SCOTUS Cases: Transgender Athletes, Death Penalty & Guns

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2:00You're listening to Bloomberg Law with June Grosso from Bloomberg Radio. Over the next two months, the Supreme Court will be considering several high-profile cases, many involving hot-button social issues. They range from cases over handguns in public places and transgender athletes to President Trump's firing of a Federal Reserve governor and the death penalty. Some of these cases involve novel issues of law, while others involve longstanding precedents that could be overturned. My guest is constitutional law expert David Super, a professor at Georgetown Law. David, on Monday, the justices heard oral arguments in the case of Cox Communications versus Sony Music Entertainment.

2:50which is a case about the music industry suing Cox Communications for not shutting down the accounts of customers who repeatedly downloaded and distributed songs without permission.

3:03David Super:This is basically about whether you can hold internet service providers and other intermediaries responsible for violations of law by their subscribers. We all know that these web platforms are used for a variety of illegal activities, including copyright violations, defamation, revenge porn, and so on. And the question is, can the internet service providers be held accountable if they allow this and facilitate this lawful activity without making any effort to shut it down? A jury came back with a$1 billion damage award. That could really cut into the profit statement. Yes. So the jury wasn't moved by it, but Cox argued that grandma will be thrown off the internet because Junior visited and illegally downloaded songs.

3:58But the music industry said that Cox opted instead to keep the subscription revenues rolling rather than terminating a serial infringer. What's the legal issue?

4:10David Super:I mean, the legal issue is to what extent one is accountable for facilitating illegal activities. If I provide you with weapons and a getaway car and masks, and you show up and rob the First National Bank, I'm going to be held accountable for that, even if I never came near the bank myself. And here is an internet service provider doing the equivalent and saying, who me? Why are you talking to me? But do you think the Supreme Court took the case to reverse it? I don't know. The Supreme Court has generally been pretty unsympathetic with efforts to deal with other kinds of illegal activities that internet service providers have done, but it does care some about property rights, and I think it's a close call.

5:06David Super:The Supreme Court has been willing to upend the tech industry in defense of copyright in the past, and it might be willing to do that here. So on December 2nd, the court's going to hear the case of First Women's Choice Resource Center versus Plotkin. So this involves an attempt by New Jersey's attorney general to subpoena the records of First Choice Women's Resource Centers. So tell us about this. This is about a pregnancy services organization and whether or not it – well, New Jersey thought that it was giving out vibes that it was going to provide people with references for referrals for abortions when it's just the opposite.

5:57David Super:Yeah, the idea here is that these organizations are doing everything they can to simulate an abortion referral service to get women who are pregnant and considering abortions in their doors so they can talk them out of abortions. And the concern is that these are vulnerable people at a very difficult time in their life, and that they are in effect being defrauded and coerced. The facts in individual cases I'm obviously not privy to, but that's the concern in New Jersey wanted to investigate such a center and issued a subpoena asking for a lot of information about how the place operates to try to figure out if it is committing fraud, if it is coercing people, if it is misrepresenting itself.

6:48David Super:And there are procedures in state law that the facility could use to either challenge or just ignore the subpoena and force the state to come after it. But the center instead went into federal court and sought an order to shut down the state's investigation. This case is whether you get to run straight to federal court or have to play within the state law rules. Do you think that considering that religion is entwined here and And it's abortion connected that the conservatives will be magnanimous in allowing them to go to federal court? I actually don't. Certainly the majority is going to be sympathetic with the center.

7:36David Super:But there has been an agenda going back 50 years or more of keeping people in state court, preventing them from going to federal court when their state court proceedings underway. And I would be shocked if the Supreme Court was willing to reverse field on that just because it likes a particular plaintiff. So I would expect, if the court is consistent with what it said, that it would make them sort things out in state court. If it doesn't, if it does rule in favor of the pregnancy center, that's going to open the doors to a lot of civil rights plaintiffs that have not thought they could go to federal court.

8:17So now Olivier v. City of Brandon. This involves a preacher who wanted to preach in an area where the municipal ordinances did not allow him to. So tell us about this and why it's a Supreme Court case.

8:33David Super:Well, the preacher likes to do open air preaching to the general public with amplifiers and so on, has already been ticketed and fined for that and believes this ordinance is unconstitutionally denying him his right to proselytize for his religion. The Supreme Court, in some very tactical cases, has said you can't bring a civil rights case to challenge a criminal conviction. You have to do that within the criminal law system. So the contention here is that if he doesn't like this law, he needs to fight it through appeals of punishments the state issues him there. The Supreme Court invited this sort of thing by creating this tactical rule to try to keep challenges to civil rights out of federal court.

9:27David Super:And now they have this extremely complicated question of whether by having been previously fined, he lost his right to file a civil rights action. A big case, one of the biggest cases of the term is going to be Texas v. Slaughter about Donald Trump firing a federal trade commissioner. This is a huge case. Tell us why. It's a huge case because it would allow the president to effectively disregard all the provisions designed to give independence to federal regulatory agencies. The Federal Trade Commission is in charge of ensuring that people don't engage in anti-competitive practices and don't trick consumers.

10:15David Super:And that's something that companies with ties to either party could engage in. So Congress set up the FTC to be somewhat independent. It's got commissioners appointed by presidents, but for fixed terms, and they can't be thrown out in the middle of their term without showing misconduct. That way, the FTC is free to investigate the president's friends or the friends of other influential politicians. And what President Trump is saying is, no, no, I'm in charge of everything in the executive branch. Only my people should serve on any of these agencies, and I should be able to get rid of these commissioners at will.

10:57Now, this involves the Humphreys executor case, which the conservatives have been chipping away at. And the question is whether it's going to survive this case. And also, the conservatives here over dissents from the liberals refused to let Rebecca Slaughter stay in her job while the case played out, which may be an indication or not of what they're thinking.

11:23David Super:I suspect it is an indication of what they're thinking. And they have all but signaled that they're willing to overrule Humphrey's executor in every instance, except perhaps the Federal Reserve. But there's a very curious dynamic here because Humphrey's executor is a conservative case. It was used to rein in President Franklin Roosevelt and force him to put up with a Herbert Hoover appointee who was opposing his New Deal. And so here you have a precedent that was put in to rein in a wildly popular Democratic president that we are chucking when it is limiting a far less popular Republican president.

12:08David Super:And it's not the first time this has happened. Chevron was a decision that validated Ronald Reagan's anti-inventamental policies. And then when it was helpful to Joe Biden and Democratic agencies, the Supreme Court overruled it a couple of years ago in low-propriet. If you have a rule of law, once you establish these procedural rules, they ought to apply to both Democrats and Republicans. Doesn't it seem as if this particular Supreme Court is less concerned, perhaps, about precedent than prior Supreme Courts? If they overrule Humphrey's executor, that will be the inescapable conclusion. And they've certainly given us every indication.

12:53David Super:Indeed, they've criticized lower courts for continuing to follow Humphrey's executor, which has not been overruled. A very strange process. You mentioned the Federal Reserve. And on January 21st, the justices will hear oral arguments in the case of Trump versus Cook. Trump wants to fire Federal Reserve Governor Lisa Cook. He said he had a reason to fire her, which was an unproven allegation of mortgage fraud. The justices allowed Cook to stay in her role as a Federal Reserve governor while the case plays out. Do you think that this will be a different result than the slaughter case? It's a little hard to know.

13:35David Super:There was some language in one of the Supreme Court shadow docket cases about independent agencies where they said this shouldn't apply to the Federal Reserve because by way of its tradition and independence, that's somewhat separate. I find that a little bit strange. The Federal Trade Commission is a few months younger than the Federal Reserve. They were created almost back to back. So if there's tradition on behalf of the Federal Reserve, there probably is on behalf of the Federal Trade Commission. But they pretty clearly were firing a warning shot across the administration's bow, don't make us decide a Federal Reserve case.

14:18David Super:And the administration, I think rather disrespectfully, said, no, we are going to make you decide a Federal Reserve case. And they fired Dr. Cook. I guess the administration is really testing the limits. Coming up next, I'll continue this conversation with Georgetown Law Professor David Super. We'll talk about upcoming cases involving campaign finance and transgender athletes. I'm June Grosso, and you're listening to Bloomberg. So there's a lot of noise about AI, but time's too tight for more promises. So let's talk about results. At IBM, we work with our employees to integrate technology right into the systems they need.

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17:32David, coming up on December 9th is a case involving campaign finance. National Republican Senatorial Committee versus Federal Election Commission. And the Supreme Court's going to consider Republican calls to strike down federal caps on the money political parties can spend on advertisements in coordination with congressional candidates. So an attempt to strike down more political spending caps.

18:03David Super:Yes, there's no limit, apparently, that they don't want to strike down. They got their way in Citizen United and a bunch of other cases, but they're apparently not done yet. And their argument here is that even when there are independent funding organizations that are supposedly separate from the parties and campaigns, that they should be allowed to function as annexes or adjuncts to the campaigns and coordinate their policies. If this happens, no one in their right mind would ever give anything to the Republican Party or the Democratic Party. They'd give all their money to these outside organizations with much less obligation to disclose, and they would then do whatever the parties told them to.

18:54So in this case, when the Trump administration came in, they said they weren't going to defend the law. So the Supreme Court gave the Democrats an opportunity to step in and defend the law. Why are the Republicans against the spending caps and the Democrats are for the spending caps? It seems like what would be good for one political party would be good for the other.

19:16David Super:There's more of a constituency in the Democratic Party for campaign finance reform. The McCain-Feingold law had both Democratic and Republican votes, but more Democratic ones, and the prominent Republican supporters are now largely gone. So the Republican Party, I think, has felt that overall, the more money goes into elections, the better off they are. And with many of its members on principle opposed to money-dominated politics and having been badly burned by Mr. Musk's spending in the last election, I think that Democrats may be getting religion here. Like last term, there is a case involving a death row inmate, And this is about whether he can be executed in the light of conflicting IQ scores?

20:13David Super:Yes. The Supreme Court decided a long time ago that the Eighth Amendment's prohibition on cruel and unusual punishment means that we shouldn't be executing people who are severely mentally deficient. We can keep them in jail, but we shouldn't kill them. that they may not be able to fully understand what we're doing to them, and that that's just blatant cruelty. But, of course, once you say that, you have to define what it is to be mentally deficient. And this has come down to IQ scores, typically old ones before someone turned 18. And the petitioner here has IQ scores that are all in a pretty similar range.

20:58David Super:This is not a smart person at all. This is a pretty limited person, but the question is, what do you do about the fairly modest variation among these scores? And the 11th Circuit in the Southeast looked at them as a whole and said, we think this man is too intellectually deficient to execute. And the Supreme Court is going to now tell us either there's a new formula to use with these IQ scores or how at least you're supposed to put the other scores that have minor differences in them. This is not a precise science. It's not like weighing a stone or determining the carats of a diamond. This is a very imprecise thing.

21:46David Super:the numbers for this inmate vary relatively little. I've represented people in disability cases where the numbers were a lot broader than these, but the government is pressing ahead and insisting that we must, must, must execute this man, and the Supreme Court will tell us whether that's so. Yeah, and the 11th Circuit is one of the more conservative circuits. Let's look now at some cases that will definitely be among the most high profile of the term involving transgender athletes. Laws in Idaho and West Virginia prohibit transgender women and girls from participating on women's and girls sports teams.

22:28I mean, this is a huge issue across the country. Explain what the Supreme Court will be looking at in these cases.

22:37David Super:Well, there are various civil rights laws, including ones that apply in the educational context, that prohibit discrimination because of sex. And the question is, are you discriminating against these women and girls because of their sex when they specifically are transgender? The leading opinion on this from the Supreme Court is by Justice Gorsuch. And he said that if these women and girls were not born identified as male, no one would be hassling them. So it is because of sex, because of their sex assigned at birth, that the states are treating them a problem, so they're covered by civil rights laws.

23:22David Super:The question, though, is whether there is a majority to affirm that position. The three liberal justices likely would. I imagine Justice Gorsuch would. But then the question is, where do you get the fifth vote? Since that case, since the Bostock case, this court has ruled consistently against LGBTQ rights in just about every case I can think of. So would it be easy for the conservative justices to distinguish Bostock from the facts in these cases? I don't know how you do that. In the other cases, they did distinguish Bostock, sometimes sometimes persuasively, sometimes not very persuasively. But this one, I think, probably forces them to overrule Bostock or make Bostock a complete shell of itself or else to follow it.

24:15David Super:And my hope is that even if there are not five justices that would hand down Bostock today, if it was up to them, that their respect for their own credibility is going to make them reluctant to overrule a case that is so recent. Finally, there's on January 20th, Wolford versus Lopez. And this is about the right to carry in public places in Hawaii? This is, depending on how you look at it, a property rights case or a gun rights case. And the gun owners say that Hawaii did a horrible thing when it said you need permission to go into private property that is open to the public with a gun. And a property right argument is that people have control over who comes onto their land.

25:08David Super:If I don't want you on my land, I can say no. If I don't want you to bring your gun, I can say no. If I don't want you to bring your book, I can say no. And if you don't like my conditions, you just don't come onto my land. Hawaii is saying there are a lot of people who don't want guns on their land for a variety of reasons, philosophical reasons, personal safety reasons, or concern about liability. If you have someone with a gun on your land and they shoot someone or it goes off, you could be facing huge liability and in the interim your insurance premiums go up. So the notion here is that we don't want people on other people's private property with guns unless they've got permission.

25:54David Super:The practical effect of this likely would be that if it's upheld, that stores will start posting signs saying, you have our permission to be here with your gun, or not posting such signs, in which case you can't take your gun in there. But this is said to be an intrusion on Second Amendment rights. And this will tell us whether the court cares more about private property or guns. I don't know the answer to that one. I guess we'll find out. Thanks so much, David, for this preview of the cases coming up. That's Professor David Super of Georgetown Law. Support for the show comes from Public. Public is an investing platform that offers access to stocks, options, bonds and crypto.