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Weekend Law: Religious Schools, Endangered Species & Justice Scolds Lawyer · Bloomberg Law

• 0:02
  Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
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  Speaker 2: It's a case that could lift longstanding constitutional limits on
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  Speaker 2: government support for religion and further erode the separation of
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  Speaker 2: church and state. And the sharp ideological divide on the
• 0:21
  Speaker 2: Supreme Court was apparent in the oral arguments over whether
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  Speaker 2: to allow the first publicly funded religious charter school in
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  Speaker 2: the nation. Four of the conservative justices seemed to be
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  Speaker 2: firmly on the side of the charter school, Saint Isidore
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  Speaker 2: of Seville Catholic Virtual School, suggesting that Oklahoma is unconstitutionally
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  Speaker 2: disfavoring religion by requiring its public charter schools to be secular.
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  Speaker 2: Justice Brett Kavanaugh called it rank discrimination against religion.
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  Speaker 3: And then you come in and you say, oh, oral
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  Speaker 3: religious school. It's like, oh, no, can't do that too much.
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  Speaker 3: That's scary. We're not going to do that. And our
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  Speaker 3: cases have made very clear, and I think those are
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  Speaker 3: some of the most important cases we've had of saying
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  Speaker 3: you can't treat religious people and religious institutions and religious
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  Speaker 3: speech as second class in the United States.
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  Speaker 2: But the three liberal justices emphasized that taxpayer funded religious
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  Speaker 2: schools would entangle church and state in violation of the
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  Speaker 2: Establishment clause of the First Amendment. Here's Justice Sonya Sotomayor.
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  Speaker 4: Because the essence of the Establishment clause was we're not
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  Speaker 4: going to pay religious leaders to teach their religion. That
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  Speaker 4: is and has always been the essence. And here we're
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  Speaker 4: paying Catholic leaders Catholic teachers. You could only be a
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  Speaker 4: teacher in this school if you're willing to accept the
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  Speaker 4: teachings of the Catholic Church.
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  Speaker 2: The case threatens to up end charter school systems in
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  Speaker 2: forty six states, as well as the federal charter school program,
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  Speaker 2: all of which requires schools to be non sectarian. Joining
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  Speaker 2: me is First Amendment law expert Caroline Mala Corbin, a
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  Speaker 2: professor at the University of Miami Law School. Caroline tell
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  Speaker 2: us about the background of this case.
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  Speaker 5: Basically, Oklahoma has a charter school program, as do most states.
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  Speaker 5: As a matter of fact, it's supposed to be another
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  Speaker 5: alternative to regular public schools, and the school bar charged
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  Speaker 5: with approving charter schools approved a Catholic charter school. A
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  Speaker 5: Catholic charter school would violate the Oklahoma Constitution, and so
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  Speaker 5: the Attorney General challenged that on the grounds that violated
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  Speaker 5: two separate provisions of the Oklahoma Constitution as well as
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  Speaker 5: the US Constitution. Because the Oklahoma Constitution make it's very
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  Speaker 5: clear that taxpayer money cannot be used to fund religious
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  Speaker 5: proselytization and indoctrination, and there is a separate provision of
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  Speaker 5: the Oklahoma Constitution that says public education must be non sectarian.
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  Speaker 5: In other words, public education must be secular. There is, also,
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  Speaker 5: of course, the US Constitution's Establishment clause, which has long
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  Speaker 5: been understood to ban direct fundings using taxpayer money to
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  Speaker 5: fund religious education, religious proselytization, religious indoctrination. And the Oklahoma
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  Speaker 5: Supreme Court said, you know what, it does violate the
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  Speaker 5: Oklahoma Constitution. It does violate US constitutions for Oklahoma to
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  Speaker 5: have a religious charter school. And then the charter school
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  Speaker 5: and the board that approved it appealed to the Supreme
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  Speaker 5: Court and they claim that Oklahoma's refusal the Holy fund
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  Speaker 5: a Catholic charter school violated the free exercise clause of
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  Speaker 5: the US Constitution.
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  Speaker 2: Explain why. A key issue is whether the religious charter
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  Speaker 2: school is public or private.
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  Speaker 5: So that's the million dollar question. There was a dispute
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  Speaker 5: on whether to characterize charter schools as public schools or
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  Speaker 5: private schools, and that category makes a huge difference under
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  Speaker 5: the doctrines, because under existing precedent, if charter schools are
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  Speaker 5: in fact public schools, then Oklahoma is absolutely free to
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  Speaker 5: insist that they remain secular. On the other hand, if
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  Speaker 5: they are considered private school there is a trio of
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  Speaker 5: Supreme Court cases that have held that if the government
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  Speaker 5: makes taxpayer money available to private secular schools, it has
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  Speaker 5: to make that money equally available to private religious school
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  Speaker 5: So it really really matters whether the charter schools are
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  Speaker 5: public schools, in which case Oklahoma can keep them secular,
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  Speaker 5: or whether they're private schools, in which case the Supreme
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  Speaker 5: Court will hold that denying them equal access to government
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  Speaker 5: money amounts to discrimination against religion and that would violate
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  Speaker 5: the free exercise costs.
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  Speaker 2: How did the conservatives answer the liberal justices questions about
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  Speaker 2: the establishment clause and how a taxpayer funded school would
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  Speaker 2: entangle church and state.
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  Speaker 5: In the justice's mind, what's going on here is that
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  Speaker 5: the state has created a program and made a benefit available,
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  Speaker 5: and consequently it has to be made available equally to
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  Speaker 5: religious setsular schools, otherwise violates the free exercise clause. That
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  Speaker 5: it might be intention with the Establishment Clause doesn't matter
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  Speaker 5: to these Supreme Court justices who always privilege the free
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  Speaker 5: exercise clause over the Establishment Clause. So in their mind,
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  Speaker 5: if it.
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  Speaker 6: Is required to give.
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  Speaker 5: The schools money by the free exercise clause, then by
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  Speaker 5: definition it can't violate the Establishment clause, and so they
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  Speaker 5: might simply not reach the Establishment clause problem that it
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  Speaker 5: is very firmly established in Establishment clause jurisprudence that the
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  Speaker 5: government cannot directly give money to religious organizations for the
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  Speaker 5: purpose of religious indoctrination and religious education. The state cannot
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  Speaker 5: give directly money if the money ends up at a school. Indirectly,
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  Speaker 5: that is okay. But for the government to take money
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  Speaker 5: from its coffers and put it into the coffers of
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  Speaker 5: a private religious school that then uses the money for
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  Speaker 5: religious education and doctrination prosbimization. Even under current Establishment clause law,
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  Speaker 5: which is highly weakened even today, that's still unconstitutional.
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  Speaker 2: Did it appear to you that four conservative justices were
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  Speaker 2: clearly on the side of the school, the three liberal
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  Speaker 2: justices were clearly against, and Chief Justice John Roberts is
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  Speaker 2: the pivotal vote.
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  Speaker 5: He is because Justice Barrett recused herself because of her
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  Speaker 5: close connection with someone involved in the litigation, and so
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  Speaker 5: the Conservatives don't have a cushion as they normally do.
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  Speaker 5: They need Justice Roberts in this case in order to
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  Speaker 5: prevail because if it is a four to four time
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  Speaker 5: the lower court decision stands, which is the Oklahoma Supreme
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  Speaker 5: Court's decision that it would violate the state and federal
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  Speaker 5: constitutions to create a religious charter school wholly funded by
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  Speaker 5: the state.
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  Speaker 2: The Chief didn't tip his hand, but he did write
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  Speaker 2: the majority opinions in all three of those cases since
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  Speaker 2: twenty seventeen where the Court allowed public funds to go
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  Speaker 2: to religious schools. And I thought it was remarkable that
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  Speaker 2: Justice Kavanaugh acknowledged that there has been what he called
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  Speaker 2: a different constitutional understanding since Congress established the federal charter
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  Speaker 2: school program in nineteen ninety four.
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  Speaker 3: At that point, it was considered constitutional to discriminate against
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  Speaker 3: religious entities, and that that's some of our case. Law
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  Speaker 3: has changed that and said no, it's not constitutional.
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  Speaker 5: And this different constitutional understanding is a constitution without the
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  Speaker 5: establishment clause. Because it's very important to realize that religious
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  Speaker 5: organizations are treated to under the Constitution. They get certain
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  Speaker 5: benefits under the free exercise Clause. So, for example, religious
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  Speaker 5: schools are entitled to a ministerial exemption, which means that
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  Speaker 5: their teachers can't bring discrimination claims. It means that they
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  Speaker 5: often get extra tax breaks that others do not. There
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  Speaker 5: are definitely benefits to being a religious school, but it
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  Speaker 5: had long been any understanding that being religious brought not
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  Speaker 5: only special benefits but also certain restrictions, and one of
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  Speaker 5: those restrictions was a, for example, limit on the kind
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  Speaker 5: of funding you could get from the government. And so
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  Speaker 5: there was long this balance from the benefits from the
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  Speaker 5: Free Exercise Clause the restrictions imposed by the Establishment Clause.
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  Speaker 6: But what the Roberts.
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  Speaker 5: Court has done in reconfiguring the religious liberty clauses, it
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  Speaker 5: has and did the privileges of religious organizations while eliminating.
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  Speaker 1: The prior limits.
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  Speaker 5: And one way they've been doing that is with a
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  Speaker 5: sleight of hand. What were previously understood as Establishment Clause
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  Speaker 5: limits on for example, government funding now has become religious discriminations.
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  Speaker 5: So again one of the basic premises of the Establishment
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  Speaker 5: Clause is that the government does not fund religions in
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  Speaker 5: various ways the Supreme Court generally pretends to the establishment
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  Speaker 5: clause does not exist and insists that any time the
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  Speaker 5: government does not fund religion, it is discriminating against religion
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  Speaker 5: because it's funding secular organizations. So, in their minds, the
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  Speaker 5: reason that Oklahoma doesn't want to fund a religious charter
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  Speaker 5: school is not because the constitution limits it, which it
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  Speaker 5: does both the state and credal, but because there has
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  Speaker 5: to religious So that's the switch.
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  Speaker 2: And if it turns out the Conservatives do have five votes,
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  Speaker 2: what do you think is the most likely way they'll
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  Speaker 2: frame their decision.
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  Speaker 5: They conclude that these are private schools, and accordingly, under
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  Speaker 5: existing precedent, the state has to give them the same
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  Speaker 5: opportunities of state funding as they give private secular charter schools.
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  Speaker 5: And there they would insist that this is no change
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  Speaker 5: in the law whatsoever. It's just a continuation of their
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  Speaker 5: previous rulings that hold that if the government makes a
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  Speaker 5: benefit available, it has to make it equally available to
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  Speaker 5: private religious schools and private secular schools.
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  Speaker 2: And if that's the decision, I'm sure they'll be at
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  Speaker 2: least one blistering dissent. Thanks so much, Caroline. That's Professor
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  Speaker 2: Caroline Malcorbin of the University of Miami Law School. Coming
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  Speaker 2: up next, endangered species may become even more endangered. I'm
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  Speaker 2: June Grosso. When you're listening to Bloomberg.
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  Speaker 5: We've lost about one out of every five butterflies from
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  Speaker 5: twenty to twenty twenty.
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  Speaker 2: Scientists released a new study two months ago showing that
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  Speaker 2: in the last twenty years, nearly one quarter of all
• 12:12
  Speaker 2: butterflies have been wiped out. US Wildlife officials put the
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  Speaker 2: monarch butterfly on the endangered Species list last December after
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  Speaker 2: years of warnings from scientists that their numbers were shrinking.
• 12:26
  Speaker 2: It's really quite troubling to see that monarch populations are declining.
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  Speaker 7: And if there aren't enough flowers to feed monarchs, imagine
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  Speaker 7: all the lesser known pollinators that aren't getting the things
• 12:34
  Speaker 7: that they need.
• 12:35
  Speaker 2: The destruction of their habitats is the main reason that
• 12:39
  Speaker 2: species become extinct, and now a new move by the
• 12:42
  Speaker 2: Trump administration will eliminate the habitat protections for endangered species
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  Speaker 2: that are so crucial to their survival. Joining me is
• 12:51
  Speaker 2: environmental law expert Pat Parento, a professor at the Vermont
• 12:55
  Speaker 2: Law and Graduate School, So that the Trump administration wants
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  Speaker 2: to how the government defines harm in the Endangered Species Act.
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  Speaker 2: Tell us how it's been defined since basically the Reagan administration.
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  Speaker 8: So the Act prohibits was called take of protected species,
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  Speaker 8: and take is further defined by a whole string of
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  Speaker 8: verbs including keel, wound, trap, but also harm or harassed.
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  Speaker 8: And it's those two words harm and harassed. In the
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  Speaker 8: Endangered Species Act of nineteen seventy three that were new concepts,
• 13:33
  Speaker 8: and it took some time to define what those concepts meant.
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  Speaker 8: But in regards to harm, there was a very critical
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  Speaker 8: decision issued way back in the early nineteen eighties actually
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  Speaker 8: by the Ninth Circuit Court of Appeals in a case
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  Speaker 8: out of Hawaii involving the Palila bird, an endangered bird,
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  Speaker 8: which ruled that destruction of habitat constitutes harm. And as
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  Speaker 8: a result of that decision, the Department of Interior promulgated
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  Speaker 8: this rule defining harm to me actions including habitat modification
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  Speaker 8: that actually kills or injures listed species by interfering with
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  Speaker 8: essential behavioral conditions like breeding, feeding, and sheltering. So it's
• 14:23
  Speaker 8: a long definition, but its bottom line is the court's
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  Speaker 8: rules that habitat loss is a take is prohibited under
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  Speaker 8: the Endangered Species Act. Congress, after the Poalila case, enacted
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  Speaker 8: an amendment to the Endangered Species Act in nineteen eighty two.
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  Speaker 8: I was there, I testified on this, which said, Okay,
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  Speaker 8: to protect landowners from finding themselves in violation of the Act,
• 14:52
  Speaker 8: we're going to create a special permit process, and we're
• 14:55
  Speaker 8: going to require that landowners, if they want one of
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  Speaker 8: these permits, come up with a habitat conservation plan to
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  Speaker 8: mitigate an offset the loss of habitat for the activity logging, mining, grazing,
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  Speaker 8: all kinds of activity that would result in loss of habitat.
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  Speaker 8: So the point is this harm rule has a very
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  Speaker 8: long history, and it's one that Congress deliberately codified in
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  Speaker 8: the Endangered Species Act. That's why they created the permit program.
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  Speaker 8: So the idea now that you would eliminate the definition
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  Speaker 8: of harm just rescind it, wipe it off the book,
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  Speaker 8: and not replace it, which is what is being proposed
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  Speaker 8: by Secretary Bergham. It's crazy, I mean, it flies in
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  Speaker 8: the faith of this whole history of how the courts
• 15:46
  Speaker 8: and Congress have dealt with this critical idea of protecting
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  Speaker 8: habitat When you think about it, habitat loss is the
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  Speaker 8: major driver of extinction in the United States and globally,
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  Speaker 8: So to just eliminate it from the one law that's
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  Speaker 8: designed to prevent extinction, it's really nuts.
• 16:08
  Speaker 2: Is the administration tying this proposed change to the Supreme
• 16:13
  Speaker 2: Court's decision in the Loper Bright case that eliminated Chevron deference,
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  Speaker 2: which is the deference to an agency's interpretation when there's
• 16:23
  Speaker 2: an ambiguous statute, Well they are.
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  Speaker 8: The irony, of course, is the United States Supreme Court,
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  Speaker 8: in a very famous case called sweet Home versus Babbott,
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  Speaker 8: in which the US Supreme Court upheld by a six
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  Speaker 8: to three vote the harm rule that I just described.
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  Speaker 8: So now you have the Trump administration saying, yeah, but
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  Speaker 8: the Supreme Court has overruled Chevron, which means that the
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  Speaker 8: Supreme Court's decision in Sweet Home is no longer controlling.
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  Speaker 8: But wait a minute. When you read Chief Justice Roberts'
• 16:55
  Speaker 8: opinion in Loper Bright, he specifically says that visions that
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  Speaker 8: have upheld rules based on Chevron are still in effect.
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  Speaker 8: So now you have the Trump administration saying, well, but
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  Speaker 8: we're going to change the rule by eliminating it. For
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  Speaker 8: harm and therefore we don't have to give the prior
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  Speaker 8: interpretation any significance, any difference at all. But that's not
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  Speaker 8: what Robert said. He said that prior decisions based on
• 17:27
  Speaker 8: Chevron difference are entitled to what are called statutory starry decisives,
• 17:33
  Speaker 8: in other words, precedent. And he made it clear that
• 17:36
  Speaker 8: it wasn't just a matter of saying, oh well, never
• 17:39
  Speaker 8: mind that a rule was formally upheld. He said, you
• 17:43
  Speaker 8: have to justify, you know, new decisions to change your
• 17:46
  Speaker 8: rule under the usual requirements of reversing prior rules, which
• 17:51
  Speaker 8: means you have to justify repealing a rule based on
• 17:56
  Speaker 8: change of circumstances, new facts, something has happened that justify
• 18:03
  Speaker 8: rethinking why the original rule should be completely reversed. But
• 18:08
  Speaker 8: all of the evidence suggests there's no basis for eliminating
• 18:12
  Speaker 8: habitat protection from the Protections of the Endangered Species Act.
• 18:17
  Speaker 8: If anything, what we're seeing is that habitat loss is
• 18:20
  Speaker 8: now affecting all species. You know. The famous ornithological lab
• 18:26
  Speaker 8: at Cornell University issued an incredible decision this last year
• 18:31
  Speaker 8: saying three billion birds three billion birds have disappeared from
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  Speaker 8: the United States since nineteen seventy and that's primarily related
• 18:43
  Speaker 8: to habitat loss. Pesticides and other things come into play.
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  Speaker 8: Habitat loss is the reason that we're losing our incredible
• 18:52
  Speaker 8: array of bird species. So this idea that the local
• 18:57
  Speaker 8: Bright decision somehow justified eliminating protection for habitat is once
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  Speaker 8: again crazy.
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  Speaker 2: I'm not sure how many Americans are aware of the
• 19:07
  Speaker 2: ins and outs of the Endangered Species Act, but they
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  Speaker 2: do know. Most of the ten endangered species that the
• 19:15
  Speaker 2: Center for Biological Diversity says are under direct threat from
• 19:20
  Speaker 2: this Trump administration elimination of habitat protections. They include monarch butterflies, manatees,
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  Speaker 2: northern spotted owls, green sea turtles, whooping cranes, and Florida panthers.
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  Speaker 8: At one time, you could measure the abundance of monarch
• 19:39
  Speaker 8: butterflies in the billions, and the western population of monarch
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  Speaker 8: butterflies has been reduced by I think something like eighty
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  Speaker 8: percent maybe more and is really in danger of extinction.
• 19:52
  Speaker 8: It's incredible to think that butterflies that used to light
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  Speaker 8: up the landscape all across the United States. I mean,
• 19:58
  Speaker 8: it's like the passenger kitch flocks of passenger pisions history says,
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  Speaker 8: used to darken the sky throughout much of the central
• 20:06
  Speaker 8: part of the United States, and then just we're gone
• 20:09
  Speaker 8: and we're seeing the same thing with species like monarch butterflies,
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  Speaker 8: and we've got an administration you know, that wants to
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  Speaker 8: eliminate or to substantially weaken the one law that's designed
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  Speaker 8: to prevent that. It's really quite remarkable.
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  Speaker 2: So then do you think that when this is challenged
• 20:27
  Speaker 2: in the courts that the administration will lose?
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  Speaker 8: Yes, they should, and they will. Now when it finally
• 20:35
  Speaker 8: goes back to the Supreme Court, we'll actually see whether
• 20:38
  Speaker 8: Justice Roberts you know, sort of caution in the look
• 20:42
  Speaker 8: for Bright case stands up. In other words, is he
• 20:44
  Speaker 8: going to look at this question of can you just
• 20:47
  Speaker 8: simply wave your hand, you know, and eliminate this harm
• 20:51
  Speaker 8: rule without any justification at all other than to say
• 20:55
  Speaker 8: we don't think it's the single best reading of the statue.
• 20:58
  Speaker 8: That's the rationale that the Trump administration is using to
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  Speaker 8: repeal the harm rules. And by the way, you know,
• 21:05
  Speaker 8: the Trump administration is not going to get any difference
• 21:07
  Speaker 8: for that interpretation either. That is the central message of
• 21:11
  Speaker 8: lower Bright. Nobody, no agency gets difference anymore under low
• 21:16
  Speaker 8: for Bright, including Trump, is.
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  Speaker 2: This elimination of habitat protections about making it easier to build,
• 21:24
  Speaker 2: log and drill for oil.
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  Speaker 8: Yeah, I mean it's property rights, it's landowner rights in part.
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  Speaker 8: Although what we've seen with the Harm rule in place
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  Speaker 8: is that there have been millions, more than twenty million
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  Speaker 8: acres of land private lands that have been conserved under
• 21:44
  Speaker 8: this incidental take permit program I mentioned, and allowed logging
• 21:48
  Speaker 8: and mining and other activities to occur, just with offsetting mitigation.
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  Speaker 8: So it's not true that the Harm rule has vented
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  Speaker 8: anything anything. There's no evidence that any landowner has suffered
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  Speaker 8: what's called a taking, a constitutional taking of property as
• 22:10
  Speaker 8: a result of the Endangered Species Act. Never never, So
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  Speaker 8: the whole idea that you have to eliminate this one
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  Speaker 8: mechanism of protection is simply wrong. There's no fact, no evidence.
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  Speaker 8: If you look at the proposed rule to resind the
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  Speaker 8: Harm rule in the Federal Register, and by the way,
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  Speaker 8: the comment period is still open until May nineteenth, for
• 22:32
  Speaker 8: those who are interested in that, you can go look
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  Speaker 8: at it. It's a very short statement. We're simply repealing
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  Speaker 8: the Harm rule. We're not replacing it. We're just pretending
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  Speaker 8: like we're going to erase the word from the statute,
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  Speaker 8: which of course violate canon number one of statutory interpretation,
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  Speaker 8: which is every word of a statute must be given effect.
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  Speaker 8: You don't just erase it because you find it difficult
• 22:58
  Speaker 8: or whatever. You have to do something with it. And
• 23:02
  Speaker 8: the proposal is to do nothing with it, to just
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  Speaker 8: erase it as if it never existed.
• 23:07
  Speaker 2: Pat, a finger sized fish has been caught in the
• 23:10
  Speaker 2: net of politics and the debate over California's water resources.
• 23:15
  Speaker 2: On Thursday, House Republicans, in a vote that went down
• 23:18
  Speaker 2: party lines, passed a bill to take the long fin
• 23:21
  Speaker 2: smelt off the Endangered Species list, even though its population
• 23:26
  Speaker 2: has declined by ninety nine percent. That sounds endangered to me.
• 23:31
  Speaker 8: So this is the long fin smelt, a cousin of
• 23:35
  Speaker 8: the even more controversial delta smelt, and these are two
• 23:39
  Speaker 8: of actually six species of fish protected under the Endangered
• 23:44
  Speaker 8: Species Act. So you know, this is just the latest
• 23:48
  Speaker 8: evidence that this ecosystem in the San Joaquin Delta of
• 23:52
  Speaker 8: California is collapsing. It's literally unraveling before our very eyes.
• 23:57
  Speaker 8: And it's all related to water used for agriculture, but
• 24:01
  Speaker 8: for cities and others as well. So this is at
• 24:03
  Speaker 8: the center of what has been a multi decade battle
• 24:06
  Speaker 8: over how to manage water in California, the long fin
• 24:10
  Speaker 8: smelt has been reduced by ninety nine percent. It used
• 24:13
  Speaker 8: to be a major source of prey for other larger
• 24:17
  Speaker 8: fish like salmon and trout, but it's been absolutely decimated. So,
• 24:22
  Speaker 8: you know, taking it off the endangered species list is
• 24:25
  Speaker 8: essentially a death morant.
• 24:26
  Speaker 2: It may follow its cousin to virtual extinction. We'll see
• 24:30
  Speaker 2: if that bill passes the Senate. Thanks so much, Pat.
• 24:33
  Speaker 2: As always, that's Professor Pat Parento of the Vermont Law
• 24:37
  Speaker 2: and Graduate School coming up next. Tensions get unusually heated
• 24:41
  Speaker 2: during a Supreme Court oral argument. I'm June Grosso and
• 24:45
  Speaker 2: you're listening to Bloomberg.
• 24:47
  Speaker 9: We will hear a argument first this morning in case
• 24:49
  Speaker 9: twenty four two forty nine Ajat versus a Coeo Area Schools.
• 24:55
  Speaker 2: Supreme Court oral arguments take place in a rarefied atmosphere
• 24:59
  Speaker 2: where the vility is prized and your opponents are not
• 25:03
  Speaker 2: adversaries but rather friends on the other side. But not
• 25:07
  Speaker 2: so during Monday's oral arguments. In a case where the
• 25:11
  Speaker 2: parents of a student with a rare form of epilepsy.
• 25:14
  Speaker 2: We're suing a Minnesota school district over its refusal to
• 25:17
  Speaker 2: provide her with at home instruction. In the Evenings, Justice
• 25:21
  Speaker 2: Neil Gorsuch took Lisa Blatt, the attorney for the school district,
• 25:25
  Speaker 2: to task when she accused the parents' attorney and the
• 25:28
  Speaker 2: government's attorney of lying about her stance in the case
• 25:32
  Speaker 2: by accusing her of flip flopping on her argument.
• 25:35
  Speaker 1: What is a lie in and accurate is that we
• 25:37
  Speaker 1: ever said, in any context that this court should take
• 25:39
  Speaker 1: the same language and define it differently depending on context.
• 25:43
  Speaker 1: That is not true. There is no statement they adding
• 25:46
  Speaker 1: words to our mouth. We never said you should have
• 25:48
  Speaker 1: a double regime what the school district has said, which
• 25:51
  Speaker 1: is what Monahan said.
• 25:52
  Speaker 7: He believed that mister Martinez and the Solicitor General are.
• 25:55
  Speaker 1: Lying in oral argument. Yes, absolutely, it is not.
• 26:00
  Speaker 7: True that we should be more careful with your work.
• 26:02
  Speaker 1: Okay, well, they should be more careful in mischaracterizing a
• 26:05
  Speaker 1: position by an experienced advocate of the Supreme Court with all.
• 26:08
  Speaker 2: Due respect and blood is certainly an experienced Supreme Court litigator,
• 26:13
  Speaker 2: one of a small number of lawyers who have argued
• 26:15
  Speaker 2: more than fifty cases before the High Court, but most
• 26:18
  Speaker 2: of the other justice has made clear. They also thought
• 26:21
  Speaker 2: that Blad had changed her position from arguing for a
• 26:25
  Speaker 2: unique rule in the school context to arguing for a
• 26:28
  Speaker 2: broader rule. Here's the Chief Justice.
• 26:31
  Speaker 9: You said that the secondary education was a quote unique context,
• 26:35
  Speaker 9: quote giving rise to a unique subset. Quote calling for
• 26:39
  Speaker 9: a quote different standard seems to.
• 26:41
  Speaker 1: Make I'm sorry, Now, where does it say that quoting
• 26:43
  Speaker 1: for a different standard? That part we never said. Are
• 26:46
  Speaker 1: they quoting?
• 26:47
  Speaker 9: Well, they've got quote marks around it.
• 26:50
  Speaker 1: Where's the page.
• 26:51
  Speaker 9: It's page four of their yellow brief.
• 26:54
  Speaker 2: But Justice cour Such wasn't letting Blatt off the hook.
• 26:58
  Speaker 2: Fifteen minutes after their first exchange, he interrupted her again.
• 27:03
  Speaker 7: Miss, Yeah, I confess I'm still troubled by your suggestion
• 27:08
  Speaker 7: that your friends on the other side have lied.
• 27:10
  Speaker 1: Okay, let's help pull up.
• 27:11
  Speaker 7: Yeah. I think we're gonna have to here, and i'd
• 27:15
  Speaker 7: ask you to reconsider that phrase argument. If I might
• 27:19
  Speaker 7: it was incorrect. If I incorrect is fine. People make mistakes.
• 27:24
  Speaker 7: You can accuse people being incorrecting, Miss Blatt, if I
• 27:28
  Speaker 7: might finish sure, lying is another matter. Page one of
• 27:32
  Speaker 7: your brief and.
• 27:32
  Speaker 2: Opposition Gorsuch then proceeded to read long quotations from her
• 27:37
  Speaker 2: brief in the case, raising his voice when Blatt tried
• 27:40
  Speaker 2: to interrupt him, and ending with this conclusion.
• 27:44
  Speaker 7: One could interpret those perhaps different ways, but surely one
• 27:50
  Speaker 7: could interpret those perhaps different ways, but surely a reasonable
• 27:53
  Speaker 7: person could interpret them as arguing for a special rule
• 27:57
  Speaker 7: in the educational context.
• 27:58
  Speaker 1: Correct, No, only because of miss Blatt.
• 28:02
  Speaker 8: Okay, well, you know.
• 28:04
  Speaker 7: I mean a reasonable person. All of those emphasized the
• 28:07
  Speaker 7: unique context of primary and secondary education and the need
• 28:10
  Speaker 7: for a special rule.
• 28:11
  Speaker 1: Don't they fine?
• 28:12
  Speaker 7: But what I'm fine? Too fine? Then would you withdraw
• 28:16
  Speaker 7: your accusation? I withdraw it, thank you.
• 28:18
  Speaker 2: That's it, and that's where it ended. Joining me is
• 28:20
  Speaker 2: Bloomberg Law. Supreme Court reporter Kimberly Strawbridge Robinson who heard
• 28:25
  Speaker 2: it all. Kimberly, the oral arguments are usually very civil,
• 28:31
  Speaker 2: even when questioning gets aggressive. You rarely even hear raised voices.
• 28:37
  Speaker 6: That's right. I mean, there's a level of decorum that's
• 28:40
  Speaker 6: expected within the Supreme Court even while debating, you know,
• 28:43
  Speaker 6: really hotly contested issues. And I think one of the
• 28:46
  Speaker 6: things that really sort of demonstrates this is that the
• 28:49
  Speaker 6: advocates are encouraged by the justices to refer to opposing
• 28:53
  Speaker 6: counsel as my friend on the other side. You'll even
• 28:57
  Speaker 6: hear attorneys correct themselves if they say, you know, my
• 29:00
  Speaker 6: opposing counsel, though quickly correct themselves and say, you know,
• 29:03
  Speaker 6: as my friend on the other side said. So, it
• 29:05
  Speaker 6: really is a place that's defined by civility.
• 29:09
  Speaker 2: Tell us about the case at the Court on Monday
• 29:12
  Speaker 2: involving a Minnesota school system generally, what it was about.
• 29:16
  Speaker 6: I mean, I think the broadest level of this case
• 29:18
  Speaker 6: is about disability discrimination in public schools. It's a very
• 29:22
  Speaker 6: technical case on the interaction of several federal statutes, but
• 29:27
  Speaker 6: at a part it's about when schools can be held
• 29:30
  Speaker 6: liable for disability discrimination.
• 29:32
  Speaker 2: And Lisa Blott is certainly an experienced Supreme Court advocate.
• 29:37
  Speaker 2: She's argued something like fifty four cases before the Supreme Court.
• 29:42
  Speaker 6: Yeah, I mean, she's one of a handful of individuals
• 29:45
  Speaker 6: who can claim that sort of milestone, and she's the
• 29:48
  Speaker 6: only female to do so. She has a really distinctive style.
• 29:54
  Speaker 6: It's very casual and very straight to the point. But
• 29:57
  Speaker 6: you know, the justices do really seem to enjoy her
• 30:00
  Speaker 6: oral advocacy, and she has sparred with some of the
• 30:03
  Speaker 6: justices in the past, but you know, often they'll laugh
• 30:06
  Speaker 6: at some of her comments that she makes. You know,
• 30:08
  Speaker 6: I think people tend to think that she gets away
• 30:10
  Speaker 6: with things that you know, other even experienced advocates cannot,
• 30:14
  Speaker 6: And you know that's really shown through her record of
• 30:16
  Speaker 6: the court. She has an unusually high success rate at
• 30:20
  Speaker 6: the US Supreme Court.
• 30:22
  Speaker 2: Yeah, I found her tone with the justices a lot
• 30:25
  Speaker 2: less reverent, let's say, than other advocates. But explain what
• 30:29
  Speaker 2: led to this confrontation with Justice Gorsuch.
• 30:33
  Speaker 6: Well, you know, this is a case by parents of
• 30:35
  Speaker 6: a disabled student who is suing a Minnesota school district.
• 30:39
  Speaker 6: And as they sort of understood the cases it came
• 30:42
  Speaker 6: to the Supreme Court, you know, they thought it was
• 30:44
  Speaker 6: a very narrow case, and during oral arguments, the parents' advocate,
• 30:48
  Speaker 6: who himself is a seasoned Supreme Court veteran, you know,
• 30:52
  Speaker 6: said that this school district had sort of pulled the
• 30:56
  Speaker 6: rug out from under the justices and had changed course
• 30:59
  Speaker 6: in the Supreme Court and advocated for a much broader,
• 31:03
  Speaker 6: much drastic sort of request than what they thought that
• 31:07
  Speaker 6: the case was about. And then when Lisa Black got
• 31:10
  Speaker 6: us to argue for the school district, she said that
• 31:12
  Speaker 6: wasn't a correct characterization of their stance, and she actually
• 31:16
  Speaker 6: accused the parents' attorney as well as the federal government's
• 31:20
  Speaker 6: attorneys who was on the side of the parents in
• 31:22
  Speaker 6: this case. She accused them of lying. And it's really
• 31:26
  Speaker 6: that accusation that really got under the skin of several
• 31:29
  Speaker 6: the justices.
• 31:30
  Speaker 2: So was Justice Gore such seemingly the most upset. He
• 31:35
  Speaker 2: raised his voice and said, be more careful with your words,
• 31:39
  Speaker 2: and then it got more heated later on.
• 31:42
  Speaker 6: Yeah, I mean, he was definitely the one who was
• 31:44
  Speaker 6: most upset. But I will say that several of the
• 31:47
  Speaker 6: justices seemed to indicate that they sort of agreed with
• 31:51
  Speaker 6: the parents' attorneys and with the federal government here in
• 31:54
  Speaker 6: the categorization of the school district's stance, and so that
• 31:58
  Speaker 6: made it all the more worse when Black said that,
• 32:01
  Speaker 6: you know, those who are holding that view were lying.
• 32:03
  Speaker 6: But Justice Corses was the most verbal and most clearly upset.
• 32:08
  Speaker 6: You know, he did tell her that comment is set
• 32:10
  Speaker 6: to watch her words, and then later in the argument
• 32:12
  Speaker 6: he came back to the issue, saying he was still
• 32:16
  Speaker 6: troubled by it and really urging Lisa Blatt to withdraw
• 32:19
  Speaker 6: her statement, which she did. But as the parents' attorney
• 32:24
  Speaker 6: said on rebuttal, really it was done under duress.
• 32:27
  Speaker 2: It certainly was. And Justice Sodo Mayor even suggested that
• 32:32
  Speaker 2: Black might have violated the court rules.
• 32:35
  Speaker 6: Yeah, I mean along the way, you know, Justice Switchewayer
• 32:39
  Speaker 6: pointed out that the Supreme Court rules really admonished counsel
• 32:44
  Speaker 6: to bring it to the attention of the justices if
• 32:46
  Speaker 6: they think that there's you know, some issue with the
• 32:50
  Speaker 6: you know, the kinds of questions that the justices are hearing.
• 32:54
  Speaker 6: You know, obviously that way, the advocates and the justices
• 32:57
  Speaker 6: are not surprised. And she suggested that, you know, it
• 33:01
  Speaker 6: was Black who was the one who was acting inappropriately here,
• 33:04
  Speaker 6: and that if she really thought that the argument was
• 33:08
  Speaker 6: supposed to be much broader, she should have made that
• 33:10
  Speaker 6: more clear in her breathing.
• 33:12
  Speaker 2: So was the dispute basically about whether there's a heightened
• 33:15
  Speaker 2: standard in the educational context, and then Blat said it
• 33:20
  Speaker 2: should be in every context.
• 33:22
  Speaker 6: That's right, I mean, so you know the question. I
• 33:25
  Speaker 6: think that the parents thought that they were answering that
• 33:27
  Speaker 6: the federal government thought that they were answering, and it
• 33:29
  Speaker 6: was obvious from arguments that the justices thought they were answering, was,
• 33:33
  Speaker 6: you know, insuing for disability discrimination, parents of school children
• 33:38
  Speaker 6: have to make a heightened showing in order to hold
• 33:42
  Speaker 6: schools liable. And it's a showing that doesn't apply outside
• 33:46
  Speaker 6: the educational context, and that is actually the law in
• 33:50
  Speaker 6: many circuits. Some circuit took on the other way. It's
• 33:53
  Speaker 6: created sort of, you know, this circuit split that is
• 33:57
  Speaker 6: quintessential of the cases that the Supreme Court just sides
• 34:00
  Speaker 6: to hear. But we heard on Monday that the school
• 34:03
  Speaker 6: district agrees there's no special standard for schools, but at least,
• 34:08
  Speaker 6: as Blatt argued that heightened standards should apply across the
• 34:12
  Speaker 6: board to all disability discrimination cases, even though for example,
• 34:16
  Speaker 6: with employment. And the justices were really surprised by that argument.
• 34:20
  Speaker 6: That has not been the law in any circuit, and
• 34:23
  Speaker 6: they were really resisting Lat's requests to say that for
• 34:27
  Speaker 6: the first time in the Supreme Court in this case.
• 34:30
  Speaker 2: So then did it seem like a majority of the
• 34:32
  Speaker 2: justices were siding with the parents, you know?
• 34:35
  Speaker 9: It did?
• 34:35
  Speaker 6: There are a couple of paths that the Supreme Court
• 34:39
  Speaker 6: can take. They sort of picked it a lot of them,
• 34:42
  Speaker 6: particularly before this Force's blat interaction, there was a lot
• 34:46
  Speaker 6: of talk about the different methods or ways that the
• 34:50
  Speaker 6: justices could side with the parents. I'm not quite sure
• 34:53
  Speaker 6: what they'll do, but I don't think that they're going
• 34:55
  Speaker 6: to be, at least not yet taking on lass broader
• 34:57
  Speaker 6: requests to apply a heightened and.
• 35:00
  Speaker 1: Across the board and so.
• 35:03
  Speaker 2: And Veteran court watchers were also surprised by the hostility
• 35:09
  Speaker 2: displayed in this exchange.
• 35:11
  Speaker 6: They were I mean, as I mentioned before, Lisa Black
• 35:14
  Speaker 6: does have a very distinctive advocacy style at the Court.
• 35:18
  Speaker 6: But still people were surprised with sort of the hostility
• 35:23
  Speaker 6: between the exchange between her and Justice Gorsch. You mentioned
• 35:27
  Speaker 6: that he raises voice several times. That doesn't usually happen
• 35:30
  Speaker 6: in the Supreme Court. Many were surprised that she sort
• 35:33
  Speaker 6: of didn't take the hint in withdraw her comment before.
• 35:37
  Speaker 6: You know, a lot of pressure from Justice Gorsach. You know,
• 35:40
  Speaker 6: we have some people who said they've never seen Justice
• 35:43
  Speaker 6: Gorsus be that angry on the Benchtan I certainly listening
• 35:47
  Speaker 6: to it, quite surprised that it was an interaction that
• 35:50
  Speaker 6: was happening at the Supreme Court.
• 35:52
  Speaker 2: It just shows you how different the Supreme Court is,
• 35:54
  Speaker 2: because in a trial court, one lawyer accusing another of
• 35:59
  Speaker 2: lying might not even cause a ripple.
• 36:02
  Speaker 6: Yeah, the Supreme Court, it's just different. You know again,
• 36:05
  Speaker 6: there really is this expectation of decorum, and you know, again,
• 36:11
  Speaker 6: I can't emphasize enough how important it is, you know,
• 36:14
  Speaker 6: for advocates to speak to each other with respect, and
• 36:17
  Speaker 6: particularly to speak with the justices. And I think, you know,
• 36:20
  Speaker 6: one of the things that got Justice Corsage so upset
• 36:24
  Speaker 6: was that Lisa Blatt seemed to keep trying to interrupt him,
• 36:27
  Speaker 6: and at several points he admonished to let him finish,
• 36:30
  Speaker 6: even raising his voice one time saying I'm not finished.
• 36:33
  Speaker 6: So I think it was just a combinations of a
• 36:36
  Speaker 6: couple of things that sort of made it rise to
• 36:38
  Speaker 6: the level that it did.
• 36:39
  Speaker 2: We'll have to see what happens next time Blatt appears
• 36:42
  Speaker 2: before the Supreme Court. Thanks so much, Kimberly. That's Bloomberg
• 36:47
  Speaker 2: Law Supreme Court reporter Kimberly Strawbridge Robinson And that's it
• 36:51
  Speaker 2: for this edition of The Bloomberg Law Show. Remember you
• 36:53
  Speaker 2: can always get the latest legal news on our Bloomberg
• 36:56
  Speaker 2: Law Podcast. You can find them on Apple Podcasts, Spotify,
• 37:00
  Speaker 2: in at www dot bloomberg dot com, slash podcast slash Law,
• 37:05
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• 37:08
  Speaker 2: weeknight at ten pm Wall Street Time. I'm June Grosso
• 37:12
  Speaker 2: and you're listening to Bloomberg