00:00NYU Law Professor Melissa Murray has a new book out, The U.S. Constitution, A Comprehensive and Annotated Guide.
00:05And we start our conversation asking about those comments from the Chief Justice, both what he said and why he
00:10felt he had to say it.
00:12It's interesting that the Chief Justice felt compelled to say this.
00:16I think there's been a lot of attention on the court over the last couple of years.
00:19I'm not simply because this particular court with its conservative supermajority has overruled a major decision in almost all of
00:26the last five years.
00:27But because the court has been the increased subject of media commentary and coverage,
00:33The New York Times has deployed a Pulitzer Prize-winning investigative journalist on the court's beat.
00:38And very recently, Jody Cantor, that journalist, and Adam Liptak, a stalwart of the Supreme Court beat,
00:45recently produced a story that showed that the Chief Justice has actually been the architect of what has emerged as
00:52a major shift in the court's procedures.
00:54And that's the use of the shadow docket.
00:56And, you know, for the Chief Justice to say that they are improperly viewed as political is kind of rich,
01:02given the nature of that story, which showed the Chief Justice really pushing the court to depart from traditional procedures
01:10about the shadow docket's use in order to kill an Obama administration EPA plan.
01:15So, you know, I think it's a little bit weak sauce for the Chief Justice, but I understand it.
01:20Can you explain to people who may not be familiar what you mean by shadow docket,
01:23how it's been used in the past and how it's being used now?
01:25Sure. The shadow docket is an interim procedural docket that's used for case management.
01:31It's typically been used in the context of the death penalty or election law disputes,
01:35where you have to have an interim or decision in the middle of pending litigation because the litigation is time
01:42-sensitive for some reason.
01:43So, for example, in the context of the death penalty, someone will be executed in a few days, and therefore
01:48a decision is needed.
01:49It typically wasn't used for real substantive questions.
01:53But just before the Trump administration, in the waning days of the Obama administration,
01:59there began to be more activity on the shadow docket with states taking cases directly to the court from pending
02:05litigation on the shadow docket
02:07and actually getting substantive rulings.
02:09The critique of the shadow docket, though, is that it's not an ideal place to do that kind of substantive
02:13decision-making
02:14because often those issues are not subject to full briefing and oral argument.
02:20And the court often issues very spare rulings, sometimes just a line or a single paragraph, nothing more.
02:26And you don't get a lot of reasoning.
02:27So it's not entirely transparent.
02:30There's been a huge uptick in the number of times the administration,
02:34both the Trump administration and the states and state governments,
02:37have gone to the court seeking shadow docket rulings on substantive questions.
02:41And one of the things this reporting in the New York Times turned up was that
02:45in cases where a Republican administration is doing something and wants to continue doing it,
02:50the court is often very amenable in their shadow docket rulings to those administration requests.
02:56I want to ask you about that Voting Rights Act case.
02:58I mentioned that decision from last week.
03:00And I'm curious of what it means in a practical sense.
03:03We've seen the evisceration of it over several cases now.
03:07What does it mean on a practical basis as we look at this war of redistricting playing out in many
03:11states across the country?
03:12So, David, you're exactly right that the Voting Rights Act has been under siege for some time.
03:16This began in 2013 with Shelby County v. Holder, which eviscerated the preclearance regime
03:22that required states with a history of suppressive voting laws and practices
03:25to first clear any changes in their voting laws with the Department of Justice or a three-judge court.
03:31In the wake of that decision in 2013, states rushed to implement new laws and procedures around voting,
03:39including more restrictive laws regarding voter ID.
03:42This new challenge to Section 2 of the Voting Rights Act really hobbles what was left of the Voting Rights
03:49Act
03:50in terms of a means of keeping states from promulgating more suppressive voting laws.
03:55It has made it a lot harder for redistricting to happen in a way that maximizes or optimizes
04:01the potential of minority groups to elect candidates of their choice.
04:06And more importantly, the court was a little craven in how it decided this.
04:10Justice Alito did not say he was eliminating or ending Section 2.
04:14Instead, he said he was preserving its central tenets.
04:17And what that means is while Section 2 will no longer be used to challenge racial gerrymanders
04:23that disadvantage voters of color, it still stands and likely will be able to be used
04:29to challenge redistricting efforts in blue states that try to optimize the voting strength of those constituents.
04:36Well, we've got you.
04:37I also want to ask you about tariffs.
04:39So we had this ruling that struck down the IEPA tariffs.
04:42But in response to that, President Trump imposed a 10 percent tariff on imports,
04:46which the Court of International Trade knocked down.
04:48Where does this go now?
04:50And does the administration have a legal pathway to try to keep those tariffs in place or reimpose them?
04:55Well, the administration, in the wake of the Supreme Court's tariffs rulings,
04:59turned to another statutory provision, Section 122, to promulgate this new set of tariffs.
05:05And it was under Section 22 that this new court, the Court of International Trade,
05:10determined that that was also an improper use of that statutory provision.
05:14So this will be appealed to an intermediate appellate court.
05:17It likely will go on to the Supreme Court.
05:19What was especially interesting about the lower court ruling that we got yesterday was that
05:24in addition to invalidating the tariffs under that statutory provision,
05:28it also said that the administration had to refund the money collected.
05:33That was not something the Supreme Court did in its tariffs rulings that we had earlier this year.
05:37That's a real blow to the administration that will surely be challenged.
05:41And this likely will continue on through the federal courts.
05:44Before we get to the book, let me ask you lastly about this Lisa Cook case.
05:47We're still waiting on that decision.
05:49And I think we detected some skepticism among the justices as the
05:51government argued that President Trump should be able to fire a Federal Reserve governor.
05:56Your sense of what's likely to happen with that decision and the import of it.
06:00Yes, of course, of acute interest to a lot of Bloomberg viewers and listeners who care a lot
06:04about the Federal Reserve, but more broadly speaking, about the integrity of these historically
06:08independent institutions in the U.S. government.
06:11So the Lisa Cook case is one of a series of cases attacking the independence of administrative
06:16agencies, and in particular, the independence of those agencies in terms of the commissioners
06:22or members that sit on their boards.
06:24Typically, Congress, which creates these bodies, will insulate those members from presidential
06:29removal, saying that the president can only remove the individual for cause or under very
06:33limited circumstances.
06:35There's another case pending, Trump v. Slaughter, which is about the removal of a commissioner
06:41of the FTC.
06:42I think that will likely be one that the administration prevails on, and it will result likely in the
06:48overturning of a very longstanding precedent from the 1930s, Humphreys Executor, which said
06:53that Congress could dictate terms under which presidents were limited in their ability to
06:58remove officers of those kinds of multi-member commissions.
07:02The case of Lisa Cook is slightly different.
07:06It is about removal, certainly, but the president has insisted that he has cause to remove Lisa
07:11Cook.
07:11So there's a different kind of procedural valence here.
07:13But as we saw in the oral argument in that case, the court was really skeptical, and it
07:18has been incredibly skeptical of any kind of assault on the administrative state that would
07:24implicate the Federal Reserve as well.
07:26They've always said that the Fed is different.
07:29The logic of that statement is really weak and wobbly.
07:33It's not quite clear how the Federal Reserve is different from other multi-member bipartisan
07:39commissions.
07:39Other than that, the Federal Reserve has direct implications for the justices' retirement
07:44portfolios.
07:45But we are getting a sense that the economy matters.
07:48It matters to this court.
07:49The stability of the economy matters.
07:51And for that reason, the Fed and Lisa Cook may be somewhat insulated from presidential
07:56whims.
07:57Let's talk about your most recent book here.
07:59So Some Carry a Pocket Constitution.
08:01Were I to carry this in my pocket, I would have to get it tailored to be a bit bigger.
08:04You have the Constitution there.
08:05Cargo pants.
08:06I can see cargo pants in David's future.
08:08The Constitution is there, but there's a lot of history.
08:11There's commentary from you as well.
08:14Who is the audience for this book?
08:15This is a moment when we're looking ahead to the nation's 250th birthday.
08:18A lot of emphasis on what's constitutional and not.
08:20It's a phrase we hear a lot.
08:22Who do you hope reads this book and what do you hope that they get out of it?
08:25My hope is the same hope that the framers of the Constitution had.
08:28They wrote a document intending for the American public to read it, to understand it, to grapple
08:34with it, to debate it.
08:35And we've lost that in a lot of ways.
08:38Not only do we not engage with the Constitution on a regular basis, we don't even teach our children
08:43how to engage with this text.
08:45We don't have civics education in most schools going forward.
08:48And my goal here was to try and fill that void.
08:52This is not a book for law professors.
08:53It's not necessarily a book for lawyers, although lawyers are certainly welcome to read it.
08:58It is a book for ordinary Americans who are looking around right now, seeing ICE detentions
09:03in the streets, seeing the prospect of military patrols at polling stations and asking, can they
09:09do that?
09:09Is that what our government wants to do?
09:12And can they actually do it?
09:13And I think this book provides a lot of the history around what the framers were trying
09:18to do, their insistence that the government should be one that could operate efficiently
09:22but not be so powerful that it overran the people and trampled on their rights, becoming
09:27tyrannical.
09:28They were trying to strike a balance.
09:30And I think this book invites every American to consider whether in this moment we are striking
09:35the balance that they contemplated.
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