War on Judges, LGBTQ Loss & Rastafarian's Religious Suit

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1:14And when losses do happen, The Hartford can pair that risk control work with insurance coverage grounded in underwriting, risk engineering, and claims experience developed over time. Learn more at thehartford.com slash risk mitigation. This coffee shop? Running smooth thanks to Genius. From Global Payments, instant transactions, effortless inventory, and synchronized operations. Big League reliability for any business. That's Genius. This is Bloomberg Law with June Grosso from Bloomberg Radio. It's a war, man. That's Todd Blanche, the second in command at the Justice Department, saying the department is at war with federal judges.

2:02Blanche echoed President Donald Trump and Attorney General Pam Bondi's attacks on so-called rogue judges who handed down decisions against the Trump administration. These activist judges that they have a robe on, But they are more political, or certainly as political, as the most liberal governor or DA. The deputy attorney general, who was formerly Trump's lawyer, defended the Justice Department against claims of weaponization, but then urged young lawyers to join the war against judges. There has got to be a couple dozen young lawyers who are thirsty and hungry and ready to work, because we need you because it is a war.

2:50A group of retired federal judges is warning that the language Blanche used poses a grave threat to the rule of law and the judiciary. Joining me from the Article III coalition is Judge Johnny Jones III. He was appointed by George W. Bush and served for two decades on the U.S. District Court for the Middle District of Pennsylvania. Judge Jones, first. Your reaction to the deputy attorney general saying that the Justice Department is at war with the judiciary? I think that the comment is at minimum inopportune. And I think writ large, it's grossly irresponsible for the number two individual at the Department of Justice to characterize anything involving the federal judiciary as a war, a war against so-called rogue judges.

3:40It is highly problematic, and I think it's causing a great deal of consternation among the judiciary, not just active judges, but retired judges as well. He said, we have judges literally telling the president, the executive, what he can and cannot do. We have seen judges not following the law and the Constitution, and he said they have a row bomb, but they are more political or certainly as political as the most liberal governor or DA. Well, June, here's a newsflash. That's exactly what judges are supposed to do, is say what the law is. They've been interpreting the law, of course, since Marbury v.

4:16Madison. And I think he's protesting too much. What he's really striking out against are decisions that are, in the judge's view, in accordance with the law and legal precedent. Simply because you disagree with the decision doesn't mean that you're at war with the judge who made the call. the government is fully able to exercise its appellate rights. And in fact, they have in any number of these cases. So, you know, to say the judges are political simply because they rendered a decision that you don't agree with is really a baseless allegation. I guess red meat, if you will, for the conservative lawyers in the Federalist Society.

4:56But I would suspect that a lot of those lawyers entertained, though they may have been, no better. So his target was sort of on the district court judges, the trial court level. And he said that when it gets to the Supreme Court, the Supreme Court has reversed them except for one or two times, which is true. But that assumes that the conservative majority on the Supreme Court is right and the federal district judges are wrong. And these decisions were all made on the emergency docket without full briefing or oral arguments? Well, a couple of things I'd say about that. There are far more decisions that are standing than ones that are appealed to the Supreme Court.

5:37As you know, that court has a discretionary docket. So some of these lower court decisions have stood up simply because the Supreme Court hasn't taken them. Now, it is noteworthy that the Supreme Court has placed on its emergency docket a number of different cases. And yes, the government has been successful. I don't know that it's necessary under the circumstances for Mr. Blanche, you know, to be a sore winner and do a sort of victory dance about that and castigate lower court judges. You know, the Supreme Court gets the final word on these cases, but I can go over any number of cases that district courts have heard and have indicated that those decisions are in accordance with precedent and the law under the circumstances.

6:18You know, these are close questions in some cases as well. But again, this sort of sore winter thing is pretty wearying and unbecoming, again, I'd say, the Department of Justice that I knew and worked with was very professional during my nearly two decades on the federal bench. The number of threats against federal judges have skyrocketed, as you know. What does it do when you have the second in command saying things like this, saying, you know, we're at war, saying that judges are not following the law, they're not following what the Supreme Court says. What's the effect when the general public, who may not know about the underlying cases, hear something like that from the number two person at Justice?

7:00Well, you have to take it in concert, June, with what's been happening for this entire year since January 20th, which is that judges are being singled out by name, their families are being singled out, they're being doxed. Anybody can find the location of a judge, even though there's been legislation to redact and hide some of their personal information. And I think fairly, judges are frightened. It puts a bullseye on judges. And you correctly cite the U.S. Marshal Service as indicated that threats against judges, there were 500 plus bona fide threats in the last fiscal year, and they're growing exponentially.

7:36I've always said that, you know, there are a lot of people that disagree with judges' decisions. That's the nature of the business. But it's that small percentage of unbalanced people who kind of hear this as a dog whistle. And I have said for years, because of this inflammatory rhetoric, that we're going to get a judge hurt or killed. You need only look back at my former colleague, Esther Salas's tragedy, you know, where his son Danny was shot and killed back in 2020. I fear that's going to happen again if we don't dial down the rhetoric. Again, this goes to the irresponsibility of Mr. Duplange's comments.

8:10We need to level set here instead of making it worse. And to put this in context, these weren't casual remarks because we've heard similar remarks from the Attorney General Pam Bondi. She's actually called out individual judges by name for their decisions. And of course, so has President Trump. I mean, is there some kind of strategy at play here by the Justice Department? Are they trying to scare judges? What's at play? Well, if they're trying to scare judges, that won't work because I think fairly my friends and former colleagues in the judiciary are not easily frightened. Sure. I mean, there may be a motivation to have them look over their shoulders.

8:48I think what it is, is it tears down the integrity of the judicial system. All three branches, I think, at bottom have a responsibility to uphold the integrity of their existence as co-equal branches of government. We are seeing this unitary president going wild now. There's another problem here, June, and I think it's that we are losing any line of distinction between the president and the Department of Justice. Of course, I'm not naive. There's always some interaction between the president and the Department of Justice, but they've almost become one in the same, which I think is truly troubling.

9:24So this is the number two man and, in fact, the attorney general doing the bidding for the president of the United States and simply parroting his view of federal judges and carrying out, we know this now because we've seen some of the things that the president has written and thought that he was playing to an audience of, for example, General Bondi and instructing them to prosecute people. I think my conservative lawyer friends, for example, who listen to Todd Blanche ought to be careful what they wish for because in a world like that, I don't think anybody is particularly safe. And Blanche denied that the Justice Department was being weaponized.

10:03And he said the department was weaponized before during the Biden administration. Then he talked about the prosecutions of President Trump. However, he did not mention that the current Justice Department is prosecuting former FBI Director James Comey and New York Attorney General Letitia James. My response to that, June, is there was a statement made by the New York Bar Association criticizing Blanche, and his response was LOL to that. Well, my response to what Mr. Blanche said about weaponization is LOL. You know, it's the same thing. If this isn't weaponizing the Justice Department, you know, people may disagree or agree about weaponization during the Biden administration.

10:46I'm talking about the here and now. I don't think we've seen a stark weaponization of the Department of Justice ever. Think about the DOJ as it participated in the efforts, the executive orders against law firms. They litigated those cases. It was lawyer on lawyer through that. Think about Mr. Blanche traveling to federal prison to see Ghislaine Maxwell and getting a statement from her. We know now that he probably had access to emails that directly contradicted what she apparently told him, looking like every bit the president's personal lawyer instead of the number two man at justice. I mean, we're in a world that is vastly different than anything I've ever seen in terms of the interaction between the Justice Department and the courts.

11:31When I was a judge, by the way, you know, I thought federal judges had pretty enormous power to be used very sparingly and carefully. We're now living in a time when essentially the President of the United States and the Department of Justice, they're saying in as many words, just disregard district court judgments. They're not worth, you know, the electronic ink that's being used to render them. I don't think that that's helpful or appropriate in any way in terms of the integrity of the third branch of government. He didn't just attack judges. He also attacked the bar associations and he vowed to take away the bar associations oversight power.

12:07Now, complaints have been filed against Justice Department lawyers with bar associations, but does the Justice Department have any power over that? I confess, June, to confusion as well about how that could be accomplished because you're a member of a bar association and, for example, the Pennsylvania Bar Association polices its own and they can suspend you. The Supreme Court of Pennsylvania can get involved and suspend your right to practice for a period or they can disbar you. So good luck with that. You know, not only is it, I think, an overreach from a rhetorical standpoint, but I think it's mission impossible.

12:43And tell us why the Article III coalition decided it had to issue a warning about Blanche's statements. This is something that we feel in unanimity that is really injurious to the rule of law. And, you know, if you can get 50 retired judges, you know, thoughtful, appointed by different presidents, folks at different viewpoints going the same direction like this, you've got something that is really, really problematic. And, you know, I was proud to join that group. I fear it's going to get worse before it gets better. And that's really troubling. Thanks so much, Judge Jones, for sharing your insights and concerns with us.

13:21That's Judge John E. Jones III. Coming up next, another setback for transgender rights at the Supreme Court. 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. Now, a global workforce of 300 ,000 can use AI to fill their HR questions, resolving 94 % of common questions. not noise proof of how we can help companies get smarter by putting ai where it actually pays off deep in the work that moves the business let's create smarter business ibm support for the show comes from public.com if you're actively involved in your portfolio you probably catch yourself repeating the same actions buying the dip manually sweeping idle cash putting on a hedge on public you can now create ai agents that handle all these tasks on your behalf just describe what you want to do in plain English.

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16:28It was a vote down ideological lines, and the court's conservatives are allowing the Trump administration to require that passports be marked with a person's sex assigned at birth. This is a reversal of the policy that's been in place since 1992, which allowed passports to reflect a person's gender identity. But President Trump made it clear when he was campaigning that he would reverse transgender rights. With a stroke of my pen on day one, we're going to stop the transgender lunacy.

17:04And I will sign executive orders to end child sexual mutilation, get transgender out of the military and out of our elementary schools and middle schools and high schools. And back in May, when Trump issued a transgender military ban, the Supreme Court's conservatives allowed him to discharge thousands of transgender service members who'd been serving openly for years. My guest is Suzanne Goldberg, a professor at Columbia Law School and director of the school's Sexuality and Gender Law Clinic. Suzanne, will you explain the change in passport policy by the Trump administration? For 33 years across six presidential administrations, transgender Americans have been able to get U.S.

17:51passports with their gender marker that accurately matches their gender identity. So a transgender man can get M on his passport and a transgender woman can get a F on her passport, which is important for many reasons, including so that the person looks like they match their passport. From basically 1992 to 2010, there was an eligibility requirement related to a surgical transition that has changed over time. The point is, for 33 years, this has been the same. But on the first day of his administration, Donald Trump issued an executive order saying that transgender people are corrosive to the United States in so many words.

18:34He used the word corrosive and directing the State Department to no longer issue passports to people that would be consistent with their gender identity if they're transgender. And so the Trump executive order led the State Department to take two steps. First, to stop issuing passports to transgender people consistent with their gender identity. And second, to remove the ex-gender marker, which was an option for anyone who does not fit the M or the F or someone who doesn't want to share their gender identity with the U.S. government. So put into simple terms, the Trump administration changed policy on the first day of the administration, and the State Department followed two days later to prevent transgender Americans from obtaining passports consistent with their gender identity.

19:24This was an unsigned order, and the conservative justices very short explanation seems to me like it's ignoring the facts that were presented in the case. The justices said displaying passport holders sex at birth no more offends equal protection principles than displaying their country of birth. In both cases, the government is merely attesting to historical fact without subjecting anyone to differential treatment. It is stunning because the plaintiffs in the case explained to the district court, which agreed, as did the Court of Appeals, that if you are a transgender man and you have a passport that says F on it, it does have real-world harmful consequences every time you have to show that passport to someone because the person receiving the passport may say, as has happened to some of the plaintiffs, you're using fraudulent documents because you don't appear to match your passport, gender marker.

20:26So this has led to some of the plaintiffs being accused of fraud, one of the plaintiffs being strip searched, other plaintiffs facing all sorts of problems as they've tried to cross borders. So for one, the Supreme Court's kind of casual remark that this is as insignificant as somebody's sort of national origin or its place of citizenship is just untrue. In addition, The country of birth is not anything that affects somebody when they're using their passport and passing through security. But the gender marker is used to check accuracy. And so even on its face, the Supreme Court's analysis is wrong.

21:05The Supreme Court's description, I can't really call it analysis. The Supreme Court's statement is wrong. And a dissent for Justice Jackson points that out as well. The court also found that the administration is likely to win on the merits. and the administration faced irreparable injury. I'm not sure where the irreparable injury is, since this policy is a new one that's changing what's been in place. But the conservative justices have found irreparable injury in almost all of President Trump's emergency requests. There is no irreparable injury in the traditional way that courts look at irreparable harm.

21:47So let me explain. When a statute comes over from Congress and is challenged in the court, it is given a presumption of constitutionality. So the court assumes it's constitutional, but sometimes plaintiffs can show actually it's unconstitutional and the court will strike it down. And there's understood to be some arguable harm to government when a statute is put on hold. But when a government policy is put on hold, like an executive order or a preference of the president, that's a different situation. That is not entitled to the same presumption of constitutionality as a statute that has been passed by Congress.

22:27And the upshot is just saying, well, the government is irreparably harmed by not being able to put in place its desired passport policy is akin to saying the government is irreparably harmed whenever it is stopped from doing something that it would like to do. And that is akin to having no judicial review over government actions at all, at least not at this preliminary stage. So that's a very serious problem from a sort of basic approach to constitutional analysis of executive actions. Justice Jackson wrote that the court has once again, paved the way for the immediate infliction of injury without adequate or really any justification.

23:10This is also a pattern of the court at this point, basically allowing the Trump administration anything it asked for on the emergency docket and saying, well, this is while litigation is pending. Yes, this is the 24th consecutive grant of emergency relief to the government. And this process of the Supreme Court staining rulings of lower courts, finding constitutional or other problems with government policies, this phenomenon of the Supreme Court repeatedly saying, oh, we're going to put those lower court rulings on hold, has had the effect of basically giving the Trump administration a free path to continue enforcing policies and taking actions that lower courts have held to be not only likely unconstitutional, but also causing irreparable harm to the people who have been affected.

24:04So this is certainly part of a larger trend. The striking thing about this case is that the harm to the individuals who are denied passports that accurately reflect their gender identity is stunningly clear. Another problem here is that the government is obligated anytime it changes a policy that collect information from the American people, the government is obligated under the Paperwork Reduction Act, which was passed by Congress, to spend 60 days collecting information and public comment on whether it can make this sort of a change. And of course, changing its passport rule two days after the president was inaugurated and issued his executive order is fully out of compliance with this law that is supposed to apply to all of the government's actions.

24:52As I mentioned, this order stays in place as a litigation blow continues. So how much of a blow is it to the rights of transgender people? This is a tremendous blow in terms of the human cost. One only has to think about The named plaintiff Ashton Orr, who needed to travel out of the country, needed a new passport. Ashton Orr is a man, he's a transgender man. The only passport he is able to get to cross borders has an F gender marker on it. That reveals Ashton to be transgender, not only as he crosses the border out of the United States, but as he crosses into other countries, possibly putting him in danger of harm from other governments and now as well as our own.

25:40The harms are very serious, very painful to individuals, and also are reflective of a broader harm to people who are not transgender, which is that the government can, for irrational reasons, possibly hostile reasons toward this group of people, or any group of people more generally, choose to withdraw a passport, right? choose to do any number of things that cause harm. And the Supreme Court is unwilling to say, hold on, government, the lower court has found a problem with this law or this new policy, and we need to hold while this case is being litigated. So there are real world problems, there are constitutional problems, there are traditional separation of power problems that we're seeing.

26:23In May, the Supreme Court allowed Trump to discharge transgender people serving in the military. In June, the court upheld a Tennessee law that bans gender-affirming care for minors. And now the court is allowing this passport policy to go into effect. In all these cases, the conservatives were in the majority and the liberals in dissent. It's hard to ignore that the court has been ruling against transgender rights, at least since a case in 2020. Yeah, I mean, there has been a corrent of policies, you know, from the Trump administration and laws at the state level that restrict the lives or try to restrict the lives of transgender people in every imaginable way, from getting identity documents to using the bathroom, to participating fully at school, to serving the country in the military.

27:15And so far, when these issues have been presented, the court has said it's okay to create this legal barrier, really like a legal burden that harms transgender people. In 2020, the court took a different tack. This involved an employment discrimination case. A transgender woman was fired from a role at a funeral home where she had served for many years, and she sued the employer saying it was sex discrimination that she was treated differently because of her sex being fired based on that she is transgender. And in that case, Bostock v. Clayton County, which also involved two other cases with sexual orientation discrimination at issue, in that case, the court said it is sex discrimination to fire a transgender person because there's no way to understand this other than they're being fired because of their sex.

28:08One of the big questions before the court is that case came under Title VII, which is a federal law that prohibits sex discrimination as well as other forms of discrimination in employment. And a question is whether the logic of understanding sex discrimination in that Bostock ruling from 2020 is going to carry over into these other areas. Or will the court say, as it may appear to be inclined to do, oh, no, that might be sex discrimination, but this isn't. We'll see if the pattern holds or not, because in January, the court is going to hear arguments on whether states can ban transgender girls and women from competing on female athletic teams.