Warning From the Chief Justice & Vaccine Ruling

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1:40This is Bloomberg Law with June Grosso from Bloomberg Radio. For the first time, 29 appellate court judges on the Ninth Circuit have issued a harsh rebuke to one of their colleagues for coarse language he used in a dissenting opinion. The full court had decided not to review, on bank, a ruling by a three-judge panel against a Christian-owned spa that wanted to exclude transgender women from its facilities on free speech grounds. Judge Lawrence Van Dyke, a Trump appointee, used vulgar language to describe transgender women in his dissent. That prompted a harsh rebuke from his colleagues across the ideological spectrum.

2:26They wrote that the U.S. legal system is not a place for vulgar barroom talk and that Van Dyke's dissent ignores ordinary principles of dignity and civility and demeans this court. Quote, that language makes us sound like juveniles, not judges, and it undermines public trust in the courts. My guest is retired federal judge Johnny Jones III. He's the president of Dickinson College. Judge Jones, what's your reaction to Judge Van Dyke, using vulgar language that I'm not going to repeat here, to refer to transgender women three times in his dissent, and said that his colleagues had lost their collective minds?

3:11Well, I've never quite read a judicial opinion like what Judge Van Dyke rendered. And, you know, at the end of the day, I think it's unfortunate and it's inappropriately worded. I agree with his colleague who opined that we're better than this. It's way too sensational. It's way too cavalier. And, you know, the other appellation that he used in the opinion is referring to his colleagues as woke. And it's just wholly intemperate. And I think it portends that he's going to have a very difficult working relationship if he didn't already with his colleagues on the circuit. Well, there was a scathing rebuke from 27 of his own colleagues on the Ninth Circuit, including very conservative judges and Trump appointees.

4:01And as you mentioned, two judges, a Trump appointee and Obama appointee, wrote a separate single line sentence saying regarding this dissenting opinion of Judge Van Dyke, we're better than this. Have you ever heard of a rebuke like that from colleagues on the court? No, I haven't. And I've read, you know, some really vigorous dissents. Justice Scalia could really sharpen his pen in his dissents. They were kind of entertaining in part because he didn't do it with a particular animus. There was one time in history that I've read about where he and Justice Kennedy clashed, and they both regretted it.

4:40But the rhetoric wasn't anything close to what you see in this rendering. You know, appellate courts, like the Ninth Circuit, have to work together, and they may have widely disparate views. But the interesting thing about courts is that while people come from all stripes, and I had a very diverse court in the Middle District of Pennsylvania, the district court, you know, you tend to check your, you know, know, sort of sensational activities and attitudes at the door and really work to get along with your colleagues for the good of the third branch. And this kind of, I can only characterize it as grandstanding, I think really casts Judge Van Dyke in an unfortunately bad light.

5:22And this is not his first rodeo, as they say. You know, having a descent by video is, I would also say, probably too cute by half. Yeah, he recorded an 18-minute video in his judicial robes handling several firearms as part of a dissent from a Ninth Circuit decision that upheld a California gun control law. Sometimes when judges write these opinions with shock elements, they're referred to as auditions for the Supreme Court. A judge is trying to get the attention of President Trump in a way that President Trump would like in order to become a nominee on the court? You know, I guess that you could say that he's auditioning for something.

6:09I don't know what. But, you know, he comes off as, I have to use this phrase, he comes off as a jackass by the way he writes the opinion. And I think that jackass, by the way he writes the opinion. And I think that he's going to have a hard time if his quest is, you know, to be taken seriously as a Supreme Court nominee. He's getting an F grade in that. I don't think it's going to work for him. This is the kind of stuff that would really get you beaten up, perhaps in a bipartisan way in his Senate confirmation. So good luck to him, but he doesn't look like a Supreme Court nominee to me in any way, shape, or form.

6:44In their response, his colleagues said that it could undermine public trust in the courts. Do you think that something like this could undermine public confidence in the courts? It depends how widely disseminated the opinion is, to be perfectly honest. But it could get viral, I guess. It's certainly been written about in a number of different places. I don't know that the general public reads these things. But, you know, at a time when I think the third branch has been under assault by the administration and, you know, judges' integrity has been questioned, you know, every time they rule in a way that displeases the president and the attorney general and so forth, you don't need this.

7:24This is not helpful. Judges on appellate courts have disagreed since the beginning of the Republic and the creation of the circuit courts, which came along, of course, after the Supreme Court was created. And they've done it with, you know, a modicum of civility, but sometimes very directly. This is really beyond the pale. You know, it's, hey, look, notice me because I can say really sensational inflammatory things. And I don't believe that that's appropriate in the business of judging. And I, hey, I turned some pretty good phrases, I thought, when I was on the court. I took swings at some really interesting cases.

7:59And I love to write. And I love to write with meaning and effect, but not like this. And I sat by designation, I should note, on the Third Circuit Court of Appeals many times. And this is really dilatorious when it comes to your working relationships with your fellow judges. And, you know, because you work in close quarters with them. Is there a point, you know, we mentioned there was another instance. Is there a point where there could be disciplinary proceedings? You know, that's an interesting question, June. I don't know. I don't think there's anything particularly actionable in the opinion from a judicial discipline standpoint.

8:35Generally, something like this, and I've heard of this happening in a number of cases, you may get a call from the chief judge of the circuit and, you know, kind of be taken to the woodshed by the circuit and say, look, you know, this isn't helpful. I read up on the good Judge Van Dyke, and I don't think he's of a nature that that would resonate with him. And I'm guessing that perhaps after the video dissent in which he was literally brandishing firearms, that he's already had a brushback pitch thrown at him by some colleagues in the circuit. He doesn't appear to be of a mind to listen. So I don't think that would be particularly efficacious in this case.

9:15I mean, I've seen judges, you know, who've had maybe too aggressive language in their opinions, older colleagues, you know, take them aside and, you know, try to help them. And generally, they listen to that. But I've never quite seen anything like this. Also, I just want to point out that when he was nominated, the American Bar Association rated him not qualified, with some lawyers and judges saying he was arrogant, lazy, and an ideologue who doesn't have an open mind. Other than that, he's perfectly qualified for the bench, obviously. You know, I read that and he certainly, you know, if you get dinged like that, and of course, a lot of people don't like the ABA process and so forth.

9:53But if you get dinged like that as you're going through your confirmation, you would think that you'd want to sort of enhance your reputation and prove to everybody that you're qualified. By doing things like this, it's, you know, just the opposite. To my comment earlier, June, about working in close quarters, you sit typically in three judge panels unless you're on bonk and the whole court sits, which I guess I don't know how they do that necessarily in the Ninth Circuit with all the judges they have, but it doesn't matter. I mean, you have to fashion an opinion. There's a lot of trading off and you're shuttling between, well, first of all, you may hear oral argument and then you caucus after that and get a preliminary view.

10:33And you're hanging out with your colleagues. Sometimes you have lunch with them after a particular sitting. And I enjoyed doing that. I wasn't used to doing it because I was a trial judge. But the times that I was elevated to the circuit, I got to know some folks that I hadn't known before and, you know, collaborated with them on different opinions. And you sort of work in that fashion, even if you dissent. I mean, you do it that way. Just imagine the next time this guy is sitting with some of the colleagues who castigated him in this case. It's going to be like he's radioactive. And you can't trust a guy like that to kind of act as according to what I would describe as judicial norms.

11:11And, you know, I'm as progressive as the next guy. But this isn't like blazing new territory and deciding cases. This is sensationalistic. And I just don't think it has a place. And also, I want to point out that this is about the Ninth Circuit not going en banc to review a judge's ruling dismissing this lawsuit against a spa as against the Washington anti-discrimination law. And the Ninth Circuit gets hundreds of requests for en banc review every year and only hears cases en banc 15 or 25 times a year. So I wonder why did he choose this to issue this kind of a scathing dissent unless it was because of the transgender issue in the case?

11:53Well, we'd have to climb in his head to figure it out. But, you know, he might have been looking for a spot to kind of flex his rhetoric. I don't know for sure. But you're right. I mean, more unorthodox is writing this extensively in a matter of the denial of an en banc hearing. That's not normal. so to speak. Basically, they let the decision stand, you know, by the panel. And as you aptly note, the volume of cases they get because of the scope, the sweep of the Ninth Circuit is absolutely incredible. So, you know, more often than not, most of the time, as you point out, again, aptly, they can't hear these cases en banc.

12:31But again, what his motivation was, but he seemed to be picking spots because in the other case, the firearms case, he made a sort of cause celeb out of that as well. Stay with me, Judge Jones. Coming up next on the Bloomberg Law Show, Chief Justice John Roberts slammed dangerous attacks on judges. This message is brought to you by Apple Card. Apple Card members can earn unlimited daily cash back on everyday purchases wherever they shop. This means you could be earning daily cash on just about anything, like a slice of pizza from your local pizza place or a latte from the Corner Coffee Shop. Apply for Apple Card and the Wallet app to see your credit limit offer in minutes.

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14:31Hello, hello. I'm Malcolm Gladwell, host of the podcast Smart Talks with IBM. I recently sat down with IBM's chairman and CEO, Arvind Krishna, and I asked him, how can companies use AI to its fullest potential to create smarter business? My one advice to them, pick areas you can scale. Don't pick the shiny little toys on the side. For example? If anybody has more than 10 % of what they had for customer service 10 years ago, they're already five years behind. If anybody is not using AI to make their developers who write software 30 % more productive today, with the goal of being 70 % more productive.

15:19Yeah. Wow. So we are not asking our clients to be the first experiment on it. We say, you can leverage what we did. We are happy to bring out all our learnings, including what needs to change in the process, because the biggest change is not technology. It's getting people to accept that there's a different way to do things. To listen to the full conversation, visit ibm.com slash smarttalks.

15:48in his first public comment since president trump blasted justices who voted to strike down his global tariffs i've been talking to former federal judge johnny jones the third judge jones you mentioned the criticism of judges and from the very beginning this administration has been calling out individual judges for their decisions and calling them woke and activist. And President Trump, in response to the 6-3 ruling that upended his signature economic policy of tariffs, assailed the justices who ruled against him, calling them fools, lapdogs, unpatriotic, disloyal to our Constitution, and an embarrassment to their families.

16:37And he followed up those comments Sunday in a series of social media posts accusing the court of being a weaponized and unjust political organization. Well, today, during a conversation at Rice University's Baker Institute for Public Policy, the chief justice made his first comments about the criticism without naming President Trump. He said that hostility toward judges was creating a dangerous environment. Let's listen to part of his comments. The problem sometimes is that the criticism can move from a focus on legal analysis to personalities. And you see from all over, I mean, not just any one political perspective on it, that it's more directed in a personal way, and that, frankly, can be actually quite dangerous.

17:37Judges around the country work very hard to get it right, and if they don't, their opinions are subject to criticism. But personally directed hostility is dangerous, and it's got to stop. Yeah, this is a big statement from the chief, and I absolutely respect the chief justice. I think that he's been a terrific leader of the federal courts, agree or disagree with his decisions. He became chief justice when I was on the bench. He's about my same age. I think, you know, he's stood up historically for his judges. But for him to go this far means to me that he appreciates that this has reached critical mass.

18:22I was privileged to be on 60 Minutes a couple of weeks ago and a spot on threats against the judiciary. And I said very straightforwardly that we're going to get a judge killed if we're not careful. And I think this is resonating now with the Supreme Court. And while I know that the chief was being cautious, although his statements were pretty strong, pretty profound that it has to stop. Look, there's only one set of offenders right now. You could go back and talk about Chuck Schumer and you can talk about other people who made comments about decisions by Republican appointed judges. But they're completely different in their nature than what we've seen the constant drumbeat from this administration, literally from January 20th of last year.

19:13And, you know, I think the president's rhetoric, the attorney general's rhetoric, Todd Blanche, for example, saying there's a war on the judiciary. I think this is this is really, really beyond the pale. And, you know, we're seeing judges doxed. We're seeing judges having pizzas delivered to them anonymously. and somebody's going to take up arms and they're going to do harm to a judge or a judge's family. And I think the chief's had enough of it. And that's why he picked his spot at Rice University and decided to speak out. Good for him. Do you have any confidence that this is going to get the president or those in his administration to tame their remarks?

19:53Well, it won't stop, June, but I'll tell you what's happening. You know, you're seeing for the first time now that grand juries are not indicting people. They're issuing no bills in cases. So this president would want to, I think, use the apparatus of the criminal justice system of the Justice Department to, you know, bring punitive actions against his enemies. And what he's done is I think he's poisoned the well and good citizens who are called to serve on grand juries are not buying it. And judges too. Judge Boesberg, for example, you know, who quashed a subpoena almost never happens in the case of Jerome Powell.

20:29So judges and grand jurors are wise to the ways of this administration. I mean, the sort of consequences of this are expanding. For example, you know, the duty of candor to the court is observed in the breach, I think, by government attorneys daily. They have utterly lost their credibility with the federal judiciary. You know, judges simply don't believe what lawyers are saying to them. And that's really sad because, Because, you know, I learned over my almost 20 years on the bench that the Justice Department was extremely professional and reliable. And, you know, you typically could take them at their word.

21:04That has been eviscerated by this administration. So while I don't expect them to stop, they're reaping what they're sowing. And, you know, I've never seen so many no bills issued from grand juries. It's remarkable. Thanks so much for joining me today, Judge Jones. It's always great to get your insights. That's Judge Johnny Jones III, the president of Dickinson College.

21:51Steady. Retirement accounts? Yep. High yield cash? Yes again. They even have direct indexing. Public has modern design, powerful tools, and customer support that actually helps. Go to public.com slash market and earn an uncapped 1 % bonus when you transfer your portfolio. That's public.com slash market. Add paid for by Public Holdings. Brokered services by Public Investing, member FINRA SIPC. Advisory services by Public Advisors, SEC Registered Advisor. Crypto services by ZeroHash. All investing involves risk of loss. See complete disclosures at public.com slash disclosures. Hello, hello. I'm Malcolm Gladwell, host of the podcast Smart Talks with IBM.

22:31I recently sat down with IBM's chairman and CEO, Arvind Krishna. And I asked him, how can companies use AI to its fullest potential to create smarter business? My one advice to them, pick areas you can scale. Don't pick the shiny little toys on the side. For example? If anybody has more than 10 % of what they had for customer service 10 years ago, they're already five years behind. If anybody is not using AI to make their developers who write software 30 % more productive today, with the goal of being 70 % more productive. Yeah. Wow. So we are not asking our clients to be the first experiment on it.

23:19We say, you can leverage what we did. We are happy to bring out all our learnings, including what needs to change in the process, because the biggest change is not technology. It's getting people to accept that there's a different way to do things. To listen to the full conversation, visit ibm.com slash smarttalks.

23:43If you follow markets, you know the value of long-term thinking. You plan, you diversify, you prepare for volatility. But even the best strategies can't prevent every bad day. For more than 75 years, Cincinnati Insurance has helped individuals and businesses navigate tough moments with expertise, personal attention, and independent agents who focus on relationships, not transactions. The Cincinnati insurance companies. Let them make your bad day better. Find an agent at CINFIN.com. Health and Human Services Secretary Robert F. Kennedy Jr. was a leading anti-vaccine activist before becoming the nation's top health official.

24:29And back in June, when he was asked about his firing all 17 members of the Advisory Committee on Immunization Practices, Kennedy insisted he would replace them with qualified doctors and medical experts. Not any vaxxers. We're bringing people on who are credentialed scientists, who are highly credentialed physicians, who are going to do evidence-based medicine, who are going to be objective, and who are going to follow the science. But Kennedy did just the opposite. And now a Boston federal judge has suspended the 13 members of the Vaccine Advisory Committee appointed by Kennedy and blocked federal health officials from cutting the number of vaccines recommended for every child.

25:18The order issued Monday is the latest development in a lawsuit filed last July by the American Academy of Pediatrics, the American Medical Association and other health organizations. Joining me is health care attorney Harry Nelson, a partner at Leach Tishman Nelson Hardiman. Harry, tell us about RFK Jr.'s moves to sort of upend vaccine regulations. There's been a series of steps to kind of disrupt the framework around how our vaccine system is working. You know, since the beginning of the administration, it's not about any single policy decision that RFK has made, but he has literally, under his leadership, Health and Human Services has basically tried to scale back or remove all kinds of recommendations for vaccines, including the most sort of widespread, widely used vaccines, influenza, hepatitis A and B, and RSV.

26:19And so the recommendations were kind of the core piece of what he did because those recommendations from the federal government drive insurance coverage and shape standard of care and set policy at the public health level in schools. And so that was the first thing that he did. The second thing that RFK did that you could even argue is more consequential is he dismantled the Advisory Committee on Immunization Practices, the ACIP. That was really the panel of experts that were the scientific engine behind the recommendations coming from the Center for Disease Control, CDC, and for driving the coverage decisions under federal law.

26:58Again, applying to all the sort of traditional vaccines, like the flu vaccine, all the way to COVID and those vaccines. So he basically dismantled and reconstituted that panel with people who agreed with him. I would say the broader kind of effect of what he's done beyond those formal policy steps has been a kind of reframing of the posture of the federal government towards vaccine to really move away from any kind of strong endorsement about vaccines and really elevating concerns about safety of vaccines and emphasizing that it's individualized decision making over kind of public health standards.