WEBVTT - UNC Can Continue Using Race in Admissions Process 0:00:00.920 --> 0:00:03.440 A federal judge has ruled that the University of North 0:00:03.480 --> 0:00:07.960 Carolina did not discriminate against white and Asian American applicants 0:00:08.119 --> 0:00:11.159 and that the university can continue to consider race as 0:00:11.200 --> 0:00:15.280 a factor in its undergraduate admissions. Federal Judge Laretta Biggs 0:00:15.360 --> 0:00:18.119 ruled late Monday that the university has shown that it 0:00:18.160 --> 0:00:21.320 has a compelling reason to pursue a diverse student body 0:00:21.600 --> 0:00:25.160 and has demonstrated that measurable benefits come from that goal. 0:00:25.640 --> 0:00:28.160 It was the second trial lass in as many years 0:00:28.200 --> 0:00:31.880 for the conservative groups Students for Fair Admissions, which also 0:00:32.000 --> 0:00:35.519 sued Harvard. Joining me is Audrey Anderson, who heads the 0:00:35.600 --> 0:00:40.800 higher education practice at Bassbarian SIMS. It took about eleven 0:00:40.880 --> 0:00:44.480 months after the trial for the judge to reach her decision. 0:00:45.320 --> 0:00:49.360 Why so long? I'm actually not surprised at all by that, 0:00:49.520 --> 0:00:52.479 First of all, even though that she stopped taking evidence 0:00:52.520 --> 0:00:56.880 in November, the parties did not hand in their post 0:00:56.920 --> 0:01:01.880 trial briefs until February. Maybe so she didn't have the 0:01:01.960 --> 0:01:06.080 whole case before her until February, and has her opinion 0:01:06.200 --> 0:01:10.360 actually pointed out the evidence in the case was really voluminous. 0:01:10.360 --> 0:01:14.880 Her trial lasted eight days long, but the parties had 0:01:14.880 --> 0:01:18.400 come to agreement on lots and lots of other evidence 0:01:18.880 --> 0:01:21.959 that they stipulated should be part of the record. So 0:01:22.000 --> 0:01:24.560 in addition to the eight days of trial testimony, there 0:01:24.640 --> 0:01:28.679 was lots and lots of other expert reports and other 0:01:28.760 --> 0:01:31.560 materials that the parties agreed they did not need live 0:01:31.640 --> 0:01:34.520 evidence about, but that were nonetheless in the record. So 0:01:34.560 --> 0:01:37.960 she had a really voluminous amount of information to go through, 0:01:38.000 --> 0:01:41.080 and she wrote a one hundred sixty one page long decision. 0:01:41.959 --> 0:01:44.920 So I'm not at all surprised that it took her 0:01:44.959 --> 0:01:47.680 this amount of time in order to put out this. 0:01:48.160 --> 0:01:51.280 It's the same group Students for Fair Admissions. Are their 0:01:51.320 --> 0:01:54.960 claims here similar to the claims they brought in the 0:01:55.160 --> 0:01:59.840 Harvard suit, Yes, jun they're very similar. They alleged that 0:01:59.840 --> 0:02:03.280 the University of North Carolina put too much weight on 0:02:03.560 --> 0:02:08.680 race in admitting students to its programs, and also that 0:02:08.760 --> 0:02:14.120 it did not adequately consider race neutral alternatives before using 0:02:14.280 --> 0:02:19.240 race as a factor. The difference between this case and 0:02:19.680 --> 0:02:24.280 the Harvard case factually is that in Harvard, there was 0:02:24.480 --> 0:02:30.840 evidence that one factor in the Harvard admissions program, the 0:02:30.919 --> 0:02:36.600 personal rating, had been analyzed by Harvard itself to show 0:02:37.240 --> 0:02:43.000 that it disadvantaged Asian American students. Now, Harvard said that 0:02:43.000 --> 0:02:48.320 that analysis their own researchers had done was incomplete and 0:02:48.760 --> 0:02:53.240 wasn't really accurate, but nonetheless it was part of the record, 0:02:53.440 --> 0:02:55.960 and so a lot of what the experts were talking 0:02:56.000 --> 0:03:00.320 about in the Harvard case was, does this one piece 0:03:00.360 --> 0:03:05.120 of evidence, the differences in the personal rating, which is 0:03:05.160 --> 0:03:10.080 a very subjective rating between Asian American students and other students, 0:03:10.480 --> 0:03:15.440 show that Harvard is really discriminating against Asian American students. 0:03:15.560 --> 0:03:18.359 And so that was a lens that was used a 0:03:18.360 --> 0:03:21.680 lot in the Harvard case. There was nothing like that 0:03:21.800 --> 0:03:26.000 in the North Carolina case. So there was no smoking 0:03:26.160 --> 0:03:31.160 gun evidence to show that u n C was discriminating 0:03:31.240 --> 0:03:36.280 against any racial group. So Students for Fair Admissions s 0:03:36.400 --> 0:03:40.560 f f A had even more of a kind of sterile, 0:03:40.920 --> 0:03:47.120 statistical kind of case that they put forward to say 0:03:47.200 --> 0:03:52.920 that based on this statistical analysis which shows that the 0:03:53.000 --> 0:03:57.880 test scores and g p a's of Black students and 0:03:58.120 --> 0:04:01.920 Latin X students tend to be lower than the test 0:04:01.960 --> 0:04:05.480 scores and g p as of white and Asian students, 0:04:05.720 --> 0:04:08.960 that means there must be discrimination or there must be 0:04:09.040 --> 0:04:12.400 too much weight being put on race by the admissions 0:04:12.640 --> 0:04:15.920 people at the University of North Carolina. So tell us 0:04:16.040 --> 0:04:20.920 what Judge Loretta Biggs ruled and why. So she ruled 0:04:20.960 --> 0:04:25.080 that the University of North Carolina's use of race is 0:04:25.160 --> 0:04:29.919 completely consistent with what the Supreme Court has held is 0:04:29.920 --> 0:04:36.040 appropriate under the Constitution. So she found that the University 0:04:36.080 --> 0:04:40.479 of North Carolina had proved that it was using race 0:04:40.720 --> 0:04:46.120 for the educational benefits of diversity, that it had looked 0:04:46.160 --> 0:04:49.800 at its own school and said, this is why we 0:04:49.880 --> 0:04:52.760 want to use race, or this is what we're trying 0:04:52.800 --> 0:04:55.479 to get out of diversity. We think that there are 0:04:55.640 --> 0:05:00.160 educational benefits and that our students will have more in 0:05:00.240 --> 0:05:04.400 depth discussions. We think that diverse groups of people come 0:05:04.480 --> 0:05:09.080 up with more innovative and creative solutions to problems. We 0:05:09.160 --> 0:05:12.120 think that having a diverse group of students teaches our 0:05:12.160 --> 0:05:16.960 students empathy and understanding. They have five different things that 0:05:17.040 --> 0:05:21.880 they had identified that a diverse student body would bring 0:05:22.360 --> 0:05:27.159 to the University of North Carolina student body would bring 0:05:27.640 --> 0:05:32.719 to the University of North Carolina. So Judge Biggs found 0:05:32.760 --> 0:05:35.560 that they had proved that, and she also found that 0:05:35.640 --> 0:05:41.159 they needed to use race in order to meet those goals, 0:05:41.200 --> 0:05:44.279 so the use of race was necessary, and they didn't 0:05:44.440 --> 0:05:47.080 use it anymore than they needed to in order to 0:05:47.160 --> 0:05:51.560 hit those goals, so their use of race was narrowly tailored. 0:05:52.000 --> 0:05:55.360 According to the u n C website, this year's incoming 0:05:55.480 --> 0:06:00.480 class of five thousand, six hundred students included six five 0:06:00.600 --> 0:06:05.080 percent to identify as white or Caucasian, twenty one percent 0:06:05.160 --> 0:06:08.000 as Asian or Asian American, twelve percent as Black or 0:06:08.040 --> 0:06:11.760 African American, and ten percent who said they were Hispanic, 0:06:11.920 --> 0:06:16.159 Latino or Latino. But yet, the judge criticized the school 0:06:16.360 --> 0:06:21.559 for not making enough strides in recent years and said 0:06:21.680 --> 0:06:25.159 it's been defined by most of its existence by discriminatory 0:06:25.160 --> 0:06:29.200 and obstructionist policies, not ones that hurt white and Asian 0:06:29.240 --> 0:06:33.279 American students, but that disadvantaged students of color. Well, that 0:06:33.400 --> 0:06:37.479 was another interesting difference between this case and Harvard. In 0:06:37.480 --> 0:06:42.800 this case, the judge allowed a group of students to 0:06:43.320 --> 0:06:48.000 intervene as parties on the same side as the university, 0:06:48.160 --> 0:06:53.599 so they were also defending the university's affirmative action policy. 0:06:53.760 --> 0:06:58.520 These were students of color, so once these students were parties, 0:06:58.640 --> 0:07:00.760 they were able to put in a dents like the 0:07:00.800 --> 0:07:05.080 other parties did, and they put in an expert report 0:07:05.560 --> 0:07:09.640 that UM put out all the history of the University 0:07:09.640 --> 0:07:12.440 of North Carolina when it comes to race, and that 0:07:12.760 --> 0:07:16.200 history isn't very good when it comes to black students. 0:07:16.640 --> 0:07:22.040 Those students also testified at the trial. Black students, Hispanic 0:07:22.160 --> 0:07:26.960 students testified about how what their experience was at the 0:07:27.040 --> 0:07:30.400 University of North Carolina. Some of them were recent alums, 0:07:30.480 --> 0:07:32.760 some of them, I think we're current students at the time. 0:07:32.800 --> 0:07:36.320 They testified and about how they were still often the 0:07:36.360 --> 0:07:39.360 only student of color in their classes, how they were 0:07:39.920 --> 0:07:45.360 sometimes called racial epithets at the University of North Carolina, 0:07:45.920 --> 0:07:49.720 how they felt tokenized, and that everyone in the classroom 0:07:49.760 --> 0:07:52.920 would look at them to speak for their race when 0:07:52.960 --> 0:07:56.680 any topic came up in class that might have some 0:07:56.800 --> 0:08:00.160 kind of an aspect of racial difference in it. So 0:08:00.560 --> 0:08:05.840 Judge Big wrote a long footnote about the historical expert 0:08:06.400 --> 0:08:10.040 evidence that they had put in and also talked about 0:08:10.080 --> 0:08:16.040 the testimony from those students interveners, and it clearly had 0:08:16.080 --> 0:08:20.480 an effect on her. But that helped the university because 0:08:20.520 --> 0:08:25.720 that shows that they still need to use race in 0:08:25.840 --> 0:08:30.640 order to hit those goals that they have of getting 0:08:30.640 --> 0:08:34.400 the educational benefits of diversity, So did she want them 0:08:34.800 --> 0:08:37.920 to do more? In some way? Did she suggest what 0:08:37.960 --> 0:08:40.360 they should be doing. Here's the point I think it 0:08:40.440 --> 0:08:45.840 goes to. You may remember June that in the Michigan 0:08:45.920 --> 0:08:51.520 cases Grutter and Grat, the cases that you know, almost 0:08:51.559 --> 0:08:56.080 twenty years ago, the court held that colleges and universities 0:08:56.160 --> 0:09:01.000 could use race and admission. Justice soca Onnor in that 0:09:01.679 --> 0:09:06.720 case wrote that she thought that colleges universities would no 0:09:06.800 --> 0:09:09.600 longer have to take race into account in twenty five 0:09:09.679 --> 0:09:12.880 years because it would no longer be necessary. And I 0:09:12.920 --> 0:09:15.360 think that what Judge Biggs is doing. He is though 0:09:15.600 --> 0:09:18.719 I don't think she ever mentions that part of the 0:09:18.720 --> 0:09:21.800 Grutter opinion. I think she's putting down a little bit 0:09:21.800 --> 0:09:24.800 of a marker to say we're not close to that. 0:09:24.960 --> 0:09:27.960 We might be close in time to that twenty five years, 0:09:28.240 --> 0:09:31.600 but in terms of our country's evolution, we are nowhere 0:09:31.640 --> 0:09:33.640 near close to the time, at least not at the 0:09:33.720 --> 0:09:38.080 University of North Carolina, where race is no longer necessary 0:09:38.200 --> 0:09:41.200 because we have some kind of a color blind society. 0:09:41.640 --> 0:09:45.439 That's what I think Judge Biggs was doing. So the 0:09:45.480 --> 0:09:49.480 Students for Fair Admission said they'll appeal and if necessary, 0:09:49.640 --> 0:09:52.040 up to the Supreme Court. And that's the point, isn't it. 0:09:52.080 --> 0:09:54.600 They want to appeal this case up to the Supreme 0:09:54.640 --> 0:09:59.640 Court exactly. They always expected that this was only the 0:09:59.679 --> 0:10:02.200 first stop on their journey for this case. So they 0:10:02.200 --> 0:10:04.720 will appeal it to the United States Court of Appeals 0:10:04.760 --> 0:10:09.320 for the Fourth Circuit. And whatever outcome the Fourth Circuit has, 0:10:09.360 --> 0:10:12.840 I would expect that the losing party would then seek 0:10:12.920 --> 0:10:17.240 review from the United States Supreme Court. The Students for 0:10:17.320 --> 0:10:21.760 Fair Admissions lost the case against Harvard and appealed it 0:10:21.800 --> 0:10:25.800 to the Supreme Court. The Court postponed action on that case. 0:10:26.080 --> 0:10:30.400 Tell us what happened. Well, the Court has asked for 0:10:30.720 --> 0:10:34.440 the views of the Solicitor General in that case, which 0:10:34.480 --> 0:10:38.160 is a common move that the Supreme Court makes when 0:10:38.240 --> 0:10:41.560 it is thinking about a case that has some kind 0:10:41.600 --> 0:10:46.360 of federal constitutional question or federal implication. It wants to 0:10:46.480 --> 0:10:50.040 know what the views of the United States government are 0:10:50.600 --> 0:10:53.680 when the Court considers whether or not to take the case. 0:10:53.960 --> 0:10:56.520 So the Supreme Court has asked for the views of 0:10:56.520 --> 0:11:00.880 the Solicitor General's office, and I think it we expect 0:11:00.960 --> 0:11:04.320 that the Solicitor General will deliver that brief to the 0:11:04.360 --> 0:11:07.360 Court sometime before the end of the calendar year. There's 0:11:07.400 --> 0:11:11.920 no deadline for the Solicitor General to file that brief. 0:11:12.200 --> 0:11:14.960 They can file it whenever they want to, but we 0:11:15.120 --> 0:11:17.040 kind of expect them to do it before the end 0:11:17.080 --> 0:11:20.040 of the calendar year, and that will allow the Court, 0:11:20.160 --> 0:11:22.800 if it wants to, to make a decision as to 0:11:22.840 --> 0:11:26.440 whether or not reviews the Harvard case in time for 0:11:26.520 --> 0:11:32.240 that case to be heard. This term advocates for affirmative action. 0:11:32.440 --> 0:11:35.880 Are they afraid that the Supreme Court will take the case? 0:11:36.240 --> 0:11:38.600 Here's the interesting thing, June. So s f f A 0:11:39.040 --> 0:11:42.720 has put in its questions presented to the courts, should 0:11:42.720 --> 0:11:46.160 the Court overrule Grutter and Grats. They've teed it right up. 0:11:46.200 --> 0:11:48.480 They say that that's what they want the Court to 0:11:48.679 --> 0:11:53.079 review their case to do. That's their first question presented. 0:11:53.520 --> 0:11:57.640 So it's not just proponents of affirmative action, you know, 0:11:57.880 --> 0:12:00.840 making something up. That's clearly what s f f A 0:12:01.000 --> 0:12:04.480 is just right out asking the Court to do. You know, 0:12:04.880 --> 0:12:08.440 when you get away from a hot button topic like abortion, 0:12:08.920 --> 0:12:12.360 like affirmative action, and you're just in the realm of 0:12:12.480 --> 0:12:18.000 regular cases. The Supreme Court doesn't usually take a case 0:12:18.080 --> 0:12:22.400 to review unless there's some kind of a divide between 0:12:22.440 --> 0:12:26.400 the lower court, and so Judge Biggs decisions would usually 0:12:26.880 --> 0:12:30.480 caution away from the court taking a case to review. 0:12:31.120 --> 0:12:34.040 Here we have Judge Biggs decision being very much in 0:12:34.160 --> 0:12:38.400 line with Judge Burrow's decision from the District of Massachusetts, 0:12:38.440 --> 0:12:42.160 which was affirmed by the First Circuit. So these two 0:12:42.200 --> 0:12:44.400 courts seem to be looking at the U n C 0:12:45.120 --> 0:12:50.000 Applications process and the Harvard process very much the same way, 0:12:50.559 --> 0:12:53.040 all in line with what the Supreme Court has helped. 0:12:53.440 --> 0:12:56.480 That would all be something to say, Court, there's nothing 0:12:56.559 --> 0:12:58.120 for you to weigh in on the courts. They are 0:12:58.160 --> 0:13:00.720 all seeing this the same way. In line your President, 0:13:01.200 --> 0:13:04.240 let it go, let the law further develop before you 0:13:04.320 --> 0:13:07.200 take it on and rule on it. That would be 0:13:07.320 --> 0:13:10.319 how a Supreme Court advocate would look at this case 0:13:10.440 --> 0:13:13.880 if it were not a hot button case. But with 0:13:13.960 --> 0:13:16.080 the change in the court, with new members of the 0:13:16.120 --> 0:13:21.440 Court who probably disagree with the court precedent, everybody has 0:13:21.520 --> 0:13:25.200 this up for grabs. Thanks Audrey. That's Audrey Anderson of 0:13:25.280 --> 0:13:32.120 Bassparian SIMS. President Joe Biden's bipartisan commission studying changes to 0:13:32.160 --> 0:13:35.280 the U s Supreme Court released a draft of its 0:13:35.280 --> 0:13:38.840 findings in which it wrote favorably of creating term limits 0:13:38.840 --> 0:13:43.440 for judges and cautioned against the Court adding justices. It 0:13:43.559 --> 0:13:46.920 lost two of its conservative members and several of its 0:13:46.960 --> 0:13:50.960 liberal members were critical of the initial findings. In short, 0:13:51.240 --> 0:13:55.080 neither liberals nor conservatives seemed to be overly happy with 0:13:55.120 --> 0:13:59.280 the commission. Joining me is Josh Blackman, Professor of Constitutional 0:13:59.360 --> 0:14:02.600 law at the Alt Texas College of Law. These initial 0:14:02.640 --> 0:14:07.800 recommendations just give us an overview of what they will recommend. 0:14:07.840 --> 0:14:10.720 It is not the right word, because they're not making recommendations. 0:14:10.760 --> 0:14:15.199 What did they say? The panel discussed a couple major areas, 0:14:15.559 --> 0:14:18.880 One whether the Court to be expanded with new seats, 0:14:19.040 --> 0:14:23.600 to whether term limits for the justice might be appropriate. Three, 0:14:24.120 --> 0:14:27.760 whether the courts so called shadow or emergency doctors performed. 0:14:28.640 --> 0:14:32.000 And fourth they discussed usual ethics and the ethics codes 0:14:32.040 --> 0:14:35.120 that applies to the Supreme Court. The longest short of 0:14:35.120 --> 0:14:37.560 it is the court where the panel made no recommendations. 0:14:37.560 --> 0:14:39.680 In the Court, it isn't even clear they can make 0:14:39.720 --> 0:14:42.800 recommendations of what's to do. And even the areas on 0:14:42.840 --> 0:14:45.360 which there were some agreement, there was no majority opinion. 0:14:45.400 --> 0:14:48.760 So to speak. Um, there was a pretty strong sentiment 0:14:48.840 --> 0:14:52.600 against explaining the court. There were some agreement on whether 0:14:52.600 --> 0:14:55.720 there's be terminalments, but there was disagreement if the terminments 0:14:55.760 --> 0:14:58.880 to be imposed through a simple Act of Congress the statute, 0:14:59.160 --> 0:15:03.040 whether it cons social amendment was necessary. So really, June, 0:15:03.040 --> 0:15:05.560 at the end, this was much as you about nothing. Um. 0:15:05.880 --> 0:15:08.520 There really wasn't much acame of this lengthy product of 0:15:08.560 --> 0:15:10.960 the stuff. Several of your pages of report that frankly, 0:15:11.040 --> 0:15:13.400 I didn't even read it. You didn't read it, but 0:15:13.480 --> 0:15:16.160 you're doing an interview on it. I skimmed it, and 0:15:16.280 --> 0:15:18.960 I got I got to highlight. Many people have said 0:15:19.120 --> 0:15:23.760 that the President just appointed this panel to waste time 0:15:23.880 --> 0:15:26.920 or to bide his time, because he wants to avoid 0:15:27.040 --> 0:15:33.080 this issue which liberals are so incensed about. I think 0:15:33.160 --> 0:15:36.040 that's right. President Biden was never in favor of so 0:15:36.200 --> 0:15:40.200 called court reform. He was always very transparent about that fact. Um, 0:15:40.280 --> 0:15:43.360 so he I think he created his commission to sort 0:15:43.360 --> 0:15:46.920 of deflex attention for a few months. UM. On Friday, 0:15:47.000 --> 0:15:51.200 after the Commission had their meeting, a reporter asked Biden 0:15:51.640 --> 0:15:54.720 what he thought about terminus with screame Court and President 0:15:54.760 --> 0:15:59.200 Biden had one word answer, no, doesn't know. No. So 0:15:59.280 --> 0:16:00.960 it's like, you know, you submit a paper to be 0:16:01.040 --> 0:16:03.200 graded and in fine mincily your teacher says, never mind, 0:16:03.360 --> 0:16:06.120 not interested. Right, It's it's immediate rejection of the only 0:16:06.120 --> 0:16:10.120 area there was some agreement upon UM. So this was 0:16:10.160 --> 0:16:12.080 really much to do about nothing. Biden didn't want to 0:16:12.080 --> 0:16:15.760 do anything. He created his egghead panel with fellow academic 0:16:16.120 --> 0:16:19.400 to sort of stretch things out, and now it's going 0:16:19.440 --> 0:16:23.360 to just vanish and disappear. There's actually some bipartisan support 0:16:23.400 --> 0:16:28.360 for term limits, isn't there? There is? Um. The panel 0:16:28.400 --> 0:16:31.080 said it was content in term limits, but they didn't 0:16:31.080 --> 0:16:33.280 agree on whether it to be done through a simple 0:16:33.560 --> 0:16:37.200 Act of Congress of statute, whether a new constitutional moment 0:16:37.320 --> 0:16:40.440 was necessary UM for requires and amendments of the Constitution. 0:16:40.800 --> 0:16:42.920 It's not gonna happen. We don't. We don't have that 0:16:43.000 --> 0:16:46.400 much consensus in the country at all. Perhaps that happens 0:16:46.400 --> 0:16:48.560 for a statute. And then Biden was asked to that 0:16:48.640 --> 0:16:52.160 and said nope, no, not interested. So again I think 0:16:52.200 --> 0:16:55.040 we're basically back where it started from. I mean, he 0:16:55.120 --> 0:16:57.000 has said in the past that he did not in 0:16:57.040 --> 0:17:00.560 favor of packing the Court, but to say no to 0:17:00.720 --> 0:17:05.240 term limits. Why have the panel? I don't think Biden 0:17:05.280 --> 0:17:07.320 ever wants to have his panel. I think he simply 0:17:07.359 --> 0:17:09.320 needed a way to deflect the attention show he was 0:17:09.400 --> 0:17:12.359 doing something. During the campaign, he promised that he would 0:17:12.359 --> 0:17:14.840 have created panel, and he did it, and now he 0:17:14.920 --> 0:17:17.600 who will probably ignore their report? And when I think 0:17:17.640 --> 0:17:20.600 it's significant this panel is not target than making a recommendation, 0:17:20.680 --> 0:17:23.680 they would basically have their hands tied me up. The 0:17:23.720 --> 0:17:28.840 two conservative members of the panel quit last week. Any 0:17:28.920 --> 0:17:31.800 indication as to why they quit at this point after 0:17:31.840 --> 0:17:35.600 six months, Well, these are respected people. One is Jack 0:17:35.640 --> 0:17:37.720 Goldsmith at Harvard who worked at the George to W. 0:17:37.880 --> 0:17:41.320 Bush Justice Department, together as Caleb Nelson's a lot professor 0:17:41.359 --> 0:17:44.560 at Virginia CLOrk for Clarence Thomas and both them very well. 0:17:44.840 --> 0:17:47.560 These a respected people. There must be something in the 0:17:47.600 --> 0:17:50.119 report they didn't agree with, or there must be something 0:17:50.240 --> 0:17:52.040 coming that they're going to disagree with. We don't We 0:17:52.080 --> 0:17:54.760 don't quite know the different um. But I'll make this 0:17:54.800 --> 0:17:59.320 point more clearly. Uh, there were no dissent right, the 0:17:59.359 --> 0:18:01.680 members were not required to join the report. They could 0:18:01.720 --> 0:18:03.840 earn their own descent. But I think this sort of 0:18:03.840 --> 0:18:06.280 resignation was a quiet dissent to signal that this was 0:18:06.359 --> 0:18:10.600 not unanimous, that there was there was disagreement over what 0:18:10.720 --> 0:18:15.600 remedies to adopt. Also, the draft report will say some 0:18:15.640 --> 0:18:21.520 commissioners believe, but other commissioners believe. So there's not even 0:18:21.840 --> 0:18:27.280 a consensus about the report in the report right, and 0:18:27.280 --> 0:18:30.600 and the group doesn't even agree with what their charge 0:18:30.760 --> 0:18:33.240 was is what they were instructed to do. It's a 0:18:33.400 --> 0:18:36.960 very weird, disjointed process. I mean imaging a different world 0:18:37.040 --> 0:18:40.440 June where the government said, okay, you have sixty days, 0:18:40.640 --> 0:18:43.840 give us a list of five recommendations. They would know 0:18:43.880 --> 0:18:46.200 exactly what to do. But Biden had a sort of 0:18:46.240 --> 0:18:50.080 open ended report saying let's discuss the Supreme Court and 0:18:50.080 --> 0:18:53.160 and that's it. So it's kind of like a long 0:18:53.400 --> 0:18:57.560 article that you've seen in academic journal that again no 0:18:57.600 --> 0:19:01.480 one will read, including me, because it's more than true 0:19:01.480 --> 0:19:04.720 tra pages material. I think you should be required to. 0:19:05.160 --> 0:19:07.359 I think that would violence the ash amendmentist rule and 0:19:07.359 --> 0:19:09.920 the nusual punishment. I fell that joke from Justice Leave 0:19:09.960 --> 0:19:11.960 by the way Justice Glee once it reading the entire 0:19:12.040 --> 0:19:14.119 Affordable Care Act would be a violation the aph Amendment 0:19:14.160 --> 0:19:16.480 so I can't take credit for that joke. Did they 0:19:16.520 --> 0:19:24.480 come out firmly against court packing? Yes, for the most part, Um, 0:19:24.600 --> 0:19:28.280 there was a very general consensus that expand the court 0:19:28.280 --> 0:19:32.160 would do significant damage to the institution in the long run. 0:19:32.680 --> 0:19:35.080 A few members of the of the Commission actually spoke 0:19:35.160 --> 0:19:37.960 up saying we need to be more open. Lawrence Tribe 0:19:37.960 --> 0:19:39.880 of Harvard said we're going to break the glass moment, 0:19:39.960 --> 0:19:43.520 right in case the emergency, break the glass. Um, But 0:19:44.520 --> 0:19:46.840 there's just no movement for it. I think that that 0:19:47.000 --> 0:19:50.640 approach is dead. Pauls have shown that the public has 0:19:50.720 --> 0:19:54.320 lost respect for the court. The Court is more out 0:19:54.320 --> 0:19:57.760 of favor than it's been in a while after the 0:19:57.840 --> 0:20:01.640 last term. Is there a way to it's that without 0:20:02.080 --> 0:20:06.399 tinkering with the court? Well, you know, I think it's 0:20:05.880 --> 0:20:08.520 it depends which way you look at it. Right, there 0:20:08.520 --> 0:20:11.600 are six conservative members now, and therefore you have more 0:20:11.640 --> 0:20:15.840 conservative opinions. But even then you have justice who were moderate. 0:20:15.920 --> 0:20:18.080 Robert's Kavana and Barrett is sort of in the middle 0:20:18.080 --> 0:20:21.600 of this three three three courts. Um. So I don't 0:20:21.760 --> 0:20:25.560 think sinkering it is necessary. And see, I think trying 0:20:25.560 --> 0:20:28.320 to tinker at the court would likely prove disastrous in 0:20:28.320 --> 0:20:32.800 the long run. Um, it's just it's it's this sort 0:20:32.840 --> 0:20:35.560 of this freak of accident that Trump got to Ginsburg 0:20:35.600 --> 0:20:38.480 see right before the election, and this Belie seat theayed 0:20:38.520 --> 0:20:40.720 open through the other elections. So there were two additional 0:20:41.200 --> 0:20:44.320 justices that probably wouldn't have happened otherwise. Uh. The other 0:20:44.320 --> 0:20:46.640 way to look at it is Republicans have had many 0:20:46.720 --> 0:20:49.760 justice of the years that simply weren't Conservative John Paul Stevens, 0:20:49.840 --> 0:20:54.479 David Suitor, O'Connor, and Kennedy on most occasions. So you know, 0:20:54.640 --> 0:20:57.160 the Democrats got lucky in number of cases, but they've 0:20:57.359 --> 0:20:59.400 they've not rolled the dice well last you know, six 0:20:59.480 --> 0:21:03.080 years or so. It really wasn't a freak of nature. 0:21:03.160 --> 0:21:07.600 It really was Mitch McConnell responsible for holding open and 0:21:07.680 --> 0:21:12.280 Justice Scalia seat and then using different reasoning to fill 0:21:12.800 --> 0:21:16.960 Justice Ruth Bader Ginsburg's seat right before an election. That 0:21:17.000 --> 0:21:23.000 politicizes the court, doesn't it more than it already is? Well, Look, 0:21:23.119 --> 0:21:27.840 I think I think the short answer is that, Um, 0:21:28.000 --> 0:21:32.600 McConnell is a politician, UM, and he saw an opportunity 0:21:32.680 --> 0:21:36.480 and he was willing to um keep the seat open 0:21:36.480 --> 0:21:39.879 at great expense. Um, and so far the Democrats has 0:21:39.920 --> 0:21:42.120 not been able to retaliate with that sort of hard ball. 0:21:42.320 --> 0:21:44.560 So I do. I do think the mccomposition when I 0:21:44.600 --> 0:21:46.480 said to Creak of Nature that the vacancies of rose 0:21:46.560 --> 0:21:49.400 at just the right moment, because there's no guarantee either 0:21:49.440 --> 0:21:51.639 the Scalia seat or the Gainsky open up just when 0:21:51.680 --> 0:21:55.440 they did. How would the Democrats retaliate. Do you have 0:21:55.480 --> 0:21:59.080 any advice for the Democrats? Well, look, the leader of 0:21:59.119 --> 0:22:01.720 the Democratic Party, Joe Biden, said not interested. So I 0:22:01.760 --> 0:22:04.919 think the short answers is no momentum. Perhaps, you know, 0:22:05.160 --> 0:22:09.400 progressive activists wish for it, but there's not much. We've 0:22:09.440 --> 0:22:14.160 heard several justices talk about how the court is not politicized. 0:22:15.359 --> 0:22:18.639 Do you think they've take into account how some of 0:22:18.680 --> 0:22:24.639 their more controversial decisions will affect the public. I hope not. 0:22:25.600 --> 0:22:27.760 I think when the justices start thinking about the general 0:22:27.760 --> 0:22:30.480 public and more political right, because that means they can 0:22:30.480 --> 0:22:33.520 be swayed by things are not law um. In my mind, 0:22:33.560 --> 0:22:36.080 the least political justice, the justice puts his head in 0:22:36.119 --> 0:22:39.000 the standard doesn't consider the sort of sentiment. But we 0:22:39.040 --> 0:22:41.400 don't live in my sort of ideal world. I think 0:22:41.440 --> 0:22:45.520 Robert that people think. I think Kavan does, Embarratt may 0:22:45.560 --> 0:22:50.119 as well. The other freedom the draft analysis said that 0:22:50.200 --> 0:22:53.160 Congress would be authorized to write a code of conduct 0:22:53.200 --> 0:22:58.080 for the justices, and but Chief Justice Roberts has suggested 0:22:58.119 --> 0:23:01.840 he doesn't believe that Congress has congressional authority to impose 0:23:01.920 --> 0:23:04.639 conduct rules on the Supreme Court. He did say that 0:23:04.800 --> 0:23:07.240 do you think the Court needs some conduct rules because 0:23:07.320 --> 0:23:10.400 we don't know when they're accusing themselves and when they're 0:23:10.440 --> 0:23:13.880 not well. So there's there's two questions. One can Congress 0:23:13.880 --> 0:23:16.440 fread a code of the justice is I used to 0:23:16.440 --> 0:23:18.680 be persuaded by John Roberts that they couldn't, and now 0:23:18.720 --> 0:23:21.240 I think Roberts is wrong. Um. I think it's true 0:23:21.280 --> 0:23:23.920 that the Constitution, you know, refers to the creation of 0:23:23.960 --> 0:23:26.840 Supreme Court but not the judges, and Congress has to 0:23:27.000 --> 0:23:30.400 enact or created the seats midstream corpied statute. Right, even 0:23:30.400 --> 0:23:33.280 the Chief Justice was created by statute, and Congress creates 0:23:33.320 --> 0:23:35.119 the seas by statute. They can regularly sets these. I 0:23:35.119 --> 0:23:37.680 think Roberts is arguing the separation powers is simply wrong, 0:23:38.080 --> 0:23:40.320 but you'll probably stick to it. Um. I think the 0:23:40.400 --> 0:23:43.680 more important question is what would that code be and 0:23:43.760 --> 0:23:47.119 let's be frank, your recusal right if the justice steps 0:23:47.160 --> 0:23:50.200 down in the case. On most court, if a justice recused, 0:23:50.200 --> 0:23:52.720 the judge recuses, it's no big deal because the're a 0:23:52.720 --> 0:23:54.760 bunch of other judges. But in the U. Spreme Corps 0:23:54.800 --> 0:23:57.119 of Justice recuses, there's no one to back up as 0:23:57.160 --> 0:23:58.919 an alternate. So I think you as a little more 0:23:58.960 --> 0:24:01.800 thoughtful with the source of awards you have. UM. But 0:24:02.000 --> 0:24:06.000 I I think Congress could do something for the the court. 0:24:06.720 --> 0:24:11.199 Do you think the Court itself, the justices should be 0:24:11.280 --> 0:24:16.560 doing that, should have outlined some rules and regulations for 0:24:16.840 --> 0:24:21.159 at least for recusal. I think the justice internally do. 0:24:21.400 --> 0:24:24.720 There was a discussion in the early going back thirty 0:24:24.800 --> 0:24:28.360 years where Chief Justice Ranklist asked all the sitting justices 0:24:28.440 --> 0:24:33.200 to agree to the code that binds lower court judges. Um, 0:24:33.320 --> 0:24:34.879 we don't know if that's been updated. We don't. We 0:24:34.920 --> 0:24:37.520 just we don't know. UM. So I think it'll be meaningful. 0:24:37.560 --> 0:24:40.160 But you know, the justice they recused all the time, 0:24:40.200 --> 0:24:42.320 and it happens in various cases. In fact, Justice the 0:24:42.400 --> 0:24:45.200