When Judges Stop Believing the Government

Federal courts run on a quiet assumption: when the government speaks, it's telling the truth. Over the past two episodes of UnCommon Law, we've watched longstanding norms between the White House and the Justice Department erode. Now we turn to the judges. Over the next two episodes, we'll look at how the courts are responding to Justice Department attempts to carry out the president’s agenda — the questions judges ask, the deference they typically give, and what happens when some judges begin to question whether they can trust what government lawyers are telling them. Through a remarkable case involving hundreds of Guatemalan children, we examine what happens when that trust begins to break down — and what judges can do when government lawyers no longer get the benefit of the doubt. Guests: Efrén Olivares, vice president of litigation and strategy, National Immigration Law Center Ryan Goodman, professor, New York University School of Law Suzanne Monyak, reporter, Bloomberg Law *** CREDITS Host/Producer/Sound Design: Matthew S. Schwartz Editor/Executive Producer: Josh Block Cover Art: Jonathan Hurtarte Special Thanks: Cesca Antonelli, Tom Taylor, Seth Stern

In this special episode of UnCommon Law, former Supreme Court Justice Stephen Breyer sits down with Bloomberg Law's Matthew S. Schwartz to discuss the Court, executive power, Dobbs, judicial independence, and the rule of law. Reflecting on nearly three decades on the bench — and the perennial question of whether politics shapes when justices choose to retire — he explains how justices make decisions, and why preserving public trust in the Supreme Court and the Constitution is essential, even as polls show trust in the judiciary near a 50-year low.

How does the Justice Department decide who gets charged with a crime and who doesn't? In the post-Watergate era, the Justice Department developed policies and institutional safeguards intended to separate political considerations from prosecutorial decisions: typically career attorneys delve into the law and investigate the facts, evaluate the evidence needed to secure a conviction, and recommend whether a case should move forward. However, Trump administration critics say that process is under pressure, pointing to a series of high-profile cases involving political figures and former government officials. On this episode of UnCommon Law, we explore the doctrine of selective prosecution — the claim that someone was targeted for prosecution because of who they are, what they said, or the political positions they hold. Through the cases involving James Comey, Letitia James, and Eric Adams, legal scholars, journalists, and former Justice Department officials examine how the DOJ decides whether to pursue or abandon a case, and what that process reveals about prosecutorial discretion, independence, and accountability. We'll also examine the changing role of the Justice Department's Public Integrity Section, the office created after Watergate to help oversee politically sensitive prosecutions. Guests: Bennett Gershman, professor of law at Pace University and a former prosecutor in the New York State Anti-Corruption Office; author of the treatise Prosecutorial Misconduct Stanley Brand, former general counsel to the US House of Representatives and a veteran white-collar defense attorney; now Distinguished Fellow in Law and Government at Penn State Dickinson Law John Keller, former chief of the Justice Department's Public Integrity Section; now a partner at Walden Macht Haran & Williams Chris Strohm, senior reporter at Bloomberg News covering the Justice Department *** CREDITS Host/Producer/Sound Design: Matthew S. Schwartz Editor/Executive Producer: Josh Block Cover Art: Jonathan Hurtarte Special Thanks: Ben Penn, Chris Strohm Thank You: Andrew Satter, Cesca Antonelli, Tom Taylor, Seth Stern

When Robert Jackson stood in the Great Hall of the Justice Department in 1940 and told the country's federal prosecutors that they held more power over life, liberty, and reputation than any other person in America, he was not describing a rule written into law. He was describing a creed. For the better part of a century, attorneys general from both parties invoked Jackson's words as a kind of shared oath. The principle was simple: no fear or favor, just the law. The catch was that almost none of it was codified. In President Trump's second term, he has broken traditional norms of independence by purging career staff, calling for the prosecution of his enemies, and challenging the judiciary. In the season premiere of UnCommon Law, host Matthew Schwartz traces those norms from their origins through their greatest tests — and asks whether the system that held through Watergate, the Clinton impeachment, and even the first Trump term was ever as durable as it seemed. In this episode and the ones ahead, we will explore: Allegations of selective prosecution — indictments of political adversaries, dropped cases against allies — and what the law actually permits. How the federal judiciary has responded, and what judges can and cannot do when the executive branch refuses to comply. A reckoning with the parts of the Justice Department that have been dismantled — the Civil Rights Division, the public integrity section, the career staff — and what their absence means in practice. Also, the stories of the prosecutors and lawyers who quit — and what they saw on the way out. Featuring: Stuart Gerson, former Assistant Attorney General for the Civil Division under President George H.W. Bush; co-founder of the Society for the Rule of Law Jed Shugerman, professor of law at Boston University School of Law Chris Strohm, senior reporter at Bloomberg News covering the Justice Department Ben Penn, senior reporter at Bloomberg Law covering the Justice Department *** CREDITS Host/Producer/Sound Design: Matthew S. Schwartz Editor/Executive Producer: Josh Block Cover Art: Jonathan Hurtarte Special Thanks: Ben Penn, Chris Strohm Thank You: Andrew Satter, Cesca Antonelli, Tom Taylor, Seth Stern

For decades, the Justice Department has operated with a widely shared understanding: that prosecutors should follow the evidence, not the president. That understanding was never written into law; it was shaped by norms. And now those norms are being tested. This season on UnCommon Law, we hear from former attorneys general, constitutional law scholars, and federal prosecutors who have watched from inside as changes have reshaped the Justice Department. But supporters of the president say he has the power to direct the Justice Department — perhaps even the duty to do so. What happens when a president takes an active role in directing law enforcement priorities? What happens to a Department of Justice built on norms, when those norms are challenged? This is Justice Transformed. A new season of UnCommon Law, from Bloomberg Industry Group.   Hosted by Matthew S. Schwartz, edited by Josh Block.

A generation of schoolchildren learned from Schoolhouse Rock that bills become laws through careful committee work, open debate, and thoughtful compromise. But as this episode of UnCommon Law makes clear, that tidy version of lawmaking no longer reflects reality. Instead, leaders often craft omnibus bills in back rooms and create deliberately vague laws that punt hard decisions to federal agencies. But with the Supreme Court's Loper Bright decision ending 40 years of judicial deference to agencies, critics say Congress can no longer hide behind this broken system. In this season finale, we hear from a current and a former US senator on opposite sides of the aisle who both argue that Congress must reclaim its constitutional role. They agree that decades of delegating authority to agencies has weakened the legislature, but they diverge on what should happen next. Should lawmakers strip out vague catchall words to limit agency discretion? Or should Congress work more closely with agencies to ensure workable, expert-informed legislation? But can a deeply polarized institution actually change? While both senators agree on some solutions, they differ sharply on whether a different approach is possible in today's political climate. In this episode we explore whether Congress can reclaim its constitutional role. Featuring: Sen. Eric Schmitt, R-Mo. Former Sen. Heidi Heitkamp, D-N.D. *** Hosted and produced by Matthew S. Schwartz Episode Editor: Loren Duggan Series Editor & Executive Producer: Josh Block Cover Art: Jonathan Hurtarte

In this episode, we explore the aftermath of the Supreme Court’s decision to overturn the Chevron doctrine through the Loper Bright case, examining its impact on the regulatory landscape in America. In just the first six months after Loper Bright was decided, courts cited the case more than 400 times, leading to the invalidation of new agency rules 84% of the time. This has affected policies ranging from net neutrality to labor regulations to environmental protections. We delve into how Loper Bright has already reshaped American regulatory policy. We also look into how the Trump administration’s strategic use of Loper Bright to dismantle Biden-era rules, directing agencies to identify regulations that may be vulnerable under this new legal framework. But is the celebration over Chevron’s demise premature? Some legal experts describe Loper Bright as “a Rorschach test inside a crystal ball” suggesting theat its impact might be more complex than anticipated, with different interpretations emerging. Featuring: Helgi Walker, partner at Gibson Dunn and co-chair of their administrative law and regulatory practice group Rebecca Rainey, senior labor department reporter for Bloomberg Law Cary Coglianese, professor at the University of Pennsylvania Carey Law School and director of the Penn Program on Regulation *** Hosted and produced by Matthew S. Schwartz Editor/Executive Producer: Josh Block Additional Editing: Andrew Satter Cover Art: Jonathan Hurtarte Thank you: Jennifer Hijazi, Keith Perine, Tom Taylor, and Cesca Antonelli

Federal agencies expanding their power beyond congressional intent? Unelected bureaucrats making policy decisions? Regulatory whiplash?! According to the litigants urging the Supreme Court to strike down the Chevron doctrine in the Loper Bright case, those were the harms Americans would continue to face if Chevron deference were allowed to continue. But striking down the pivotal legal principle that had been in place for 40 years would bring its own risks, defenders of Chevron argued. Scientific and technical decisions would need to be made by judges with no specialized expertise. Regulatory uncertainty would soar, as thousands of existing rules face new challenges. And the Supreme Court itself could be forced to become, as Justice Ketanji Brown Jackson put it, "uber-legislators." In part two of our episode on Loper Bright, the high court ostensibly considers the plight of the herring fishermen, but actually looks to decide whether to abandon the Chevron doctrine once and for all.Stylebook flag Featured Guests: Ryan Mulvey, counsel with the Cause of Action Institute Jeff Kaelin, director of sustainability and government relations at Lund’s Fisheries Wayne Reichle, President of Lund's Fisheries Gillian Metzger, Harlan Fiske Stone Professor of constitutional law at Columbia University Lydia Wheeler, co-host of Cases and Controversies & Supreme Court reporter for Bloomberg Law Greg Stohr, co-host of Cases and Controversies & Supreme Court reporter for Bloomberg News Kimberly Robinson, co-host of Cases and Controversies & Supreme Court reporter for Bloomberg Law *** Hosted and produced by Matthew S. Schwartz Editor/Executive Producer: Josh Block Cover Art: Jonathan Hurtarte Special thanks to Tom Taylor, David Schultz, Paul Detrick, Isabel Gottlieb, and Matt's baby for their vocal performances.

Wayne Reichle – who’s been in the fishing business his whole life – had never heard of the Chevron doctrine. That's the two-step legal test that courts used for the past 40 years to decide whether a federal agency had the authority to make a regulation. "No idea," said Reichle, president of New Jersey-based Lund's Fisheries. "Myself, and many, many fellow fishermen had no idea what the Chevron doctrine was." That changed after a group of fishermen challenged a federal regulation requiring the herring industry to pay for onboard federal observers. "I think there’s quite a few that know what the Chevron doctrine is today," Reichle said. This season on UnCommon Law, we’re exploring the limits of agency power. To what extent are federal agencies authorized to create and implement regulations that aren't explicitly mandated by Congress? And what happens when an agency goes too far? In this episode, the story of the fishermen who fought back. Featuring: Wayne Reichle, president of Lund's Fisheries Jeff Kaelin, director of sustainability and government relations at Lund's Fisheries Ryan Mulvey, counsel with the Cause of Action Institute Erica Fuller, senior counsel with the Conservation Law Foundation Leif Axelsson, captain of the Dyrsten fishing vessel Greg Stohr, Supreme Court reporter for Bloomberg News *** Hosted and produced by Matthew S. Schwartz Editor/Executive Producer: Josh Block Additional Editing: Andrew Satter Cover Art: Jonathan Hurtarte

Congress often passes major legislation setting out broad principles, and then lets the federal agencies sort out the details. But what should an agency do if Congress’s instructions are ambiguous or silent? That was the question facing the Supreme Court 40 years ago, when the Reagan administration's Environmental Protection Agency adopted a business-friendly interpretation of key provisions of the Clean Air Act. After the Natural Resources Defense Council sued, the Supreme Court set out a principle that would define the extent of agency power for decades – until last year, when Loper Bright upended the way courts evaluate agency actions. This season on Uncommon Law, we’ll explore the rise and fall of agency power, and what that could mean for the future of regulation in America. Plus: Will President Trump and his advisor Elon Musk be able to use the new legal landscape to eliminate the regulations they find too burdensome? Featuring: David Doniger, Senior Attorney with the Natural Resources Defense Council Jennifer Hijazi, environment reporter for Bloomberg Industry Group *** Host/Producer: Matthew S. Schwartz Editor/Executive Producer: Josh Block Additional Editing: Andrew Satter Cover Art: Jonathan Hurtarte