Fifth Circuit Most Reversed & Olympian Charged With Felony

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1:48The most conservative federal appellate court in the country, the Fifth Circuit Court of Appeals topped the list of the circuits most reversed by the Supreme Court for the third year in a row. The justices reversed the Fifth Circuit eight times out of 11 cases, or in roughly 73 percent of cases. The reversals included some high-profile cases, like that involving a Mississippi law allowing absentee ballots postmarked by Election Day and received up to five days later to be counted, a law the Supreme Court upheld in a five-to-four decision. And Trump appointees on the Fifth Circuit fared very poorly.

2:29The justices heard four cases from the Fifth Circuit, decided by panels with a majority of Trump appointees, and reversed in all. My guest is an expert in constitutional law, Harold Krent, a professor at the Chicago-Kent College of Law. Why do you think the Fifth Circuit is getting reversed so much? You know, I think it may be close to a statistical anomaly. The cases were various. There was not a theme. They weren't even necessarily highly politicized cases as they were the last two terms from the Fifth Circuit. So I wouldn't put that much stock in the fact that the Fifth Circuit was the most overruled this year.

3:08It just happens some way. And sometimes, obviously, the rate overall is very high at 70 percent in terms of reversals. And so this is just a potpourri of cases that were a little bit under the radar. And it wasn't even as ideologically charged as some of the decisions have been in the last couple of years. So, you know, sometimes just the numbers are the numbers. And you sort of shake your head and say, that's odd. And that's where I think the Fifth Circuit's reversal rate stands for this year. So, I mean, it used to be years ago that it was always the Ninth Circuit that was getting reversed and, you know, because it was on the liberal side.

3:44And this year, the Ninth Circuit came in fourth for reversals. Is it because the Ninth Circuit is not quite as liberal as it used to be? I think the Ninth Circuit has changed. I mean, I certainly agree with that observation. And again, the circuits sometimes don't have ideologically charged cases. There are just a lot of cases about how to make sure that the circuits are uniform. in terms of their view of the law, whether it's, you know, with court law or a question of trust law. And so these cases just sometimes need to be reconciled. And it's not a matter of ideological shift. The First Circuit, I thought this was unusual.

4:21You may say it's statistical anomaly or whatever. But the First Circuit, which generally leans liberal, had two cases reviewed, and they were both affirmed. I mean, does that say anything? Is the First Circuit more in line with the court? I don't think so. This is too much of a small sample size to really draw any conclusions from that kind of data. You know, I do think that the Fifth Circuit, as you started out with, has been quite conservative and was at loggerheads with the Biden administration. So it's not surprising that a lot of the cases went to the Supreme Court, just the way it was with the Ninth Circuit years ago.

4:56It was very liberal, and so a lot of the cases came up to the Supreme court. But, you know, for one or two cases in the circuit, I don't think you can really judge any kind of development or evolution on that basis. Do you think that the judges on the Fifth Circuit are more willing to test the envelope and push the law? No, I absolutely believe that. In the cases that I've read and the areas that I've studied, which is mostly, you know, the Ministry of Law, power of the executive, they are very willing to push the envelope. And, you know, Well, it's no secret that two members of the Fifth Circuit are interested in being nominated by President Trump in case there's another opening, as of course there was rumored to be.

5:32So I think that that plays all into the fact that the Fifth Circuit is known for being more adventurous than some of their sister servants. So let's discuss some of the cases. And one very high profile left into the last week of the term that says a lot, Watson versus RNC. And the justices upheld a Mississippi law allowing absentee ballots postmarked by Election Day and received up to five days later to be counted. That reversed a Fifth Circuit panel composed of three judges appointed by Trump. The justices heard four cases from the Fifth Circuit decided by majority Trump-appointed panels and reversed in all of them.

6:14Are the Trump appointees more conservative than other judges on the circuit? I don't think they're conservative in the old-fashioned sense of conservative with a small c, but they're very much in line with the administration and very sympathetic to the administration's goals. So I think that they view some of the cases before them from that lens, which is understandable. And so that's why their decisions can be reviewed and sometimes reversed even by what we consider to be a conservative Supreme Court today. You know, I've noticed that with the D.C. Circuit, a lot of times when there are two to one decisions with two Trump appointees in the majority and a Democratic appointee in dissent, the circuit will agree to have an on-bank hearing and then the case usually gets reversed because there are more Democratic appointees than Republican appointees on the D.C.

7:08Circuit. The Fifth Circuit apparently has a high rate of reviewing decisions on bank compared to other circuits. And I'm wondering why when 12 of its 17 judges are Republican appointees? I think that there's still ideological divisions on the Fifth Circuit. And they have a preference to making sure that they're all on accord and that they vetted the issues. And I think some of that is healthy to make sure if they think it's an important case that they get the whole court to weigh in. And so it's not just having the prospect of one panel against another panel. So in that sense, I think it's actually a healthy development that there is more kind of percolation of these issues before the Fifth Circuit makes a final decision.

7:53That being said, of course, as you point out, the Fifth Circuit is probably the most ideologically aligned with President Trump in the entire country. When the Supreme Court reverses a circuit, do the judges on the panel that gets reversed, are they embarrassed? You know, sometimes the court is pretty snippy in the comments they make about the lower court's decision. I have talked to a number of judges about this. Some judges view it as a badge of honor if they're reversed by the Supreme Court. You know, others try perhaps at the margin to think through why they were reversed and try to change a little bit of their approach in the future.

8:33But I think in today's world, when we are so commonly look at judging as power and people think about the Supreme Court as just a powerful broker in our society, I don't think that judges really feel I mean, they may feel upset that their position didn't win, but I don't think they feel chastised or mortified at all just because they've been reversed by the Supreme Court. They know that's part of the structure and, you know, they know what they got into. And maybe for the two judges who are looking to be Supreme Court nominees, it is a badge of honor. Arguably, the highest profile reversals of this term were the Supreme Court reversing itself.

9:16And these were all six to three decisions down ideological lines. So you had Trump v. Slaughter, where the court overturned its own 90-year-old precedent in Humphrey's executor, giving the president more power. In another case about campaign finance rules, the court overturned a 25-year-old case that placed limits on coordinated expenditures between political parties and candidates. And while not technically a reversal, the liberal justices said the conservatives effectively gutted what remained of the Voting Rights Act. And in the Cisco case, the court undid a core holding of a prior case. This is all the conservatives overturning so many decisions in one term.

10:04The court's decisions do not reflect any reverence for precedent. And that is clear not just in the high-level cases of the Humphrey's executive being overruled after 90 years, but in lesser cases as well. Most particularly in the Voting Rights Act, which is a kind of shocking turnabout, but also, as you mentioned, in the campaign finance. And the court seemingly says, well, we're here, we're the court, and we don't want to be bound by another court. If we deem that the Voting Rights Act should be narrowed, if we deem that the presidential power should be expanded, so be it, despite the precedence.

10:42And so I think that's really all clearly with the piece, with the view of this court as its activists. It's activists not in the ways of the Warren Court, but it's activists in the ways of trying to knit together their own conception of religious rights, of DEI, of presidential power and other hot button issues. So what do you teach in law school? I mean, when I went to law school, you know, we learned all about precedent and we studied those cases that were precedent. I mean, what do you teach now about Supreme Court interpretation? Preston's still important as a background principle, but I think you would also have to be a realist and understand that ideological priors and perspectives will change how a court makes its decision.

11:26And there are great examples of that from this term and from others as well, so that sort of students understand the rules of the game, but they understand that politics and ideology can so-called trump those kinds of neutral principles. And litigators need to know that. They do know that. They study individual justices, how they vote, how they could sort of try to appeal to each individual justices' priors in the Supreme Court in order to get their point across and hope for a victorious case. Coming up next on the Bloomberg Law Show, I'll continue this conversation with Professor Harold Krent of the Chicago-Kent College of Law.

12:03More about the Supreme Court's term and the ideological differences between the justices that were so apparent. I'm June Grosso, and you're listening to Bloomberg. The ideological differences among the Supreme Court justices were never more apparent than this term. Nearly a quarter of all rulings were six to three, with Republican appointees in the majority and Democratic appointees in dissent. That's up from 11 percent last term. And Justice Elena Kagan, the former Solicitor General and Harvard Law School dean, widely viewed as a pragmatic consensus builder on the court, authored her first lone dissent after more than 15 years on the bench.

12:51She told her colleagues they missed the mark in a ruling about Cuban property seizures. I've been talking to Professor Harold Krent of the Chicago-Kent College of Law. So Elena Kagan, during oral arguments and in some of her dissents, has complained about the court not following precedent. Are there any conservative justices who do adhere more to precedent than others who are more concerned about it? Not entirely in my mind. I don't think there's any kind of real fidelity to precedent amongst the conservatives. And maybe that's probably not a sort of a cornerstone of liberals either. We're much more involved in sort of a fight for the soul of the court, I think, than we are worried about precedent these days.

13:37I mean, obviously, what really struck out this last term is the strong 6-3 division in a quarter of the cases. You know, the six conservatives voting with themselves in a lot of the cases and the three liberals voting on the losing end in a lot. So that's really it's a larger percentage than in prior terms. I think that's really the most significant development. And, you know, within that, we do see some swing to justices, mostly Barrett and Roberts, to some extent, Kavanaugh, a little lesser, Gorsuch, that on some kind of cases will split. But, you know, Alito and Thomas will not be budged. So you see a fractured court and, again, heavily ideological with a little bit of swing.

14:19And as we saw, you know, in the tariffs case, the birthright case, you know, most importantly, the ballot case that you mentioned from the Fifth Circuit, those were the cases where we saw the new kinds of majorities built. I think that's the biggest takeaway from what we've seen. Yeah. So as you mentioned, nearly a quarter of all rulings were six to three down ideological lines, and that's up from 11 percent last term. So that's quite a big jump. The cases tended to be the highest profile cases, the cultural issue cases. We talked about the slaughter case, expanding presidential power, the case eliminating campaign finance restrictions for political parties, another reversal there, transgender women and girls in sports cases.

15:02I mean, these are cases where, you know, you can almost predict that there's going to be an ideological split. For example, anything involving LGBTQ rights or voting rights, I mean, is one of the biggest takeaways from this term, the way the court just hit the last nail in the coffin of the Voting Rights Act. something. I agree. I think your point that it's predictable is sad, but true in the sense that you can look at the ideological priors of the justices and figure out how they're going to decide in most of the big, particularly the social issues, such as, you know, transgender rights, such as voting rights.

15:45And we all knew how those cases were going to end up. And there's still some, you know, Fourth Amendment cases where the justices will cross ideological lines. And there's some other kinds of, you know, venue issues where the lines will be crossed. But in the major social issues cases, that's where I think the distinctions become very, very drawn and the results are easy to predict. And, you know, when you hear the justices talk, at least the conservatives, they always make a point to stress this high rate of unanimity. And there were unanimous opinions in nearly 45 percent of cases, which is in line with recent terms.

16:22But what are those cases? I mean, it's mostly cases that we're not paying attention to. I mean, some people are, to be fair. They're not the high visibility political issues. On the high visibility political issues, that's where unanimity has totally gone out the window. And we see these deep set divisions among the justices with, again, luckily some kind of swing with Chief Justice, Justice Barrett, and to some extent, Justice Kavanaugh. And that's the court. Even if Justice Alito leaves, it's not going to change. And we're going to see more of this in the coming terms. The numbers that we're talking about, you know, the stat pack that was done on SCOTUS blog, that doesn't take into account the emergency or shadow docket where the decisions disproportionately handed victories to the Trump administration and usually six to three as well.

17:17I mean, there were so many of those cases that are not being counted here. Right. And the court has opened itself up to very serious criticism of how we operated those shadow docket cases. And I think justifiably, without allowing percolation of the issues, without allowing vetting of these important decisions, they just really changed the law on the ground by use of the shadow docket. And that was done in an ideologically charged way, that same kind of 6-3 breakdown. We'll have to see how the summer goes for the justices. Last summer, they were very busy with the shadow docket. We'll see if that happens again this summer, likely depending on how many emergencies the Trump administration has.

17:58Well, the one emergency we've seen so far is President Trump asking the court again to take up the case of E.G. Carroll, the person who the jury found that he had sexually assaulted. I don't think they will. I would be shocked if they took it up just because President Trump asked twice. But that's going to be one of the tests, you know, on their immediate horizon. I mean, he's using a different theory this time. His last appeal focused on technical questions involving the federal rules of evidence for civil cases. And the Supreme Court had turned away his appeal without making a comment. So Trump had argued before that the jurors shouldn't have been allowed to hear testimony about two prior alleged sexual assaults or listen to the Access Hollywood tape that we're all familiar with.

18:48I mean, the Second Circuit had upheld the verdict saying that the testimony of the other alleged victims and the Access Hollywood recording helped establish a pattern of conduct by Trump. Is that in line with other circuits? Yeah, I mean, there's always the question of a course of conduct, prior bad acts, can be abused, that kind of evidence, but it becomes important in trying to figure out someone's method of operations, someone is inclined to proceed a certain path. It's not a major break in the law. And so the difficulty that the Supreme Court has is, yes, sometimes these kinds of evidentiary rulings can be abused, they can be second-guessed, but unless there's going to be a new kind of break in the law or a whole new doctrine put on, it's probably not cert-worthy.

19:37So it's doubtful that the court will find that even if they're sympathetic, and they might be to President Trump's claims, that I doubt they would find this would be worthy of a full Supreme Court review. In the new filing, Trump is saying that the jury's verdict was tainted by the discussion at trial of statements he made while he was president. And his lawyers are contending that those are official acts for which he's immune under that 2024 Supreme Court ruling that derail criminal charges against him for trying to overturn his 2020 election laws. So could these be viewed as official acts? I don't think so, because this particular issue arose before he was president.

20:22And, you know, we have the Clinton versus Jones precedent that a president can't be sued for pre-presidential acts. And I think the court is not inclined to second guess the Clinton precedent. So I think that on that ground alone, they would not grant certiorari. Thanks so much, Hal. I appreciate your being here. That's Professor Harold Krent of the Chicago-Kent College of Law. Coming up next on the Bloomberg Law show, the D.C. U.S. attorney, Janine Pirro, charged a former Olympian with a felony over alleged vandalism of the Lincoln Memorial Reflecting Pool. But will the charges even survive until trial?

21:06I'm June Grosso, and you're listening to Bloomberg. This message is brought to you by Apple Card. Apple Card puts the power of titanium in the palm of your hand. What does that mean? It means the power to earn unlimited daily cash back on your purchases every day. It means a materially different credit card accepted anywhere in the world. MasterCard is accepted. Ditch the plastic. Upgrade to titanium. Apply in the wallet app on iPhone today. Subject to credit approval, Apple Card is issued by Goldman Sachs Bank USA Salt Lake City branch. Terms and more at applecard.com. Get the news you need in just 15 minutes.

21:41Start your day with Bloomberg Daybreak, the podcast with a global view on the stories that matter. I'm Nathan Hager. And I'm Karen Moscow. Join us each morning for curated stories on current events, politics, business, and foreign relations. Plus one conversation on the day's biggest developments all in just 15 minutes. Subscribe to Bloomberg Daybreak for a precise, thoughtful take on the stories that matter. Listen to Bloomberg Daybreak each morning on Apple, Spotify, or anywhere you listen. A three-time U.S. Olympian is now facing a felony charge over alleged vandalism of the Lincoln Memorial reflecting pool.

22:19Janine Pirro, the U.S. attorney for D.C., claimed that David Hearn harmed the pool intentionally. This was a delivered act to damage the reflecting pool at the National Mall that members of the National Park Service actually have worked hard to restore and have witnessed. Hearn has said that at no point did he remove, rip, tear, or damage any part of the reflecting pool's blue coating. He said he briefly touched a chunk that was still attached to the side of the pool, then let go shortly after a park worker told him to. At a press conference, reporters asked Piero what Hearn allegedly used to damage the pool.

23:02Did he have any tools or was it just his bare hands? Right now we believe it's his bare hands, both hands. So does that indicate in your belief that it was probably damaged before or do you believe that he? Oh, he damaged it. Further. But do you believe it had already been damaged before? He damaged the pool. My guess is former federal prosecutor Marissa Darden, chair of the White Collar Government Investigations and Regulatory Practice Group at Benesh Law. Marissa, even if what Pirro says is true, does that merit a felony indictment? So a couple of things that we should talk about just to kind of level set.

23:37The U.S. Attorney's Office for the District of Columbia has concurrent jurisdiction between crimes that happen in the District of Columbia that violate District of Columbia law and federal laws that are violated within the District of Columbia. So there's like the Department of Justice writ large, right? And the U.S. Attorney's Office for the District of Columbia, they prosecute federal felonies and misdemeanors and state or local crimes. So he's charged with violating DC code section 22303, which is not a federal crime and not a federal felony. And so on one hand, you know, Jeanne Perot, love her rhetoric or whatever, and her interesting career before she was the US attorney for the District of Columbia, like she's dialing it up in that press conference, no doubt about it.

24:30And one of the ways that you know that they're trying to be intellectually honest about the crimes that they're actually prosecuting day to day is that they charged him with violating D.C. law and not federal law, which they might have been able to do given the fact that it's a federal monument and the United States Park Service has jurisdiction. So yes, June, on one hand, I agree. There's no need to get up there and like rant about that. But that might be performative for President Trump or other constituencies. The way you know that they're trying to be intellectually honest about this crime is that they've charged him with a felony of violating D.C.

25:09code. Explain why that matters, because he's still facing 10 years. There are judges in the District of Columbia that are District of Columbia judges. So just like the city of New York or Chicago has judges. And so their docket is very full. Felonies are often handled by settling cases for lower charges than what was actually charged. The dockets are very busy. And ultimately, you know, the U.S. Attorney's Office will be responsible for prosecuting those crimes. But there are a host of other ways that they can be resolved that are outside of the federal system. If the U.S. attorney's office, even in D.C.

25:50that handles federal crimes, once you're indicted by a federal grand jury, there's a lot less options available to you in how you resolve the matter. So I'm not suggesting that they're going to plea bargain this down to something less than a felony. And there may be political or other reasons why they decided to make the charges that they did. I don't speak to that. But just from like a volume size, the folks who work at the U.S. Attorney's Office on the D.C. District Court side, they have full dockets. They're very busy. The judges are busy. They're just like any other big city courtroom where that, you know, things get put down to and so forth.

26:25So he was initially arrested on a misdemeanor charge. Is it often that it would be bumped up to a felony? Sometimes. That's not uncommon. So I was a state court prosecutor at the Manhattan DA's office. I was a federal prosecutor at a U.S. attorney's office locally. And there are definitely been cases that I've experienced that I've handled where it came in as one crime and it got charged as another as the investigation went on. And so, you know, again, there are parts and pieces of this that may in fact be political. I don't question that. But just from like a day to day prosecuting side, the assistant United States attorney who's responsible for handling this case would have a process just by which they would evaluate any other arrest.

27:12They would speak to the police officers, try to ascertain exactly what happened here, review the facts and determine how the facts apply to the law and what might be the appropriate charges. My understanding is that the Justice Department now is operating under a general understanding or a memo or a credo that they're supposed to put the maximum charges allowable or possible on criminal defendants in most, if not all cases. And so it would be consistent with that edict that they might arrest him with a misdemeanor citation and then investigate the case and determine that it violated a felony under D.C.