This is Bloomberg Law with June Graasso

from Bloomberg Radio.

In recent years, the Supreme Court has

gotten what you might call bad grades

from the public, and it's gotten worse

since the last term. Americans are now

more displeased with the court than at

any time in the last 26 years. According

to the latest Gallup poll, only 33% of

the public approves of the job the

Supreme Court is doing, a record low.

Joining me is Bloomberg Supreme Court

reporter Greg Store. Greg, tell us about

the latest polls.

>> There were several new polls that came

out after the court's term ended, and by

far the worst of them was the Gallup

poll that showed the Supreme Court's

approval rating plummeting to 33%. That

is easily the lowest since Gallup

started surveying about the court in

2001. The number went down 9 percentage

points from 42% when they took it in

September. So really a big decline

there. The other polls were not as

stark, but for example, a Marquette Law

School poll showed the court down two

percentage points from a year earlier.

So, it's consistent with the notion that

at best the Supreme Court is treading

water.

>> In the Gallup poll, was it a slide among

Republicans that brought that number

down?

>> It was a slide mostly among Republicans.

The court's approval ratings were

already really low among Democrats and

independents. But among Republicans,

support dropped 21 percentage points

since September. It was 79% in

September, fell to 58%. With a plus or

minus margin of error of four percentage

points, that's definitely a big big

drop.

>> A huge drop. And you would think that

the way the Supreme Court ruled this

term on Republican priorities like

narrowing agency power, enhancing gun

rights, eliminating campaign spending

restrictions. The Republicans would be

happy with the court. Well, one big

reason sure seems to be Donald Trump and

the way he's reacted. The court, of

course, ruled against him on a couple

big issues, including tariffs and his

ability to fire Lisa Cook and his

birthright citizenship restrictions. And

Donald Trump was extremely aggressive,

lashing out at even those justices he

appointed like Amy Coney Barrett and

Neil Gorsuch. If you recall, after the

tariff decision, he said, among other

things, that they are an embarrassment

to their families. So, Republicans of

course do respond very strongly across

the board to things Donald Trump says

and sure seems like his criticisms of

the Supreme Court drag the court down

with Republicans.

>> Tell us about some of the factors that

have made this Supreme Court so

unpopular with Democrats and

independents.

>> There have been a lot of forces over the

years that have been dragging the court

down. This is not just a one-year thing.

This has been happening over the course

of a couple of decades. And of course,

we're seeing institutions in general

have their approval ratings falling. But

you have a combination of a court that

seems more partisan, and indeed they are

more partisan in the sense that it's the

Republican justices who are now the most

conservative and the Democratic justices

who are the most liberal. You have

things like the ethical controversies

that we had a few years ago that were

very much in the news. Clarence Thomas

accepting trips uh paid for by a

Republican mega donor. You have the way

the court acquired this conservative

supermajority with Republicans holding

one seat open after Antinine Scalia died

and then rushing to fill another one

when Ruth Bader Ginsburg died. So

there's kind of a perfect storm. Oh, I

haven't even mentioned overturning Roie

Wade, which obviously was a decision

that was highprofile and among many

people extremely unpopular. So a

combination of factors have kind of

gotten us to this point. So there were

two decisions where the Supreme Court

went against President Trump on the

tariffs and birthright citizenship

in the sea of decisions where they, you

know, helped move forward his agenda on

the regular docket and on the shadow

docket. Some people are pointing to

that, even Justice Kagan are pointing to

those two as well. We're holding the

line here. Well, I did think that

Justice Kagan's remarks this summer were

very interesting because after the

ruling that overturned Roie Wade three

years ago, she pretty much called into

question the court's legitimacy in a

couple public appearances, saying that

when the court is overturning cases

isn't being consistent, that it can call

into question its own legitimacy. So,

the fact that she was in at least in

some sense standing up for the court

this summer, I did think was notable.

Having said that, she was very strongly

in descent from a number of the

decisions you mentioned where the

conservative majority uh moved the law

in a particular direction in a way that

conservatives have been hoping for for

quite a long time.

>> Is anybody else buying that argument

that, you know, oh well, we held the

line on these two cases where if they

hadn't held the line, it would have been

shocking.

You know, Jude, I I hate to say this as

somebody who covers the Supreme Court,

spends all my waking hours or at least

my work hours thinking about how to

communicate what the Supreme Court is

doing. But the truth is, a lot of

Americans don't pay attention to what

the Supreme Court is doing unless it's

one of these mega cases like overturning

Roie Wade or deciding a presidential

election or something like that. So, you

know, people often have impressions of

the court. They've heard a little bit.

If you look at these polls, it's kind of

remarkable how little people have heard

about some cases that I think

everybody's heard about, first rate,

citizenship, tariffs, things that you

you mentioned. Uh so, you know, what

people think of the court may be in a

lot of cases more impressionistic than

something that is really tied to

particular decisions that that came out.

>> And in your story, you write that the

justices have said in public that they

don't consider polls.

>> Yeah. They've said that over and over in

a variety of different contexts. So, one

thing I mentioned in the story was in

the Dobs ruling which overturned Roie

Wade. Uh, Justice Alo mentioned that

the, as he put it, the judicial branch

derives its legitimacy not from

following public opinion, but from

deciding by its best lives whether

legislative enactments of the popular

branches of government comport with the

Constitution. Other justices have said

similar things. On the other hand, we

discussed Justice Kagan talking about

the court's legitimacy. The court and I

would venture to say all the justices

understand that their legitimacy is

really important as a country, as a

republic. We need people, both average

people and other members of the

government to accept Supreme Court

decisions even if they don't agree with

them. We need people to be like Al Gore

who can say after the Bush v.Gore your

decision. I disagree strongly, but I

accept it. Otherwise, you know, we run

the risk of chaos where despite what the

Supreme Court says, people say we are

going to go off in our own direction,

interpret the Constitution our own way.

>> I know they say that they don't care

about the polls in public, but I have

this feeling like some of them must be a

little bit upset about the fact that

they're at record lows and that, you

know, the public is seeing them as

politicians in robes. I mean they come

out and defend themselves and you see

you know Justice Roberts trying to

emphasize the number of unanimous

decisions and also talk about we don't

overturn president as much as some past

justices. I mean it seems like they're

doing a lot of explaining. It is

certainly the case that if you went to

any of the nine of them and said you're

acting like a politician, they would uh

tell you in very strongly worded terms

why they don't think they're a

politician, why they are just

interpreting statutes and interpreting

the Constitution the way they think they

should be interpreted.

>> I am puzzled by one of the polls that

found that a majority approved of the

decisions the court made while not

approving of the court itself. One thing

that to me is fascinating about these

polls is that even as the court is

becoming less popular, its decisions at

least in this last term were actually

quite popular. So if you look at the

Marquette poll, they asked about 13

recent Supreme Court decisions and a

majority of people said the justices had

made the right decision in 11 of those

cases. So there is when you ask people

about the particular issues the Supreme

Court is deciding there is some support

for what the Supreme Court is doing even

as the court as a whole as an

institution goes down in the public

mind.

>> There have been calls for a long time

from liberal groups to either add

members to the court packing the court

or set term limits. Do you think that

come 2028 in the presidential election,

we're going to be hearing more about

making changes to the court in some way?

>> Yeah, I expect very much we will hear a

lot about this on the Democratic side.

We already have Pete Buddhajudge and Kla

Harris as two prospective candidates who

are pushing the idea of of adding seats

to the Supreme Court. Uh others are

talking about things like term limits

and you of course right now it's just

talk because Democrats are not in a

position to do that but you don't have

to squint too hard into the future to

imagine a world where Democrats might

have control of both Congress and the

White House. And then the question would

be will they do something about the

Supreme Court now that they they have

that power? And you know we may see a

dividing line among Democrats some who

will say we need to do something now.

this is a thing that will, you know,

make an instant change adding seats to

the Supreme Court and others who say,

"Look, if we do it when we have the the

power to do it, as soon as Republicans

get back in power, they're going to do

it and that's not good for anybody."

>> You talked to Jesse Wegman of the

Brennan Center and he said, "This court

is not going to change its behavior. It

was instituted precisely for this

behavior." And the way I think you solve

this is structurally, which is what

we've been talking about. I mean, last

term the conservative majority certainly

changed the law. Are any cases coming up

next term that might give them the same

kind of opportunities?

>> We don't yet have the boundary pushing

cases that we had last term. So, I would

say birthright citizenship, tariffs,

Lisa Cook, all of those were Donald

Trump doing something that a couple

years ago nobody was really thinking a

president might be able to do. And we

don't yet have those cases, but we

might. You know, so many of these uh

cases at the lower court level get up to

the Supreme Court through the emergency

or shadow docket and can present that

sort of issue. That's what happened with

with Lisa Cook. So, it is certainly

possible. You know, for the most part,

we have seen, the way I think about it

is we have seen this court do most or

all of the things that Ronald Reagan

would have wanted that the kind of

Reagan revolution, the notion of let's,

you know, get back to, you know,

originalist interpretation of the

Constitution. Let's bolster the power of

the presidency and, you know, reduce the

role of race in our in our government.

all those things that are long-standing

conservative priorities, the court has

been willing to do those things. It's

where Donald Trump has sort of created

his own priorities that maybe aren't

things that the Reagan folks would have

thought of. That's where the court is

sometimes drawing that line.

>> Finally, there was a rumor that Justice

Alo was going to retire last term and he

has said that he is not retiring this

term at least.

>> He did say that. I can only tell you

what words he used. This was in an

interview with the editorial features

editor of the Wall Street Journal. So,

sort of a friendly audience. Uh, Justice

Alo told them, obviously, I'm here for

another term. And the reason that we're

talking about this now is normally if a

Supreme Court justice is going to

retire, he or she does that at the end

of a term. It's the least disruptive for

the court. You know, if you leave in the

middle of the term, then you end up

with, you know, maybe only an eight

justice court. And so when Justice Alo

didn't retire at the end of this this

last term, normally one would think,

okay, he's going to stick around for

another term. But because there is at

least the prospect that Democrats could

take over the Senate in the November

midterm election, there has been some

talk that if that happened, maybe

Justice Alo, who's very conservative,

might say, or at least come under

pressure to say, "I'm going to retire

now so that the lame duck Congress with

the Republican controlled Senate, can

confirm my successor." These comments

seem to preclude that. Obviously, things

can change, but he at least sounded from

what I can read in this story as

somebody who's not at all planning on

leaving in November.

>> Thanks so much for taking the time,

Greg. That's Bloomberg Supreme Court

reporter Greg Store. Coming up next is

the NFL breaking antitrust law in its

negotiations with streaming services.

This is Bloomberg.

It's a tough time for football fans who

live outside their favorite team's home

market. The rise of streaming services

has ended the era when sports fans could

easily follow their favorite teams on a

handful of broadcast and cable channels

without buying special subscriptions.

But the NFL has signed deals with

multiple services, creating a

bewildering schedule and a steep cost to

watch games at home, as fans have to

subscribe to multiple streaming services

in addition to a traditional cable or

satellite bundle. During a judiciary

subcommittee hearing in June, Republican

Congressman Jim Jordan described the

challenge football fans face trying to

watch their favorite team. Here's what

the fan deals with today in our report.

A Green Bay Packers fan who lives in

Dallas, Texas, grew up in Green Bay,

loves the Packers, wants to watch the

Packers, grew up in Dallas, Texas. For

the 2026 season, the Packers are

scheduled to play eight games on Fox,

two games on Amazon Prime Video, two

games on Netflix, two games on NBC, one

game on ESPN, one game on CBS, and one

unscheduled game that is left to be

determined by the NFL. The fan will need

access to Amazon Prime Video, Netflix,

NBC, and ESPN to see the seven games

scheduled for those services for the

nine games scheduled for Fox and CBS.

The fan will likely need Fox and CBS

because some of the games will be on

broadcast television in Dallas. The fan

will also likely need Sunday Ticket just

to watch some subset of the nine Fox CBS

games because the fan will not know

which games will and will not be on

broadcast until the NFL and relevant

networks release the broadcast maps the

week of the games. That's what they got

to navigate. That's what they got to

navigate.

>> The Justice Department has opened an

antitrust investigation into whether the

NFL is breaking antitrust law in its

negotiations with streamers and driving

up the costs for consumers. My guest is

an expert in antitrust, Harry First, a

professor at NYU Law School. Harry, some

of our Bloomberg reporters looked into

this and so for a Philadelphia Eagles

fan living outside of Pennsylvania to

get all the games the Eagles are in,

they would need Sunday Ticket at $378,

YouTube at $83,

Peacock at $33, Fox One at $20, and

Prime Video at $9 for a grand total of

$523. $3. Yet the NFL claims that 87% of

its games are primarily shown on free

overthe-air broadcast TV.

>> I mean, I assume that that's true, you

know. Yeah. So, if you want to just want

to watch the Eagles, I mean, you know,

it's going to be on free overtheair

television. But if you want to watch

away games, you know, if you want to

just sit there on a Sunday and watch

every game out of your market, you're

going to have to pay for it. if you want

to watch every time the the Eagles play,

you know, in LA, it's not going to be on

channel 10 in Philadelphia. So, yes, if

you fly to LA, it'll be there for free,

too, but not exactly free. So, I don't

know the the number, it's one of those

numbers that will convince no one.

Obviously, a lot of people are buying

this Sunday ticket to watch out of

market football games because they just

love sitting there watching their team

wherever they are and other teams, you

know, cuz there are teams all around the

country that you can't see on

overthe-air TV unless you pay extra for

it. The investigation is reportedly

focused on this antitrust loophole in

the Sports Broadcasting Act that allows

the NFL and other leagues to negotiate

media deals collectively on behalf of

their teams. And that's the same

loophole that the congressional

subcommittee was looking into in June.

>> So the lawyer in me doesn't like to call

them loopholes, likes to call them

exemptions. you know, in 1961. Yes. It's

interesting to try to think about and

I'm not certain I fully understand why

the over there broadcasters went along

with this cuz they were, I think,

relatively more powerful than the NFL in

1961, which was, you know, not the

juggernaut we know today. So they

allowed the NFL to pull all their TV

rights free of any antitrust issues. the

law was in some ways less settled then

and you know maybe it was a little less

clear but they clearly would have had

some problems and there had been

litigation and I think everyone thought

it was in their best interest to to

negotiate with a single source have this

brand NFL football which then I guess

the TV networks could sell to

advertisers cuz you know that's that's

their game. So in that sense it was a

good deal for those two powerful sides

you know who then got this through

Congress. I doubt that the fans showed

up for legislative hearings and um you

know in the end the fans didn't pay

directly because those are overtheair

quote unquote free broadcasts but you

know someone picks up the tab for the

advertising so consumers do pay. You had

the congressional hearing in June and of

course politicians on both sides

questioned

>> whether the deals now violate that law.

Do you think they violate that law?

>> Well, in a technical sense, the question

is whether the exemption applies to some

of the current deals. So if it's a deal

that involves broadcasting rights where

the broadcast is paid for by sponsors,

in other words, advertiser supported,

then that comes within the Sports

Broadcasting Act. But the current deals

that the NFL's negotiating are with, you

know, platforms are with streaming

platforms.

pretty hard to see how they're within

the wording of the exemption from the

Sports Broadcasting Act. So, the Sports

Broadcasting Act wouldn't give the NFL

an exemption. They'd have to go straight

under the antitrust laws. And then the

question is whether violates the

antitrust laws. And they got pretty much

socked in the Sunday ticket litigation

uh with a pretty clear binding from a

jury. So the pooling of rights

apparently keeps some of the teams from

negotiating separately to sell their

broadcasting rights to, you know, maybe

other streaming platforms or put them on

YouTube where, you know, you would just,

if you didn't want to get a whole

package, all you wanted to do was follow

the Eagles, you would want to get a

package just of Eagles games. But that

can't happen now. So, they would be in

for some litigation if they don't fall

within that exemption.

>> And why did the judge toss out that

almost $5 billion jury verdict against

the NFL in the Sunday ticket class

action lawsuit?

>> So, there are two answers to this. The

first answer that I uh often would give

in class was it's the zeros.

>> I get that. Now, that's not that's not a

legal answer, but this was probably the

largest plaintiff's verdict, certainly

in any trust, maybe in any plaintiff's

verdict, but $4.7 billion before

trembling is a lot of money. Now, that

can be a reason for knocking down the

amount, but that's not what the judge

did. He disqualified

two of their experts on damages that he

had actually qualified at the trial. So

it seems a little like let me find a

problem with this trial. And

interestingly he did not find a problem

with liability in itself. It was on the

damages I think. So that case has sort

of been has been sitting before the

court of appeals now for a while uh

waiting for a decision. So, um, what, so

the the Justice Department is launching

an investigation into whether the NFL

and the leagues are breaking antitrust

law in their negotiations with

streamers. Is that different from the

Sunday Ticket?

>> I don't know exactly which negotiations

they have in mind. I mean, the Sunday

Ticket litigation involves an agreement

to distribute and also they had it with

Direct TV first and then with YouTube

that if you wanted access to these

games, you would buy it and it would be

streamed on YouTube. Now there are other

they're licensing Netflix, Amazon. So

they're licensing a bunch of different

platforms, but the problem is the same

without regard to which platform it is.

It's the question of, you know, is the

NFL a single entity or are they a group

of however many teams, 32 teams all

coming together and agreeing that

they're going to sell their rights

jointly. pull their rights because each

one has the right, you know, the legal

right, the copyright to the games that

they're involved with. So, they're

pooling all the rights to make a single

product called NFL football. So, is that

coming together is an agreement and

that's section one of the Sherman Act.

Now, whether that's lawful or not is

something that the NFL presumably would

fight. these sports leagues haven't had

great track record in saying, "Gee,

we're coming together for your good."

So, I don't know. Now, when you say the

um the Justice Department is

investigating, the careful approach that

I would suggest is there are reports

that the Justice Department is

investigating. We really don't know what

they're doing. And frankly, I'm not

sure, you know, in looking back at the

antitrust history here, I don't think

the government has necessarily spent its

prosecutorial resources worrying about

competition in professional

sports. They've usually left it to the

people with money in the game, the

owners, fans, consumers, things like

that. So, why are they interested in

this? Uh, why do you think? Well, we

know the answer. The staff report, you

just mentioned the House NHS

subcommittee staff report starts out

with a quote from the president. There's

something very sad when they take

football away from many, many people. He

said that in May and I'm glad that he

has empathy for, you know, the cost of

living.

>> I'm going to refrain from making a

comment on that. Harry, this justice

department has not been, shall we say,

strong on antitrust enforcement. They

walked away from the ticket master live

nation trial and left it to the states

who then won. They also walked away from

the Paramount Warner Brothers Discovery

merger, leaving it to the states to sue.

Do you think they would really sue the

NFL? I don't really see any government

group doing anything here because

they're just going to rub some important

economic interest the wrong way. I mean,

I don't see Congress doing anything. The

House report didn't say, "Oh my god, we

have to repeal this statute." Or, "Oh my

god, we have to amend it." Or, "Oh my

god, we have to do something." No, they

said, "Oh my god, we've got to stand

here and look. We've got to keep watch."

And thank you very much. We're going on

recess. I mean, I don't know, maybe

they've got a big investigation going,

but there are a lot of big mergers going

on in the economy and although private

parties get involved in those

occasionally, that's really fallen to

the government to do something about not

that they're doing a lot about them, but

at least they've got to review them and

they're involved. So they have important

or stuff that demands government

attention maybe more than this because

we have private enforcement and the

private enforcement's been at work,

>> right? So there might be a private

antitrust suit

>> indeed. I mean that's you know that's

what Sunday Ticket litigation was and

you know would not be surprising if

there were.

>> So we shall see. Stay with me. Coming up

next on the Bloomberg Law Show,

Paramount is trying an interesting

tactic to try to get a resolution of the

antitrust case filed by 12 states to

block the Paramount Warner Brothers

Discovery merger. I'm June Grao and

you're listening to Bloomberg. Let's

turn now to the Paramount Warner

Brothers Discovery Merger. So 12 states,

Democratic le states led by California's

attorney general Rob Bont are suing to

block the merger. And David Ellison told

Paramount senior executives

last week that he's prepared to relocate

Paramount and Warner Brothers 2 if the

merger is successful. So, exiting

California, if the California AG doesn't

agree to negotiate a settlement in the

case, what do you think about a threat

like that to a state AG who's suing you?

>> I don't know how that helps him in any

particular way. First of all, it doesn't

really do anything about the litigation.

So, I assume that

California and the other states who have

filed would still have jurisdiction in

one way or the other over this merger

because they've got movie theaters. So,

I don't know how it affects that. So, it

seems just sort of like a political

threat. I guess he's he's threatening to

destroy Hollywood. I in some ways I I

feel like the the discussion of this is

that Ellison and the I don't know who's

advising him. They just don't seem to

want to see the antitrust issues and

they just don't want to see this as a

piece of real litigation. They're

entranced by Bont standing in front of

the Hollywood sign. And you know that's

that's theater, but it's not the

litigation. So it's just hard to know

what he thinks is going to move these

attorneys general, but moving is not

going to be moving these attorneys

general.

>> That only takes out one attorney

general. It doesn't take out the rest of

them.

>> Yeah. So, so then he's going to have Tis

James to negotiate with. Okay. Yeah. The

bottom line problem is this is a case

that as it's written is really hard to

settle. I mean, you either win or lose

this litigation. Maybe he doesn't want

to acknowledge that or something. And to

some extent, he's sort of talking past

litigation, but either they're going to

win or lose this litigation. I don't see

it settling. You know, maybe in the end

they'll just have to restructure this

deal.

>> What about Paramount has agreed to sign

contracts with the major theater chains

guaranteeing they'll release 30 movies a

year in cinemas if they acquire Warner

Brothers. Three-year agreement.

>> Great. So, first of all, this is not the

kind of thing that convinces any

legitimate any trust enforcer of

anything. So, any time you say it's a

three-year contract and any trust

enforcer says, "Okay, what about the

fourth year? You want to merge forever

and you're giving me something for three

years?" Uh, it's not all that good. All

right. Second is, so what's the deal?

You're promising 30 movies. Doesn't say

these are 30 you would not have made.

That was an earlier claim. 30 movies you

promise to distribute in these two major

chains. Great. Come look at my coalition

and ask whether they've got any movie

theaters that are not in these chains

and are not part of this deal. They'll

love this. So great, now you've hooked

up with the two major distributors for

exclusive distribution of your films. I

think I'll throw that in as another

count of any competitive behavior. I

really don't get it. You know, if he

said, "We promise to make deals with all

of the movie theaters in the United

States. You we'll give a 90-day window

that we won't put these movies online.

Anything we make that looks a little

different. I'm not sure what it gets in

particularly, but again, this is I don't

get it.

>> If you don't get it, then it's not

getable." Um,

so does it matter that the UK authority

gave the deal a go-ahad?

>> So I think that's a plus for the deal.

The UK authority was worried about

editorial controls and that's not part

of this complaint. So in some ways I

mean it's sort of ironic. This is not

what the states are complaining about.

They are not complaining about CNN being

run by CBS even though again Ellison

said oh that's what you're upset about

and Bont says not us go you look in the

complaint CNN isn't mentioned to me that

was one of the political things that was

pushing the merger and so it's it's

really ironic that Ellison wants to pin

that on the states the states want to

say not me we are so clever we are not

going there, folks.

>> Well, as you said last time we talked,

it was a well-drawn complaint by a

powerhouse antitrust lawyer that the

state of California hired. So, they

appeared to have made the right choices.

Always a pleasure, Harry. Thanks so

much. That's Professor Harry First of

NYU Law School. 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

podcasts. You can find them on Apple

Podcast, Spotify, and at

www.bloomberg.com/mpodcastlaw.

And remember to tune in to the Bloomberg

Law Show every week night at 1000 p.m.

Wall Street time. I'm June Graasso and

you're listening to Bloomberg.