SCOTUS Low Approval & NFL Antitrust Exemption

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1:26June Grasso:is Bloomberg Law with June Grosso from Bloomberg Radio. In recent years, the Supreme Court has gotten what you might call bad grades from the public, and it's gotten worse since the last term. Americans are now more displeased with the court than at any time in the last 26 years. According to the latest Gallup poll, only 33 % of the public approves of the job the Supreme Court is doing, a record low. Joining me is Bloomberg Supreme Court reporter Greg Storr. Greg, tell us about the latest polls. There were several new polls that came out after the court's term ended, and by far the worst of them was the Gallup poll that showed the Supreme Court's approval rating plummeting to 33 percent.

2:14That is easily the lowest since Gallup started surveying about the court in 2001, the number went down nine percentage points from 42 % when they took it in September. So really a big decline there. The other polls were not as stark, but for example, a Marquette Law School poll showed the court down two percentage points from a year earlier. So it's consistent with the notion that at best, the Supreme Court is treading water. In the Gallup poll, was it a slide among Republicans that brought that number down? It was a slide mostly among Republicans. The court's approval ratings were already really low among Democrats and independents.

3:01But among Republicans, support dropped 21 percentage points since September, with 79 percent in September fell to 58 percent. And with a plus or minus margin of error of four percentage points, that's definitely a big, big drop. Huge drop. And you would think that the way the Supreme Court ruled this term on Republican priorities, like narrowing agency power, enhancing gun rights, eliminating campaign spending restrictions, that Republicans would be happy with the court. Well, one big reason sure seems to be Donald Trump and the way he's reacted. The court, of course, ruled against him on a couple of big issues, including tariffs and his ability to fire Lisa Cook and his birthright citizenship restrictions.

3:46And Donald Trump was extremely aggressive, lashing out at even those justices he appointed, like Amy Coney Barrett and Neil Gorsuch. If you recall, after the tariff decision, he said, among other things, that they are an embarrassment to their families. So Republicans, of course, do respond very strongly across the board to things Donald Trump says, and sure seems like his criticisms of the Supreme Court dragged the court down with Republicans. Tell us about some of the factors that have made this Supreme Court so unpopular with Democrats and independents. There have been a lot of forces over the years that have been dragging the court down.

4:28This is not just a one-year thing. This has been happening over the course of a couple of decades. And of course, we're seeing institutions in general have their approval ratings falling. But you have a combination of a court that seems more partisan, and indeed they are more partisan in the sense that it's the Republican justices who are now the most conservative and the Democratic justices who are the most liberal. You have things like the ethical controversies that we had a few years ago that were very much in the news, Clarence Thomas accepting trips paid for by a Republican mega donor. You have the way the court acquired this conservative supermajority with Republicans holding one seat open after Antonin Scalia died and then rushing to fill another one when Ruth Bader Ginsburg died.

5:11So there's kind of a perfect storm. I haven't even mentioned overturning Roe v. Wade, which obviously was a decision that was high profile and among many people extremely unpopular. So a combination of factors have kind of gotten us to this point. So there were two decisions where the Supreme Court went against President Trump on the tariffs and birthright citizenship in this sea of decisions where they, you know, helped move forward his agenda on the regular docket and on the shadow docket. Some people are pointing to that even Justice Kagan are pointing to those two as, well, we're holding the line here.

5:47Well, I did think that Justice Kagan's remarks this summer were very interesting because after the ruling that overturned Roe v. Wade three years ago, she pretty much called into question the court's legitimacy in a couple of public appearances, saying that when the court is overturning cases, isn't being consistent, that it can call into question its own legitimacy. So the fact that she was, at least in some sense, standing up for the court this summer, I did think was notable. Having said that, she was very strongly in dissent from a number of the decisions you mentioned where the conservative majority moved the law in a particular direction in a way that conservatives have been hoping for for quite a long time.

6:29Is anybody else buying that argument that, you know, oh, well, we held the line on these two cases where if they hadn't held the line, it would have been shocking? You know, Jude, I hate to say this as somebody who covers the Supreme Court, spends all my waking hours or at least my work hours thinking about how to communicate what the Supreme Court is doing. But the truth is, a lot of Americans don't pay attention to what the Supreme Court is doing unless it's one of these mega cases like overturning Roe v. Wade or deciding a presidential election or something like that. So, you know, people often have impressions of the court.

7:06They've heard a little bit. If you look at these polls, it's kind of remarkable how little people have heard about some cases that I think everybody's heard about, birthright citizenship, terrorist things that you mentioned. So, you know, what people think of the court may be, in a lot of cases, more impressionistic than something that is really tied to particular decisions that came out. And in your story, you write that the justices have said in public that they don't consider polls. Yeah, they've said that over and over in a variety of different contexts. So one thing I mentioned in the story was in the Dobbs ruling, which overturned Roe v.

7:43Wade, Justice Alito mentioned that, as he put it, the judicial branch derives its legitimacy not from following public opinion, but from deciding by its best lights whether legislative enactments of the popular branches of government comport with the Constitution. Other justices have said similar things. On the other hand, we discussed Justice Kagan talking about the court's legitimacy. The court, and I would venture to say all the justices understand that their legitimacy is really important. As a country, as a republic, we need people, both average people and other members of the government, to accept Supreme Court decisions, even if they don't agree with them.

8:24We need people to be like Al Gore, who can say after the Bush v. Gore decision, I disagree strongly, but I accept it. Otherwise, you know, we run the risk of chaos where despite what the Supreme Court says, people say we are going to go off in our own direction, interpret the Constitution our own way. I know they say that they don't care about the polls in public, but I have this feeling like some of them must be a little bit upset about the fact that they're at record lows and that, you know, the public is seeing them as politicians in robes. I mean, they come out and defend themselves. And you see, you know, Justice Roberts trying to emphasize the number of unanimous decisions and also talk about we don't overturn precedent as much as some past justices.

9:10I mean, it seems like they're doing a lot of explaining. It is certainly the case that if you went to any of the nine of them and said you're acting like a politician, they would tell you in very strongly worded terms why they don't think they're a politician, why they are just interpreting statutes and interpreting the Constitution the way they think they should be interpreted. I am puzzled by one of the polls that found that a majority approved of the decisions the court made while not approving of the court itself. One thing that to me is fascinating about these polls is that even as the court is becoming less popular, its decisions, at least in this last term, were actually quite popular.

9:52So if you look at the Marquette poll, they asked about 13 recent Supreme Court decisions. And a majority of people said the justices had made the right decision in 11 of those cases. So there is, when you ask people about the particular issues the Supreme Court is deciding, there is some support for what the Supreme Court is doing, even as the court as a whole as an institution goes down in the public mind. There have been calls for a long time from liberal groups to either add members to the court, packing the court, or set term limits. Do you think that come 2028 in the presidential election, we're going to be hearing more about making changes to the court in some way.

10:35I expect very much we will hear a lot about this on the Democratic side. We already have Pete Buttigieg and Kamala Harris as two prospective candidates who are pushing the idea of adding seats to the Supreme Court. Others are talking about things like term limits. And of course, right now, it's just talk because Democrats are not in a position to do that. But you don't have to squint too hard into the future to imagine a world where Democrats might have control of both Congress and the White House. And then the question would be, will they do something about the Supreme Court now that they have that power?

11:11And, you know, we may see a dividing line among Democrats, some who will say, we need to do something now, this is a thing that will, you know, make an instant change, adding seats to the Supreme Court, and others who say, look, if we do it when we have the power to do it, as soon as Republicans get back in power, they're going to do it. And that's not good for anybody. You talked to Jesse Wegman of the Brennan Center, and he said, this court is not going to change its behavior. It was instituted precisely for this behavior. And the way I think you solve this is structurally, which is what we've been talking about.

11:46I mean, last term, the conservative majority certainly changed the law. Are any cases coming up next term that might give them the same kind of opportunities? We don't yet have the boundary pushing cases that we had last term. So I would say birthright citizenship, tariffs, Lisa Cook, all of those were Donald Trump doing something that a couple of years ago, nobody was really thinking a president might be able to do. And we don't yet have those cases, but we might. So many of these cases at the lower court level get up to the Supreme Court through the emergency or shadow docket and can present that sort of issue.

12:28That's what happened with Lisa Cook. So it is certainly possible. For the most part, we have seen, the way I think about it is we have seen this court do most or all the things that Ronald Reagan would have wanted, that the kind of Reagan revolution, the notion of let's get back to our originalist interpretation of the Constitution. let's bolster the power of the presidency and, you know, reduce the role of race in our in our government, all those things that are longstanding conservative priorities. The court has been willing to do those things. It's where Donald Trump has sort of created his own priorities that maybe aren't things that the Reagan folks would have thought of.

13:10That's where the court is sometimes drawing that line. Finally, there was a rumor that Justice Alito was going to retire last term, and he has said that he is not retiring this term, at least. He did say that. I can only tell you what words he used. This was in an interview with the editorial features editor of The Wall Street Journal, so sort of a friendly audience. Justice Alito told them, obviously, I'm here for another term. And the reason that we're talking about this now is normally, if a Supreme Court justice is going to retire, he or she does that at the end of a term. It's the least disruptive for the court.

13:48If you leave in the middle of the term, then you end up with maybe only an eight justice court. And so when Justice Alito didn't retire at the end of this last term, normally one would think, okay, he's going to stick around for another term. But because there is at least the prospect that Democrats could take over the Senate in the November midterm election. There has been some talk that if that happened, maybe Justice Alito, who's very conservative, might say, or at least come under pressure to say, I'm going to retire now so that the lame duck Congress with the Republican-controlled Senate can confirm my successor.

14:26These comments seem to preclude that. Obviously, things can change, but he at least sounded, from what I can read in this story, as somebody who's not at all planning on leaving in November. Thanks so much for taking the time, Greg. That's Bloomberg Supreme Court reporter Greg Storr. Coming up next is the NFL breaking antitrust law in its negotiations with streaming services. This is Bloomberg. As markets move and headlines break, what matters most is context. A Bloomberg subscription gives you unmatched reporting, sharp analysis and powerful tools that help you connect the dots. Visit bloomberg.com slash podcast offer to learn more.

15:11It's a tough time for football fans who live outside their favorite team's home market. The rise of streaming services has ended the era when sports fans could easily follow their favorite teams on a handful of broadcast and cable channels without buying special subscriptions. But the NFL has signed deals with multiple services, creating a bewildering schedule and a steep cost to watch games at home, as fans have to subscribe to multiple streaming services in addition to a traditional cable or satellite bundle. During a Judiciary Subcommittee hearing in June, Republican Congressman Jim Jordan described the challenge football fans face trying to watch their favorite team.

15:59June Grasso:Here's what the fan deals with today in our report. A Green Bay Packers fan who lives in Dallas, Texas, grew up in Green Bay, loves the Packers, wants to watch the Packers, grew up in Dallas, Texas. For the 2026 season, the Packers are scheduled to play eight games on Fox, two games on Amazon Prime Video, two games on Netflix, two games on NBC, one game on ESPN, one game on CBS, and one unscheduled game that is left to be determined by the NFL. The fan will need access to Amazon Prime Video, Netflix, NBC, and ESPN to see the seven games scheduled for those services. For the nine games scheduled for Fox and CBS, the fan will likely need Fox and CBS because some of the games will be on broadcast television in Dallas.

16:37June Grasso:The fan will also likely need Sunday Ticket just to watch some subset of the nine Fox-CBS games because the fan will not know which games will and will not be on broadcast until the NFL and relevant networks release the broadcast maps the week of the games. That's what they got to navigate. That's what they got to navigate. The Justice Department has opened an antitrust investigation into whether the NFL is breaking antitrust law in its negotiations with streamers and driving up the cost for consumers. My guest is an expert in antitrust, Harry First, a professor at NYU Law School. Harry, some of our Bloomberg reporters looked into this.

17:16And so for a Philadelphia Eagles fan living outside of Pennsylvania. To get all the games the Eagles are in, they would need Sunday ticket at$378, YouTube at$83, Peacock at$33, Fox One at$20, and Prime Video at$9 for a grand total of$523. Yet the NFL claims that 87 % of its games are primarily shown on free over-the-air broadcast TV.

17:53June Grasso:I mean, I assume that that's true. You know, yeah, so if you just want to watch the Eagles, I mean, you know, it's going to be on free over-the-air television. But if you want to watch away games, you know, if you want to just sit there on a Sunday and watch every game out of your market, you're going to have to pay for it. If you want to watch every time the Eagles play, you know, in L.A., It's not going to be on Channel 10 in Philadelphia. So, yes, if you fly to L.A., it'll be there for free, too, but not exactly free. So I don't know that the number it's one of those numbers that will convince no one.

18:31June Grasso:Obviously, a lot of people are buying the Sunday ticket to watch out of market football games because they just love sitting there watching their team wherever they are and other teams, you know, because there are teams all around the country. that you can't see on over-the-air TV unless you pay extra for it. The investigation is reportedly focused on this antitrust loophole in the Sports Broadcasting Act that allows the NFL and other leagues to negotiate media deals collectively on behalf of their teams. And that's the same loophole that the Congressional Subcommittee was looking into in June.

19:10June Grasso:So the lawyer in me doesn't like to call them loopholes. likes to call them exemptions. You know, in 1961, yes, it's interesting to try to think about it. And I'm not certain I fully understand why the over-the-air broadcasters went along with this, because they were, I think, relatively more powerful than the NFL in 1961, which was, you know, not the juggernaut we know today. So they allowed the NFL to pool all their TV rights free of any antitrust issues. The law was in some ways less settled then. And, you know, maybe it was a little less clear, but they clearly would have had some problems.

19:54June Grasso:There had been litigation. And I think everyone thought it was in their best interest to to negotiate with a single source, have this brand NFL football, which then I guess the TV networks could sell to advertisers because, you know, that's that's their game. So in that sense, it was a good deal for those two powerful sides, you know, who then got this through Congress. I doubt that the fans showed up for legislative hearings. And, you know, in the end, the fans didn't pay directly because those are over the air, quote unquote, free broadcasts. But you know, someone picks up the tab for the advertising.

20:37June Grasso:So consumers do pay. You had the congressional hearing in June. And of course, politicians on both sides questioned whether the deals now violate that law. Do you think they violate that law? Well, in a technical sense, the question is whether the exemption applies to some of the current deals. So if it's a deal that involves broadcasting rights, where the broadcast is paid for by sponsors, in other words, advertiser supported, then that comes within the Sports Broadcasting Act. But the current deals that the NFL is negotiating are with, you know, platforms are with streaming platforms. Pretty hard to see how they're within the wording of the exemption from the Sports Broadcasting Act.

21:30June Grasso:So the Sports Broadcasting Act wouldn't give the NFL an exemption. They'd have to go straight under the antitrust laws. And then the question is whether it violates the antitrust laws. and they got pretty much socked in the Sunday ticket litigation with a pretty clear bonding from a jury. So the pooling of rights apparently keeps some of the teams from negotiating separately to sell their broadcasting rights to, you know, maybe other streaming platforms or put them on YouTube where, you know, you would just, if you didn't want to get a whole package, all you wanted to do was follow the Eagles, you would want to get a package just of Eagles games, but that can't happen now.

22:15June Grasso:So they would be in for some litigation if they don't fall within that exemption. And why did the judge toss out that almost$5 billion jury verdict against the NFL in the Sunday ticket class action lawsuit? So there are two answers to this. The first answer that I often would give in class was, it's the zeros. I get that. Now, that's not a legal answer, but this was probably the largest plaintiff's verdict, certainly in antitrust, maybe in any plaintiff's verdict, but$4.7 billion before trebling is a lot of money. Now, that can be a reason for knocking down the amount. But that's not what the judge did.

23:04June Grasso:He disqualified two of their experts on damages that he had actually qualified at the trial. So it seems a little like, oh, let me find a problem with this trial. And interestingly, he did not find a problem with liability in itself. It was on the damages, I think. So that case has been sitting before the Court of Appeals now for a while, waiting for a decision. So the Justice Department is launching an investigation into whether the NFL and the leagues are breaking antitrust law in their negotiations with streamers. Is that different from the Sunday ticket? I don't know exactly which negotiations they have in mind.

23:53June Grasso:I mean, the Sunday ticket litigation involves an agreement to distribute, and also they had it with DirecTV first, and then with YouTube, that if you wanted access to these games, you would buy it, and it would be streamed on YouTube. Now, there are other, they're licensing Netflix, Amazon, so they're licensing a bunch of different platforms. But the problem is the same without regard to which platform it is. It's the question of, you know, is the NFL a single entity or are they a group of however many teams, 32 teams all coming together and agreeing that they're going to sell their rights jointly, pool their rights, because each one has the right, you know, the legal right, the copyright to the games that they're involved with.

24:48June Grasso:So they're pooling all the rights to make a single product called NFL football. So is that coming together is an agreement? And that's section one of the Sherman Act. Now, whether that's lawful or not is something that the NFL presumably would fight. These sports leagues haven't had a great track record in saying, gee, we're coming together for your good. So I don't know. Now, when you say the Justice Department is investigating, the careful approach that I would suggest is there are reports that the Justice Department is investigating. We really don't know what they're doing. And frankly, I'm not sure, you know, in looking back at the antitrust history here, I don't think the government has necessarily spent its prosecutorial resources worrying about competition in professional sports.

25:43June Grasso:They've usually left it to the people with money in the game, the owners, fans, consumers, things like that. So why are they interested in this? Why do you think? Well, we know the answer. The staff report, you just mentioned the House NHF subcommittee staff report starts out with a quote from the president. There's something very sad when they take football away from many, many people. He said that in May. And I'm glad that he has empathy for, you know, the cost of living. I'm going to refrain from making a comment on that, Harry. Harry, this Justice Department has not been, shall we say, strong on antitrust enforcement.

26:29They walked away from the Ticketmaster Live Nation trial and left it to the states, who then won. They also walked away from the Paramount Warner Brothers Discovery merger, leaving it to the states to sue. Do you think they would really sue the NFL?

26:47June Grasso:I don't really see any government group doing anything here because they're just going to rub some important economic interests the wrong way. I mean, I don't see Congress doing anything. The House report didn't say, oh, my God, we have to repeal this statute or, oh, my God, we have to amend it or, oh, my God, we have to do something. Now, they said, oh, my God, we've got to stand here and look. We've got to keep watch. And thank you very much. We're going on recess. I mean, I don't know. Maybe they've got a big investigation going, but there are a lot of big mergers going on in the economy. And although private parties get involved in those occasionally, that's really fallen to the government to do something about.