SCOTUS Gives Trump Okay to Fire Federal Workers

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0:42If you listen to financial news, you know a lot of time to spend thinking about what's next. The next opportunity. The next investment. The next move. But sometimes what matters most is being ready for what you never saw coming. For more than 75 years, Cincinnati Insurance has worked with independent agents to help protect businesses, homes, valuables, and more. Because planning for the future isn't only about knowing what's next. It's about making sure you're ready for what you can't predict. Let Cincinnati Insurance make your bad day better. Find an independent agent at CINFIN.com. As industries evolve faster than ever, companies need an environment that accelerates strategic growth, and Michigan delivers on that promise.

1:26From emerging startups to global enterprises, Michigan offers what executives value most, a resilient, innovative ecosystem, diverse communities that attract top talent, and a quality of life that supports work-life balance. With our unified Team Michigan approach, businesses scale faster and compete at the highest level. Michigan, pure opportunity. Seize your opportunity at michiganbusiness.org. This is Bloomberg Law with June Grosso from Bloomberg Radio. After the Supreme Court term come the statistics. Which circuit was reversed the most? Which justice was in the majority the most? How many closely divided cases were there?

2:10You get the idea. And it's the Fourth Circuit that's drawing attention this year. The Virginia-based Court of Appeals used to have the lowest rate of being reversed among the circuits. But this term, it had the dubious distinction of a 100 percent reversal rate. The Supreme Court overturned its decisions in eight out of eight cases. And some of those were high-profile cases like Mahmood versus Taylor, where the court allowed religious parents to up their children out of classes where LGBTQ-friendly books are read. My guest is constitutional law expert Harold Krent, a professor at the Chicago-Kent College of Law.

2:51So Hal, SCOTUS blog has come out with its annual stats for the last term. Now from 2007 through 2023, the Supreme Court reversed decisions from the Fourth Circuit in 36 out of 58 cases. That's a 62.1 percent reversal rate. So it had the lowest rate of being overturned among the circuits. And now in this term, it went to 100 percent reversal rate. Any idea why? I think a little bit is just a blip. These variances occur from time to time. But I also think that given the location of Fourth Circuit, they are centered where so many federal government employees are, centered where there's a lot of grants in terms of HHS offices, Social Security Administration, and so forth, that there's a lot of current litigation against the Trump administration, which is just centered geographically in that district.

3:49So it's not surprising that there's a higher percentage of cases from the Fourth Circuit that are reaching the Supreme Court. And of course, it's a little bit of a blip, but it's understandable that there's going to be more cases that the Supreme Court is going to resolve against the Fourth Circuit. Fourth Circuit is relatively ideologically balanced, so it's not considered to be either a very liberal or a very Republican, very conservative court. But nonetheless, there's a lot of these cases that have arisen there, and so we're seeing tension between the Fourth Circuit and the Supreme Court. The reversals included some of the blockbusters of the term, cases where the The court made it harder for judges to issue nationwide injunctions.

4:29The case where the court allowed parents to up their children out of lessons where LGBTQ-friendly books were read. And the case paving the way for South Carolina to exclude a Planned Parenthood affiliate from its Medicaid program. And all those cases were six to three with the liberals dissenting. So I'm wondering if the Fourth Circuit is more in line with the liberals and less in line with the conservatives. Is there a certain partisanship there? I would frame it that the Fourth Circuit is in line with traditional conservative judicial principles and that this court has veered from those traditional conservative judicial principles, which is why we're seeing the gap.

5:09I think that the Fourth Circuit is cautious and it's trying to adhere to the sort of judicial principles or judicial customs, perspectives, the way they've understood them for a generation. And that's running against the current Supreme Court's position, which seems to be far more solicitous of both judicial power as well as presidential power. It used to be that the Ninth Circuit was the most reviewed. This term, the Ninth Circuit had fewer than a third of the cases that the court reviewed from the Fifth Circuit, the most conservative appellate court in the country. And it's sort of taken the place of the Ninth Circuit in the last couple of terms.

5:51Of the 62 cases, the Supreme Court decided this term, 13 came from the Fifth Circuit more than from any other circuit. And it was reversed in 10 of the 13 cases. Last term, it was reversed in six of nine cases. Well, the Fifth Circuit is known as the most conservative but an activist conservative court. The Ninth Circuit has been historically known as the most activist of progressive or liberal courts. So it's not surprising that decisions from those two circuits disproportionately go to the Supreme Court. And indeed, we're seeing an interesting switch now in the Fifth Circuit because the Fifth Circuit led the charge against the Biden administration in some very surprising cases, including two delegation cases in which the Supreme Court struck them down this term.

6:38And the question is, will they be as anti-administration when it comes time to review that which the Trump administration is doing? and early records are mixed. So that's something to look to. I think that some of the ardor of the Fifth Circuit in terms of being anti-administration will be dampened now with the switch politically at the top of the helm. Has the Fifth Circuit been trying to push the envelope, so to speak, and be more aggressive in terms of conservative policies or jurisprudence? Well, the Fifth Circuit has been at the cusp in terms of pushing against administrative power, power of the agencies to rule.

7:19I mean, for instance, in the telecommunications case, they had sought to curb the power of the Federal Communications Commission to impose attacks on telecoms. And that, of course, was upheld. I mean, the Biden administration pursued that plan, but so did the Trump administration. And so the question is, will the Fifth Circuit continue its sort of skepticism about administrative power, given that President Trump is now atop of the executive branch. So time will tell whether they'll continue, but clearly they have marked in case after case, particularly during the Biden administration, they challenged the legitimacy of administrative agencies, you know, in terms of the vaccine policies, in terms of student loans, and more.

8:08When the justices take cases, they usually take them to reverse, don't they? I mean, 44 out of the 59 cases they took this term were reversed. That's generally the case, but obviously more generally they take cases when there's a split and the court needs to resolve a split in the circuits. So sometimes it's just a matter of which of the two cases they take because one case goes one way and one case goes the other. So sometimes those figures are a tad misleading. Chief Justice John Roberts, when he talks about the court, loves to talk about the number of unanimous opinions, 42 percent this term.

8:43But all of the controversial cases involving social issues like religious rights, LGBTQ rights, they all fall down ideological lines. So why does unanimity in less than half the cases matter? Well, the union in me, I think, is a reminder to us that it's still a court and that members of the court can agree with each other in questions in terms of, you know, error review, in terms of what the courts of appeals make a mistake, which is in terms of reconciling a split in the circuits. And I think it's a good reminder that the court is a court, but that shouldn't obscure the fact that, as you said, in socially divisive cases, there's almost inevitably a 6-3 split with some changes around the margins.

9:29Adam Feldman has come out with his stat pack for this past term. Roberts was in the majority 95 percent of the time, the most of any of the justices, followed by Brett Kavanaugh at 86 percent and Amy Coney Barrett at 81 percent. Do any of those numbers surprise you or just to tell you that the middle of the court is ruling? No, it doesn't surprise me at all. They obviously, those three justices do wield a lot of the power on this current court, and they will do so for the foreseeable future. Obviously, there's some changes around the margin. I mean, sometimes Justice Gorsuch sides with the majority or the minority.

10:06Same thing with Justice Barrett. And I think we've even seen Justice Kagan occasionally trying to side with the more conservative wing of the court in order to, I think, in her view, probably try to establish more of a middle ground. Yeah. What's gotten a lot of tension in the legal press was that Justice Kagan came in fourth. She was in the majority of 70 percent of the term's non-unanimous outcomes. There was a 13 percent drop in the agreement between Kagan and Justice Sonia Sotomayor. And the agreements between Kagan and conservative justices, up 22 points with Justice Alito and up 29 points with Justice Thomas.

10:46Some people say, oh, well, she's getting more conservative. But is that really the case? I think she tries to find common ground when she can. And maybe that can be criticized as that she's sort of tempering her own views to that of trying to help the institution gain a middle ground. But I think it is perhaps a positive institutional development as she is, at least in my view, in some of her decisions, trying to, you know, establish that there is common ground amongst the so-called conservative and so-called liberal justices. And not in all cases, but in some where she can. And I don't know if that'll have any kind of long lasting impact or if it will change the trajectory of the court, but I think that's her goal.

11:31Justice Ketanji Brown-Jackson had the honor of being in the majority, the least of all the justices at 72 percent. And she's written some biting dissents. Again, she is carving out her role as being the most progressive justice and the one least willing to compromise with the rest of the court. Voices like that are important to hear, but they're not necessarily positive ways to galvanize a majority of the court. Although Justice Antonin Scalia was known for his brilliant dissents. And now the ideas he advanced about originalism and textualism are all the rage on the court. I mean, Scalia's legacy has been most powerful in terms of raising the level of understanding about the text, because all the court are textuals far more now than they used to be.

12:23But the question about originalism still, I think, fractures the court. And we've seen that both in terms of the importance of originalism, but also the methodology of originalism. And so there's a lot of work to be done before there's any kind of unified voice in the court on that respect. Coming up next on the Bloomberg Law Show, I'll continue this conversation with Professor Harold Krent of the Chicago-Kent College of Law. In another order on the emergency docket, the Supreme Court is allowing President Trump to move ahead with plans to drastically reduce the size of the federal government, lifting a court order that had blocked 19 federal departments and agencies from slashing their workforces.

13:07I'm June Grosso, and you're listening to Bloomberg. This is the Bloomberg Tech Minute brought to you by ChatGPT. Now with ChatGPT Work. I'm Carol Masser. Social media posts on sleep outnumber those on exercise by 3 to 1 and those on diet by 5 to 1, according to consumer researcher Ryla Global Consulting. And so it may come as no surprise that there are seemingly no limits to what we will do to get a good night's sleep. People are spending on everything from pricey sleep trackers, AI-powered scent therapy machines, to$3 ,000 body temperature-regulating Manosphere-endorsed mattress covers, and couples outfitting totally separate bedrooms.

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16:21Last month, Chief Justice John Roberts, in a discussion of his time on the bench, explained how he views criticism of the court's decisions. What they're angry about or upset about is probably not that you applied the principle of Houston Generous in a context in which it had not been applied before. It's that they lost whatever they were looking for. I mean, and it's in a sense, again, it's not, it would be good if people appreciated it's not the judge's fault that a correct interpretation of the law meant that, no, you don't get to do this. I've been talking to Professor Harold Krent of the Chicago-Kent College of Law.

16:59Hal, I want to get your reaction to the chief's critique of criticism of the court. Is he overlooking the fact that those six to three decisions mean that interpretations of the law can be different depending on whether you take a conservative or a liberal approach? Yeah, I mean, there is no one way, there's no perfect way to understand whether Party A or Party B should prevail. It's based upon a judge's view of things like originalism, things like how it's best to interpret a statute, as well as whether there is a living constitution or not. So a party can be upset because they end up with a case before justices have a different worldview in terms of interpreting the Constitution or statutes than they do.

17:47So it's not a matter of venting against judges. It's a matter of feeling that it's just too bad that you don't have justices who think the way you do deciding your case. A lot of the action this term has been on the emergency docket. And yesterday, the court ruled that President Trump can move ahead with plans to dramatically reduce the size of the federal government. It lifted a court order that had blocked 19 federal departments and agencies from slashing their workforce. So hundreds of thousands of federal workers could lose their jobs. Is this just part of the trend of the court on the emergency docket lifting lower court orders that blocked the Trump agenda?

18:34Well, I'm of two minds about the most recent decision. I mean, what the court did is removed an injunction on the administration from trying to carry out the RIF. But it did not say that the RIF was appropriate or consistent with congressional direction. And I think that was made clear as well because of the fact that Justice Kagan went along with the majority in terms of allowing the administration's action to proceed. And the executive order says that the reduction of force must proceed according to applicable law. And the applicable law, of course, is Congress's very detailed instructions for how agencies should proceed.

19:16And I think the reason why Justice Kakin did join the majority was because we have yet to see whether the administration will conform to the congressional blueprint for carrying out the reduction force or not. And so, yes, the court is giving the benefit of the doubt the administration. And yes, many would think that the administration doesn't deserve the benefit of the doubt. But I think the court's action is saying, well, let's wait until there is a merits decision as to whether the applicable congressional rules were followed before we actually tell the administration they can't move forward in that way.

19:54Well, all along, the court has been letting the Trump administration go ahead for now. But the problem is that getting to the merits of these cases takes so long. And by that time, the damage is done. People have been fired. Sometimes they are reinstated. And we've had instances already, this term, where there have been government employees who have been reinstated. There's also questions of back pay that can at least partially address. Yes. But I mean, yes, from the matter of the employees who have been ripped and perhaps illegally ripped, there is dislocation, financial privation and obviously a lot of hardship on their on their side.

20:34In that case, Justice Sonia Sotomayor, who usually does not go along with the majority involving Trump administration actions. So she joined the majority in that case. Why do you think she went along with them there? Again, part of the reason may have been that there is no review on the merits yet of the rift, but part of the issue may be one of jurisdiction. The court did not address a jurisdictional issue, but there's been a simmering dispute about whether or not federal employees can go to federal court to raise their constitutional and administrative procedure act claims, or whether they should go to the tribunals like the Congress itself has set up to hear employee disputes, such as the Merit Assistance Protection Board and the Federal Labor Relations Authority.

21:22So it may be that that question, which there is no definitive answer about when employees can bypass those administrative tribunals, but it may be that she has doubts about whether the court even had proper jurisdiction over this case because instead those claims should have followed the congressional course and been vetted first in these specialized tribunals. The court has been making so many important decisions on the emergency docket.

22:17lower courts from enjoining the government actions prior to a final decision. And, you know, to the Trump administration, everything's an emergency. At some point, shouldn't the court say, no, this is not an emergency? Yeah, the court has been very cavalier, if you will, in terms of balancing the harms. I think the reduction in force case that we talked about is a good illustration of that, because yes, the government wants to save money and restructure the federal government. And there is a loss if they can't do that to what they consider to be the public good. But on the other hand, the dislocation and financial deprivations that these employees may face should be counted perhaps even more greatly, and the court's not doing that.

23:02Also, I mean, they're doing this on the emergency docket without full briefing, without oral arguments, and then sometimes, you know, there's not even an opinion to explain what they decided. It doesn't leave much guidance for the lower courts. No, and a great illustration of that is the birthright citizenship case, because the court ignored the very question of birthright citizenship, both in terms of the balance of hardships. Somebody who might be deported, who otherwise could claim birthright citizenship, is enormous. And in terms of the merits of the question, it seems like it's almost a foregone conclusion that the Trump position will be reversed.

23:42And yet the court chose not even to address those kinds of harms in deciding that the universal injunction was inappropriate. So what the court picks and chooses in the shadow docket to address, I think should be open to criticism. It certainly has been criticized, even by some of the justices themselves. Thanks so much, Hal. That's Professor Harold Krent of the Chicago-Kent College of Law. And that's it for this edition of the Bloomberg Law Show. Remember, you can always get the latest legal news on our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify, and at www.bloomberg.com slash podcast slash law.

24:24And remember to tune into the Bloomberg Law Show every weeknight at 10 p.m. Wall Street time. I'm June Grosso, and you're listening to Bloomberg.

24:37If you listen to financial news, you know a lot of time is spent thinking about what's next. The next opportunity. The next investment. The next move. But sometimes what matters most is being ready for what you never saw coming. For more than 75 years, Cincinnati Insurance has worked with independent agents to help protect businesses, homes, valuables, and more. Because planning for the future isn't only about knowing what's next. It's about making sure you're ready for what you can't predict. Let Cincinnati Insurance make your bad day better. Find an independent agent at CINFIN.com. It's time to plan ahead and make sure your brand is showing up in ways that can have an impact.

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