WEBVTT - Is Roberts the Most Powerful Chief Justice? 0:00:00.480 --> 0:00:05.680 You're listening to Bloomberg Law with June Grassoe from Bloomberg Radio. 0:00:05.920 --> 0:00:08.960 It's been the Roberts Court for nearly fifteen years, but 0:00:09.080 --> 0:00:12.440 that term has new meaning as Chief Justice John Roberts 0:00:12.560 --> 0:00:14.880 is not only the chief but it's clearly now the 0:00:14.960 --> 0:00:18.560 swing vote at the ideological center of the Court. Speaking 0:00:18.600 --> 0:00:22.599 at Renstler Polytechnic Institute three years ago, Roberts said that 0:00:22.680 --> 0:00:26.640 Chief Justice John Marshall was his model for a Chief Justice. 0:00:27.080 --> 0:00:31.600 He appreciated the role of the Court uh in sort 0:00:31.600 --> 0:00:34.800 of bringing the United States together under the Constitution, under 0:00:34.840 --> 0:00:39.480 the rule of law, and he had a very particular focus. 0:00:39.520 --> 0:00:43.440 He's the author of some great decisions that define our nation. 0:00:44.360 --> 0:00:48.560 But he also had a very modest and measured understanding 0:00:48.640 --> 0:00:53.279 of his job, so he was very restrained. He had 0:00:53.320 --> 0:00:56.840 a way of diffusing political controversy and focusing on case. 0:00:57.200 --> 0:01:00.840 Roberts may display some of Marshall's attributes, but his power, 0:01:01.280 --> 0:01:05.280 especially in cases involving divisive cultural issues in our country, 0:01:05.640 --> 0:01:09.559 exceeds that of almost any other Chief Justice. Roberts cast 0:01:09.600 --> 0:01:12.319 the deciding vote in all ten cases this term in 0:01:12.360 --> 0:01:14.679 which there was a five to four decision. In the 0:01:14.720 --> 0:01:18.319 past two weeks, the Chief's donned many conservatives by joining 0:01:18.360 --> 0:01:22.400 with the liberal justices to strike down limitations on abortion rights, 0:01:22.600 --> 0:01:27.880 to save Dreamers from deportation, and to expand lgbt Q rights, 0:01:27.880 --> 0:01:31.080 But he sided with the conservatives to boost religious schools 0:01:31.120 --> 0:01:33.160 and the president's power to fire the head of an 0:01:33.200 --> 0:01:36.480 independent agency. Joining me is Harold Granted, Professor at the 0:01:36.560 --> 0:01:40.520 Chicago Kent College of Law. How everyone seems to agree 0:01:40.560 --> 0:01:43.640 that the Chief is an institutionalist. Some critics have even 0:01:43.760 --> 0:01:46.880 used that term against him. Explain what that means for 0:01:46.920 --> 0:01:51.920 a chief justice. He cares about the respect and the 0:01:51.920 --> 0:01:57.360 integrity of courts in general and the Supreme Court in particular. Famously, 0:01:57.560 --> 0:02:00.760 he retorted to President Trump, there are no Trump judges 0:02:00.840 --> 0:02:04.240 or Obama judges. We just have judges. And he wants 0:02:04.280 --> 0:02:07.400 the judiciary to be viewed as out of the partisan 0:02:07.520 --> 0:02:11.160 fray within which it's too often dragged, And so he's 0:02:11.200 --> 0:02:14.519 trying to build up a kind of just in the 0:02:14.520 --> 0:02:18.120 spree of court. But a reputation for judges as being, 0:02:18.440 --> 0:02:24.119 if not bumpires, at least being fossiful independent jurists who 0:02:24.160 --> 0:02:28.040 the public can rely upon. Is that true of most 0:02:28.200 --> 0:02:32.080 chief Justices? Do they usually have that kind of impetus 0:02:32.120 --> 0:02:36.079 to protect the institution and the judiciary in general. Well, 0:02:36.120 --> 0:02:39.320 it makes this so unique in our time in history 0:02:39.360 --> 0:02:43.160 is the division and the court. We all think and 0:02:43.360 --> 0:02:46.560 most times it's true that the chief can be the 0:02:46.639 --> 0:02:50.320 deciding vote in a close case. So many other Chief 0:02:50.360 --> 0:02:53.160 Justices have not had this sort of breakdown of for 0:02:53.360 --> 0:02:56.320 liberal and for conservative juices. And of course he's conservative, 0:02:56.360 --> 0:02:59.440 he's very conservative. But yet he cares not just in 0:02:59.560 --> 0:03:03.320 rubbers amping conservative results, but in trying to build this 0:03:03.520 --> 0:03:06.800 integrity for the court. And that's been manifested in some 0:03:06.880 --> 0:03:09.640 of the recent decisions of the term. Let's talk about 0:03:09.639 --> 0:03:13.919 some of the high profile cases involving divisive issues where 0:03:13.960 --> 0:03:16.480 the chiefs study what the liberal justice is to make 0:03:16.520 --> 0:03:19.800 the majority. On Monday, there was the abortion rights case 0:03:20.000 --> 0:03:23.359 where Robert said he was bound by president. And what's 0:03:23.360 --> 0:03:27.040 remarkable about this case is that four years ago he 0:03:27.240 --> 0:03:32.440 voted to uphold the very serious restrictions on abortion access 0:03:32.560 --> 0:03:37.160 that Texas has provided Louisiana copied Texas statute, and then 0:03:37.200 --> 0:03:40.960 four years later Chief Justice Roberts decided that because he 0:03:41.040 --> 0:03:44.400 lost four years ago, he should lose again now, which 0:03:44.400 --> 0:03:47.640 is pretty extraordinary. It suggests that He doesn't want the 0:03:47.720 --> 0:03:50.040 court to be seen as just because there's a change 0:03:50.040 --> 0:03:54.040 in personnel, they changed the results. That's really what's at 0:03:54.080 --> 0:03:57.280 stake here in the decision. And he just said, I 0:03:57.360 --> 0:04:00.480 want people to understand that we're a court to because 0:04:00.480 --> 0:04:03.000 we have a different that we've gone become more conservative, 0:04:03.040 --> 0:04:06.480 We're not going to unravel what just occurred four years ago. 0:04:07.040 --> 0:04:10.520 Very sort of bold step forward by the Chief. Then 0:04:10.560 --> 0:04:14.640 you have a decision upholding DACA, which echoed the census case, 0:04:14.960 --> 0:04:18.840 where the Chief you know, wasn't buying the Trump administration's 0:04:18.839 --> 0:04:23.080 explanations and said you have to do better. And part 0:04:23.080 --> 0:04:25.440 of this seems to me, I don't think it's really 0:04:25.800 --> 0:04:28.160 a direction against President Trump at all, but I think 0:04:28.160 --> 0:04:30.760 it's a recognition that if we're going to be tough 0:04:30.800 --> 0:04:33.280 on agencies, we need to be tough on agencies when 0:04:33.320 --> 0:04:36.920 they're Republican as well as be tough on agencies when 0:04:36.960 --> 0:04:41.440 they're democratic. And so in the DOCCA case, he basically 0:04:41.560 --> 0:04:45.520 told the agency, the Department of Homeland Security, that it 0:04:45.600 --> 0:04:50.440 couldn't go back and give a better rationality justification for 0:04:50.640 --> 0:04:54.040 the recision of DOCCA because the first time that they 0:04:54.080 --> 0:04:57.279 tried to explain it they just said, oh, Obama didn't 0:04:57.279 --> 0:05:00.800 have the power, and that really isn't a satisfactory explanation 0:05:01.160 --> 0:05:04.200 even by the dissenters in the case. But they went 0:05:04.240 --> 0:05:07.680 back several months later and gave i think, a relatively 0:05:07.800 --> 0:05:13.039 coherent justification for why they were changing Obama's policy that 0:05:13.120 --> 0:05:16.680 should have been held constitutional. But that initial failure to 0:05:16.760 --> 0:05:19.480 the chief was enough for him to break away from 0:05:19.520 --> 0:05:22.200 the conservative justices and say, you know, we're going to 0:05:22.279 --> 0:05:24.440 hold your feet to the fire, and you're gonna have 0:05:24.520 --> 0:05:28.520 to give a persuasive explanation at the time you change 0:05:28.520 --> 0:05:31.440 your policy. You didn't do that until you go back 0:05:31.440 --> 0:05:33.719 and accomplish the same result if you want to, but 0:05:33.760 --> 0:05:35.839 you're gonna have to do it the right way in 0:05:35.880 --> 0:05:39.560 the future. An interesting decision, again somewhat like the census case, 0:05:39.640 --> 0:05:41.640 as you mentioned, which said that even though he's very 0:05:41.680 --> 0:05:45.000 sympathetic to the end result, he went with the liberal 0:05:45.160 --> 0:05:48.880 wing of the court in striking down the Trump administration's 0:05:48.920 --> 0:05:52.080 effort to really change one of the signal accomplishments of 0:05:52.160 --> 0:05:55.680 the Obama era, which was the refuge for the dreamers. 0:05:55.920 --> 0:06:00.400 The decision that really drew a lot of political was 0:06:00.440 --> 0:06:05.279 the lgbt Q rights in job discrimination case, in which 0:06:05.640 --> 0:06:11.719 conservative Justice Neil Gorst joined with Justice Roberts in the majority. Yeah, 0:06:11.760 --> 0:06:14.799 so here we have a slightly different situation on one hand, 0:06:14.839 --> 0:06:18.240 because Justice Gorsage did split with his conservative brethren in 0:06:18.240 --> 0:06:20.520 that case, which made it a six to three decisions. 0:06:20.839 --> 0:06:24.479 Interesting from Chief Justice Robert's perspective is he was a 0:06:24.520 --> 0:06:28.040 notable dissenter from the gay marriage case, very eloquent, I 0:06:28.120 --> 0:06:30.599 might add, and then he decided to vote with the 0:06:30.640 --> 0:06:33.040 majority here. And the difference, you could say, is that 0:06:33.240 --> 0:06:35.880 we're now opining about a statute to reach of what 0:06:36.120 --> 0:06:40.400 Congress meant in nineteen sixty four, whereas the Constitution obviously 0:06:40.520 --> 0:06:43.599 is more enduring. And what might be seen in these 0:06:43.640 --> 0:06:47.359 cases is that the Chief will be uncompromising in his 0:06:47.480 --> 0:06:51.760 interpretation of the Constitution, and we saw that in the CFPB, 0:06:51.960 --> 0:06:56.000 the Consumer Finance Privacy Bureau, but that he will give 0:06:56.160 --> 0:06:59.479 on agency action, he will give a statutory action. He 0:06:59.520 --> 0:07:02.480 will be more you could say it independent, more institutional 0:07:02.560 --> 0:07:05.560 binding than those types of cases. He has been the 0:07:05.720 --> 0:07:10.200 deciding vote in all of the five four votes this term, 0:07:10.680 --> 0:07:13.840 and he also has the power of being the chief 0:07:13.960 --> 0:07:17.280 so beyond the swing vote, has any other chief justice 0:07:17.440 --> 0:07:20.600 in our history had that kind of power. Given the 0:07:20.640 --> 0:07:23.720 composition the court, he is exercised in the power much 0:07:23.760 --> 0:07:26.920 more effectively than his predecessors had. Some people think Chief 0:07:27.080 --> 0:07:30.160 Justice Hues way back when seventy five years ago, during 0:07:30.200 --> 0:07:34.000 the FDR days, had somewhat similar power in terms of 0:07:34.040 --> 0:07:37.760 trying to keep the court independent despite FDR's insistence that 0:07:37.840 --> 0:07:40.400 they change course. But of course they finally did buggle 0:07:40.480 --> 0:07:44.800 under to FDR and did become much more living or 0:07:44.800 --> 0:07:48.560 welcoming to the rise of the national government and its agencies. 0:07:48.640 --> 0:07:50.360 But you have to look best far back. I mean, 0:07:50.480 --> 0:07:53.880 certainly the numbers speak for themselves. We've never had a 0:07:53.880 --> 0:07:56.600 period of history, at least in the less probably fifty 0:07:56.640 --> 0:08:00.800 five years, where the Chief Justice been able to dominate 0:08:00.920 --> 0:08:04.320 the court's rulings. I think of the cases in the 0:08:04.360 --> 0:08:07.240 last two years or so, he's been in the majority, 0:08:07.480 --> 0:08:10.800 whether it's five four, six, three, and he's able and 0:08:10.800 --> 0:08:13.320 then to have that kind of incredible influence is really 0:08:13.400 --> 0:08:16.680 unique in our history, and we're seeing how it's played out. 0:08:16.800 --> 0:08:19.320 People say he's an incrementalist, which means he doesn't want 0:08:19.360 --> 0:08:22.360 to air out too many issues. He's been using the 0:08:22.400 --> 0:08:25.760 searcher our power to limit the type of controversial cases 0:08:26.040 --> 0:08:29.160 that go to the court. The Court recently has decided 0:08:29.200 --> 0:08:33.120 to reject many cases involving the Second Amendment, which is 0:08:33.160 --> 0:08:35.320 the gun rights issue, which is a hot Buddon issue, 0:08:35.520 --> 0:08:40.080 many cases involving sanctuary cities, another hot Buddon issue, cases 0:08:40.480 --> 0:08:44.640 involving qualified immunity. And in all these cases, he's trying 0:08:44.679 --> 0:08:49.080 to sort of camp down the political acrimony on the 0:08:49.080 --> 0:08:51.760 court and I think slowly build up the court stature 0:08:51.800 --> 0:08:54.960 for the future. And if it's a five four case, 0:08:55.240 --> 0:08:57.040 he's in charge, and he decides who writes it, and 0:08:57.120 --> 0:08:59.680 he knows if another justice will write the decision broadly 0:08:59.840 --> 0:09:03.040 or are more incrementally, and he tries to adopt a 0:09:03.040 --> 0:09:06.720 more incremental approach whoever possible. It seems as if many 0:09:06.760 --> 0:09:11.040 conservatives are forgetting some of Robert's past decisions. For example, 0:09:11.080 --> 0:09:13.400 one that he got a lot of criticism for was 0:09:13.480 --> 0:09:16.360 the voting rights case. Yeah, I mean both in the 0:09:16.440 --> 0:09:21.080 voting rights cases and particularly in the gerrymandering cases, he's 0:09:21.120 --> 0:09:24.079 been incredibly conservative. And again just this week, this is 0:09:24.120 --> 0:09:27.920 the first abortion case he's ever cited himself. With those 0:09:28.120 --> 0:09:30.880 favoring a right to choose, so this is the first time. 0:09:30.960 --> 0:09:34.319 So he's been very conservative in many cases, and in 0:09:34.440 --> 0:09:37.280 the hot button case for this term will be the 0:09:37.280 --> 0:09:39.920 Trump tactics, and we'll see what he does. If you 0:09:40.000 --> 0:09:46.080 consider Justices David Suitor, Sandra Day O'Connor, and Anthony Kennedy, 0:09:46.400 --> 0:09:48.880 does how long you're on the court play a role 0:09:49.200 --> 0:09:53.280 in changing the way you view cases. My own opinion 0:09:53.360 --> 0:09:57.400 is Chief Justice Robert is not changing. Certainly. I think 0:09:57.400 --> 0:10:01.960 he has been somewhat discussed with aspect of President Trump's rule, 0:10:02.480 --> 0:10:05.199 but I think he's fundamentally conservative. We're not going to 0:10:05.320 --> 0:10:09.360 see that kind of Suitor switch or Justice Stevens switch, 0:10:09.720 --> 0:10:12.600 or even Justice White switch. But yet again, I think 0:10:12.640 --> 0:10:15.440 that the layer for Chief Justice Roberts is not that 0:10:15.520 --> 0:10:18.520 he's becoming more moderate, but that he really sees a 0:10:18.600 --> 0:10:21.680 crisis for the Court and he's in a unique role 0:10:21.960 --> 0:10:24.480 to do everything he can to try to help the 0:10:25.000 --> 0:10:29.480 respect and dignity of this August institution. Thanks so much 0:10:29.480 --> 0:10:32.680 for being on Bloomberg Lahaw. That's Harold Grant, professor at 0:10:32.679 --> 0:10:36.920 the Chicago Kent College of Law. In a five to 0:10:37.000 --> 0:10:41.080 four decision down ideological lines, the Supreme Court gave religious 0:10:41.080 --> 0:10:44.480 schools a victory this week, ruling that states that offered 0:10:44.559 --> 0:10:48.040 taxpayer subsidies to private schools must do the same for 0:10:48.080 --> 0:10:52.440 religious schools. Chief Justice John Roberts joined the conservatives on 0:10:52.520 --> 0:10:55.080 the court and the decision that lowers the wall between 0:10:55.160 --> 0:10:58.800 church and state. In the majority opinion, Roberts wrote that 0:10:58.840 --> 0:11:03.120 the Montana Supreme Court violated the US constitutions protection of 0:11:03.160 --> 0:11:05.960 the free exercise of religion when it threw out a 0:11:06.000 --> 0:11:09.199 scholarship program because most of the money went to students 0:11:09.200 --> 0:11:13.439 attending faith based schools. His reasoning echo that expressed by 0:11:13.520 --> 0:11:16.640 Justice Samuel Alito during the oral arguments in the case. 0:11:17.280 --> 0:11:19.640 There's a difference between saying we're not going to fund 0:11:19.679 --> 0:11:25.000 religious activities and saying we're going to discriminate based on religion. 0:11:25.120 --> 0:11:28.160 That's the point that nobody's claiming the state has an 0:11:28.160 --> 0:11:33.800 obligation to make particular grants to religious institutions. My guest 0:11:33.840 --> 0:11:36.600 is Richard Garnett, a professor at the University of Notre 0:11:36.720 --> 0:11:40.160 Dame Law School. Would you call this a landmark ruling? 0:11:40.240 --> 0:11:44.920 Did it go beyond previous decisions on religion? So? Yes 0:11:44.960 --> 0:11:48.520 and no. On the one hand, it's a very natural 0:11:48.760 --> 0:11:52.920 and probably expected next step from a case that was 0:11:52.920 --> 0:11:57.120 decided two years ago called Trinity Lutheran. That case involved 0:11:57.160 --> 0:12:02.079 a program in Missouri that provided recycled tire parts to 0:12:02.240 --> 0:12:05.600 various nonprofits that they could use for playgrounds, but it 0:12:05.679 --> 0:12:09.199 excluded a religious daycare center from participating in. The Court 0:12:09.280 --> 0:12:11.600 said there that if the government's got a general benefit 0:12:11.640 --> 0:12:15.480 program that it makes available to qualified applicants, it can't 0:12:15.520 --> 0:12:19.080 selectively exclude religious applicants. And the court in that decision 0:12:19.120 --> 0:12:21.640 was seven to two, and there were some interesting little 0:12:21.679 --> 0:12:24.000 cryptic footnotes that made it clear that all of the 0:12:24.080 --> 0:12:26.520 justices were aware that the next question was going to 0:12:26.600 --> 0:12:30.000 be and the next case was going to involve schools 0:12:30.040 --> 0:12:32.800 and school funding, and that's exactly what happened in this 0:12:32.920 --> 0:12:35.280 Espinosa case. So in that sense, it's again at the 0:12:35.320 --> 0:12:37.960 other shoe dropping that. On the other hand, if you 0:12:38.000 --> 0:12:41.200 step back the kind of thirty ft level, the case 0:12:41.280 --> 0:12:44.640 represents a very interesting and pretty clear change in the 0:12:44.679 --> 0:12:48.560 Court's doctrine over the last forty years. Let's say, even 0:12:48.600 --> 0:12:51.720 fifty years ago, the Supreme Court would have been very 0:12:51.760 --> 0:12:56.880 skeptical about whether the Constitution even permitted governments to provide 0:12:57.120 --> 0:13:00.720 neutral scholarship benefits to kids. Attending religiou schools. There are 0:13:00.760 --> 0:13:03.320 all these decisions in the seventies and early eighties where 0:13:03.320 --> 0:13:06.080 the court instructees down as violations of the separation of 0:13:06.120 --> 0:13:08.960 church and state. But over the decades, the Court's doctrine 0:13:09.000 --> 0:13:12.200 has just evolved, and it's moved away from what some 0:13:12.280 --> 0:13:15.600 would call kind of strict no aid separation to more 0:13:15.640 --> 0:13:19.800 of a neutrality approach, where as long as religious beneficiaries 0:13:19.800 --> 0:13:24.800 are being treated equally to non religious qualifying beneficiaries, that's permissible. 0:13:25.080 --> 0:13:27.440 And then you add to that this idea that the 0:13:27.440 --> 0:13:31.480 free exercise clause doesn't permit discrimination. So one way to 0:13:31.480 --> 0:13:33.920 see what's happened over the last several decades is that 0:13:34.200 --> 0:13:37.439 assistance that might have been impermissible thirty or forty years 0:13:37.480 --> 0:13:41.440 ago is now under the new doctrine required. We went 0:13:41.480 --> 0:13:46.120 from not allowing even neutral aid to now requiring even 0:13:46.160 --> 0:13:48.520 handed fundings. You know, we see developments in the courts 0:13:48.520 --> 0:13:50.959 docritione in lots of areas all the time, but certainly 0:13:51.240 --> 0:13:54.040 in this area there has been a change. Critics would 0:13:54.080 --> 0:13:57.400 say that the Roberts Court seems to be blurring the 0:13:57.440 --> 0:14:00.679 line between church and state, is on its way to 0:14:00.840 --> 0:14:03.760 erasing the line yeah, I think critics would say that, 0:14:03.800 --> 0:14:05.480 I think they'd be mistaken. I mean a lot of 0:14:05.559 --> 0:14:09.120 depends on what one thinks the appropriate line between church 0:14:09.120 --> 0:14:12.160 and state is. So I think the Roberts majority believes, 0:14:12.280 --> 0:14:14.520 and this is probably my view as well, that the 0:14:14.559 --> 0:14:18.120 separation of church and state is about keeping religious and 0:14:18.160 --> 0:14:21.200 political power separate. At its core, it means, you know, 0:14:21.200 --> 0:14:23.760 we don't want bishops deciding what the tax rate is, 0:14:23.800 --> 0:14:26.040 and we don't want politicians deciding what songs they're going 0:14:26.080 --> 0:14:29.040 to sing at mass. But properly understood, the separation of 0:14:29.120 --> 0:14:32.560 church and state in the American tradition has never ruled 0:14:32.600 --> 0:14:36.080 out all forms of cooperation between religious entities in the 0:14:36.120 --> 0:14:38.080 one hand and government on the other. So, you know, 0:14:38.240 --> 0:14:41.000 people who returned from World War two used government funds 0:14:41.000 --> 0:14:43.080 on the g I Bill to attend Notre Dame in 0:14:43.080 --> 0:14:47.440 Boston College. Religious hospitals have been getting reimbursed by Medicare forever. 0:14:47.760 --> 0:14:50.840 The government funded all kinds of educational and other projects 0:14:50.920 --> 0:14:54.360 working with religious nonprofits. It delivers all kinds of social 0:14:54.400 --> 0:14:56.960 services to low income people through churches. Now, So the 0:14:57.000 --> 0:14:59.560 separation of church and state is an important principle in 0:14:59.560 --> 0:15:02.200 our edition. But I think what the Roberts Courts believes 0:15:02.320 --> 0:15:05.360 is that it's a mistake to think that separation rules 0:15:05.400 --> 0:15:08.880 out all forms of cooperation. And you know, education is 0:15:08.920 --> 0:15:12.520 a public good, it's a secular good, and if qualified 0:15:12.600 --> 0:15:15.360 education is provided by a religious school, I think the 0:15:15.440 --> 0:15:19.080 Roberts Courts position is that that public good isn't somehow 0:15:19.160 --> 0:15:22.800 tainted just because it's being delivered by St. Cecilia's rather 0:15:22.880 --> 0:15:27.640 than PS. You could briefly explain the Chief's reasoning in 0:15:27.760 --> 0:15:31.000 his majority opinion. Sure, you can think of it as 0:15:31.040 --> 0:15:34.920 having two steps. So step one is to say, and 0:15:34.960 --> 0:15:38.440 this has been the law now for a while, that 0:15:39.120 --> 0:15:43.600 a state is allowed to provide it's permissible to provide 0:15:44.360 --> 0:15:48.320 um neutral, even handed aid, whether it's a tax credit 0:15:48.360 --> 0:15:50.120 or what have you. That's what that's what this case involved, 0:15:50.360 --> 0:15:55.160 two kids attending religious schools. Then the next step you ask, well, 0:15:55.240 --> 0:15:58.200 Montana has decided that it's going to provide aid to 0:15:59.000 --> 0:16:04.000 secular private school but not religious private schools. Is Montana 0:16:04.040 --> 0:16:06.720 permitted to do that? Because, as the Chief frames it, 0:16:06.760 --> 0:16:09.760 that's a form of discrimination. You're saying, here's a benefit, 0:16:10.760 --> 0:16:12.760 you can use it at a secular private schools, but 0:16:12.840 --> 0:16:15.160 you can't use it at religious ones. So is that 0:16:15.320 --> 0:16:20.479 is that discrimination permissible? And under the courts doctrines, discrimination 0:16:20.560 --> 0:16:24.120 like that, you know, different differential treatment like that is 0:16:24.160 --> 0:16:30.120 only permissible if it's necessary to promote an important government purpose. 0:16:30.920 --> 0:16:33.600 And the Chief Justice says, well, the government doesn't have 0:16:33.720 --> 0:16:35.880 an important public purpose. Indeed, it doesn't even have a 0:16:35.960 --> 0:16:40.840 legitimate public purpose in denying funding that the constitution permits. 0:16:41.680 --> 0:16:46.040 So although some critics framed this in terms of separation 0:16:46.040 --> 0:16:47.360 of church and state and so on, I think for 0:16:47.400 --> 0:16:50.240 the Chief this is really a case about equal treatment 0:16:50.360 --> 0:16:55.360 and non discrimination. Right. The free exercise clause requires, among 0:16:55.360 --> 0:17:00.120 other things, that religious activities and religious believers not be 0:17:00.160 --> 0:17:03.840 discriminated against just because they're religious. And as he saw it, 0:17:03.920 --> 0:17:07.280 that's what this Montana rule did. Didn't say that the 0:17:07.440 --> 0:17:10.520 education being provided, you know, wasn't of a certain quality. 0:17:11.119 --> 0:17:15.160 It didn't say that the beneficiaries were somehow disqualified because 0:17:15.160 --> 0:17:18.200 of income or something. The only reason why the benefits 0:17:18.200 --> 0:17:21.280 couldn't be used to these schools was because of the 0:17:21.400 --> 0:17:24.320 religious nature, the religious status as he calls it, of 0:17:24.400 --> 0:17:27.280 the schools. And so that kind of discrimination on the 0:17:27.280 --> 0:17:31.280 basis of religious status is current law. It is very 0:17:31.280 --> 0:17:35.760 hard to justify, and again Montana's reasoning that wasn't determined 0:17:35.760 --> 0:17:38.600 to rest on a strong enough government interest to justify 0:17:38.640 --> 0:17:43.080 that discrimination. The dissent basically said, you know, Montana is 0:17:43.119 --> 0:17:47.440 treating people neutrally because it closed down the scholarship program 0:17:47.480 --> 0:17:51.600 to all and justice, so to Mayor called this decision 0:17:51.600 --> 0:17:54.960 by the majority perverse without any need or power to 0:17:55.000 --> 0:17:57.679 do so. The Court appears to require a state to 0:17:57.800 --> 0:18:01.399 reinstate a tax credit program that the Constitution did not 0:18:01.560 --> 0:18:04.919 demand in the first place. The dissenters have a number 0:18:05.040 --> 0:18:09.080 of kind of lines of attack. UM. One lineup attack 0:18:09.240 --> 0:18:13.119 is that the dissenting justices believe that the established I 0:18:13.119 --> 0:18:17.160 think they believe that they really are strong establishment cause 0:18:17.280 --> 0:18:22.840 reasons why a state would want to not fund religious schools. Um. 0:18:22.880 --> 0:18:24.880 They don't necessarily come out and say that they want 0:18:24.920 --> 0:18:29.480 to reverse the Supreme Court's decisions permitting school choice, but 0:18:29.520 --> 0:18:34.159 it's clear that for the dissenters, they're more sympathetic to 0:18:34.280 --> 0:18:38.080 Montana's desire just to keep public funds away from religious 0:18:38.119 --> 0:18:40.359 school So that's that's part of what's going on on 0:18:40.400 --> 0:18:43.480 the dissenting side. Another thing that's going on, as you said, 0:18:44.080 --> 0:18:47.600 is that there was a kind of a procedural oddity 0:18:47.640 --> 0:18:50.480 in this case, which is that what the Montana Supreme 0:18:50.520 --> 0:18:53.320 Court did was to say, you know, no, no one 0:18:53.359 --> 0:18:56.800 can get the benefits of this UM tax credit program 0:18:57.040 --> 0:19:00.680 whether they're going to secular or religious private school. So 0:19:00.720 --> 0:19:04.320 that that was the remedy that the Montana Court granted. 0:19:05.080 --> 0:19:08.440 But I think what the majority UH says in response is, look, 0:19:09.119 --> 0:19:12.960 the reason why the Montana Supreme Court shut down this 0:19:13.040 --> 0:19:18.840 program was because of its interpretation of the Montana Provision, 0:19:18.840 --> 0:19:23.919 which requires discrimination against religious schools. So the the in 0:19:23.960 --> 0:19:26.439 a sense, the majority and that the centers are talking 0:19:26.520 --> 0:19:29.200 past each other a little bit, because the majority says, look, 0:19:29.760 --> 0:19:32.959 the Montana Court did what it did because of this 0:19:33.040 --> 0:19:38.800 discriminatory UM Montana Provision, and the reason why these parents 0:19:39.240 --> 0:19:42.800 ended up losing the benefits that they were otherwise entitled 0:19:42.800 --> 0:19:46.199 to was because of this discriminatory provision. But as you 0:19:46.240 --> 0:19:49.320 point out, the dissenters say, well, you know, maybe it's 0:19:49.320 --> 0:19:53.560 an interesting theoretical question whether UM this kind of discrimination 0:19:53.720 --> 0:19:57.960 is unconstitutional, But in this particular case, what Montana did 0:19:59.000 --> 0:20:02.800 was treat non public school kids the same. So in 0:20:02.800 --> 0:20:08.320 a way, the dissenters are focusing on the Montana Supreme 0:20:08.359 --> 0:20:11.800 Court's remedy, and the majority is focusing on the Montana 0:20:11.880 --> 0:20:16.120 constitutional provision and that that that is a really interesting 0:20:16.200 --> 0:20:23.199 point of of disagreement between the two. I suspect that um, 0:20:23.280 --> 0:20:27.000 the four dissenters would have dissented in any event, that is, 0:20:27.600 --> 0:20:31.200 even if the even if the Montana Supreme Court had 0:20:31.280 --> 0:20:34.439 only singled out the parents who were attending religious schools. 0:20:35.680 --> 0:20:40.840 I think that the Center's position is being um driven 0:20:40.960 --> 0:20:46.040 substantially by this idea that Montana should be permitted to 0:20:46.240 --> 0:20:49.920 decide not to fund religious schools. That's really the that's 0:20:49.960 --> 0:20:53.280 really the sticking point between the majority and the descent. 0:20:53.400 --> 0:20:58.720 I believe states have these blamee amendments that block religious 0:20:58.760 --> 0:21:04.520 schools from getting pel like funds. Are those now unconstitutional? Well, 0:21:04.840 --> 0:21:06.800 a couple of things, they're The first thing to keep 0:21:06.800 --> 0:21:10.200 in mind is that, UM, a lot of these these 0:21:10.200 --> 0:21:14.520 provisions in the various state constitutions, there are slight but 0:21:14.720 --> 0:21:19.280 often important variations among them. So, you know, state state 0:21:19.320 --> 0:21:23.520 supreme courts have the primary authority to interpret state constitutions, 0:21:23.560 --> 0:21:26.600 and with respect to a lot of those provisions, the 0:21:26.640 --> 0:21:31.880 state supreme courts have already said, you know, these provisions. 0:21:31.920 --> 0:21:34.200 We know, we know how they're worded, but we think 0:21:34.200 --> 0:21:38.159 they actually do permit things like vouchers and tax credits 0:21:38.160 --> 0:21:42.240 and scholarships so long as their neutral. So um, this 0:21:42.320 --> 0:21:46.919 opinion doesn't do anything to undermine or to change the 0:21:47.000 --> 0:21:50.040 law in those states. So a state like Arizona, as 0:21:50.080 --> 0:21:54.120 an example, it has a a blame blame amendment type provision, 0:21:54.200 --> 0:21:57.560 but the state court had already interpreted it to allow 0:21:57.680 --> 0:22:04.879 even handed funding. But with respect to those states like Montana, Um, 0:22:04.920 --> 0:22:06.720 you know my neighbor state of Michigan. I think it 0:22:06.760 --> 0:22:09.359 is another example with respect to those states that have 0:22:09.480 --> 0:22:17.720 interpreted their own constitutions to require um discrimination against religious schools, 0:22:17.800 --> 0:22:21.920 than what this latest Supreme Court decision means is that 0:22:21.920 --> 0:22:25.760 those state constitutional provisions can't be enforced. The Supreme Court 0:22:25.840 --> 0:22:27.440 can't tell a state like, hey, take that out of 0:22:27.480 --> 0:22:30.879 your constitution. That's not how it works. But given the 0:22:30.960 --> 0:22:36.159 Espinosa decision, the states can't use their state constitutions in 0:22:36.280 --> 0:22:42.080 order to require or to excuse differential treatment in these 0:22:42.160 --> 0:22:45.199 kinds of programs. How far does this decision open the 0:22:45.280 --> 0:22:49.800 door to more public funding of religious education. Well, it 0:22:49.840 --> 0:22:52.560 opens the door in the sense that it permits the 0:22:52.640 --> 0:22:55.959 legislative process to consider this issue. Right, So this decision 0:22:56.040 --> 0:22:58.760 doesn't require a state to have about your program or 0:22:58.760 --> 0:23:02.199 a scholarship program, right like that. Um. But you know, 0:23:02.280 --> 0:23:07.360 for the last several decades, a lot of times, UM, 0:23:07.359 --> 0:23:11.800 political movements to get more school choice has kind of 0:23:11.840 --> 0:23:15.679 bumped up against these provisions. Um. These provisions have stood 0:23:15.680 --> 0:23:18.640 as kind of an obstacle to choice based reform, even 0:23:18.640 --> 0:23:21.320 in states that have wanted to enact it. So what 0:23:21.480 --> 0:23:27.080 this decision says basically is, look going forward, UM, these 0:23:27.240 --> 0:23:31.280 blame Amendment type provisions. They can't stand in the way 0:23:31.440 --> 0:23:36.280 of even handed school aboucher programs. No states required to 0:23:36.320 --> 0:23:39.480 adopt them. A state, if it wants to, can say 0:23:39.680 --> 0:23:43.399 public money is for government run schools only, or government 0:23:43.440 --> 0:23:48.720 run schools and charter schools only. But what this decision 0:23:49.160 --> 0:23:52.800 does mean is that if the state decides no, we're 0:23:52.800 --> 0:23:57.119 open to some experiments with programs that allow kids to 0:23:58.200 --> 0:24:01.920 use scholarships and tax credit the private schools. They can't 0:24:02.480 --> 0:24:05.200 single out religious schools for exclusion or flip it around, 0:24:05.200 --> 0:24:08.840 since most private schools are religious in a lot of states. 0:24:10.200 --> 0:24:14.080 What this decision means is that the option of including 0:24:14.160 --> 0:24:17.440 private schools in your in your kind of menu of 0:24:17.680 --> 0:24:22.000 publicly funded options. That option is now available, but it's 0:24:22.040 --> 0:24:24.840 still going to be a political decision, right. That doesn't 0:24:24.920 --> 0:24:27.439 mandate school choice. It just kind of opens up the 0:24:27.440 --> 0:24:30.080