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