WEBVTT - Nvidia Investor Fraud Suit & Ten Commandments in Schools 0:00:03.200 --> 0:00:10.240 This is Bloomberg Law with June Brusso from Bloomberg Radio. 0:00:11.440 --> 0:00:14.600 It's one of two Supreme Court cases within a week 0:00:14.800 --> 0:00:19.520 over securities fraud class action lawsuits against giant tech companies. 0:00:19.920 --> 0:00:24.279 Last Wednesday, it was Meta's Facebook. This Wednesday it was 0:00:24.320 --> 0:00:28.160 in Vidia. Investors are suing in Vidia, now the world's 0:00:28.160 --> 0:00:31.640 most valuable company, for misleading them about how much its 0:00:31.720 --> 0:00:36.080 profits depended on the volatile cryptomney market. But the tech 0:00:36.120 --> 0:00:40.239 company says the lawsuit relies on an expert opinion and 0:00:40.360 --> 0:00:44.680 doesn't have evidence like company documents to back up its claims. 0:00:45.159 --> 0:00:49.000 Justice Katanji Brown Jackson questioned how the investors could have 0:00:49.080 --> 0:00:54.600 company documents before discovery the information gathering stage of litigation 0:00:55.120 --> 0:00:56.400 has even taken place. 0:00:56.880 --> 0:00:59.920 I guess my concern is that you appeared to be 0:01:01.240 --> 0:01:05.840 requiring for plaintiffs to actually have the evidence in order 0:01:05.920 --> 0:01:10.760 to plead their case. And I didn't understand the pleading standards, 0:01:10.840 --> 0:01:14.720 even with particularity, to require that they have the documents, 0:01:14.760 --> 0:01:17.720 Nor do I understand how they could have the documents 0:01:17.760 --> 0:01:20.400 when discovery hasn't occurred yet. 0:01:20.800 --> 0:01:23.479 And several of the justices seem to have a bit 0:01:23.520 --> 0:01:27.680 of buyer's remorse about granting review in the case, saying 0:01:27.720 --> 0:01:31.080 it was two facts specific and didn't present the kind 0:01:31.160 --> 0:01:35.280 of broad legal issues that normally prompt Supreme Court review. 0:01:35.800 --> 0:01:40.520 Here justice is Sonya Sotmayor Elena Kagan and Samuel Alito. 0:01:41.000 --> 0:01:46.240 We often don't grant, sir to error correct? Is this 0:01:46.840 --> 0:01:51.200 entire case just an error correction? Oh, these particular documents 0:01:51.200 --> 0:01:54.520 are not precise enough. I'm not actually sure what rule 0:01:55.360 --> 0:02:02.280 we could articulate that would be clearer than our cases 0:02:02.400 --> 0:02:06.600 already say. It becomes less and less clear why we 0:02:06.680 --> 0:02:10.040 took this case number one as just as Sodama your suggested, 0:02:10.080 --> 0:02:12.160 and number two why you should win it. 0:02:12.560 --> 0:02:16.320 But this is a highly technical subject and I just 0:02:16.360 --> 0:02:22.200 don't understand how a court is supposed to evaluate that 0:02:22.520 --> 0:02:24.160 at the pleading stage. 0:02:24.440 --> 0:02:27.520 Joining me is Gregory gar a partner at Latham and Watkins, 0:02:27.600 --> 0:02:30.800 and the former Solicitor General of the United States, Greg 0:02:30.800 --> 0:02:32.880 tell Us about the issue before the court. 0:02:33.040 --> 0:02:37.040 So, this case involves the pleading requirements under the Private 0:02:37.080 --> 0:02:43.359 Securities Litigation Reform Act, and specifically what a plaintiff has 0:02:43.440 --> 0:02:48.480 to show to plead with the requisite particularity when the 0:02:48.560 --> 0:02:53.519 claim is that a company misled investors based on internal 0:02:53.520 --> 0:02:55.920 information that it knew. And the question is, does a 0:02:56.000 --> 0:02:59.480 planiff in that situation have to actually produce or describe 0:02:59.520 --> 0:03:03.680 in detail the internal company documents that the PLANEFF says 0:03:03.760 --> 0:03:08.079 represents the company's knowledge, or can you prove that knowledge 0:03:08.120 --> 0:03:11.680 through inferences by relying on expert reports and the like. 0:03:12.120 --> 0:03:16.440 And so Justice Kotanji Brown Jackson said that in video 0:03:16.720 --> 0:03:21.400 was basically asking the plaintiffs to have the evidence at 0:03:21.440 --> 0:03:24.120 the pleating stage before they get. 0:03:23.960 --> 0:03:28.000 Discovery, right, And that's the pushback that the more liberal 0:03:28.160 --> 0:03:32.440 justices had for the company's lawyer. The reason for these 0:03:32.520 --> 0:03:36.040 lawsuits is you typically get into federal court by passing 0:03:36.040 --> 0:03:40.040 the pleating requirements and then you get discovery and potentially 0:03:40.080 --> 0:03:44.240 access to the company's documents. So Justice Jackson sort of 0:03:44.400 --> 0:03:47.600 said that the company was trying to put the Planets 0:03:47.600 --> 0:03:52.040 in an impossible bind to produce the documents before discovery 0:03:52.240 --> 0:03:55.600 had ensued. And the company's response to that was that 0:03:55.640 --> 0:03:59.720 they weren't actually requiring the documents themselves, or that they 0:03:59.760 --> 0:04:04.200 disc the documents in every detail, but they simply had 0:04:04.240 --> 0:04:08.800 to describe the documents with some particularity. But that was 0:04:08.880 --> 0:04:12.080 really the crux of the case that the company put 0:04:12.120 --> 0:04:12.760 before the court. 0:04:13.000 --> 0:04:15.000 What did you see as the concerns of some of 0:04:15.040 --> 0:04:16.080 the other justices. 0:04:16.560 --> 0:04:18.520 Well, I think that there was a frustration on the 0:04:18.520 --> 0:04:22.359 court that they really weren't presented with a clear legal 0:04:22.480 --> 0:04:25.680 rule on either side of the case, and that ultimately 0:04:25.760 --> 0:04:29.000 the case seemed to boil down to the application of 0:04:29.080 --> 0:04:32.960 existing law to a really long complaint, which is something 0:04:33.000 --> 0:04:35.599 that district courts do all the time, but the Supreme 0:04:35.640 --> 0:04:39.400 Court justices don't do, and particularly don't like to do. 0:04:39.560 --> 0:04:41.520 And so you could see throughout the argument that there 0:04:41.560 --> 0:04:43.800 was a frustration on the part of the justices that 0:04:43.839 --> 0:04:46.600 they were being asked to undertake a task that they 0:04:46.640 --> 0:04:49.839 typically don't do in engaging in a sort of error 0:04:49.839 --> 0:04:52.640 correction based on their own reading of the complaint. 0:04:52.839 --> 0:04:56.880 Yeah, it seems like justices across the ideological spectrum were 0:04:56.960 --> 0:05:00.200 concerned about that. And did it seem like that of 0:05:00.200 --> 0:05:03.839 buyer's remorse, Because just as Sodomayor said, you know, we 0:05:03.880 --> 0:05:08.480 don't grant sert to error correct and Justice Alitos said 0:05:08.520 --> 0:05:11.120 that I don't understand how a court is supposed to 0:05:11.120 --> 0:05:16.240 evaluate this highly technical subject at this preliminary stage. Just 0:05:16.320 --> 0:05:19.520 as Kagan said, it becomes less and less clear why 0:05:19.560 --> 0:05:22.360 we took this case. I mean, were they questioning whether 0:05:22.360 --> 0:05:24.360 they should have granted cert in the first place. 0:05:25.000 --> 0:05:27.880 I think they were. And of course, the Supreme Court 0:05:28.200 --> 0:05:32.560 gets to decide which cases it hears every year, and 0:05:32.640 --> 0:05:36.040 so it can pick the cases it likes. And here 0:05:36.160 --> 0:05:38.599 I think you're right that there were some buyer's remorse 0:05:38.680 --> 0:05:41.719 that the case, once it was fully briefed and presented 0:05:41.800 --> 0:05:44.080 to the Court at argument, wasn't necessarily the case that 0:05:44.080 --> 0:05:46.840 they thought they were buying when they agreed to hear it. 0:05:46.920 --> 0:05:49.960 And so one possible outcome is that the Court would 0:05:50.000 --> 0:05:53.560 simply decline to decide the case at all and to 0:05:53.640 --> 0:05:56.200 dig it, which means that they would dismiss the writ 0:05:56.240 --> 0:05:59.080 of Cercherai that thet agreed to hear the case as 0:05:59.120 --> 0:06:02.000 improvidently granted, so the case could simply go away. 0:06:02.440 --> 0:06:06.680 Justice Kavanaugh expressed a concern that outside groups and in 0:06:06.839 --> 0:06:11.880 Vidia's lawyer had raised that the Ninth Circuit decision below 0:06:12.000 --> 0:06:16.760 here created a sort of blueprint or roadmap for plaintiffs 0:06:16.800 --> 0:06:20.160 to get around the heightened pleading standard that Congress set 0:06:20.200 --> 0:06:23.200 out in the Private Securities Litigation Reform Act. 0:06:23.480 --> 0:06:27.880 Right, and Just Kavanaugh was probably the most outspoken justice 0:06:27.920 --> 0:06:30.359 on the side of the company at the oral argument, 0:06:30.480 --> 0:06:33.360 and his concern was that if the Ninth Circuit decision 0:06:33.520 --> 0:06:36.599 in this case is allowed, then it just creates a 0:06:36.640 --> 0:06:40.479 blueprint or recipe for points to file where anytime you 0:06:40.560 --> 0:06:43.040 have a stop drop, you can just go out and 0:06:43.120 --> 0:06:46.800 find an expert that would put together numbers that would 0:06:46.800 --> 0:06:50.880 contradict a company's public statements and then enledge in a 0:06:50.920 --> 0:06:54.840 lawsuit that the company keeps records that its executives look 0:06:54.880 --> 0:06:57.800 at and argued that those records would have matched their 0:06:57.839 --> 0:07:02.520 own experts numbers. So there you have it. Presto a 0:07:02.720 --> 0:07:07.239 securities action that would proceed past the motion to dismiss stage. 0:07:07.520 --> 0:07:10.480 And in these sorts of cases, particularly with class actions, 0:07:10.880 --> 0:07:13.400 that's really the ballgame, because. 0:07:13.080 --> 0:07:15.239 The pressure on the company is then to settle. 0:07:15.400 --> 0:07:18.640 There's enormous pressure on the companies to settle in that 0:07:18.760 --> 0:07:23.960 context given the potential damages. Although here Justice Kavanaugh actually 0:07:24.040 --> 0:07:27.720 pressed the plaineoff's lawyer on what the magnitude of the 0:07:27.800 --> 0:07:31.440 damages would be, and the planiff's lawyer was a little 0:07:31.440 --> 0:07:33.560 bit coy and ultimately said he did not know the 0:07:33.600 --> 0:07:37.320 answer to that question, perhaps because the amount was potentially 0:07:37.360 --> 0:07:38.000 quite large. 0:07:38.240 --> 0:07:42.000 Here's part of that exchange between Justice Kavanaugh and the 0:07:42.000 --> 0:07:44.840 attorney for the shareholders, Deepak Gupta. 0:07:45.360 --> 0:07:47.520 How much money is at stake in this case? 0:07:48.120 --> 0:07:52.480 The words, the fewer to prevail ultimately in the class, 0:07:53.080 --> 0:07:57.160 not as much as it might seem, because I don't 0:07:57.160 --> 0:07:59.920 want the court to get the impression that this enormous 0:08:00.080 --> 0:08:03.600 delta of sales is what's that issue? It would be 0:08:03.640 --> 0:08:05.920 an issue would be you would have to show lost 0:08:05.960 --> 0:08:07.240 causation and materiality. 0:08:07.280 --> 0:08:08.080 What are you seeking? 0:08:08.160 --> 0:08:10.520 Like if you ran the table, what are you seeking? 0:08:10.880 --> 0:08:13.680 Roughly, I don't know what the numbers are. You're on her? 0:08:13.920 --> 0:08:16.280 What did you make of Justice score such? He sort 0:08:16.320 --> 0:08:20.280 of went into what the CEO knew at the. 0:08:20.280 --> 0:08:23.920 Time, right, So he pressed the lawyers on both sides 0:08:24.080 --> 0:08:26.920 really about what inferences could be drawn about what the 0:08:26.960 --> 0:08:30.320 CEO knew and sort of, you know, question whether or 0:08:30.320 --> 0:08:33.800 not it was plausible that a CEO wouldn't know about 0:08:34.200 --> 0:08:39.000 potential downtick in sales and the magnitude alleged here billions 0:08:39.040 --> 0:08:42.280 of dollars, and so he had tough questions and he 0:08:42.400 --> 0:08:44.760 clearly was, you know, I think prepared to get into 0:08:44.840 --> 0:08:46.400 the weeds of this case to resolve it. 0:08:46.640 --> 0:08:51.680 Several of the justices seemed to be saying, too Invidia's lawyer, well, 0:08:51.840 --> 0:08:54.480 you want a bright line test, and we can't give 0:08:54.520 --> 0:08:57.240 you a bright line test. And the Chief Justice didn't 0:08:57.240 --> 0:08:59.640 seem to be happy with either side's position. 0:09:00.080 --> 0:09:02.160 He wasn't, as he put it, I think, you know, 0:09:02.280 --> 0:09:04.800 both sides want to present this in black and white terms, 0:09:04.840 --> 0:09:07.400 but there really wasn't a clear rule on either side 0:09:07.520 --> 0:09:09.800 that the Court was likely to adopt, and so they 0:09:09.800 --> 0:09:13.280 were left in this middle ground that again probably would 0:09:13.320 --> 0:09:16.840 produce a very narrow ruling that would require the justices 0:09:17.000 --> 0:09:20.920 to roll up their sleeves and apply the pleading standard 0:09:20.920 --> 0:09:25.400 to the particular allegations here in this extensive complaint, which 0:09:25.440 --> 0:09:28.079 is something that the Supreme Court justices you know, probably 0:09:28.120 --> 0:09:29.440 don't want to spend their time doing. 0:09:29.880 --> 0:09:33.400 Greg. This case is about pleading under the Private Securities 0:09:33.400 --> 0:09:37.040 Litigation Reform Act, which was passed in nineteen ninety five. 0:09:37.280 --> 0:09:38.600 Will you tell us a little about it? 0:09:38.920 --> 0:09:39.199 Sure? 0:09:39.400 --> 0:09:43.160 So this Act was passed in response to concerns about 0:09:43.240 --> 0:09:47.400 a flood of potentially frivolous securities actions and the like, 0:09:47.440 --> 0:09:51.960 and so Congress specifically ramped up the pleading requirements for 0:09:52.040 --> 0:09:55.440 these types of actions by stating what you know, arguably 0:09:55.520 --> 0:09:58.760 the law required in some respects before then, but stating 0:09:58.960 --> 0:10:02.600 in a statute that the planiffs must plead with particularity 0:10:02.679 --> 0:10:07.120 the facts constituting securities fraud, and must you know, plead 0:10:07.160 --> 0:10:10.360 facts that create a strong inference that the defendants acted 0:10:10.400 --> 0:10:14.240 knowingly or recklessly. And so in this area, and with 0:10:14.320 --> 0:10:17.679 respect to pleading standards more generally, you know, the slightest 0:10:17.800 --> 0:10:22.760 uptick in the rigorousness of the pleating requirements can screen 0:10:22.840 --> 0:10:25.240 out a number of cases. And you know, I think 0:10:25.240 --> 0:10:28.199 that that was one of Converse's goals here and has 0:10:28.280 --> 0:10:30.920 had that effect. And so the court in this case 0:10:31.000 --> 0:10:35.560 is revisiting the strength of those standards, and in particular 0:10:35.880 --> 0:10:39.839 the requirement of stating with particularity in this context where 0:10:39.960 --> 0:10:43.800 the planiffs don't have access to documents that would show 0:10:43.840 --> 0:10:46.760 what the company knew, but have an expert who's willing 0:10:46.800 --> 0:10:49.920 to say, based on his or her own opinion, what 0:10:50.080 --> 0:10:54.000 is likely the company's executives would have had or seen 0:10:54.400 --> 0:10:56.360 prior to this dock drop that issue. 0:10:56.559 --> 0:10:59.800 So in Vidia in twenty twenty two agree to pay 0:10:59.840 --> 0:11:04.559 five point five million to US authorities to settle charges 0:11:04.600 --> 0:11:08.280 that it didn't properly disclose the impact of crypto mining 0:11:08.440 --> 0:11:12.160 on its gaming business without admitting or denying the findings 0:11:12.240 --> 0:11:16.400 as usual. Does that have any impact here that settlement 0:11:16.880 --> 0:11:17.480 not really. 0:11:17.559 --> 0:11:21.679 It came up in oral argument. The government was participating 0:11:21.920 --> 0:11:24.760 in the case, and the Biden administration came in on 0:11:24.880 --> 0:11:28.120 the side of the plaintiffs here and argued that the 0:11:28.200 --> 0:11:31.280 Ninth Circuit had gotten it right. And the Justices did 0:11:31.320 --> 0:11:35.200 ask about that sec action. But this case is really 0:11:35.200 --> 0:11:38.800 going to rise or fall on its own allegations under 0:11:38.920 --> 0:11:41.200 the demands of the PSLRA. 0:11:42.040 --> 0:11:45.920 Just last week, the Justices were considering whether to shut 0:11:45.960 --> 0:11:51.040 down another class action investors lawsuit against Facebook stemming from 0:11:51.040 --> 0:11:56.439 the privacy scandal, involving the Cambridge Analytical Political consulting firm. 0:11:56.800 --> 0:11:59.720 Is there a reason why they have two sort of 0:11:59.800 --> 0:12:03.880 similar cases in this term? Is this a real problem? 0:12:04.160 --> 0:12:08.000 I think it's probably fortuitous that the two cases happened 0:12:08.040 --> 0:12:11.200 to come to the court at the same time. That said, 0:12:11.240 --> 0:12:13.800 both cases came out of the Ninth Circuit, and the 0:12:13.880 --> 0:12:15.920 Ninth Circuit has been sort of a hotbed for this 0:12:16.120 --> 0:12:19.600 kind of litigation, and so it's not surprising in that 0:12:19.679 --> 0:12:21.880 sense that some of these cases has gotten to the 0:12:21.920 --> 0:12:24.640 Supreme Court. But having taken two of these cases and 0:12:24.679 --> 0:12:26.600 heard them in the same week, and I think it's 0:12:26.640 --> 0:12:29.440 there to say that in both cases justices were grappling 0:12:29.480 --> 0:12:32.800 for answers. It may be a while before the justices 0:12:32.840 --> 0:12:35.840 decided to wade back into this area. 0:12:37.320 --> 0:12:39.840 So what's your take. Do you think that there needs 0:12:39.840 --> 0:12:44.000 to be more specificity and pleading in these kinds of cases. 0:12:44.360 --> 0:12:47.400 I think, you know, Congress was wise to pass the 0:12:47.440 --> 0:12:51.440 Private Securities Litigation Reform Act, and those pleading standards you 0:12:51.480 --> 0:12:55.080 know have and should have teeth. I think in this 0:12:55.240 --> 0:12:58.960 area usually the pleating standard at the motion to dismiths 0:12:58.960 --> 0:13:02.720 stage is you know, the critical test in the litigation, 0:13:02.880 --> 0:13:06.120 because once you get past that pleading stage, then you 0:13:06.160 --> 0:13:10.240 get discovery. The cost of litigation rise greatly and you 0:13:10.240 --> 0:13:13.880 have a threat of enormous damages that often push defendants 0:13:13.920 --> 0:13:17.320 into settlement even when they strongly believe that there was 0:13:17.360 --> 0:13:20.040 no securities fraud in the first place. So I think 0:13:20.080 --> 0:13:23.440 courts you have to police these requirements carefully. So in 0:13:23.440 --> 0:13:26.000 that sense, it's not surprising that the Supreme Court with 0:13:26.240 --> 0:13:29.800 intervene fears that a court has either veered from the 0:13:29.880 --> 0:13:33.560 law or where courts have taken conflicting positions on what 0:13:33.640 --> 0:13:34.720 these standards require. 0:13:35.000 --> 0:13:36.880 Thanks so much, Greg, Always a pleasure to have you 0:13:36.920 --> 0:13:40.199 on the show. That's Gregory gar of Latham and Watkins, 0:13:40.240 --> 0:13:45.400 the former US Solicitor General. This bill mandates the display 0:13:45.520 --> 0:13:50.240 of the Ten Commandments in every classroom in public, elementary, secondary. 0:13:49.760 --> 0:13:54.480 And post education schools in the state of Louisiana. 0:13:55.040 --> 0:13:58.280 Louisiana was the first state to require that the Ten 0:13:58.360 --> 0:14:03.200 Commandments be displayed in every public school classroom since nineteen 0:14:03.320 --> 0:14:07.199 eighty when the Supreme Court struck down a similar Kentucky 0:14:07.280 --> 0:14:11.200 law on First Amendment grounds. Governor Jeff Landry signed the 0:14:11.200 --> 0:14:15.000 bill into law, which requires a poster size display or 0:14:15.120 --> 0:14:18.600 framed document of the Ten Commandments to be put up 0:14:18.600 --> 0:14:20.800 in every classroom by January. 0:14:21.200 --> 0:14:23.080 Because if you want to respect the rule of law, 0:14:23.080 --> 0:14:27.560 you got to start from the original lawgiver, which was Moses. 0:14:28.600 --> 0:14:31.200 But a federal judge has stepped in to stop that 0:14:31.320 --> 0:14:35.360 from happening, finding that the law is unconstitutional on its face. 0:14:35.760 --> 0:14:39.240 The legal showdown won't end at the district court level, however, 0:14:39.520 --> 0:14:42.440 with the state Attorney General saying she'll ask the Fifth 0:14:42.440 --> 0:14:46.080 Circuit Court of Appeals to stay the judge's ruling while 0:14:46.160 --> 0:14:49.720 she appeals, joining me his first Amendment. Law expert Caroline 0:14:49.720 --> 0:14:53.280 Malak Corbin, a professor at the University of Miami Law School, 0:14:53.640 --> 0:14:56.880 tell us about the judges ruling almost two hundred pages. 0:14:57.280 --> 0:15:00.520 It was indeed very long. It was one hundred seventy 0:15:00.560 --> 0:15:08.240 seven pages. So Louisiana had passed a law mandating the 0:15:08.360 --> 0:15:13.880 posting of a particular version of the Ten Commandments in 0:15:14.160 --> 0:15:19.400 every single classroom in the public schools of Louisiana, both 0:15:19.640 --> 0:15:24.080 K through twelve and the university level, and this was challenged, 0:15:24.360 --> 0:15:28.880 not surprisingly on establishment claws grounds, and the district court 0:15:29.400 --> 0:15:34.520 gave sort of two paths of why this was in 0:15:34.680 --> 0:15:39.880 fact in violation of the establishment clause, and his first 0:15:40.120 --> 0:15:45.480 line of discussion was that there is very clear precedent 0:15:45.640 --> 0:15:49.360 on this matter. Kentucky had tried the same thing back 0:15:49.400 --> 0:15:53.360 in nineteen eighty. It too, had passed the law requiring 0:15:53.400 --> 0:15:56.720 the posting of the Ten Commandments in every single classroom, 0:15:56.960 --> 0:16:01.560 and the court said, no, yead to that there is 0:16:01.600 --> 0:16:06.560 no real secular reason for this. You can't impose a 0:16:06.640 --> 0:16:11.320 religion in the walls like that. It is unconstitutional. And 0:16:11.640 --> 0:16:17.640 so there is Supreme Court precedent directly on point, and 0:16:17.760 --> 0:16:22.280 so they said, under this decision, which is still good law, 0:16:22.440 --> 0:16:26.600 because the Supreme Court has not yet explicitly overruled it, 0:16:27.000 --> 0:16:30.280 this law cannot survive. And so that was one approach, 0:16:30.640 --> 0:16:35.040 which is very straightforward. There is a Supreme Court decision 0:16:35.200 --> 0:16:37.880 that considered the same issue, and when it did, it 0:16:38.000 --> 0:16:39.280 found it unconstitutional. 0:16:39.560 --> 0:16:40.280 And then it had. 0:16:40.240 --> 0:16:46.240 Another line of argumentation because there is concern that the 0:16:46.280 --> 0:16:49.600 Supreme Court is going to overrule that decision, and in 0:16:49.680 --> 0:16:54.640 fact that's partly what Louisiana is hoping. And so given 0:16:54.800 --> 0:17:01.960 this new Christian friendly Supreme Court, it may well decide 0:17:02.000 --> 0:17:05.960 that that precedent is no longer good, in part because 0:17:06.000 --> 0:17:09.680 it relied on some doctrine that the Supreme Court had rejected, 0:17:10.280 --> 0:17:14.480 so anticipating that that argument, which should be enough, might 0:17:14.520 --> 0:17:18.359 not be enough, it also analyzed the case under the 0:17:18.440 --> 0:17:22.720 Supreme Court's more recent rulings, and the Supreme Court's more 0:17:22.840 --> 0:17:27.200 recent rulings on the matter have said, when you're trying 0:17:27.240 --> 0:17:31.080 to decide whether something violates the Establishment clause or not, 0:17:31.720 --> 0:17:35.560 you must refer to the history and tradition of the 0:17:35.600 --> 0:17:38.680 practice in question. And so that's what the Dissecurt did, 0:17:38.880 --> 0:17:41.600 and in fact, there was even an expert who testified. 0:17:42.000 --> 0:17:45.359 And then the question was is there a history and 0:17:45.400 --> 0:17:49.840 tradition of posting the Ten Commandments on the walls of 0:17:49.880 --> 0:17:52.960 public schools? And the answer was no, there's not. 0:17:53.600 --> 0:17:59.080 The supporters of the bill had specifically referenced religious motivations 0:17:59.600 --> 0:18:02.520 like the importance of children learning what God says is 0:18:02.640 --> 0:18:05.720 right and what he says is wrong. Did that come 0:18:05.800 --> 0:18:08.200 up in the oral arguments or the judge's decision? 0:18:08.600 --> 0:18:13.240 So the bill did not say that. The bill tried 0:18:13.280 --> 0:18:18.119 to claim a more secular purpose, but the sponsors of 0:18:18.160 --> 0:18:22.480 the bill were quite straightforward in their goals, which, as 0:18:22.480 --> 0:18:27.399 you mentioned, was to make sure children understood what God 0:18:27.560 --> 0:18:31.560 thought was right and wrong. And so though the bill 0:18:31.800 --> 0:18:36.359 tried to construct some potential understanding of the Ten Commandments 0:18:36.359 --> 0:18:40.959 as a non religious doctrine, that text was really blied 0:18:41.000 --> 0:18:45.199 by what the sponsors of the bill said when promoting it. 0:18:46.480 --> 0:18:50.240 So now you mentioned the Supreme Court, and Louisiana argued 0:18:50.840 --> 0:18:55.359 that based on the twenty two rulings in a case 0:18:55.400 --> 0:18:58.879 where I think people know it mostly as the football 0:18:58.920 --> 0:19:02.879 coach who wanted to pray at the fifty yard line 0:19:02.960 --> 0:19:07.600 right after the games. So they're saying that since that ruling, 0:19:08.080 --> 0:19:12.080 the courts have to interpret by reference to historical practices 0:19:12.080 --> 0:19:15.000 and understandings. Is that basically their argument. 0:19:15.840 --> 0:19:16.119 Yeah. 0:19:16.240 --> 0:19:19.840 There used to be several different tests the court might 0:19:19.920 --> 0:19:24.359 rely on in evaluating establishment clause challenges, and they have 0:19:24.400 --> 0:19:27.640 different names. There was the lemon test, the endorsement test, 0:19:28.040 --> 0:19:32.280 the history and tradition test, the coercion test. In that decision, 0:19:32.640 --> 0:19:36.840 the Supreme Court essentially killed off two of them, and 0:19:36.880 --> 0:19:39.040 it said, we are no longer going to rely on 0:19:39.080 --> 0:19:41.679 the lemon tests, We're no longer going to rely on 0:19:41.840 --> 0:19:45.800 the endorsement test. So what the court is going to 0:19:45.880 --> 0:19:50.760 consider going forward when faced with an establishment clause challenge 0:19:51.240 --> 0:19:55.720 is a history and tradition analysis, and also it will 0:19:55.760 --> 0:20:01.080 consider whether anyone is being compelled into practice being religion 0:20:01.200 --> 0:20:05.199 against their will. And so those the two frameworks the 0:20:05.240 --> 0:20:08.760 court will use going forward. And the District Court in 0:20:08.800 --> 0:20:14.080 fact used them again in anticipation of its reliance on 0:20:14.200 --> 0:20:18.159 precedent not being enough for the current court and conducted 0:20:18.160 --> 0:20:22.399 a history and tradition analysis and also found them to 0:20:22.440 --> 0:20:23.960 be rather coercive. 0:20:24.280 --> 0:20:27.480 Louisiana is going to appeal and they're in the Fifth Circuit, 0:20:27.880 --> 0:20:32.400 which Indeed, the most conservative circuit in the country has 0:20:32.800 --> 0:20:36.440 handed down some novel rulings lately, some of them even 0:20:36.440 --> 0:20:38.600 too much for the Supreme Court. Do you have any 0:20:38.680 --> 0:20:40.879 confidence in how the Fifth Circuit will rule? 0:20:41.280 --> 0:20:44.640 I do not have any confidence in how they were ruled. 0:20:44.680 --> 0:20:48.720 But it would not surprise me if they pick up 0:20:48.800 --> 0:20:54.600 the baton that the Louisiana Statute laid down and argue 0:20:55.080 --> 0:20:57.960 that there is in fact a history and tradition of 0:20:58.040 --> 0:21:03.719 the Ten Commandments in school and therefore there is nothing 0:21:03.800 --> 0:21:07.679 wrong with having posters. And it would not surprise me 0:21:07.920 --> 0:21:10.200 if they said it was not at all coercives, because 0:21:10.240 --> 0:21:14.400 no one's being forced to pray or do any particular 0:21:14.440 --> 0:21:19.720 religious exercise. So I would not be surprised if again, 0:21:19.840 --> 0:21:24.160 they constructed a history inaccurate history, by the way, because 0:21:24.320 --> 0:21:27.800 the expert did quite a good job of dismantling some 0:21:27.920 --> 0:21:31.480 of the claims that Louisiana made in its text, including 0:21:31.520 --> 0:21:37.240 a completely fabricated quotation from James Madison. But nonetheless, they 0:21:37.320 --> 0:21:40.800 will claim that there is plenty of evidence of having 0:21:40.880 --> 0:21:44.399 the Ten Commandments of schools, and even if there's no 0:21:44.480 --> 0:21:48.159 evidence of Ten Commandment posters in schools, it doesn't matter 0:21:48.560 --> 0:21:51.800 it's enough that there were mention of the ten Commandment 0:21:52.080 --> 0:21:55.040 or reading of the ten Commandment, and therefore there's no 0:21:55.160 --> 0:21:58.240 violation of the Establishment clause. And there were a claim 0:21:58.359 --> 0:22:01.000 that simply looking at the ten command is not going 0:22:01.040 --> 0:22:06.360 to force children into doing anything religious, and therefore there 0:22:06.440 --> 0:22:08.080 is no Establishment cause violation. 0:22:08.480 --> 0:22:11.399 With the football coach, during the oral arguments, there was 0:22:11.440 --> 0:22:15.240 a lot of discussion about whether it was coercive, whether 0:22:15.280 --> 0:22:18.400 the players felt like they had to pray with him, 0:22:18.960 --> 0:22:22.720 and you know, the justice is the conservative justices said, oh, no, 0:22:22.840 --> 0:22:23.720 it's not coercive. 0:22:24.320 --> 0:22:29.679 And there's a really important difference between the coach case 0:22:30.280 --> 0:22:35.679 and this case because a lot of the case about 0:22:35.680 --> 0:22:41.919 the praying coach turned on the court conclusion that he 0:22:42.200 --> 0:22:46.480 was speaking as an individual and not as the government. 0:22:46.880 --> 0:22:52.720 So they really viewed his action as a private person's 0:22:53.400 --> 0:22:59.160 attempt to practice his own space, and consequently they really 0:22:59.280 --> 0:23:03.240 viewed it through a free exercise lens and went out 0:23:03.280 --> 0:23:07.639 of their way to ensure protection of his ability to 0:23:07.760 --> 0:23:12.160 practice his religion, and that this would clearly take precedent 0:23:12.280 --> 0:23:17.760 over any hypothetical Establishment Clause claim of coercion, for which 0:23:17.800 --> 0:23:20.960 there was no proof that that asides. But the very 0:23:21.000 --> 0:23:25.680 big difference here is there is no individual practicing their 0:23:25.720 --> 0:23:28.439 faith in this case, and there is no question that 0:23:28.600 --> 0:23:32.760 is is the government that is posting these Ten Commandments, 0:23:32.800 --> 0:23:36.320 these religious documents on the walls. And so they have 0:23:36.480 --> 0:23:40.920 to confront more directly the fact that the government is 0:23:41.160 --> 0:23:46.560 posting something that's really inherently religious. And they were able 0:23:46.560 --> 0:23:49.680 to dodge that more with a coach by saying, well, 0:23:49.720 --> 0:23:54.080 it was him practicing his religion, not the government trying 0:23:54.080 --> 0:23:55.520 to get the students to do it. 0:23:55.960 --> 0:23:59.120 So you mentioned the Kentucky case. This is a very 0:23:59.119 --> 0:24:02.200 different Supreme Court, and you know, as you're referred to, 0:24:03.040 --> 0:24:07.199 I can't remember the last time religion lost at the 0:24:07.200 --> 0:24:10.600 Supreme Court with the Roberts Court and especially with the 0:24:10.640 --> 0:24:15.120 conservative majority. Do you think that the Kentucky case, if 0:24:15.119 --> 0:24:18.280 this gets to the Supreme Court, that the Kentucky case 0:24:18.320 --> 0:24:19.000 will stand. 0:24:19.520 --> 0:24:24.520 I don't know, because the Supreme Court has traditionally been 0:24:25.640 --> 0:24:31.040 especially mindful of the establishment clause in the school context 0:24:31.160 --> 0:24:34.760 for a couple of reasons. The first is that you know, 0:24:34.800 --> 0:24:39.440 the children in school are considered very young and very impressionable, 0:24:39.960 --> 0:24:44.560 and therefore the government has heightened responsibilities towards them. And 0:24:44.880 --> 0:24:50.200 second is that the students at school are a captive audience. 0:24:50.520 --> 0:24:53.000 They have no choice but to be there. They're sort 0:24:53.040 --> 0:24:56.280 of doubly captives. The government requires that they attend school 0:24:56.440 --> 0:25:00.000 at then as school, they're under the control of the school, 0:25:00.960 --> 0:25:07.000 and therefore, again there are heightened responsibilities when you're dealing 0:25:07.040 --> 0:25:12.040 with the young, impressional students who are also a captive audience. 0:25:12.400 --> 0:25:16.720 Will the Supreme Court continue to honor these considerations. I 0:25:16.720 --> 0:25:20.560