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Nvidia Investor Fraud Suit & Ten Commandments in Schools · Bloomberg Law

0:03
Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
0:11
Speaker 2: It's one of two Supreme Court cases within a week
0:14
Speaker 2: over securities fraud class action lawsuits against giant tech companies.
0:19
Speaker 2: Last Wednesday, it was Meta's Facebook. This Wednesday it was
0:24
Speaker 2: in Vidia. Investors are suing in Vidia, now the world's
0:28
Speaker 2: most valuable company, for misleading them about how much its
0:31
Speaker 2: profits depended on the volatile cryptomney market. But the tech
0:36
Speaker 2: company says the lawsuit relies on an expert opinion and
0:40
Speaker 2: doesn't have evidence like company documents to back up its claims.
0:45
Speaker 2: Justice Katanji Brown Jackson questioned how the investors could have
0:49
Speaker 2: company documents before discovery the information gathering stage of litigation
0:55
Speaker 2: has even taken place.
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Speaker 3: I guess my concern is that you appeared to be
1:01
Speaker 3: requiring for plaintiffs to actually have the evidence in order
1:05
Speaker 3: to plead their case. And I didn't understand the pleading standards,
1:10
Speaker 3: even with particularity, to require that they have the documents,
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Speaker 3: Nor do I understand how they could have the documents
1:17
Speaker 3: when discovery hasn't occurred yet.
1:20
Speaker 2: And several of the justices seem to have a bit
1:23
Speaker 2: of buyer's remorse about granting review in the case, saying
1:27
Speaker 2: it was two facts specific and didn't present the kind
1:31
Speaker 2: of broad legal issues that normally prompt Supreme Court review.
1:35
Speaker 2: Here justice is Sonya Sotmayor Elena Kagan and Samuel Alito.
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Speaker 4: We often don't grant, sir to error correct? Is this
1:46
Speaker 4: entire case just an error correction? Oh, these particular documents
1:51
Speaker 4: are not precise enough. I'm not actually sure what rule
1:55
Speaker 4: we could articulate that would be clearer than our cases
2:02
Speaker 4: already say. It becomes less and less clear why we
2:06
Speaker 4: took this case number one as just as Sodama your suggested,
2:10
Speaker 4: and number two why you should win it.
2:12
Speaker 1: But this is a highly technical subject and I just
2:16
Speaker 1: don't understand how a court is supposed to evaluate that
2:22
Speaker 1: at the pleading stage.
2:24
Speaker 2: Joining me is Gregory gar a partner at Latham and Watkins,
2:27
Speaker 2: and the former Solicitor General of the United States, Greg
2:30
Speaker 2: tell Us about the issue before the court.
2:33
Speaker 5: So, this case involves the pleading requirements under the Private
2:37
Speaker 5: Securities Litigation Reform Act, and specifically what a plaintiff has
2:43
Speaker 5: to show to plead with the requisite particularity when the
2:48
Speaker 5: claim is that a company misled investors based on internal
2:53
Speaker 5: information that it knew. And the question is, does a
2:56
Speaker 5: planiff in that situation have to actually produce or describe
2:59
Speaker 5: in detail the internal company documents that the PLANEFF says
3:03
Speaker 5: represents the company's knowledge, or can you prove that knowledge
3:08
Speaker 5: through inferences by relying on expert reports and the like.
3:12
Speaker 2: And so Justice Kotanji Brown Jackson said that in video
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Speaker 2: was basically asking the plaintiffs to have the evidence at
3:21
Speaker 2: the pleating stage before they get.
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Speaker 5: Discovery, right, And that's the pushback that the more liberal
3:28
Speaker 5: justices had for the company's lawyer. The reason for these
3:32
Speaker 5: lawsuits is you typically get into federal court by passing
3:36
Speaker 5: the pleating requirements and then you get discovery and potentially
3:40
Speaker 5: access to the company's documents. So Justice Jackson sort of
3:44
Speaker 5: said that the company was trying to put the Planets
3:47
Speaker 5: in an impossible bind to produce the documents before discovery
3:52
Speaker 5: had ensued. And the company's response to that was that
3:55
Speaker 5: they weren't actually requiring the documents themselves, or that they
3:59
Speaker 5: disc the documents in every detail, but they simply had
4:04
Speaker 5: to describe the documents with some particularity. But that was
4:08
Speaker 5: really the crux of the case that the company put
4:12
Speaker 5: before the court.
4:13
Speaker 2: What did you see as the concerns of some of
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Speaker 2: the other justices.
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Speaker 5: Well, I think that there was a frustration on the
4:18
Speaker 5: court that they really weren't presented with a clear legal
4:22
Speaker 5: rule on either side of the case, and that ultimately
4:25
Speaker 5: the case seemed to boil down to the application of
4:29
Speaker 5: existing law to a really long complaint, which is something
4:33
Speaker 5: that district courts do all the time, but the Supreme
4:35
Speaker 5: Court justices don't do, and particularly don't like to do.
4:39
Speaker 5: And so you could see throughout the argument that there
4:41
Speaker 5: was a frustration on the part of the justices that
4:43
Speaker 5: they were being asked to undertake a task that they
4:46
Speaker 5: typically don't do in engaging in a sort of error
4:49
Speaker 5: correction based on their own reading of the complaint.
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Speaker 2: Yeah, it seems like justices across the ideological spectrum were
4:56
Speaker 2: concerned about that. And did it seem like that of
5:00
Speaker 2: buyer's remorse, Because just as Sodomayor said, you know, we
5:03
Speaker 2: don't grant sert to error correct and Justice Alitos said
5:08
Speaker 2: that I don't understand how a court is supposed to
5:11
Speaker 2: evaluate this highly technical subject at this preliminary stage. Just
5:16
Speaker 2: as Kagan said, it becomes less and less clear why
5:19
Speaker 2: we took this case. I mean, were they questioning whether
5:22
Speaker 2: they should have granted cert in the first place.
5:25
Speaker 5: I think they were. And of course, the Supreme Court
5:28
Speaker 5: gets to decide which cases it hears every year, and
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Speaker 5: so it can pick the cases it likes. And here
5:36
Speaker 5: I think you're right that there were some buyer's remorse
5:38
Speaker 5: that the case, once it was fully briefed and presented
5:41
Speaker 5: to the Court at argument, wasn't necessarily the case that
5:44
Speaker 5: they thought they were buying when they agreed to hear it.
5:46
Speaker 5: And so one possible outcome is that the Court would
5:50
Speaker 5: simply decline to decide the case at all and to
5:53
Speaker 5: dig it, which means that they would dismiss the writ
5:56
Speaker 5: of Cercherai that thet agreed to hear the case as
5:59
Speaker 5: improvidently granted, so the case could simply go away.
6:02
Speaker 2: Justice Kavanaugh expressed a concern that outside groups and in
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Speaker 2: Vidia's lawyer had raised that the Ninth Circuit decision below
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Speaker 2: here created a sort of blueprint or roadmap for plaintiffs
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Speaker 2: to get around the heightened pleading standard that Congress set
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Speaker 2: out in the Private Securities Litigation Reform Act.
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Speaker 5: Right, and Just Kavanaugh was probably the most outspoken justice
6:27
Speaker 5: on the side of the company at the oral argument,
6:30
Speaker 5: and his concern was that if the Ninth Circuit decision
6:33
Speaker 5: in this case is allowed, then it just creates a
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Speaker 5: blueprint or recipe for points to file where anytime you
6:40
Speaker 5: have a stop drop, you can just go out and
6:43
Speaker 5: find an expert that would put together numbers that would
6:46
Speaker 5: contradict a company's public statements and then enledge in a
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Speaker 5: lawsuit that the company keeps records that its executives look
6:54
Speaker 5: at and argued that those records would have matched their
6:57
Speaker 5: own experts numbers. So there you have it. Presto a
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Speaker 5: securities action that would proceed past the motion to dismiss stage.
7:07
Speaker 5: And in these sorts of cases, particularly with class actions,
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Speaker 5: that's really the ballgame, because.
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Speaker 2: The pressure on the company is then to settle.
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Speaker 5: There's enormous pressure on the companies to settle in that
7:18
Speaker 5: context given the potential damages. Although here Justice Kavanaugh actually
7:24
Speaker 5: pressed the plaineoff's lawyer on what the magnitude of the
7:27
Speaker 5: damages would be, and the planiff's lawyer was a little
7:31
Speaker 5: bit coy and ultimately said he did not know the
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Speaker 5: answer to that question, perhaps because the amount was potentially
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Speaker 5: quite large.
7:38
Speaker 2: Here's part of that exchange between Justice Kavanaugh and the
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Speaker 2: attorney for the shareholders, Deepak Gupta.
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Speaker 5: How much money is at stake in this case?
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Speaker 6: The words, the fewer to prevail ultimately in the class,
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Speaker 6: not as much as it might seem, because I don't
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Speaker 6: want the court to get the impression that this enormous
8:00
Speaker 6: delta of sales is what's that issue? It would be
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Speaker 6: an issue would be you would have to show lost
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Speaker 6: causation and materiality.
8:07
Speaker 2: What are you seeking?
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Speaker 4: Like if you ran the table, what are you seeking?
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Speaker 6: Roughly, I don't know what the numbers are. You're on her?
8:13
Speaker 2: What did you make of Justice score such? He sort
8:16
Speaker 2: of went into what the CEO knew at the.
8:20
Speaker 5: Time, right, So he pressed the lawyers on both sides
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Speaker 5: really about what inferences could be drawn about what the
8:26
Speaker 5: CEO knew and sort of, you know, question whether or
8:30
Speaker 5: not it was plausible that a CEO wouldn't know about
8:34
Speaker 5: potential downtick in sales and the magnitude alleged here billions
8:39
Speaker 5: of dollars, and so he had tough questions and he
8:42
Speaker 5: clearly was, you know, I think prepared to get into
8:44
Speaker 5: the weeds of this case to resolve it.
8:46
Speaker 2: Several of the justices seemed to be saying, too Invidia's lawyer, well,
8:51
Speaker 2: you want a bright line test, and we can't give
8:54
Speaker 2: you a bright line test. And the Chief Justice didn't
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Speaker 2: seem to be happy with either side's position.
9:00
Speaker 5: He wasn't, as he put it, I think, you know,
9:02
Speaker 5: both sides want to present this in black and white terms,
9:04
Speaker 5: but there really wasn't a clear rule on either side
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Speaker 5: that the Court was likely to adopt, and so they
9:09
Speaker 5: were left in this middle ground that again probably would
9:13
Speaker 5: produce a very narrow ruling that would require the justices
9:17
Speaker 5: to roll up their sleeves and apply the pleading standard
9:20
Speaker 5: to the particular allegations here in this extensive complaint, which
9:25
Speaker 5: is something that the Supreme Court justices you know, probably
9:28
Speaker 5: don't want to spend their time doing.
9:29
Speaker 2: Greg. This case is about pleading under the Private Securities
9:33
Speaker 2: Litigation Reform Act, which was passed in nineteen ninety five.
9:37
Speaker 2: Will you tell us a little about it?
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Speaker 1: Sure?
9:39
Speaker 5: So this Act was passed in response to concerns about
9:43
Speaker 5: a flood of potentially frivolous securities actions and the like,
9:47
Speaker 5: and so Congress specifically ramped up the pleading requirements for
9:52
Speaker 5: these types of actions by stating what you know, arguably
9:55
Speaker 5: the law required in some respects before then, but stating
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Speaker 5: in a statute that the planiffs must plead with particularity
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Speaker 5: the facts constituting securities fraud, and must you know, plead
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Speaker 5: facts that create a strong inference that the defendants acted
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Speaker 5: knowingly or recklessly. And so in this area, and with
10:14
Speaker 5: respect to pleading standards more generally, you know, the slightest
10:17
Speaker 5: uptick in the rigorousness of the pleating requirements can screen
10:22
Speaker 5: out a number of cases. And you know, I think
10:25
Speaker 5: that that was one of Converse's goals here and has
10:28
Speaker 5: had that effect. And so the court in this case
10:31
Speaker 5: is revisiting the strength of those standards, and in particular
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Speaker 5: the requirement of stating with particularity in this context where
10:39
Speaker 5: the planiffs don't have access to documents that would show
10:43
Speaker 5: what the company knew, but have an expert who's willing
10:46
Speaker 5: to say, based on his or her own opinion, what
10:50
Speaker 5: is likely the company's executives would have had or seen
10:54
Speaker 5: prior to this dock drop that issue.
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Speaker 2: So in Vidia in twenty twenty two agree to pay
10:59
Speaker 2: five point five million to US authorities to settle charges
11:04
Speaker 2: that it didn't properly disclose the impact of crypto mining
11:08
Speaker 2: on its gaming business without admitting or denying the findings
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Speaker 2: as usual. Does that have any impact here that settlement
11:16
Speaker 2: not really.
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Speaker 5: It came up in oral argument. The government was participating
11:21
Speaker 5: in the case, and the Biden administration came in on
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Speaker 5: the side of the plaintiffs here and argued that the
11:28
Speaker 5: Ninth Circuit had gotten it right. And the Justices did
11:31
Speaker 5: ask about that sec action. But this case is really
11:35
Speaker 5: going to rise or fall on its own allegations under
11:38
Speaker 5: the demands of the PSLRA.
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Speaker 2: Just last week, the Justices were considering whether to shut
11:45
Speaker 2: down another class action investors lawsuit against Facebook stemming from
11:51
Speaker 2: the privacy scandal, involving the Cambridge Analytical Political consulting firm.
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Speaker 2: Is there a reason why they have two sort of
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Speaker 2: similar cases in this term? Is this a real problem?
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Speaker 5: I think it's probably fortuitous that the two cases happened
12:08
Speaker 5: to come to the court at the same time. That said,
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Speaker 5: both cases came out of the Ninth Circuit, and the
12:13
Speaker 5: Ninth Circuit has been sort of a hotbed for this
12:16
Speaker 5: kind of litigation, and so it's not surprising in that
12:19
Speaker 5: sense that some of these cases has gotten to the
12:21
Speaker 5: Supreme Court. But having taken two of these cases and
12:24
Speaker 5: heard them in the same week, and I think it's
12:26
Speaker 5: there to say that in both cases justices were grappling
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Speaker 5: for answers. It may be a while before the justices
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Speaker 5: decided to wade back into this area.
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Speaker 2: So what's your take. Do you think that there needs
12:39
Speaker 2: to be more specificity and pleading in these kinds of cases.
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Speaker 5: I think, you know, Congress was wise to pass the
12:47
Speaker 5: Private Securities Litigation Reform Act, and those pleading standards you
12:51
Speaker 5: know have and should have teeth. I think in this
12:55
Speaker 5: area usually the pleating standard at the motion to dismiths
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Speaker 5: stage is you know, the critical test in the litigation,
13:02
Speaker 5: because once you get past that pleading stage, then you
13:06
Speaker 5: get discovery. The cost of litigation rise greatly and you
13:10
Speaker 5: have a threat of enormous damages that often push defendants
13:13
Speaker 5: into settlement even when they strongly believe that there was
13:17
Speaker 5: no securities fraud in the first place. So I think
13:20
Speaker 5: courts you have to police these requirements carefully. So in
13:23
Speaker 5: that sense, it's not surprising that the Supreme Court with
13:26
Speaker 5: intervene fears that a court has either veered from the
13:29
Speaker 5: law or where courts have taken conflicting positions on what
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Speaker 5: these standards require.
13:35
Speaker 2: Thanks so much, Greg, Always a pleasure to have you
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Speaker 2: on the show. That's Gregory gar of Latham and Watkins,
13:40
Speaker 2: the former US Solicitor General. This bill mandates the display
13:45
Speaker 2: of the Ten Commandments in every classroom in public, elementary, secondary.
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Speaker 6: And post education schools in the state of Louisiana.
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Speaker 2: Louisiana was the first state to require that the Ten
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Speaker 2: Commandments be displayed in every public school classroom since nineteen
14:03
Speaker 2: eighty when the Supreme Court struck down a similar Kentucky
14:07
Speaker 2: law on First Amendment grounds. Governor Jeff Landry signed the
14:11
Speaker 2: bill into law, which requires a poster size display or
14:15
Speaker 2: framed document of the Ten Commandments to be put up
14:18
Speaker 2: in every classroom by January.
14:21
Speaker 6: Because if you want to respect the rule of law,
14:23
Speaker 6: you got to start from the original lawgiver, which was Moses.
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Speaker 2: But a federal judge has stepped in to stop that
14:31
Speaker 2: from happening, finding that the law is unconstitutional on its face.
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Speaker 2: The legal showdown won't end at the district court level, however,
14:39
Speaker 2: with the state Attorney General saying she'll ask the Fifth
14:42
Speaker 2: Circuit Court of Appeals to stay the judge's ruling while
14:46
Speaker 2: she appeals, joining me his first Amendment. Law expert Caroline
14:49
Speaker 2: Malak Corbin, a professor at the University of Miami Law School,
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Speaker 2: tell us about the judges ruling almost two hundred pages.
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Speaker 7: It was indeed very long. It was one hundred seventy
15:00
Speaker 7: seven pages. So Louisiana had passed a law mandating the
15:08
Speaker 7: posting of a particular version of the Ten Commandments in
15:14
Speaker 7: every single classroom in the public schools of Louisiana, both
15:19
Speaker 7: K through twelve and the university level, and this was challenged,
15:24
Speaker 7: not surprisingly on establishment claws grounds, and the district court
15:29
Speaker 7: gave sort of two paths of why this was in
15:34
Speaker 7: fact in violation of the establishment clause, and his first
15:40
Speaker 7: line of discussion was that there is very clear precedent
15:45
Speaker 7: on this matter. Kentucky had tried the same thing back
15:49
Speaker 7: in nineteen eighty. It too, had passed the law requiring
15:53
Speaker 7: the posting of the Ten Commandments in every single classroom,
15:56
Speaker 7: and the court said, no, yead to that there is
16:01
Speaker 7: no real secular reason for this. You can't impose a
16:06
Speaker 7: religion in the walls like that. It is unconstitutional. And
16:11
Speaker 7: so there is Supreme Court precedent directly on point, and
16:17
Speaker 7: so they said, under this decision, which is still good law,
16:22
Speaker 7: because the Supreme Court has not yet explicitly overruled it,
16:27
Speaker 7: this law cannot survive. And so that was one approach,
16:30
Speaker 7: which is very straightforward. There is a Supreme Court decision
16:35
Speaker 7: that considered the same issue, and when it did, it
16:38
Speaker 7: found it unconstitutional.
16:39
Speaker 4: And then it had.
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Speaker 7: Another line of argumentation because there is concern that the
16:46
Speaker 7: Supreme Court is going to overrule that decision, and in
16:49
Speaker 7: fact that's partly what Louisiana is hoping. And so given
16:54
Speaker 7: this new Christian friendly Supreme Court, it may well decide
17:02
Speaker 7: that that precedent is no longer good, in part because
17:06
Speaker 7: it relied on some doctrine that the Supreme Court had rejected,
17:10
Speaker 7: so anticipating that that argument, which should be enough, might
17:14
Speaker 7: not be enough, it also analyzed the case under the
17:18
Speaker 7: Supreme Court's more recent rulings, and the Supreme Court's more
17:22
Speaker 7: recent rulings on the matter have said, when you're trying
17:27
Speaker 7: to decide whether something violates the Establishment clause or not,
17:31
Speaker 7: you must refer to the history and tradition of the
17:35
Speaker 7: practice in question. And so that's what the Dissecurt did,
17:38
Speaker 7: and in fact, there was even an expert who testified.
17:42
Speaker 7: And then the question was is there a history and
17:45
Speaker 7: tradition of posting the Ten Commandments on the walls of
17:49
Speaker 7: public schools? And the answer was no, there's not.
17:53
Speaker 2: The supporters of the bill had specifically referenced religious motivations
17:59
Speaker 2: like the importance of children learning what God says is
18:02
Speaker 2: right and what he says is wrong. Did that come
18:05
Speaker 2: up in the oral arguments or the judge's decision?
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Speaker 7: So the bill did not say that. The bill tried
18:13
Speaker 7: to claim a more secular purpose, but the sponsors of
18:18
Speaker 7: the bill were quite straightforward in their goals, which, as
18:22
Speaker 7: you mentioned, was to make sure children understood what God
18:27
Speaker 7: thought was right and wrong. And so though the bill
18:31
Speaker 7: tried to construct some potential understanding of the Ten Commandments
18:36
Speaker 7: as a non religious doctrine, that text was really blied
18:41
Speaker 7: by what the sponsors of the bill said when promoting it.
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Speaker 2: So now you mentioned the Supreme Court, and Louisiana argued
18:50
Speaker 2: that based on the twenty two rulings in a case
18:55
Speaker 2: where I think people know it mostly as the football
18:58
Speaker 2: coach who wanted to pray at the fifty yard line
19:02
Speaker 2: right after the games. So they're saying that since that ruling,
19:08
Speaker 2: the courts have to interpret by reference to historical practices
19:12
Speaker 2: and understandings. Is that basically their argument.
19:15
Speaker 1: Yeah.
19:16
Speaker 7: There used to be several different tests the court might
19:19
Speaker 7: rely on in evaluating establishment clause challenges, and they have
19:24
Speaker 7: different names. There was the lemon test, the endorsement test,
19:28
Speaker 7: the history and tradition test, the coercion test. In that decision,
19:32
Speaker 7: the Supreme Court essentially killed off two of them, and
19:36
Speaker 7: it said, we are no longer going to rely on
19:39
Speaker 7: the lemon tests, We're no longer going to rely on
19:41
Speaker 7: the endorsement test. So what the court is going to
19:45
Speaker 7: consider going forward when faced with an establishment clause challenge
19:51
Speaker 7: is a history and tradition analysis, and also it will
19:55
Speaker 7: consider whether anyone is being compelled into practice being religion
20:01
Speaker 7: against their will. And so those the two frameworks the
20:05
Speaker 7: court will use going forward. And the District Court in
20:08
Speaker 7: fact used them again in anticipation of its reliance on
20:14
Speaker 7: precedent not being enough for the current court and conducted
20:18
Speaker 7: a history and tradition analysis and also found them to
20:22
Speaker 7: be rather coercive.
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Speaker 2: Louisiana is going to appeal and they're in the Fifth Circuit,
20:27
Speaker 2: which Indeed, the most conservative circuit in the country has
20:32
Speaker 2: handed down some novel rulings lately, some of them even
20:36
Speaker 2: too much for the Supreme Court. Do you have any
20:38
Speaker 2: confidence in how the Fifth Circuit will rule?
20:41
Speaker 7: I do not have any confidence in how they were ruled.
20:44
Speaker 7: But it would not surprise me if they pick up
20:48
Speaker 7: the baton that the Louisiana Statute laid down and argue
20:55
Speaker 7: that there is in fact a history and tradition of
20:58
Speaker 7: the Ten Commandments in school and therefore there is nothing
21:03
Speaker 7: wrong with having posters. And it would not surprise me
21:07
Speaker 7: if they said it was not at all coercives, because
21:10
Speaker 7: no one's being forced to pray or do any particular
21:14
Speaker 7: religious exercise. So I would not be surprised if again,
21:19
Speaker 7: they constructed a history inaccurate history, by the way, because
21:24
Speaker 7: the expert did quite a good job of dismantling some
21:27
Speaker 7: of the claims that Louisiana made in its text, including
21:31
Speaker 7: a completely fabricated quotation from James Madison. But nonetheless, they
21:37
Speaker 7: will claim that there is plenty of evidence of having
21:40
Speaker 7: the Ten Commandments of schools, and even if there's no
21:44
Speaker 7: evidence of Ten Commandment posters in schools, it doesn't matter
21:48
Speaker 7: it's enough that there were mention of the ten Commandment
21:52
Speaker 7: or reading of the ten Commandment, and therefore there's no
21:55
Speaker 7: violation of the Establishment clause. And there were a claim
21:58
Speaker 7: that simply looking at the ten command is not going
22:01
Speaker 7: to force children into doing anything religious, and therefore there
22:06
Speaker 7: is no Establishment cause violation.
22:08
Speaker 2: With the football coach, during the oral arguments, there was
22:11
Speaker 2: a lot of discussion about whether it was coercive, whether
22:15
Speaker 2: the players felt like they had to pray with him,
22:18
Speaker 2: and you know, the justice is the conservative justices said, oh, no,
22:22
Speaker 2: it's not coercive.
22:24
Speaker 7: And there's a really important difference between the coach case
22:30
Speaker 7: and this case because a lot of the case about
22:35
Speaker 7: the praying coach turned on the court conclusion that he
22:42
Speaker 7: was speaking as an individual and not as the government.
22:46
Speaker 7: So they really viewed his action as a private person's
22:53
Speaker 7: attempt to practice his own space, and consequently they really
22:59
Speaker 7: viewed it through a free exercise lens and went out
23:03
Speaker 7: of their way to ensure protection of his ability to
23:07
Speaker 7: practice his religion, and that this would clearly take precedent
23:12
Speaker 7: over any hypothetical Establishment Clause claim of coercion, for which
23:17
Speaker 7: there was no proof that that asides. But the very
23:21
Speaker 7: big difference here is there is no individual practicing their
23:25
Speaker 7: faith in this case, and there is no question that
23:28
Speaker 7: is is the government that is posting these Ten Commandments,
23:32
Speaker 7: these religious documents on the walls. And so they have
23:36
Speaker 7: to confront more directly the fact that the government is
23:41
Speaker 7: posting something that's really inherently religious. And they were able
23:46
Speaker 7: to dodge that more with a coach by saying, well,
23:49
Speaker 7: it was him practicing his religion, not the government trying
23:54
Speaker 7: to get the students to do it.
23:55
Speaker 2: So you mentioned the Kentucky case. This is a very
23:59
Speaker 2: different Supreme Court, and you know, as you're referred to,
24:03
Speaker 2: I can't remember the last time religion lost at the
24:07
Speaker 2: Supreme Court with the Roberts Court and especially with the
24:10
Speaker 2: conservative majority. Do you think that the Kentucky case, if
24:15
Speaker 2: this gets to the Supreme Court, that the Kentucky case
24:18
Speaker 2: will stand.
24:19
Speaker 7: I don't know, because the Supreme Court has traditionally been
24:25
Speaker 7: especially mindful of the establishment clause in the school context
24:31
Speaker 7: for a couple of reasons. The first is that you know,
24:34
Speaker 7: the children in school are considered very young and very impressionable,
24:39
Speaker 7: and therefore the government has heightened responsibilities towards them. And
24:44
Speaker 7: second is that the students at school are a captive audience.
24:50
Speaker 7: They have no choice but to be there. They're sort
24:53
Speaker 7: of doubly captives. The government requires that they attend school
24:56
Speaker 7: at then as school, they're under the control of the school,
25:00
Speaker 7: and therefore, again there are heightened responsibilities when you're dealing
25:07
Speaker 7: with the young, impressional students who are also a captive audience.
25:12
Speaker 7: Will the Supreme Court continue to honor these considerations. I
25:16
Speaker 7: don't know. Possibly not so, Caroline.
25:20
Speaker 2: I know that this Louisiana was the first state to
25:25
Speaker 2: enact this requirement, but in June and Oklahoma the state
25:29
Speaker 2: superintendent ordered that the Bible be incorporated into lessons, and
25:36
Speaker 2: Florida recently approved allowing volunteer religious chaplains to serve as
25:41
Speaker 2: school counselors. I mean, is there a conservative Christian movement
25:46
Speaker 2: to try to sort of move the line and get
25:50
Speaker 2: religion into public schools.
25:53
Speaker 7: Oh, I don't think there's any questions. I think that
25:56
Speaker 7: the Supreme Court has made it clear that it is
26:01
Speaker 7: very sympathetic towards lanes of religious exercise. It has also
26:08
Speaker 7: made it clear that it does not hold the establishment
26:11
Speaker 7: clause in highest scheme, and so I think this is
26:16
Speaker 7: the vanguard of trying to get religion back into the schools,
26:20
Speaker 7: and depending on the outcome of this case, we'll see
26:24
Speaker 7: what happens in the rest of the country. I do
26:27
Speaker 7: want to add one more point about the District court
26:31
Speaker 7: s ruling. It sort of belongs a little bit more
26:34
Speaker 7: in the earlier discussion. One of the really interesting things
26:38
Speaker 7: about this challenge is it's not just the introduction of
26:44
Speaker 7: religion into school, but it's the introduction of only one
26:50
Speaker 7: faith tradition into the school. Because the Ten Commandments on
26:55
Speaker 7: the wall are the Protestant kingings of versions of the
27:01
Speaker 7: Ten Commandments. Different faith traditions have different types of Ten Commandments. So,
27:08
Speaker 7: for example, the Catholic version is different because this one
27:14
Speaker 7: says thou shalt make to thyself no graven images, whereas
27:18
Speaker 7: that particular prohibition is not in the Catholic version of
27:22
Speaker 7: the Ten Commandments, Whereas in the Jewish version of the
27:26
Speaker 7: Ten Commandments. The first commandment here is I am the
27:29
Speaker 7: Lord thy God, and the Jewish Ten Commandments it is
27:33
Speaker 7: I Am the Lord thy God that brought you forth
27:36
Speaker 7: from Egypt. And these are actually crucial theological differences. And
27:41
Speaker 7: I mention this because under existing doctrine, as the District
27:46
Speaker 7: Court highlighted, the court made it clear that the state
27:50
Speaker 7: cannot discriminate against any other religion. It can't favor one
27:56
Speaker 7: religion over others, it can't intentionally discriminate against other religions.
28:01
Speaker 7: And the choice of this particular version seems to be
28:06
Speaker 7: doing exactly that. And it's particularly problematic because if you
28:12
Speaker 7: look at our history and tradition, at one point, to
28:17
Speaker 7: the extent there was any religion in the schools, it
28:21
Speaker 7: was Protestant religion, and it was explicitly meant to exclude Catholics.
28:28
Speaker 7: So I'm taking a long time to say that the
28:31
Speaker 7: court has long expressed concern about anti Catholic sentiments in
28:37
Speaker 7: our country's history, and this could be seen as the
28:42
Speaker 7: remnant of that historical hostility the Catholics that they so
28:47
Speaker 7: often complain about and revile. So it might be a
28:54
Speaker 7: little more complicated for them than it would otherwise be
28:58
Speaker 7: with another particular religious practice in the schools. But the
29:03
Speaker 7: fact that this is a Protestant ten commandment before a
29:07
Speaker 7: court long characterize much of the history in the United
29:11
Speaker 7: States as anti Catholic, maybe you would give them pause.
29:16
Speaker 2: Well, the next stop is the fifth circuit. We'll see
29:18
Speaker 2: what happens there. Thanks so much, Caroline. That's Professor Caroline
29:22
Speaker 2: Mali Corbin of the University of Miami Law School. And
29:26
Speaker 2: that's it for this edition of the Bloomberg Law Show.
29:28
Speaker 2: Remember you can always get the latest legal news by
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29:35
Speaker 2: at Bloomberg dot com, slash podcast, Slash Law. I'm Drewn
29:38
Speaker 2: Bronco and you're listening to Bloomberg