Weekend Law: Live Nation, A Justice Apologizes & Justice Dept Errors

23:48David Super:But if you want to decide cases on the fact, which he's doing there, then you have to let the lower courts develop the facts. And by the way, those are now referred to as Kavanaugh stops. And at an appearance two days after those remarks, Sotomayor seemed to be going out of her way to describe the collegiality on the court. I look to them as people to have a relationship with them. And I dare say that with virtually all of them, I certainly have a civil relationship. And with many of them, I think I dare say that I have a friendship. I mean, these are professionals, and I'm always a little skeptical about the claims that these people are big friends of one another.

24:36David Super:I know Justice Ginsburg and Justice Scalia went to the opera together, but I think that in many ways, these are nine independent offices, each in the same building, that interact mostly through paper, and occasionally in fairly formal ways, like oral arguments and conference. So I'm not sure that this changes a great deal. I don't see a lot of outward evidence of much comedy. The court is working very, very fast. I'm sure it is jamming the dissenting justices to work to all hours to get their dissents out rather than holding up and giving them a little bit of time, which has been done on very, very big cases in the past.

25:23Another liberal justice made some critical remarks this week, but about the court's emergency docket, not about any justice in particular. In a lecture at Yale Law School on Wednesday, Justice Ketanji Brown-Jackson expressed concerns that the court's handling of its emergency docket is having an enormously disruptive and potentially corrosive effect on the federal judiciary. So the court has left confusion in its wake, and it offers little guidance because it ordinarily does not spell out the circumstances, giving rise to its own equities evaluation, making it incredibly difficult for lower courts to understand which facts were important to the state determination and thus identify like cases.

26:14David, will you explain the confusion in the lower courts about orders from the emergency docket that Jackson is referring to.

26:22David Super:The lower courts are bound by the Supreme Court's holding, but if it's only holding is that an injunction in this case or that is stayed and they don't give us any reasoning, then the lower courts are not bound by reasoning that they are speculating. They're bound by what the court tells us to decide cases. We've seen pushback from federal district court judges especially after Justice Neil Gorsuch scolded them for not following shadow docket rulings and accused them of defying the Supreme Court. And now that spilled over into the appellate courts. Last week, judges on the Fourth Circuit were trading insults about how much weight to give the Supreme Court's rulings from the shadow docket.

27:13And this was an en banc panel, so all the judges on the Fourth Circuit. So tell us what the majority decided in that case.

27:20David Super:Yeah, the case was about an injunction limiting Doge's access to extremely sensitive Social Security information on you and me and hundreds of millions of other people. And the Supreme Court had previously held that an earlier lower court injunction in that case could not be enforced until appeals were fully exhausted up to the Supreme Court. And so what the majority in the Fourth Circuit decided was that it was going to send the case back down to the district court. It was not going to purport to reinstate an injunction because the Supreme Court had pretty clearly said it couldn't do that. And that prompted a rebuke from Judge James Wynn, joined by four other judges in dissent.

28:12He wrote that to treat interim orders as binding precedent abandons our long-held jurisprudence of deciding constitutional law through reasoned opinions, not emergency motions made under intense time pressure. So basically, we don't have to follow those Supreme Court orders. Is that just utter defiance of the court?

28:32David Super:It's absolutely not defiant. It's actually very traditionalist. And the Supreme Court has lectured us often on the importance of following the rules that were in place when the Constitution was adopted. And this is, although it doesn't call itself originalist, this is originalist, in that courts have two entirely different functions that they often perform in the same case. They decide the rights of the parties before them, and they make precedent for the future. Those are different functions. And nobody, not the concurring justices, not Justices Jackson and so to my, nobody questions that the Supreme Court can decide the rights of the parties before it on the shadow docket.

29:15David Super:The question is whether when it issues an order for the parties in front of it without an opinion or without a meaningful opinion, if that should be also treated as precedent. And the history is that courts issue opinions to tell us why they're deciding things. Often the parties are making half a dozen different arguments, and knowing that that party won doesn't tell you which of those six arguments was persuasive with the court. And if we just guess as to why the court did what it did, we'll often be creating law out of thin air, playing ventriloquist, which is not the lower court's job, it's not any of our jobs.

30:00In a case on the emergency docket where the Supreme Court allowed President Trump to remove three Democratic members of the Consumer Product Safety Commission, the court wrote that its interim order informs how a lower court should exercise its equitable discretion in like cases. In her speech, Jackson criticized that guidance, if we can call it guidance. Will you explain what the court was trying to get across there?

30:27David Super:The question is, what kind of precedent is it? And the justice there says that it informs what the lower courts can do, but only in like cases. When you don't have much of an opinion from the Supreme Court, it's very hard to know what like cases are. And it can inform only to the extent that it provides information. And if they don't tell us what's important, then it's very hard for lawyers or judges or voters to know how they are to change what they're doing. Also critical here that the justice mentions equitable discretion. Equity is not a system of rigid rules. Equity is a system of judges applying judgment, and that judgment should be consistent with the general principles of our system, but it's never a rigid process.

31:26David Super:And so asking lower court judges to act rigidly in an equitable case is like asking for a ocean without any water. It doesn't work that way. And continuing that analogy, there's been a stream of criticism of the emergency docket, known as the shadow docket for its lack of transparency. And the court perhaps recognized the criticism by taking some of the shadow docket cases and putting them on the regular docket. So there could be full briefings and oral arguments. That was done, for example, in the birthright citizenship case. As always, thanks for joining me, David. That's Professor David Super of Georgetown Law.

32:09Coming up next on Bloomberg Law, the errors being made by Justice Department lawyers are testing the patience of judges and the credibility of the Justice Department. I'm June Grosso, and you're listening to Bloomberg. Support for the show comes from Public. Lately, it feels like there are two types of investing platforms. Some are traditional brokerages that haven't changed much in decades, and others feel less like investing and more like a game. Public is positioned differently. It's an investing platform for people who are serious about building their wealth. On Public, you can build a portfolio of stocks, options, bonds, crypto without all the bugs or the confetti.

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35:40There is not a single man or woman at the Department of Justice who had anything to do with those prosecutions. So 200 experienced lawyers are no longer at the Department of Justice. Add that to more than 3 ,000 attorneys, many veteran career lawyers in leadership positions who left the department last year. The result is a smaller, less experienced group of lawyers handling an ever-expanding universe of litigation. Could that be connected to the hundreds of instances of Justice Department lawyers being scolded by judges for making false, misleading, or inaccurate representations in court in defense of Trump policies?

36:26Last week, a federal judge in Manhattan ordered Justice Department lawyers to preserve all internal communications after they disclosed they'd been relying on incorrect information in their arguments for months in a fight over the administration's migrant arrest tactics. Could sanctions be in their future? My guest is former federal prosecutor Robert Mintz, a partner at McCarter & English. So Justice Department lawyers are representing government agencies. What are their duties when appearing in court for those agencies? When you go into court, as an assistant U.S. attorney or any attorney representing the Department of Justice, you always bring with you the credibility of years and years of attorneys who have stood in your shoes before you addressing the court.

37:16And there's a tremendous responsibility to make sure that anything you say to a judge is 100 % accurate. And if you don't know the answer, you tell the judge you don't know the answer and you'll get the correct information back to the judge at some point, because in order for the Department of Justice to be able to advocate effectively on behalf of the federal government, it's critical that judges can rely on the representations of government lawyers. And so it's incumbent on DOJ prosecutors and other lawyers representing the government to make sure that whatever information they're conveying on behalf of their agency clients or on behalf of the Department of Justice is accurate.

37:55And what we've seen here is a slow but steady erosion of that confidence of the federal courts that Department of Justice lawyers are giving them information that is accurate. And it's come about as a result of a series of cases in which Department of Justice lawyers have been forced to make embarrassing corrections about information that they frankly should have known about. The Justice Department lost about a quarter of its attorneys last year, about 3 ,400. A lot of them were experienced career prosecutors. So can these errors in court be explained by the inexperience of the attorneys, or are they not doing enough preparation or something else?

38:38I think it's a combination of inexperience and understaffing. The experience of the lawyers going into court representing the United States government is absolutely critical. U.S. attorneys offices are generally around the country considered training grounds for exceptional attorneys. The job of a federal prosecutor has historically been something that is an extremely sought-after position. And so the Department of Justice really has its pick of attorneys in selecting assistant U.S. attorneys in offices around the country. And what they do is they try to train those attorneys. They do not select attorneys who necessarily have any criminal experience when they pick people who will be representing the Department of Justice in criminal cases.

39:22Instead, they bring in attorneys that they believe are among the best and the brightest, and they train those lawyers using the more experienced attorneys in the office. So as an example, when a new attorney comes into the office and tries his or her case for the first time, they will have a second chair with them. They will have a more experienced attorney sitting next to them and assisting them throughout that trial. And that's the way these attorneys learn. The problem right now is that there has been a mass exodus of experienced attorneys from the Department of Justice, from U.S. attorney's offices around the country.

39:57And so that level of experience and oversight is simply not there right now. And we've seen case after case where inexperienced attorneys who have not been given the guidance that is necessary to make sure that they are doing the job they're supposed to be doing are placed in positions in front of judges and can't really effectively advocate on behalf of the government. And in the course of all this, they are losing the confidence and the trust of the judiciary in the representations that they often make to the court during these matters. And Bob, you were a federal prosecutor. It used to be hard to get into the Justice Department, right?

40:35But now they're deciding that they're going to take people right out of law school. Yeah. When I applied to the U.S. Attorney's Office, there were something like 50 to 75 applications for every single position. And that was generally true around the country, whether you're in the Southern District of New York, the District of New Jersey, Chicago, Los Angeles, or other offices around the country. These jobs are extremely highly sought after because it gives a young attorney the opportunity to practice at the highest level, to be able to litigate in federal court on behalf of the United States government in some of the most complex and interesting cases that you'll ever handle as an attorney.

41:14And so these are positions that typically you find the best and the brightest coming out of the best law schools, coming out of the best clerkships. And it's from this pool of applicants that they have over many, many years drawn assistant U.S. attorneys from around the country, many of whom go on to the federal banks or other prestigious jobs in the law. And right now they're facing a real exodus of that type of talent. And that has created the crisis that we're facing right now with the judiciary and with the Department of Justice. During the past year, many judges have issued opinions with strong language calling out violations of court orders.

41:56Minnesota's chief U.S. district judge threatened to hold ICE in contempt for violating orders more than 100 times in cases brought by immigrants in his court. If ICE or any other agency doesn't follow a judge's order, is the Justice Department attorney responsible for that in any way? Well, that's exactly the argument that the Department of Justice has made in these cases. Essentially, the DOJ has argued that the attorney representing the agency in federal court doesn't control the agency and that government lawyers do not, by representing an agency in a district court, personally guarantee the agency's compliance with court orders.

42:37So we have these circumstances where federal prosecutors and other Department of Justice attorneys are being asked to convey messages back to the agency to make sure that an agency carries out a judge's order. And if the agency fails to do that, the prosecutor or attorney is getting essentially caught in the crossfire where some judges have entered contempt orders personally against the attorneys for the failings of the agencies. The Department of Justice has argued that that's unfair because they can't control the agencies, but it really is in large measure a failure of the entire system because the agencies should be following the judges' orders and the agencies' failure to do that really reflect a breakdown in the communications between the judiciary and the executive branch and is something that is going to take a long time to repair given all the damage that's been done over the past several years.

43:32Also, there is an additional factor here, and that's that some former employees say that new policies at the Justice Department have discouraged attorneys from challenging the accuracy of the information they're getting from agencies. And we've seen instances where an attorney will admit something in court and then they're fired the next day. So there is a different mindset at this Justice Department. What you're touching on here is really at the heart of this issue because it really goes down to something that is known in the law as the presumption of regularity. It's a concept where judges rely on this principle that essentially means they trust the government to share accurate information and they trust that the government is acting in good faith.

44:17And in order to ensure that that baseline level of confidence remains, there has to be this understanding that prosecutors will make efforts to fairly inform the court of information, information that may not necessarily be helpful to the government's case, but information that is nonetheless accurate. And it's more important that prosecutors give accurate information to the court than that they give information that is necessarily going to further advocate on behalf of the government's interests. And so this concept of candor to the court is something that all lawyers are responsible for. Ethically speaking, all lawyers have an obligation to make sure that whatever information is provided to the court, that it is not knowingly false.

45:02But federal prosecutors and Department of Justice lawyers have an even higher standard because although they're advocating on behalf of a client, in this case, the United States government, they also have a duty to fairness and justice. And that means that there are certain times where federal prosecutors have to provide information to a court that may not be helpful to the government's case. Prosecutors in criminal cases, as an example, have a duty to provide exculpatory evidence to the defense. They have to give the defense information that may hurt their case and help the defendant's case. But that's a duty that's placed upon federal prosecutors, and it's an obligation that other lawyers do not have to comply with.

45:45But it underscores this point that federal prosecutors have to make sure that whatever information they're providing to the court is not only advocating on behalf of their client, but is also fair and accurate. And I think what's happened here is we've seen instances where zealous advocacy on behalf of the administration has, in some instances, overridden the candor to the court that all lawyers, and particularly federal lawyers, are obligated to provide. And that's why we're seeing instances where judges have become skeptical of representations made by government lawyers during the course of certain cases, particularly immigration cases.

46:24And recently in a Fourth Circuit case involving Doge, where the government lawyers had made a correction admitting after the court issued an injunction that they'd given the court incorrect information. And the appellate judges disagreed about how to handle that admission. And one judge wrote that this shows that, quote, going forward, we should not accord the defendants, the government, any benefit of the doubt or readily trust in anything they say. That's pretty astonishing. Absolutely. I mean, you don't typically see those kinds of statements coming from the court. And you're absolutely correct that you're seeing judges grappling with this issue in different ways where some judges are being quite direct and quite pointed in their criticism of the government's lawyers.

47:12Others are giving the government lawyers the benefit of the doubt somewhat more now, understanding that some of these mistakes may be the result of being understaffed and simply inexperienced. But nonetheless, you can tell that the patience of the federal judiciary is being frayed as they have to deal with these inaccuracies and misrepresentations, whether or not they're done intentionally. But it is something that is creating havoc in the federal courts. And some judges are simply more fed up with the situation than others and are expressing that directly on the record during court proceedings, which is something that we've really never seen before.

47:50Well, federal judges are usually dealing with heavy dockets and mistakes mean that cases take longer. Thanks so much for joining me again, Bob. That's Robert Mintz of McCarter in English. 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. And 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.

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