WEBVTT - George Floyd Protests Test the Law 0:00:00.600 --> 0:00:05.360 This is Bloombird Law with June Grassoe from Bloomberg Radio. 0:00:06.120 --> 0:00:09.160 In cities across the country, as we see nightly video 0:00:09.240 --> 0:00:14.840 of fires and looting overshadowing peaceful protests, protesters are demanding 0:00:14.920 --> 0:00:18.239 justice for George Floyd, who died last week after a 0:00:18.239 --> 0:00:21.840 Minneapolis police officer knelt on his neck for more than 0:00:21.920 --> 0:00:25.120 eight minutes during an arrest for an alleged counterfeit twenty 0:00:25.120 --> 0:00:28.920 dollar bill. Joining me is Kimberly Crenshaw, a professor Columbia 0:00:29.000 --> 0:00:32.159 Law School and a leading scholar of critical race theory 0:00:32.320 --> 0:00:36.879 who developed the theory of intersectionality. Is this unrest a 0:00:36.960 --> 0:00:40.880 reaction to George Floyd's death or was it a combination 0:00:40.960 --> 0:00:44.680 of things coming together? Well, I think it's clear that 0:00:44.960 --> 0:00:49.320 it was a combination of many things coming together. There 0:00:49.320 --> 0:00:54.360 of course, had been many deaths since the last moment 0:00:54.640 --> 0:00:59.720 of civil unrest over police killing of black people. Um, 0:00:59.760 --> 0:01:02.720 and that's just been again a study beat. It hasn't 0:01:02.800 --> 0:01:07.680 been at all arrested since the last major uprising. And 0:01:07.720 --> 0:01:11.160 then one has to also take into account that the 0:01:11.400 --> 0:01:14.959 killing that that prompted all of this caught on video, 0:01:15.560 --> 0:01:23.040 particularly egregious, particularly statistic comes on the heels of a 0:01:23.160 --> 0:01:27.800 vigilante style of slaying that happened in Georgia, and the 0:01:27.920 --> 0:01:32.320 killing also of a black woman, Brianna Taylor in her 0:01:32.400 --> 0:01:36.080 bed uh, in her own home. So I think it 0:01:36.160 --> 0:01:40.360 was a sort of the constant reminder of the procarity 0:01:40.400 --> 0:01:45.280 of black life and that uh, it's simply amplifying the 0:01:45.319 --> 0:01:48.920 fact that black lives were being lost by COVID UM, 0:01:49.120 --> 0:01:52.520 thousands upon thousands of Black lives being lost to COVID, 0:01:53.120 --> 0:01:57.200 And the overall impression, UH, at least coming from the 0:01:57.240 --> 0:02:02.160 White House, if not more broadly for many UM governors, 0:02:02.360 --> 0:02:06.480 and it seems more broadly from the community at large, 0:02:07.000 --> 0:02:10.760 is that this loss of life is not particularly significant. 0:02:11.360 --> 0:02:16.600 So I think the frustration building up around the constant 0:02:16.680 --> 0:02:20.639 messaging that your lives really don't matter UM was a 0:02:20.760 --> 0:02:24.520 tinder box waiting to happen. Are you surprised at the 0:02:24.600 --> 0:02:30.000 extent of the reaction, not only in this country but worldwide? 0:02:30.720 --> 0:02:34.600 Not having lived through now two other moments in history 0:02:34.639 --> 0:02:40.840 where there's been broad UM reaction. I think that some 0:02:41.080 --> 0:02:44.280 part of the strength of this lene and the depth 0:02:44.440 --> 0:02:48.200 of it is because they're they're sort of a recognition 0:02:48.760 --> 0:02:54.120 that there's the moment of outrage. There's protests, there's promises 0:02:54.639 --> 0:02:57.280 that something is going to happen, and then nothing happens, 0:02:57.320 --> 0:03:01.560 I mean literally very little happy ends, and then other 0:03:01.639 --> 0:03:05.239 avenues are are shut off. UM. I think, at least 0:03:05.240 --> 0:03:07.760 in in the minds of many people here in the 0:03:07.840 --> 0:03:15.000 United States, peaceful protests taken up by UH Kaepernick, for example, 0:03:15.600 --> 0:03:21.360 UM the football player resulted in him being um actually 0:03:21.440 --> 0:03:26.239 unable to do his job, being uh verbally assaulted by 0:03:26.360 --> 0:03:30.120 the President of the United States. So the message seems 0:03:30.160 --> 0:03:33.560 to be not that there's a proper way and an 0:03:33.560 --> 0:03:38.160 improper way. There is no way to actually protest and 0:03:38.240 --> 0:03:43.560 create the meaningful avenue towards change. And I think that 0:03:43.720 --> 0:03:49.320 messaging is the one that is so completely, um debilitating, 0:03:49.400 --> 0:03:54.480 so frustrating that it it generates UM sort of mass 0:03:54.480 --> 0:03:59.760 outrage and the desire to demand a different outcome. This time, 0:04:00.320 --> 0:04:05.240 we saw some police kneeling in solidarity with the protesters, 0:04:05.280 --> 0:04:10.680 and we saw violent confrontations in other places. How should 0:04:10.920 --> 0:04:15.160 police and government leaders be handling this? Is there any 0:04:15.400 --> 0:04:18.640 right way to handle this? Well? I was very impressed 0:04:18.720 --> 0:04:24.480 by some of the performances that I saw by police 0:04:24.600 --> 0:04:31.279 officials and in fact some police I saw a clip 0:04:31.720 --> 0:04:36.400 from Houston where the chiefs of police there has offered 0:04:36.440 --> 0:04:42.720 to escort UM George Floyd's body back to Houston. I 0:04:42.760 --> 0:04:48.599 think that is utterly unprecedented. UM the police chief UH 0:04:48.640 --> 0:04:53.640 in UH Minneapolis taking off his hat in speaking UH 0:04:53.680 --> 0:04:57.159 to the family. Now, many people will say that these 0:04:57.200 --> 0:05:01.400 are symbolic, and they are indeed symbolic. They will point 0:05:01.440 --> 0:05:05.400 out that there are ways that even these police chiefs 0:05:05.880 --> 0:05:09.800 UM could do more and maybe constrained from doing more, 0:05:10.720 --> 0:05:14.520 given the structural realities that we have a highly militarized 0:05:15.160 --> 0:05:21.719 UH police force across the country, and many constraints that 0:05:21.839 --> 0:05:25.320 might otherwise be placed on them have been removed or 0:05:25.400 --> 0:05:30.680 not are not actually actionable because of law, Supreme Court doctrine, 0:05:30.720 --> 0:05:36.240 and politics. So the structural dimensions of racialized policing are 0:05:36.279 --> 0:05:39.760 still a problem. But these symbolic gestures, I think are 0:05:39.880 --> 0:05:45.680 cracks in the blue wall. They are acknowledgements that what 0:05:45.800 --> 0:05:53.040 we saw there was utterly inhumane, completely and totally inexcusable, 0:05:53.440 --> 0:05:59.320 and reflection of what police officers are able to do 0:05:59.440 --> 0:06:04.000 or feeling hour to do when of the death of 0:06:04.240 --> 0:06:08.320 black people in the last five years UM have resulted 0:06:08.320 --> 0:06:12.080 in no charges against the police officers. So a symbolic 0:06:12.160 --> 0:06:17.040 crack is an important moment, an important recognition that there 0:06:17.160 --> 0:06:21.479 is something that's too much. Now, the fact that that 0:06:21.640 --> 0:06:24.640 something is something like this con on tape UM and 0:06:24.680 --> 0:06:28.559 that's so vicious doesn't say a lot, But the fact 0:06:28.560 --> 0:06:31.120 that it's meaningful that they did it says a lot. 0:06:31.200 --> 0:06:34.880 So I think that's good. My worry at this moment, frankly, 0:06:35.600 --> 0:06:41.880 is that the UH media UM engagement with the protests, 0:06:42.040 --> 0:06:46.479 of focusing exclusively pretty much UM at this point, it 0:06:46.520 --> 0:06:53.200 seems on the violence. UH undermines these symbolic moments, and 0:06:53.279 --> 0:06:58.039 it undermines the the fact that the vast majority of 0:06:58.080 --> 0:07:02.039 people protesting our protesters, to to say, the protesters and 0:07:02.120 --> 0:07:05.080 looters are one and the same, UH is the same 0:07:05.160 --> 0:07:09.520 kind of group logic and group punishment that contributes to 0:07:09.680 --> 0:07:14.120 precisely the kinds of things that the protesters are protesting against. 0:07:14.640 --> 0:07:17.760 So now the question is whether the media can break 0:07:17.800 --> 0:07:21.680 out of the cycle of of of focusing on the 0:07:21.800 --> 0:07:26.280 fires and the sirens and not at least trying to 0:07:26.440 --> 0:07:31.880 balance that with attention given to the demands of the 0:07:31.920 --> 0:07:37.080 protesters and the possibilities of resolving this through de escalation 0:07:37.560 --> 0:07:42.440 as opposed to um the siren UH, the literal siren 0:07:42.600 --> 0:07:45.720 and the metaphoric siren that we're seeing in the coverage 0:07:45.800 --> 0:07:48.760 right now. I want to turn to the charges for 0:07:48.800 --> 0:07:52.360 a moment. So we see now this video, and most 0:07:52.360 --> 0:07:54.480 people look at this and say, this is an open 0:07:54.480 --> 0:07:59.000 and shut case for the police officer to be convicted. However, 0:07:59.560 --> 0:08:03.040 we see that before, and it's it's rare that a 0:08:03.080 --> 0:08:09.080 police officer gets convicted in these circumstances. Yes, it is rare. 0:08:09.440 --> 0:08:14.160 UM when need only go back to the last the 0:08:14.240 --> 0:08:20.800 time that UM there was UH controversial UH acquittal, and 0:08:20.840 --> 0:08:25.680 that was you know, the Rodney King UH acquittal, when 0:08:25.720 --> 0:08:30.040 there was an there was video tape of basically a 0:08:30.200 --> 0:08:34.480 gang beating of Rodney King, and many people, I was 0:08:35.000 --> 0:08:38.400 among them, I thought that this was going to come 0:08:38.400 --> 0:08:43.280 out differently because so many times they conflict was over 0:08:43.440 --> 0:08:48.840 what actually happened. So there's a long history of black 0:08:49.280 --> 0:08:52.600 UH witnesses not being believed. It used to be a 0:08:52.640 --> 0:08:56.520 matter of law, the black witnesses couldn't even testify against 0:08:56.520 --> 0:08:59.520 white people. We had the echoes of that in contemporary 0:09:00.280 --> 0:09:03.520 UH court cases against police officers. But a lot of 0:09:03.559 --> 0:09:07.760 people thought this is on tape, So we cannot lose here. 0:09:08.440 --> 0:09:13.680 And I think some part of the outrage was, my God, 0:09:13.840 --> 0:09:17.040 even when it's on tape, even when you can see 0:09:17.600 --> 0:09:22.640 um uh, police officers swarming a black man, um who's 0:09:22.720 --> 0:09:26.960 prone on the ground and beating him senseless, potentially even 0:09:27.040 --> 0:09:29.840 killing him, we still can't get a conviction. And I 0:09:29.880 --> 0:09:33.400 think what a lot of folks don't really understand is 0:09:33.440 --> 0:09:36.160 how it happened. And one of the ways it happened 0:09:36.280 --> 0:09:40.640 was that the defense attorney said, um, you show us 0:09:40.760 --> 0:09:45.000 the in the still picture where the force became excessive. 0:09:45.280 --> 0:09:49.800 It only becomes excessive when Rodney King complies. And because 0:09:49.920 --> 0:09:53.679 Rodney kinging is trying to shield himself from the blows, 0:09:53.720 --> 0:09:57.600 there's no moment in which he's prone, still complying with 0:09:57.679 --> 0:10:00.600 the police officers. This is another reason by so many 0:10:00.679 --> 0:10:05.400 chokeholds um did not result in a conviction, even when 0:10:05.440 --> 0:10:09.720 the chokeholds killed the person, Because when you're when you're 0:10:09.840 --> 0:10:13.840 dying and your body is dying, it flails, it moves, 0:10:13.880 --> 0:10:17.560 it tries to breathe. And again they were able to say, well, 0:10:17.640 --> 0:10:21.000 the person is not compliant, so he can, uh, the 0:10:21.160 --> 0:10:25.240 officer can continue applying the force. The thing that's different 0:10:25.320 --> 0:10:31.240 about this video is that it is abundantly clear that 0:10:31.320 --> 0:10:37.920 the officer continues to apply the force after after George 0:10:37.920 --> 0:10:41.800 Floyd is no longer responsive a full two minutes after, 0:10:42.520 --> 0:10:46.680 so some of the controversy about the charges. At that point, 0:10:47.120 --> 0:10:51.680 it becomes clear that this officer is intending to inflict 0:10:51.800 --> 0:10:55.720 maximum harm on him and it should be up to 0:10:55.720 --> 0:11:00.040 the jury to decide whether that intention is enough to 0:11:00.080 --> 0:11:05.600 justify a murder conviction. I, for one, the family, the attorneys, 0:11:06.040 --> 0:11:09.360 many people think that, uh, a charge can be made out. 0:11:09.559 --> 0:11:11.600 And let me just point out one of the things 0:11:11.679 --> 0:11:14.040 that happens in the criminal justice system all the time 0:11:14.480 --> 0:11:18.400 is that people are the prosecutor's charge and they also 0:11:18.559 --> 0:11:22.400 include lesser charges and leave it up to the jury 0:11:22.440 --> 0:11:29.960 to decide if that's sufficient for ordinary um criminal um defendants. 0:11:30.000 --> 0:11:34.080 Why is that not sufficient, uh for this police officer 0:11:34.240 --> 0:11:36.200 and the rest of them? I might add, So you 0:11:36.320 --> 0:11:38.880 think that it should have been a higher charge than 0:11:39.000 --> 0:11:42.840 third degree murder. I think that he could have charged 0:11:42.920 --> 0:11:46.080 for all and leave it to the jury to decide. 0:11:46.280 --> 0:11:49.440 I do understand, and this makes sense to a lot 0:11:49.480 --> 0:11:53.120 of people. They really need to get a conviction. They 0:11:53.240 --> 0:11:57.080 really need to get a conviction so there's reason to 0:11:57.080 --> 0:12:01.160 to worry that sometimes juries might react to what they 0:12:01.240 --> 0:12:06.440 perceive as an overcharge, leading to an acquittal. So some 0:12:06.600 --> 0:12:09.439 of my colleagues are saying that this, in fact is 0:12:09.600 --> 0:12:13.840 the safest bet, and I agree that it is safer, 0:12:13.880 --> 0:12:17.560 but I also think there's a symbolic dimension to actually 0:12:17.960 --> 0:12:21.640 denouncing what is seen. One has to recall as well 0:12:21.720 --> 0:12:25.080 that there's a police officer in Minnesota that was recently 0:12:25.120 --> 0:12:29.840 convicted of the same charge, and his act involved shooting 0:12:29.880 --> 0:12:33.559 someone who apparently startled him. So it was a split 0:12:33.720 --> 0:12:38.280 second choice that was shown to be criminally negligent, and 0:12:38.320 --> 0:12:41.719 he was convicted. These are two different levels, though. What 0:12:41.960 --> 0:12:45.160 Chalmon did and what this officer did just seems to 0:12:45.200 --> 0:12:51.079 be incredibly different, and so the symbolic story of basically 0:12:51.120 --> 0:12:54.920 making these the same seems not to capture what it 0:12:55.160 --> 0:12:59.079 was that drives so many people, you know, to angry 0:12:59.080 --> 0:13:02.240 protests when they saw that video. Let me ask you this, 0:13:02.400 --> 0:13:06.640 there are calls for the three other officers to be charged. 0:13:07.160 --> 0:13:10.360 Should they be charged equally or should they be charged 0:13:10.400 --> 0:13:15.199 as accessories? Well, I think minimally they should be charged 0:13:15.320 --> 0:13:19.160 as accessories, and I would not be opposed to them. 0:13:19.200 --> 0:13:22.679 Actually being charged along with Chamin. We have to remember 0:13:23.200 --> 0:13:27.680 that in our criminal justice system, there are many people 0:13:27.800 --> 0:13:33.079 serving many years for actions that they helped facilitate, even 0:13:33.120 --> 0:13:37.200 though they didn't themselves do it. Felony murder, for example, 0:13:37.679 --> 0:13:43.160 is a commonly used way of accusing, prosecuting, and convicting 0:13:43.760 --> 0:13:47.959 everyone who's involved in a criminal enterprise, whether they were 0:13:47.960 --> 0:13:52.079 the ones that actually inflicted the fatal blow or shot 0:13:52.200 --> 0:13:56.240 the fatal bullet, are not um. So our criminal justice 0:13:56.240 --> 0:14:01.080 system recognizes that everyone is accountable and can be made 0:14:01.240 --> 0:14:05.000 accountable for an act that they helped facilitate. Look at 0:14:05.000 --> 0:14:08.920 that videotape. Two of the other officers were actually holding 0:14:09.040 --> 0:14:14.360 him down. Another one was effectively keeping any other humanitarian 0:14:14.480 --> 0:14:18.520 aid at bay. How can they not be responsible? How 0:14:18.559 --> 0:14:21.640 can they be sitting in their homes safely at this 0:14:21.720 --> 0:14:25.520 moment when thousands of people um are in the streets 0:14:25.560 --> 0:14:28.920 and many people are being arrested. So one I have 0:14:29.000 --> 0:14:33.920 to remember that the point of charging is to denounce 0:14:34.400 --> 0:14:39.120 behavior that this society has a judge to be criminal 0:14:39.280 --> 0:14:44.760 and immoral. I wonder if there is a defense out 0:14:45.280 --> 0:14:49.840 in that that George Floyd had underlying conditions and it 0:14:49.960 --> 0:14:53.440 was a combination of factors that led to his death, 0:14:53.520 --> 0:14:57.120 whether that will be something the defense can use to 0:14:57.200 --> 0:15:00.760 win another acquital here. I'm so glad you mentioned that, 0:15:01.000 --> 0:15:06.080 because one of the sub struggles in many of these 0:15:06.120 --> 0:15:12.760 cases is the choice of the corner to attribute the 0:15:12.840 --> 0:15:16.120 death of a person who's died at the hands at 0:15:16.200 --> 0:15:21.320 least to underlying condition. And it's interesting there there's some 0:15:21.840 --> 0:15:27.040 evidence that one of the officers who tried to suggest 0:15:27.160 --> 0:15:30.640 that perhaps they were getting into the territory of this 0:15:30.800 --> 0:15:34.760 excited delirium so that perhaps they should stop, seemed to 0:15:34.760 --> 0:15:37.920 be aware of this fact that they were moving into 0:15:37.960 --> 0:15:42.200 a terrain in which if they didn't do something, this 0:15:42.240 --> 0:15:44.720 person might die, and it would be kind of an 0:15:44.720 --> 0:15:47.120 open question as to whether this was a homicide for 0:15:47.200 --> 0:15:50.240 which they were responsible. This is all to say that 0:15:50.360 --> 0:15:53.840 there's a whole system that allows this to continue, and 0:15:53.920 --> 0:15:57.400 part of that system is not to acknowledge that had 0:15:57.440 --> 0:16:01.560 this encounter not happened, then this person would not be dead. 0:16:02.080 --> 0:16:06.240 And that is in fact, one of the real eyebrow 0:16:06.400 --> 0:16:10.240 raising concerns of moving forward in this case and in 0:16:10.320 --> 0:16:14.160 many of the others. That's Professor Kimberly Crenshaw of Columbia 0:16:14.240 --> 0:16:18.920 Law School, the Supreme Court rejected calls by churches in 0:16:19.040 --> 0:16:23.200 California and Illinois to block restrictions on worship services during 0:16:23.200 --> 0:16:27.080 the coronavirus outbreak, but the orders came in a closely 0:16:27.160 --> 0:16:30.800 divided five to four decision. Joining me is. Richard Garnett, 0:16:30.960 --> 0:16:33.560 a professor at the University of Notre Dame Law School, 0:16:34.200 --> 0:16:39.880 tell us what the church was objecting to, sure well, UM, 0:16:39.920 --> 0:16:45.520 So this this particular UH litigation involving regulations of in 0:16:45.560 --> 0:16:48.240 person religious services, and of course we've seen lots of 0:16:48.240 --> 0:16:51.920 these all over the country. UM came out of California, 0:16:52.080 --> 0:16:54.760 and the church was objecting to what they saw, as 0:16:55.320 --> 0:17:00.480 you know, overly restrictive limits on again in person religious 0:17:00.520 --> 0:17:06.000 service gatherings UM. And you know, litigation commenced, this being America, 0:17:06.080 --> 0:17:10.840 litigation usually does. And the church was seeking for what's 0:17:10.880 --> 0:17:13.280 called an injunction that as they wanted the court to 0:17:13.480 --> 0:17:17.680 stop UM the order that was in place UM limiting 0:17:17.680 --> 0:17:20.800 their in person services, and the federal courts out in 0:17:20.840 --> 0:17:26.240 California declined to do that. So things were moving kind 0:17:26.240 --> 0:17:29.160 of quickly on the ground because as as the church 0:17:29.400 --> 0:17:33.159 was asking the Supreme Court to step in and to 0:17:33.760 --> 0:17:37.800 put a stop um to the to the restrictions. UM 0:17:38.040 --> 0:17:41.960 governor knewso uh came out with kind of a modified order. 0:17:42.119 --> 0:17:46.960 So under the current order, and we're speaking on Monday, UM, 0:17:47.080 --> 0:17:51.320 religious services that are in person are permitted, but they're 0:17:51.359 --> 0:17:54.800 limited in terms of the percentage capacity. I believe it's 0:17:55.240 --> 0:17:59.680 UM or to a hundred people, UM, whatever's whatever's greater. 0:18:00.440 --> 0:18:03.480 And so the church's argument to the Supreme Court was that, look, 0:18:04.280 --> 0:18:06.560 we want you to enjoy this policy of violence the 0:18:06.600 --> 0:18:08.800 free exercise clause. And the reason it does is because 0:18:08.840 --> 0:18:12.240 it's it's discriminating against religious services. But if it's not 0:18:13.119 --> 0:18:17.840 treating in person religious services UM the same way as 0:18:17.880 --> 0:18:22.639 it's treating analogous secular activities. But the wrinkle here is 0:18:22.920 --> 0:18:26.040 is just um uh, what is it exactly that we 0:18:26.040 --> 0:18:30.239 should be comparing in person religious services to um so. 0:18:30.280 --> 0:18:32.680 On the one side, and this is the church's argument, 0:18:33.359 --> 0:18:36.920 the claim is, look, UM, in person religious services should 0:18:36.920 --> 0:18:40.800 be treated just like say, grocery stores or factories or 0:18:41.280 --> 0:18:44.320 um restaurants and so on, which are which are currently 0:18:44.359 --> 0:18:48.679 allowed to be open under less restrictive rules in California. 0:18:49.040 --> 0:18:51.640 And the state's argument was that, well, no, actually, religious 0:18:51.680 --> 0:18:55.120 services are more like you know, movies, or theater events 0:18:55.200 --> 0:18:58.560 or concerts or sporting events where you know, large numbers 0:18:58.560 --> 0:19:01.879 of people are congregating for extended periods of time and 0:19:02.480 --> 0:19:05.040 maybe singing, and so if you want to you know, 0:19:05.040 --> 0:19:08.600 the free exercise clause does it does ban discrimination? We agree, 0:19:08.720 --> 0:19:12.760 but um, uh there is no such discrimination happening here 0:19:12.800 --> 0:19:17.080 because religious services are being treated like the state says 0:19:17.119 --> 0:19:21.760 similar things. So what split the justices? So coming out 0:19:21.760 --> 0:19:23.919 of Supreme Court, the the interesting thing to watch and 0:19:23.920 --> 0:19:26.679 this is what divided the justices, Um was you know, 0:19:26.800 --> 0:19:29.600 whether these in person religious services should be thought of 0:19:30.080 --> 0:19:34.360 as being uh more like grocery stores, are more like movies, 0:19:35.080 --> 0:19:38.800 and uh that's what That's what the Justice has divided on. 0:19:39.160 --> 0:19:41.399 But it is worth remembering, and some of the press 0:19:41.440 --> 0:19:44.680 coverage didn't quite get this right. Uh, the Supreme Court 0:19:44.760 --> 0:19:48.320 didn't sort of carefully evaluate and decide that in fact, 0:19:49.000 --> 0:19:55.280 the California rules are constitutional. Um. The Chief Justice Robberts 0:19:55.320 --> 0:19:58.359 was careful to emphasize that this is kind of an 0:19:58.440 --> 0:20:02.840 unusual pers fejural situation where you have a litigant who's 0:20:02.880 --> 0:20:06.000 trying to stop a policy that's in place before it's 0:20:06.000 --> 0:20:08.359 really been litigated, and that that's what you know an 0:20:08.359 --> 0:20:12.720 emergency injunction is and in situations like that, Um, the 0:20:12.800 --> 0:20:18.119 Court is reluctant to intervene too hastily, write the Court. 0:20:18.320 --> 0:20:21.959 The Supreme Court, generally speaking, likes to have the facts 0:20:21.960 --> 0:20:25.240 developed a little bit more um through the normal course 0:20:25.280 --> 0:20:28.840 of litigation before it wags in. So it's entirely possible 0:20:29.440 --> 0:20:35.160 that UM Justice Kavanaughs dissenting opinion that that the California 0:20:35.520 --> 0:20:38.639 ruled is not permissible. That might well be what the 0:20:38.640 --> 0:20:42.199 Supreme Court would say eventually, or it might well be 0:20:42.240 --> 0:20:44.879 what the Court will say eventually. It's that's pretty much 0:20:44.920 --> 0:20:48.359 what another federal court UM in the Sixth Circuit has said. 0:20:48.480 --> 0:20:51.520 So it would be a mistake, I think, for the 0:20:51.560 --> 0:20:54.280 governor of California or for anybody else to assume that 0:20:54.960 --> 0:21:00.600 the policy now has the kind of Supreme Courts constitutional blessing. Um. 0:21:00.640 --> 0:21:03.919 What happens instead, I think, is that the Court is 0:21:04.760 --> 0:21:06.920 taking seriously the fact that the facts on the ground 0:21:06.960 --> 0:21:11.880 are fluid and changing. And if this litigation continues, there 0:21:11.920 --> 0:21:15.959 could well come a day when when a federal court says, no, Um. 0:21:16.280 --> 0:21:19.800 You know, temporary measures are one thing, but you can't 0:21:19.960 --> 0:21:24.480 indefinitely um place these kinds of limits on in person 0:21:24.560 --> 0:21:28.560 religious services. Because you know, our our First Amendment embodies 0:21:28.600 --> 0:21:32.240 a commitment to the idea that religious exercise is really important, 0:21:32.240 --> 0:21:36.640 then it has to be treated um as such. And 0:21:36.840 --> 0:21:38.919 while of course I think all the justices agreed that, 0:21:39.880 --> 0:21:41.879 you know, stopping a pandemic and stopping the spread up 0:21:41.920 --> 0:21:45.240 virus is a very important government interest, I think everybody 0:21:45.280 --> 0:21:48.320 also agrees that we don't just switch off the constitution 0:21:48.400 --> 0:21:50.800 just because we're in a public health emergency. And so 0:21:51.119 --> 0:21:55.080 I think this litigation will continue, um. But but for now, 0:21:55.119 --> 0:21:59.120 the Court didn't want to uh step in and sort 0:21:59.119 --> 0:22:02.480 of second s the local officials without the benefit of 0:22:02.560 --> 0:22:07.840 more fact development. Chief Justice Roberts said that judges must 0:22:07.840 --> 0:22:11.840 give elected officials wide latitude to make health and safety 0:22:11.920 --> 0:22:15.520 judgments during a pandemic. It seems to go further than 0:22:15.560 --> 0:22:18.239 just saying this is more like a movie theater than 0:22:18.240 --> 0:22:21.119 a grocery store. Yeah. I think that's consistent with what 0:22:21.160 --> 0:22:24.480 I was saying, in the sense that um, uh, you know, 0:22:24.600 --> 0:22:28.840 some difference is appropriate, and that that provides a good 0:22:28.880 --> 0:22:31.560 reason for the Court not to swoop in and put 0:22:31.600 --> 0:22:35.560 a stay on the order before the regular litigation process 0:22:35.640 --> 0:22:37.480 has time to develop. The facts. I mean, I think 0:22:37.600 --> 0:22:39.359 I think it's a mistake. I don't think the Chief 0:22:39.400 --> 0:22:43.000 Justice means to say that, um, local officials can just 0:22:43.280 --> 0:22:45.680 invoke public health and then they get a blank check 0:22:45.840 --> 0:22:50.400 that that's I think that's a misunderstanding of the Court's presidents. Um. 0:22:50.640 --> 0:22:53.760 You know, judicial reviews still exists even when we're talking 0:22:53.800 --> 0:22:58.040 about public health. But but certainly for the Chief Justice, 0:22:58.040 --> 0:23:02.440 and this is consistent with his jurisp students generally. UM, 0:23:02.720 --> 0:23:07.439 there's a sense that unelected federal judges here, he's sounding 0:23:07.480 --> 0:23:11.080 a lot like his his boss, Chief Justice rankuist Um. 0:23:11.200 --> 0:23:18.240 Unelected federal judges should appropriately, um defer to local officials 0:23:18.440 --> 0:23:20.760 who are on the ground, who have closer access to 0:23:20.800 --> 0:23:23.080 the facts and so on. But I don't take the 0:23:23.119 --> 0:23:24.800 Chief Justice. I could be wrong, I would say, but 0:23:24.840 --> 0:23:27.000 I don't take the Chief Justice to be saying, you know, 0:23:27.280 --> 0:23:31.360 because of a virus, uh, the first Amendment is judicial 0:23:31.359 --> 0:23:33.800 review under the First Amendment is suspended. I think that 0:23:33.840 --> 0:23:37.400 would be a mistake. So how did he balance public 0:23:37.440 --> 0:23:42.440 health and religious freedom and his decision? Well, again, the decision, 0:23:42.600 --> 0:23:44.919 I think what's doing the most work is not so 0:23:45.000 --> 0:23:48.000 much his sense of the balance, because I think he'd 0:23:48.000 --> 0:23:52.640 want to say it's not at this point in the procedure. Um, 0:23:52.720 --> 0:23:55.359 it's not really up to the court to kind of 0:23:55.440 --> 0:23:58.760 on its own try to balance these competing things. I mean, 0:23:58.800 --> 0:24:02.520 certainly of dis exercise as a fundamental constitutional right and 0:24:03.040 --> 0:24:09.440 protecting public health is an important public um object for 0:24:09.440 --> 0:24:14.200 for the Chief Justice, though because of the unusual posture 0:24:14.200 --> 0:24:18.120 where you're seeking an emergency stay, I think his view 0:24:18.240 --> 0:24:22.320 was that's what makes some difference appropriate in a different 0:24:23.160 --> 0:24:26.080 procedural context. So maybe a couple you know, weeks or 0:24:26.080 --> 0:24:29.679 maybe months from now, it might well be that the 0:24:29.720 --> 0:24:31.280 Court then have to say, well, wait a minute, it 0:24:31.320 --> 0:24:33.320 actually is up to us now to have to kind 0:24:33.320 --> 0:24:37.280 of on our own, use our independent judgment to decide 0:24:37.600 --> 0:24:42.520 whether the state in question, if it's California or somebody else, 0:24:43.280 --> 0:24:48.280 has appropriately tailored the regulations. Um. Again, even in a 0:24:48.320 --> 0:24:51.280 time of a public health emergency, you know, restrictions on 0:24:51.320 --> 0:24:55.520 constitutional rights have to be justified, and um, even if 0:24:55.560 --> 0:24:58.560 defference is appropriate when you're talking about a request for 0:24:58.600 --> 0:25:02.840 an emergency injunction. Again, I'd be surprised if this opinion 0:25:02.880 --> 0:25:05.840 means that there's kind of a blank check too officials 0:25:05.480 --> 0:25:09.560 to indefinitely limit in person religious services, especially as they 0:25:09.560 --> 0:25:14.240 start to open up, um more and more other services. Again, 0:25:14.240 --> 0:25:17.440 the first Amendment, you know, the free exercise right is 0:25:17.800 --> 0:25:23.280 not completely absolute, but it is fundamental and um uh. 0:25:23.440 --> 0:25:29.680 The Constitution allows religious services to be regulated under neutral laws, 0:25:29.720 --> 0:25:32.040 but it doesn't allow religious services to be treated worse 0:25:32.280 --> 0:25:34.680 than things that are similar. So eventually, I think the 0:25:34.880 --> 0:25:38.600 question of you know, again, what our religious services more like, uh, 0:25:39.040 --> 0:25:41.080 would have to be litigated. But I think it's going 0:25:41.119 --> 0:25:43.320 to take a little more time to get a developed 0:25:43.640 --> 0:25:46.639 record on that point. And you'll see, you'll see you'll 0:25:46.640 --> 0:25:48.920 see disagreements among the court. So and we've we've seen 0:25:48.960 --> 0:25:51.040 that already. I mean the Ninth Circuit, which was the 0:25:51.040 --> 0:25:54.720 case that went up to the Supreme Court last week. Um, 0:25:54.760 --> 0:25:57.480 you know, they seem to lean in favor of comparing 0:25:57.560 --> 0:26:01.560 churches to theaters, and the six Circuits seemed a lean 0:26:01.640 --> 0:26:03.920 in favor of comparing them more to the grocery stores. 0:26:04.000 --> 0:26:06.919 So we'll see how that plays out. Why do you 0:26:06.960 --> 0:26:11.480 think the Liberals joined in the majority but didn't sign 0:26:11.600 --> 0:26:15.720 on to Robert's opinion. I'm not sure. Yes, I guess 0:26:15.720 --> 0:26:17.680 I'm reluctant to read too much into it, because again, 0:26:18.480 --> 0:26:21.160 you know, this was um and a lot of people 0:26:21.160 --> 0:26:24.560 have I think missed this. This This wasn't the case 0:26:24.600 --> 0:26:27.560 that the court had accepted for review and actually decided 0:26:27.640 --> 0:26:31.120 five four instead. Um, they didn't have to issue opinions 0:26:31.119 --> 0:26:35.560 at all, right they Justice Gagan received the request first day, 0:26:35.560 --> 0:26:38.280 and she referred it to her colleagues for a vote. 0:26:38.840 --> 0:26:41.600 And oftentimes these things are resolved without any opinion at all. 0:26:41.600 --> 0:26:47.120 It's just an order, you know, the motion the motions denied. Right, Um, 0:26:47.160 --> 0:26:50.959 this wasn't a request for um, what we call stertiary 0:26:51.080 --> 0:26:54.840 or review. Uh. If such a petition comes in at 0:26:54.920 --> 0:26:57.560 some point, we might well see the court grant because 0:26:57.600 --> 0:27:00.600 it only takes four justices to grant. I don't read 0:27:00.640 --> 0:27:05.320 a whole lot into those justices not um uh not 0:27:05.400 --> 0:27:09.320 signing on It could be that, you know, because um, 0:27:09.359 --> 0:27:13.960 Justice Roberts usually agrees with those other four about religious 0:27:13.960 --> 0:27:17.199 freedom matters, that he felt the need to kind of 0:27:17.880 --> 0:27:22.320 explain and respond, uh to kind of publicly make it 0:27:22.359 --> 0:27:25.760 clear that, um, you know, he's he's on board with 0:27:25.800 --> 0:27:27.960