tarantino This is Bloomberg.
Bloomberg Radio New York
"justice kagan" Discussed on Bloomberg Radio New York
"That would be my impression with all the caveats that justice is asked questions all the time that don't necessarily tell us which way they're going to rule The first of this series of cases I mentioned Trinity Lutheran from Missouri That was 7 to two It wasn't an ideologically divided case the more recent one Espinosa that was 5 to four And so I suppose it wouldn't be surprising if this case out of Maine was also 5 to four or 6 to three giving the membership The questions that the more conservative justice we're asking seem to be pressing main on the claim that this isn't really discrimination against religion So there were a lot of hypos and kind of intriguing questions trying to flesh out the question whether what main is doing here is really just kind of a neutral way of deciding what it wants to fund or is this really the same kind of exclusion on the basis of religion that the court has already said is impermissible And tell us about the liberal justices concerns Justice breyers said look the state of Maine has an interest in deciding that it will reduce the possibilities of political strife political division if main just says look we are going to have a policy of only sending public funds to non religious schools If that would be a way of kind of preserving peace in a pluralistic society Justice Kagan proposed that when you're talking about funding that in that particular context states should have the leeway to decide whether or not they want to fund certain kinds of education or not It's a fact that any question that comes up in law a lot is how do you decide when what the government's doing is penalizing somebody versus simply declining to benefit them Is that a tomato tomato kind of thing Or are there meaningful distinctions there Some will get this as a slippery slope that could lead to public funds being used for church sponsored charter schools To really intriguing question is whether a charter school program is analogous to the benefits program here Charter schools at least in theory our government schools And so because they're going to regard them as public schools it follows that they're not going to be religious schools But of course if we think of a charter school authorization program as being more like a general scholarship or school choice program well then it would look kind of weird if having a charter were a benefit but it was being denied to religious would be charter school operators but being granted to charter school operators who wanted to have stem schools or art schools or what have you So that will be a question Thanks Rick That's Richard Garnett of Notre-Dame law school Coming up miramax versus Tarantino This is Bloomberg When.
Bloomberg Radio New York
"justice kagan" Discussed on Bloomberg Radio New York
"This is Bloomberg law with June Brussels from Bloomberg radio The Supreme Court heard arguments in a high stakes case over the strictest abortion law in the country the Texas law that has stopped most abortions in the state The focus was on the unusual provision Texas included that makes the law enforceable only through private lawsuits in order to keep federal courts from getting involved and enforcing constitutional rights Liberal Johns is Elena Kagan was the most vocal critic of the law Some geniuses came up with a way to evade the commands of that decision as well as the command that the broader even the even broader principle that states are not to nullify federal constitutional rights And it came as a bit of a surprise when conservative justice Brett Kavanaugh jumped in and signaled he agreed with Kagan And justice Kagan points out there's a loophole that's been exploited here Or used here which is the private suits are enforced by state court clerks or judges So the question becomes should we extend the principle of ex part a young to in essence close that loophole Joining me is Mary ziegler a professor at Florida state university college of law and author of the book abortion and the law in America a legal history The question before the court is not whether SBA is constitutional What is the question before the court Well they're really two questions One is whether SBA style laws are permissible basically whether states like Texas can use this kind of exotic strategy to prevent federal courts from hearing challenges And then there's a second question which is whether the Justice Department can bring a constitutional neural challenge Again just be in the way that it has So they're both kind of complicated procedural questions What kind of concerns did you hear from the justices There were obviously some justices that were sympathetic to Texas solicitor general but I think there were real concerns that if they sanctioned what was going on with SBA that that wouldn't be the end of the matter In other words that states could use similar strategies to circumvent other constitutional rights And so even though many of us think the court is skeptical about roe V wade and maybe poised to reconsider it that doesn't mean the justices are going to be happy with allowing states to kind of take the power unto themselves to avoid or nullify rights that supports still recognizes We heard that concern from justice is on both sides of the ideological spectrum Justice Kavanaugh used the example of a law restricting Second Amendment rights Well I think justice Kavanaugh and justice seem to hold similar concerns about whether this was a model that could affect other areas of the law So justice spirit asked about the First Amendment justice Kavanaugh asked about the Second Amendment which I think raises real questions about whether either of them will be voting with Texas in this case at least in the case involving the abortion providers as I mentioned there are two cases before the court Yes there's a case by the abortion providers and a case by the Justice Department Now several of the justices seem to have problems with the idea of suing judges Here's chief justice John Roberts response to Mark Heron a lawyer representing the providers It's the rules that have been created by the Texas legislature that turn courts into a weapon that can be used to nullify constitution You might appreciate that the idea of suing the judges that got our attention But is there even is there even a case or controversy Obviously the Supreme Court Justices are themselves judges and so that was a concern that came up There were questions I think too about If you were going to find a way around the hurdles that Texas directed who would be the right people to sue and whether judges would be the ones to be sued the court mentioned several past cases that the Supreme Court had decided that treated judges as the ones doing the enforcing For example of a racially restrictive covenant that limited where families of color could live courts were considered to be the ones enforcing the law in that situation But if interpreted the wrong way that could be an exception that swallows the rule Justice Elena Kagan I think sarcastically called the state legislators who wrote this some geniuses but does it seem as if they were very smart in the way they constructed this law Yeah I think that's right I mean this was a ban on abortion at 6 weeks And until the Supreme Court says roe V wade has gone that's blatantly unconstitutional So the fact that we're even having a serious conversation about whether Texas has the power to do this it does suggest that this was a clever line need because there's no other way absent this kind of procedural intricacy that we would even be having a serious conversation about this right now Did it seem from questioning as if justices Samuel lito clarence Thomas and Neil Gorsuch didn't have a problem with the law Yeah I think that justice is Gorsuch Thomas and Alito I think more or less seem to believe that the hurdles that Texas had erected were sound and that there was nothing particularly disturbing about the strategies that Texas had used here But I think obviously that's only three justices which means the Texas could still find itself in some real trouble But there do seem to be enough votes to support the abortion providers challenge Well I think it's much less clear that the Justice Department is going to fare well in the court Several of the justices at various points asked basically if the court were to side with the abortion providers in that case whether it would make it unnecessary her resolve the Justice Department's case there was also I think more skepticism of the Justice Department's position So I don't know if the Justice Department is going to fare as well But it does seem that there may not be high votes for Texas and the abortion providers case Why was there so much skepticism about the Justice Department's position What the Justice Department is doing is quite unprecedented in some ways and the justices were not convinced that the United States could show enough of an injury that had sort of sovereign interest in ensuring that states respect the constitution was tangible enough Even the idea that the Justice Department had to break its tradition about bringing constitutional challenges at this point And again I think the Justice Department suit is really a procedurally complex even compared to the abortion provider suit And so I think there was some interest in maybe avoiding that morass altogether Sort of in the background here is the court is going to be considering a Mississippi abortion law on the merits The Mississippi case is a ban on abortion at 15 weeks What's significant is that that's before a fetal viability which takes place at around the 24th week of pregnancy so to uphold the Mississippi law as many expect the court to do the court will either have to say roe V wade was wrong in its entirety or that the right to choose abortion doesn't apply until viability Neither of those would be a major decision that would put the court on the path to eliminating abortion rights altogether at some point Your feeling is that the court will uphold the Mississippi law I.
Bloomberg Radio New York
"justice kagan" Discussed on Bloomberg Radio New York
"The Supreme Court heard arguments on Monday in a high stakes case over the strictest abortion law in the country The Texas law that has stopped most abortions in the state The focus was on the unusual provision Texas included that makes the law enforceable only through private lawsuits in order to keep federal courts from getting involved and enforcing constitutional rights Liberal Jones if Elena Kagan was the most vocal critic of the law Some geniuses came up with a way to evade the commands of that decision as well as the command that the broader even the even broader principle that states are not to nullify federal constitutional rights And it came as a bit of a surprise when conservative justice Brett Kavanaugh jumped in and signaled he agreed with Kagan And justice Kagan points out there's a loophole that's been exploited here Or used here which is the private suits are enforced by state court clerks or judges So the question becomes should we extend the principle of ex part a young to in essence close that loophole Joining me is Mary ziegler a professor at Florida state university college of law and author of the book abortion and the law in America illegal history The question before the court is not whether SB 8 is constitutional What is the question before the court Well there are really two questions One is whether SBA style laws are permissible Basically whether states like Texas can use this kind of exotic strategy to prevent federal courts from hearing challenges And then there's a second question which is whether the Justice Department can bring a constitutional neural challenge Again just be in the way that it has So they're both kind of complicated procedural questions What kind of concerns did you hear from the justices There were obviously some justices that were sympathetic to Texas solicitor general but I think there were real concerns that if they sanctioned what was going on with SBA that that wouldn't be the end of the matter In other words that states could use similar strategies to circumvent other constitutional rights And so even though many of us think the court is skeptical about roe V wade and maybe poised to reconsider roe V wade that doesn't mean the justices are going to be happy with allowing states to kind of take the power unto themselves to avoid or nullify rights that support still recognizes We heard that concern from justice is on both sides of the ideological spectrum Justice Kavanaugh used the example of a law restricting Second Amendment rights Well I think justice Kavanaugh in justice seemed to hold similar concerns about whether this was a model that could affect other areas of the law So justice spirit asked about the First Amendment justice Kavanaugh asked about the Second Amendment which I think raises real questions about whether either of them will be voting with Texas in this case at least in the case involving the abortion providers as I mentioned there are two cases before the court Yes there's a case by the abortion providers and a case by the Justice Department Now several of the justices seem to have problems with the idea of suing judges Here's chief justice John Roberts response to Mark Heron a lawyer representing the providers It's the rules that have been created by the Texas legislature that turn courts into a weapon that can be used to nullify constitution You might appreciate that the idea of suing the judges got our attention But is there even is there even a case or controversy Obviously the Supreme Court Justices are themselves judges and so that was the concern that came up There were questions I think too about If you were going to find a way around the hurdles that Texas directed who would be the right people to sue and whether judges would be the ones to be sued the court mentioned several past cases that the Supreme Court had decided that treated judges as the ones doing the enforcing For example of a racially restrictive covenant that limited where families of color could live courts were considered to be the ones enforcing the law in that situation But if interpreted the wrong way that could be an exception that swallows the rule Justice Elena Kagan I think sarcastically call the state legislators who wrote this some geniuses but does it seem as if they were very smart in the way they constructed this law Yeah I think that's right I mean this was a ban on abortion at 6 weeks And until the Supreme Court says roe V wade has gone that's blatantly unconstitutional So the fact that we're even having a serious conversation about whether Texas has the power to do this does suggest that this was a clever law indeed because there's no other way absent this kind of procedural intricacy that we would even be having a serious conversation about this right now Did it seem from questioning as if justices Samuel lito clarence Thomas and Neil Gorsuch didn't have a problem with the law Yeah I think that justices Gorsuch Thomas and Toledo I think more or less seem to believe that the hurdles that Texas had erected were sound and that there was nothing particularly disturbing about the strategies that Texas had used here But I think obviously that's only three justices which means the Texas could still find itself in some real trouble But there do seem to be enough votes to support the abortion providers challenge Well I think it's much less clear that the Justice Department is going to fare well in the court Several of the justices at various points asked basically if the court were to side with the abortion providers in that case whether it would make it unnecessary her resolve the Justice Department's case there was also I think more skepticism of the Justice Department's position So I don't know if the Justice Department is going to fare as well But it does seem that there may not be high votes for Texas and the abortion providers case Why was there so much skepticism about the Justice Department's position What the Justice Department is doing is quite unprecedented in some ways And the justices were not convinced that the United States could show enough of an injury that had sort of sovereign interest in ensuring that states respect the constitution was tangible enough Even the idea that the Justice Department had to break its tradition about bringing constitutional challenges of this kind And again I think the Justice Department suit is really procedurally complex even compared to the abortion provider suit And so I think there was some interest in maybe avoiding that more ass altogether Sort of in the background here is that in just one month the court is going to be considering a Mississippi abortion law on the merits The Mississippi case is a ban on abortion at 15 weeks What's significant is that that's before a fetal viability which takes place at around the 24th week of pregnancy so to uphold the Mississippi laws many expect the court to do the court we.
We The People
"justice kagan" Discussed on We The People
"To allow those executions to proceed Overturning lower court findings to do that including you know vacating an injunction against the use of a particular lethal injection drug so again it does feel as though the court doesn't give us a lot of guidance about why in particular when we're talking about these life or death cases it sometimes intercedes and sometimes doesn't one through line seems to be religious liberty claims although not all religious liberty claims are more likely to get a receptive audience when we're talking about the death penalty shadow. Docket i agree with sarah. I think the death penalty cases do qualify as part of the shadow docket And not in other kinds of cases even wear lower cortex. Britain reasoned opinions finding meritorious. These claims fight death row inmates. The court has in a number of cases overturned sometimes in unreasoned orders those findings so i think that. That's the kind of inconsistent. I don't think justice kagan is an all suggesting that the court can or should avoid sometimes making decisions on an expedited basis but where upsetting the status quo sometimes issuing decisions that will have irreparable effects in some way. I mean if we're talking about an that's obviously the ultimate kind of irreparable harm but also allowing the taking effect of abortion ban that will functionally eliminate the possibility of terminating pregnancy for many many women. For whom even if the law is enjoined in the relatively near term they will have missed the opportunity to obtain a legal abortion under texas law potentially at their at great physical emotional other kinds of risk to themselves and their families And so. I do think that the court should one needs to explain itself better to does need to think differently about an explain differently. How valuing kind of harm In the balance. And i also think there is this disconnect in terms of the kind of votes required to do certain things on the court You know there are clearly four votes. In this case to take sur petition the four dissenters would vote to the case up now. It's a peculiar thing to figure it out. But it takes five to issue a stay and sorta issue an injunction and so this the you know the four dissenters did not have the votes to actually block the texas law though they would have taken it up. A petition were found in the ordinary. Course now they could still grant certain in this case relatively quickly. But i'm not sure they can grant surp- before judgment if no substantive opinion has finished even by the district court they could bypass it circuit and and take the case of that way but i'm not sure they grant right now. Although the someone says they can they can do whatever they want. But i think that that might have been an option sort of something analogous to With awarded with this death penalty case. It's about The court has before it this case challenging. Mississippi's fifteen week. Abortion ban. is there a world in which they could have actually just taken this case up. Let the texas law stay on hold. While they considered its constitutionality potentially alongside the mississippi case again it would have been deviate from their ordinary procedures to do that without any district court opinion But but but those sort of disconnect the distance between four and five with respect to doing certain things on the supreme court. I think it's also a real problem. That creates this impression that the court is acting in inconsistent. Way is that it is preferencing and disfavoring certain kinds of rights claims and that sort of the shadow docket makes all of that crystal clear. And i think all of that is what kigoma saying in her. No very short Descent about the shadow. Docket like you some of that. Sarah what do you think of case assessment of the shadow dog. And then tell us. What are the implication of jonathan mitchell's legal theory for other controversial areas going forward as you both explained it so well mitchell's theory allows The legislature to provide for private enforcement actions through these civil lawsuits after a federal district. Court has forbidden the executive from enforcing it so it basically during the period where a district court might a reach one conclusion about the constitution until the supreme court definitively resolve the question. You can have these lawsuits. And that's why in cases not only like abortion but also perhaps the second amendment religious liberty. It would seem that this theory would allow for states to deny citizens the supreme court's current Interpretation of the scope of constitutional rights. Basically waiting for the court to overturn that decision and reach a more conservative conclusion. A have i got that right and might be more broadly in those other countries. So i i just wanna like yagi girl. The consistency point that. Kate made because this was something that stuck in my cry gus in the original back and forth over the eviction moratorium. The one that happened in june before the biden administration extended it that went to the supreme court also on the shadow docket and there were only four votes to block the continuation of eviction. Moratorium justice kavanagh wrote separately. And what he said was. I do think that the cdc went beyond its legal authority doing this. Which would have made him a fifth vote but he says i am not going to be a fifth vote because There's only a few weeks left. The orderly wind down is more important. You know let's just chill out for a little while and yet in a very similar posture with a very similar question in some respects. That's not what we saw. In the procurements unsigned. We do not know who wrote it though. People have hypotheses in his abortion case. Imagine how differently would have hit the public whether you're a woman in texas or a reporter covering this. If the procurement opinion had said the exact same thing look. I think the texas wildly past an unconstitutional law here. There's no question that it is an undue burden under our supreme court precedent and they're trying to be super cute by coming up with this Experts a young problem however there is an expert a young problem therefore we do not want to have the precedent of in joining the wrong party. So we're not going to do that but make no mistake. This law is unconstitutional. Which is what he said. What justice cavanaugh said in the eviction moratorium case but instead what the majority said was. We're not saying one way or the other anything about the constitutionality. We're not commenting on the constitutionality. And i think that inconsistency understandably rubbed people especially abortion advocates. Really the wrong way. Because to them. Not only was it inconsistent. But it signalled maybe where the justices five justices at least are going on the dobbs case the one that kate referred to which is a. Mississippi's fifteen week. bannon abortion. Now there's a whole question of how this case will affect the supreme court's view of the dobbs case in that fifteen weeks does a six week ban. all of a sudden makes fifteen weeks. Look really reasonable. The pro-life advocates in that case or arguing for more of an international law concepts that the conservatives have thus far been allergic to and say allergic. I mean hives all over their bodies. When you mentioned international law and yet it's the conservatives who are pointing to europe and standards of you know norms for humanity so anyway they're all looking back at this saying wait a second in the eviction. Moratorium you're willing to say that it was unlawful. Just obviously but that you weren't gonna stay it but in this context you're not willing to stay up you're also not even willing to say it's unlawful. That's an inconsistency that i think is pretty one for one and perhaps speaks to the abortion distortion that we kind of started with now the second part of your question. Yes can other states do this. The answer at least for the time being is yes although. I certainly hope that the courts will work out this experts a young problem and it will apply then forthwith to all the future ones. But let me give you two examples one. We certainly know that there are other states have passed previous heartbeat bills. A more abortion restrictions have been struck down there like. Oh now we know how to do it. Great we'll do that next time. thanks but then. There's this hypothetical that we actually have not heard states considering but certainly could be out there you know. There is a gun case pending at the supreme court..
We The People
"justice kagan" Discussed on We The People
"This distorting effect hardly drugs have a distorting effect as well. We can go on a whole different line of cases where drug use seems to fall outside the norm of a bunch of other precedents. So yes i understand. Kate's point about the possible abortion distortion. Here but as you said let's back up and talk about the shadow docket so there's the normal course where opinions are issued on cases where they've heard or argument or had a significant briefing cert- granted and then there are these shadow docket cases where they're coming through orders instead. So someone's asking for an emergency order to stay something enjoying something. I would consider the death penalty cases too often fall under that. I don't know if kate does as well. And the court ends up in these weird positions where each case is a unique. Little snowflake When you dive into but then if you back up as she pointed out that steve vladeck did with all these stats. They look all over the place. Somethings get stays. Some things don't sometimes status quo matters sometimes the injunctions only on the likelihood that you're going to succeed when the merits do come before the court and so you know to quote clueless. it's like a monet. It's it's a whole mess when you get close to it. This is where kagan for the first time. By the supreme court justice used the term shadow docket in her dissent justice. Briar beat her using it in public. Just a few days earlier in his interview with the new york times but she was the first one to use an official supreme court documented stamp thing and she was complaining about this that they have too much coming up to the shadow docket. It's too important these opinions if you want to call them that or getting released in the middle of the night often on a friday by the way which doesn't make it look great either. This one was not and that it was a problem. Here's the issue. Though that i have with justice kagan's descent on that okay. What did you want to happen here instead. Because if you get rid of the shadow docket meaning the supreme court just doesn't hear emergency things then. What would have happened in. this case was at. The fifth circuit's delay. Kate was talking about would have just continued. So in fact it's not the justice kagan was objecting to the shadow docket. She was objecting to this stay. Not issuing under the shadow docket and perhaps the inconsistency over the course of shadow docket Jurisprudence the supreme court has said is often using a standard where you need to show that you would likely prevail down the road in order for them to issue the stay and i think what would have been actually a more helpful descent coming from justice kagan and what. I think she was trying to get out. But it's not there. Is that the stay standard. Should simply be different on the shadow docket and it should be about preserving the status quo and therefore they can all sit there and argue over. What the status quo is. Sometimes it's more obvious than others for sure But that that should actually be a bigger part of the standard they walk through and that would make show dock at far less controversial because basically the supreme court would say. Is there any chance that this is an interesting question of law. If so we'll put it on our docket. We'll have the stay to keep the status quo in the meantime and now you go to the back of the line and we're gonna hear your briefs we're going to get your oral argument and we're going to issue an opinion a year from now. Interestingly just this week the supreme court did exactly that in a death penalty case now the status quo definitely place is much easier to ascertain. the status. quo is at the person is alive. But it was a religious liberty question of who you have in the room during the execution the state of texas yup also a texas case had basically said you can have someone in the room but they have to be silent. They can't even breathe through their mouths. Basically they certainly can't touch you. Lay hands on you as this case was about and the supreme court said nope you're not going to execute this guy tonight. We want full briefing putting this in our regularly scheduled programming. And in the meantime everyone go back to your corners. That's i think what justice kagan's descent wanted but again because they had such a limited amount of time to even write these descents. I don't think she was fully able to elucidate that point. In a way that i think would have been more helpful to understand what she was getting out in criticizing the show docket. Thank you for that. Thank you for calling a listeners. Attention to that Powerful and important death penalty case where an inmate asks for of pastor to be not only in his presence but touching his hands or feet moment of death and as you said the court has put the execution on hold as it decides what to do appreciate. What do you make of. Sarah's accusation against justice kagan who said and i'll quote from justice kagan's language the majority's decision is emblematic of too much of this courts. Shadow docket decision making which every day becomes more unreasoned inconsistent and impossible to defend of. What what do you think. Just kagan was arguing for and what would a better approach to the shadow. Docket look like yeah. I mean i do think inconsistent is the key term here right. I think that that sarah's right she's upset here about the court's failure to intercede and you arguable. That's critical if there's too much if the quarters of using the shadow daca than how could she possibly be upset of the not interesting in this case but i think the point is this inconsistency so in death penalty cases for example right so the court were did block execution just last night but also in the last six months of the trump administration in the summer and the fall of twenty twenty. The federal government proceeded on Really a spree of federal executions and the court. I think the number is in seven of thirteen cases..
The Ben Shapiro Show
"justice kagan" Discussed on The Ben Shapiro Show
"Of the available options cannot be evaluated without also taking into account the other available means in other words. If the state says you can vote ten different ways and one of the ways happens to have disparate impact. There's still nine other ways for you to votes. He really can't say that this one right here. This right here is designed. in order. To prevent black and brown people voting meanwhile justice elena kagan wrote the dissension wherever it can majority cramps reading. Too broad language here. But here's the point. The broad of the language of the vieira. The bro more broadly you interpret language the the closer comes to violating the constitutional provision. That states gets run their own elections. If you are attempting to read the voting rights act in order to give the federal government complete purview over all voting procedures simply on the basis of in extremely statistically minute disparate impact. You're basically just getting rid of stability at all jamaica tone voting procedures which violates the constitution itself. Justice kagan said that the courts action was a devastating blow to the nation's ideal. She's what is tragic here is that the court has yet again rewritten. In order to weaken a statute that stands a monument to america's greatness and protect against its basis impulses. What is tragic is that. This court has damaged stat. You saturate designed to bring about quote the end of discrimination in voting well again. The statute was designed to do that. Statute has largely accomplished it and at a certain point. You're going to have to decide whether you just want to be in control. What would elena kagan in the democrats would like is to be in control of all voting procedures on the federal level. So democrats are using this. As an opportunity to push the equal right to act the voting rights act or new voting legislation of the john. Lewis and that of course is an unconstitutional piece of legislation. That federalize izzo voting procedure. You can see the democratic agenda call racist because if you call them racist then you get to federalize the procedure. But that's not what this case is about. This case simply said that some pretty basic voting requirements having a slightly disparate impact over the course of millions of voters does not mean that this thing was designed to be discriminatory or in fact is discriminatory abuse of law by will go through a little bit more of the decision in a second. Because it's kind of important because again the entire democratic case these days seems to boil down to everything. I don't like his racist and therefore give me control. We'll get some more of that in just one second. I if you're a business owner who's hiring you probably face a lot of challenges when it comes to finding the right person for your role. That's why hiring can feel trying to find a needle in a haystack. Sure you could post your job to some job board and all you can do is hope..
Rush Limbaugh
Justices say accident victims can sue Ford in state courts
"In favor of car accident victims who have wanted to sue Ford. Maybe she's Aaron Khutor ski explains to accident Victims one in Minnesota and one in Montana sued Ford in the states where they're accidents occurred. Ford tried to get those cases dismissed, arguing the states had no jurisdiction because the cars were not manufactured in them. In an opinion written by Justice Kagan, the Supreme Court said, when a company like Ford serves a market for a product in a state and that product causes injury in the state to one of its residents, the state's courts may entertain the resulting suit. Roughly 14% of US
Fox News Rundown
The relationship between Justice Scalia and RBG
"Lies in state in the Capitol today, the first woman ever given that honor in the first Supreme Court justice since William Howard Taft and he'd also been the president. Justice. Ginsburg's casket was at the court for two days for people to pay their respects, including President Trump, and the first lady booed when they got there. The president has had nice things to say about Justice Ginsburg since her death, you may agree. You may not disagree with her, but he was an inspiration to a tremendous number of people. I say all Americans, and now, he says, it's his job to fill that seat on the court. I think it's very important that we have nine justices. And I think the system is going to go very quickly. The president plans to announce his nominee tomorrow. Joe Biden, and a lot of other Democrats say he should fill that seat if he wins the election in light of Republicans blocking President Obama from filling a seat in an election year, the seat President Obama would have filled incident. Scalia's went to Neil Gorsuch instead of Merrick Garland. For all the fighting. There's been over Justices Scalia and Ginsburg in life. They were very good friends. People always find it surprising that they were such good friends, Christopher Scully's the Eighth of Incident. Scalia's nine Children. There's a new collection published of his father's writing called The Essential Scalia. Their friendship went back. Really to the early eighties, when they were judges together on the D C circuit Court of Appeals, which is kind of like the second most important court in the country, and they they had a good working relationship that which really started back then they would help each other revised their drafts and their opinions. Apparently, the other judges on that court really didn't like getting advice about their writing and how to improve the clarity of what they're writing in the force of their arguments. But Justice Ginsburg liked getting and receiving that kind of advice, and so did my dad, and they formed what he called a mutual improvement society during their time on the court there. And And they had other things in common. They were they had similar backgrounds and that they were both New Yorkers grew up in New York around the same time, different boroughs but around the same time and shared a love of opera. Good wine eating good food. Both of their thousands were excellent cooks. Marty Ginsburg, in particular, is kind of a legendary cook, who would put together wonderful meals every New Year's Eve and they would celebrate New Year's Every every year is well. So you know, despite all their differences, and all the many things they disagreed about, including a number of opinions in this collection. They had a wonderful friendship were able to kind of focus on the things they had in common. Your dad in Justice Ginsburg, I don't know the statistics on how often they concurred or dissented on cases. But I imagine that they disagreed. Maybe as much as any two Recent justices have my right. Yeah, I think that that sounds right. I don't know the statistics, either. I think people would be surprised by how often they agreed with each other. But on the real hot button cultural cases, they often disagreed one of her most important, most famous opinions. Was Virginia Military Institute case from the mid nineties. And my My father wrote a dissent to that case, which is in this collection, the essentials, Scalia and it was hey actually gave her the draft of that descent a little bit earlier than one usually does just so that she would have more time to kind of Deal with it and grapple grapple with his arguments. And and, yeah, some of his most staying the sense we're in response to opinions. She didn't necessarily right but but joined, And I think that's probably true. Vice versa. Tell us very about the big bouquet of roses she got from him. My dad would get her roses for her birthday and I guess the Ah, I think the last time he did that. So the year before he died, one of the editors of the Essential Scalia Judge Jeffrey Sutton was visiting my father in chambers on on Justice Ginsburg's birthday. And he saw that my dad had two dozen roses for Justice Ginsburg and Judge Sutton started teasing Dad saying, You know, I haven't even gotten my wife two dozen roses over the course of our entire marriage. Why would you do this? And besides, When was the last time she cited with you on a really important 54 decision? You know, he's poking fun, You know, not not really being serious, but My dad gave a serious answer, which was some things are more important than votes. As I think I just kind of a great encapsulation of their of their relationship of their friendship they had they had Very different opinions of politics and of their jobs as a zoo judges and of what laws, men and with the Constitution, man. But, uh, how they voted wasn't the biggest factor in their relationship. It wasn't that those opinions didn't matter. And it wasn't that they compromised their beliefs for each other. But they didn't let those very strongly held beliefs undermine their very deep friendship collection of Supreme Court. Justice Antonin Scalia is writing sort of like a greatest hits album. It's opinions and other writing about the law and the Constitution again called the Essential Scalia. This is really just a collection of his greatest Legal writings, opinions, speeches, essays and they collected together give a really good sense of white. Exactly. He was such a significant Supreme Court justice on it. They're having in one collection really makes it tangible for anybody understand that we'll just as a legal reference work. You've got to think it's going to end up being bought by or four A lot of lawyers and judges know absolutely in law students. I hope you know that he he wrote. Clearly, he wrote, Hey, had so many memorable phrases and his opinions. His logic was so strong and convincing that people just kind of they often went to his opinions first. And so it's good for people to kind of have that as a resource to keep going to those opinions. Even you know, even after His passing is also besides the legal community. It's also like you said. It's very readable, even for non lawyers for just a general interest audience who might, but he was just simply a very, very good writer. Yeah, it's exactly right. He hey, wrote. For? I guess we would now call it out of transparency. You know, Even when he was writing Supreme court opinions, he understood that they should be understood themselves by everyday citizens, not just legal eagles and people with legal degrees. He kind of a recurring theme of his opinions. Is that people should know what the court courts are doing and people that the court should not usurp power that properly belongs to the people. And I think that kind of reverence for the Democratic order is is kind of manifest in his in the clarity of his writing a lot of times if he had a vote, a personal vote on how a case would turn out it may or may not a lot of times did a line with how he ruled, But sometimes it probably wouldn't have right. Yeah, I think that's true. And that's especially true in one example is when he sided with the majority in a flag burning case. The majority ruled that, um, it was constitutional sorry from burning the flag was constitutionally protected speech under the First Amendment so prohibiting that in the state law was unconstitutional. My father often explained that he did not like Three idea of flag burning. If he were a king, he would ban it. But clearly to him falls under the protection of the protection of the First Amendment, and a lot of conservatives to this day do not like that opinion. My father thought the Constitution was clear about that. There are many examples in this collection, the essential Scalia of instances in which he stands up for the rights of the accused defendant's rights. There's a famous case in here where search and seizure cases as well there a couple of those in here where he just thought, you know the police do not have authority, for example, to use Scans of houses, Tio identify Marilou who was growing marijuana without that was an illegal search examples like that s so if he could just pass a law That was one thing, but actually sorry, there couldn't be even be lost for that because they so clearly violated the Constitution, even though obviously he wouldn't have approved of those particular actions. Sure. Hey, was also notice the talker during oral arguments. He has asked a lot of questions and clearly sometimes, though, they weren't really questions. They were just arguments he was making to his fellow justices. Do you think he went into most cases with his mind made up based on the briefs, and the president is a bad thing, but not usually the case. I think that the justices, you know, I can't say for certain, but my hunch is that they often have to go in with a pretty good idea, but I think for the most part, they do ask questions, not just Not just to be heard or not just to make arguments, but because they want to really engage with the arguments that the lawyers are making in the forward to this collection, Justice Kegan first of all, very happy that she agreed to write this beautiful forward, But she she says that she says just that, you know, Dad would ask these questions because he loved argument and kind of loved mixing it up. It wasn't just kind of wasn't just for show though he did. I think you're right. He was very kind of an engaging speaker and There was some study years ago that that found he was. He was the funniest justice by the standards of he drew the most laughter from the courtroom during oral arguments, which obviously isn't the most important thing to do, but just shows how much he he enjoyed that process that love for debate. Did it? Was it a two way street was? Was he persuadable? Absolutely. That's something justice Kagan mentions in her forward. She doesn't say when she ever changed his mind, but says They change each other's minds at times. Well, Christopher Scalia, It was great to talk, Teo, The book is called The Essential Scalia on the Constitution, the courts and the rule of law. Chris Scalia. Really good to talk to you. Thanks so much, Thanks so much appreciate your time.