Speaker 1: You're listening to Bloomberg Law with June Grassoe from Bloomberg Radio.
Speaker 1: It's been the Roberts Court for nearly fifteen years, but
Speaker 1: that term has new meaning as Chief Justice John Roberts
Speaker 1: is not only the chief but it's clearly now the
Speaker 1: swing vote at the ideological center of the Court. Speaking
Speaker 1: at Renstler Polytechnic Institute three years ago, Roberts said that
Speaker 1: Chief Justice John Marshall was his model for a Chief Justice.
Speaker 1: He appreciated the role of the Court uh in sort
Speaker 1: of bringing the United States together under the Constitution, under
Speaker 1: the rule of law, and he had a very particular focus.
Speaker 1: He's the author of some great decisions that define our nation.
Speaker 1: But he also had a very modest and measured understanding
Speaker 1: of his job, so he was very restrained. He had
Speaker 1: a way of diffusing political controversy and focusing on case.
Speaker 1: Roberts may display some of Marshall's attributes, but his power,
Speaker 1: especially in cases involving divisive cultural issues in our country,
Speaker 1: exceeds that of almost any other Chief Justice. Roberts cast
Speaker 1: the deciding vote in all ten cases this term in
Speaker 1: which there was a five to four decision. In the
Speaker 1: past two weeks, the Chief's donned many conservatives by joining
Speaker 1: with the liberal justices to strike down limitations on abortion rights,
Speaker 1: to save Dreamers from deportation, and to expand lgbt Q rights,
Speaker 1: But he sided with the conservatives to boost religious schools
Speaker 1: and the president's power to fire the head of an
Speaker 1: independent agency. Joining me is Harold Granted, Professor at the
Speaker 1: Chicago Kent College of Law. How everyone seems to agree
Speaker 1: that the Chief is an institutionalist. Some critics have even
Speaker 1: used that term against him. Explain what that means for
Speaker 1: a chief justice. He cares about the respect and the
Speaker 1: integrity of courts in general and the Supreme Court in particular. Famously,
Speaker 1: he retorted to President Trump, there are no Trump judges
Speaker 1: or Obama judges. We just have judges. And he wants
Speaker 1: the judiciary to be viewed as out of the partisan
Speaker 1: fray within which it's too often dragged, And so he's
Speaker 1: trying to build up a kind of just in the
Speaker 1: spree of court. But a reputation for judges as being,
Speaker 1: if not bumpires, at least being fossiful independent jurists who
Speaker 1: the public can rely upon. Is that true of most
Speaker 1: chief Justices? Do they usually have that kind of impetus
Speaker 1: to protect the institution and the judiciary in general. Well,
Speaker 1: it makes this so unique in our time in history
Speaker 1: is the division and the court. We all think and
Speaker 1: most times it's true that the chief can be the
Speaker 1: deciding vote in a close case. So many other Chief
Speaker 1: Justices have not had this sort of breakdown of for
Speaker 1: liberal and for conservative juices. And of course he's conservative,
Speaker 1: he's very conservative. But yet he cares not just in
Speaker 1: rubbers amping conservative results, but in trying to build this
Speaker 1: integrity for the court. And that's been manifested in some
Speaker 1: of the recent decisions of the term. Let's talk about
Speaker 1: some of the high profile cases involving divisive issues where
Speaker 1: the chiefs study what the liberal justice is to make
Speaker 1: the majority. On Monday, there was the abortion rights case
Speaker 1: where Robert said he was bound by president. And what's
Speaker 1: remarkable about this case is that four years ago he
Speaker 1: voted to uphold the very serious restrictions on abortion access
Speaker 1: that Texas has provided Louisiana copied Texas statute, and then
Speaker 1: four years later Chief Justice Roberts decided that because he
Speaker 1: lost four years ago, he should lose again now, which
Speaker 1: is pretty extraordinary. It suggests that He doesn't want the
Speaker 1: court to be seen as just because there's a change
Speaker 1: in personnel, they changed the results. That's really what's at
Speaker 1: stake here in the decision. And he just said, I
Speaker 1: want people to understand that we're a court to because
Speaker 1: we have a different that we've gone become more conservative,
Speaker 1: We're not going to unravel what just occurred four years ago.
Speaker 1: Very sort of bold step forward by the Chief. Then
Speaker 1: you have a decision upholding DACA, which echoed the census case,
Speaker 1: where the Chief you know, wasn't buying the Trump administration's
Speaker 1: explanations and said you have to do better. And part
Speaker 1: of this seems to me, I don't think it's really
Speaker 1: a direction against President Trump at all, but I think
Speaker 1: it's a recognition that if we're going to be tough
Speaker 1: on agencies, we need to be tough on agencies when
Speaker 1: they're Republican as well as be tough on agencies when
Speaker 1: they're democratic. And so in the DOCCA case, he basically
Speaker 1: told the agency, the Department of Homeland Security, that it
Speaker 1: couldn't go back and give a better rationality justification for
Speaker 1: the recision of DOCCA because the first time that they
Speaker 1: tried to explain it they just said, oh, Obama didn't
Speaker 1: have the power, and that really isn't a satisfactory explanation
Speaker 1: even by the dissenters in the case. But they went
Speaker 1: back several months later and gave i think, a relatively
Speaker 1: coherent justification for why they were changing Obama's policy that
Speaker 1: should have been held constitutional. But that initial failure to
Speaker 1: the chief was enough for him to break away from
Speaker 1: the conservative justices and say, you know, we're going to
Speaker 1: hold your feet to the fire, and you're gonna have
Speaker 1: to give a persuasive explanation at the time you change
Speaker 1: your policy. You didn't do that until you go back
Speaker 1: and accomplish the same result if you want to, but
Speaker 1: you're gonna have to do it the right way in
Speaker 1: the future. An interesting decision, again somewhat like the census case,
Speaker 1: as you mentioned, which said that even though he's very
Speaker 1: sympathetic to the end result, he went with the liberal
Speaker 1: wing of the court in striking down the Trump administration's
Speaker 1: effort to really change one of the signal accomplishments of
Speaker 1: the Obama era, which was the refuge for the dreamers.
Speaker 1: The decision that really drew a lot of political was
Speaker 1: the lgbt Q rights in job discrimination case, in which
Speaker 1: conservative Justice Neil Gorst joined with Justice Roberts in the majority. Yeah,
Speaker 1: so here we have a slightly different situation on one hand,
Speaker 1: because Justice Gorsage did split with his conservative brethren in
Speaker 1: that case, which made it a six to three decisions.
Speaker 1: Interesting from Chief Justice Robert's perspective is he was a
Speaker 1: notable dissenter from the gay marriage case, very eloquent, I
Speaker 1: might add, and then he decided to vote with the
Speaker 1: majority here. And the difference, you could say, is that
Speaker 1: we're now opining about a statute to reach of what
Speaker 1: Congress meant in nineteen sixty four, whereas the Constitution obviously
Speaker 1: is more enduring. And what might be seen in these
Speaker 1: cases is that the Chief will be uncompromising in his
Speaker 1: interpretation of the Constitution, and we saw that in the CFPB,
Speaker 1: the Consumer Finance Privacy Bureau, but that he will give
Speaker 1: on agency action, he will give a statutory action. He
Speaker 1: will be more you could say it independent, more institutional
Speaker 1: binding than those types of cases. He has been the
Speaker 1: deciding vote in all of the five four votes this term,
Speaker 1: and he also has the power of being the chief
Speaker 1: so beyond the swing vote, has any other chief justice
Speaker 1: in our history had that kind of power. Given the
Speaker 1: composition the court, he is exercised in the power much
Speaker 1: more effectively than his predecessors had. Some people think Chief
Speaker 1: Justice Hues way back when seventy five years ago, during
Speaker 1: the FDR days, had somewhat similar power in terms of
Speaker 1: trying to keep the court independent despite FDR's insistence that
Speaker 1: they change course. But of course they finally did buggle
Speaker 1: under to FDR and did become much more living or
Speaker 1: welcoming to the rise of the national government and its agencies.
Speaker 1: But you have to look best far back. I mean,
Speaker 1: certainly the numbers speak for themselves. We've never had a
Speaker 1: period of history, at least in the less probably fifty
Speaker 1: five years, where the Chief Justice been able to dominate
Speaker 1: the court's rulings. I think of the cases in the
Speaker 1: last two years or so, he's been in the majority,
Speaker 1: whether it's five four, six, three, and he's able and
Speaker 1: then to have that kind of incredible influence is really
Speaker 1: unique in our history, and we're seeing how it's played out.
Speaker 1: People say he's an incrementalist, which means he doesn't want
Speaker 1: to air out too many issues. He's been using the
Speaker 1: searcher our power to limit the type of controversial cases
Speaker 1: that go to the court. The Court recently has decided
Speaker 1: to reject many cases involving the Second Amendment, which is
Speaker 1: the gun rights issue, which is a hot Buddon issue,
Speaker 1: many cases involving sanctuary cities, another hot Buddon issue, cases
Speaker 1: involving qualified immunity. And in all these cases, he's trying
Speaker 1: to sort of camp down the political acrimony on the
Speaker 1: court and I think slowly build up the court stature
Speaker 1: for the future. And if it's a five four case,
Speaker 1: he's in charge, and he decides who writes it, and
Speaker 1: he knows if another justice will write the decision broadly
Speaker 1: or are more incrementally, and he tries to adopt a
Speaker 1: more incremental approach whoever possible. It seems as if many
Speaker 1: conservatives are forgetting some of Robert's past decisions. For example,
Speaker 1: one that he got a lot of criticism for was
Speaker 1: the voting rights case. Yeah, I mean both in the
Speaker 1: voting rights cases and particularly in the gerrymandering cases, he's
Speaker 1: been incredibly conservative. And again just this week, this is
Speaker 1: the first abortion case he's ever cited himself. With those
Speaker 1: favoring a right to choose, so this is the first time.
Speaker 1: So he's been very conservative in many cases, and in
Speaker 1: the hot button case for this term will be the
Speaker 1: Trump tactics, and we'll see what he does. If you
Speaker 1: consider Justices David Suitor, Sandra Day O'Connor, and Anthony Kennedy,
Speaker 1: does how long you're on the court play a role
Speaker 1: in changing the way you view cases. My own opinion
Speaker 1: is Chief Justice Robert is not changing. Certainly. I think
Speaker 1: he has been somewhat discussed with aspect of President Trump's rule,
Speaker 1: but I think he's fundamentally conservative. We're not going to
Speaker 1: see that kind of Suitor switch or Justice Stevens switch,
Speaker 1: or even Justice White switch. But yet again, I think
Speaker 1: that the layer for Chief Justice Roberts is not that
Speaker 1: he's becoming more moderate, but that he really sees a
Speaker 1: crisis for the Court and he's in a unique role
Speaker 1: to do everything he can to try to help the
Speaker 1: respect and dignity of this August institution. Thanks so much
Speaker 1: for being on Bloomberg Lahaw. That's Harold Grant, professor at
Speaker 1: the Chicago Kent College of Law. In a five to
Speaker 1: four decision down ideological lines, the Supreme Court gave religious
Speaker 1: schools a victory this week, ruling that states that offered
Speaker 1: taxpayer subsidies to private schools must do the same for
Speaker 1: religious schools. Chief Justice John Roberts joined the conservatives on
Speaker 1: the court and the decision that lowers the wall between
Speaker 1: church and state. In the majority opinion, Roberts wrote that
Speaker 1: the Montana Supreme Court violated the US constitutions protection of
Speaker 1: the free exercise of religion when it threw out a
Speaker 1: scholarship program because most of the money went to students
Speaker 1: attending faith based schools. His reasoning echo that expressed by
Speaker 1: Justice Samuel Alito during the oral arguments in the case.
Speaker 1: There's a difference between saying we're not going to fund
Speaker 1: religious activities and saying we're going to discriminate based on religion.
Speaker 1: That's the point that nobody's claiming the state has an
Speaker 1: obligation to make particular grants to religious institutions. My guest
Speaker 1: is Richard Garnett, a professor at the University of Notre
Speaker 1: Dame Law School. Would you call this a landmark ruling?
Speaker 1: Did it go beyond previous decisions on religion? So? Yes
Speaker 1: and no. On the one hand, it's a very natural
Speaker 1: and probably expected next step from a case that was
Speaker 1: decided two years ago called Trinity Lutheran. That case involved
Speaker 1: a program in Missouri that provided recycled tire parts to
Speaker 1: various nonprofits that they could use for playgrounds, but it
Speaker 1: excluded a religious daycare center from participating in. The Court
Speaker 1: said there that if the government's got a general benefit
Speaker 1: program that it makes available to qualified applicants, it can't
Speaker 1: selectively exclude religious applicants. And the court in that decision
Speaker 1: was seven to two, and there were some interesting little
Speaker 1: cryptic footnotes that made it clear that all of the
Speaker 1: justices were aware that the next question was going to
Speaker 1: be and the next case was going to involve schools
Speaker 1: and school funding, and that's exactly what happened in this
Speaker 1: Espinosa case. So in that sense, it's again at the
Speaker 1: other shoe dropping that. On the other hand, if you
Speaker 1: step back the kind of thirty ft level, the case
Speaker 1: represents a very interesting and pretty clear change in the
Speaker 1: Court's doctrine over the last forty years. Let's say, even
Speaker 1: fifty years ago, the Supreme Court would have been very
Speaker 1: skeptical about whether the Constitution even permitted governments to provide
Speaker 1: neutral scholarship benefits to kids. Attending religiou schools. There are
Speaker 1: all these decisions in the seventies and early eighties where
Speaker 1: the court instructees down as violations of the separation of
Speaker 1: church and state. But over the decades, the Court's doctrine
Speaker 1: has just evolved, and it's moved away from what some
Speaker 1: would call kind of strict no aid separation to more
Speaker 1: of a neutrality approach, where as long as religious beneficiaries
Speaker 1: are being treated equally to non religious qualifying beneficiaries, that's permissible.
Speaker 1: And then you add to that this idea that the
Speaker 1: free exercise clause doesn't permit discrimination. So one way to
Speaker 1: see what's happened over the last several decades is that
Speaker 1: assistance that might have been impermissible thirty or forty years
Speaker 1: ago is now under the new doctrine required. We went
Speaker 1: from not allowing even neutral aid to now requiring even
Speaker 1: handed fundings. You know, we see developments in the courts
Speaker 1: docritione in lots of areas all the time, but certainly
Speaker 1: in this area there has been a change. Critics would
Speaker 1: say that the Roberts Court seems to be blurring the
Speaker 1: line between church and state, is on its way to
Speaker 1: erasing the line yeah, I think critics would say that,
Speaker 1: I think they'd be mistaken. I mean a lot of
Speaker 1: depends on what one thinks the appropriate line between church
Speaker 1: and state is. So I think the Roberts majority believes,
Speaker 1: and this is probably my view as well, that the
Speaker 1: separation of church and state is about keeping religious and
Speaker 1: political power separate. At its core, it means, you know,
Speaker 1: we don't want bishops deciding what the tax rate is,
Speaker 1: and we don't want politicians deciding what songs they're going
Speaker 1: to sing at mass. But properly understood, the separation of
Speaker 1: church and state in the American tradition has never ruled
Speaker 1: out all forms of cooperation between religious entities in the
Speaker 1: one hand and government on the other. So, you know,
Speaker 1: people who returned from World War two used government funds
Speaker 1: on the g I Bill to attend Notre Dame in
Speaker 1: Boston College. Religious hospitals have been getting reimbursed by Medicare forever.
Speaker 1: The government funded all kinds of educational and other projects
Speaker 1: working with religious nonprofits. It delivers all kinds of social
Speaker 1: services to low income people through churches. Now, So the
Speaker 1: separation of church and state is an important principle in
Speaker 1: our edition. But I think what the Roberts Courts believes
Speaker 1: is that it's a mistake to think that separation rules
Speaker 1: out all forms of cooperation. And you know, education is
Speaker 1: a public good, it's a secular good, and if qualified
Speaker 1: education is provided by a religious school, I think the
Speaker 1: Roberts Courts position is that that public good isn't somehow
Speaker 1: tainted just because it's being delivered by St. Cecilia's rather
Speaker 1: than PS. You could briefly explain the Chief's reasoning in
Speaker 1: his majority opinion. Sure, you can think of it as
Speaker 1: having two steps. So step one is to say, and
Speaker 1: this has been the law now for a while, that
Speaker 1: a state is allowed to provide it's permissible to provide
Speaker 1: um neutral, even handed aid, whether it's a tax credit
Speaker 1: or what have you. That's what that's what this case involved,
Speaker 1: two kids attending religious schools. Then the next step you ask, well,
Speaker 1: Montana has decided that it's going to provide aid to
Speaker 1: secular private school but not religious private schools. Is Montana
Speaker 1: permitted to do that? Because, as the Chief frames it,
Speaker 1: that's a form of discrimination. You're saying, here's a benefit,
Speaker 1: you can use it at a secular private schools, but
Speaker 1: you can't use it at religious ones. So is that
Speaker 1: is that discrimination permissible? And under the courts doctrines, discrimination
Speaker 1: like that, you know, different differential treatment like that is
Speaker 1: only permissible if it's necessary to promote an important government purpose.
Speaker 1: And the Chief Justice says, well, the government doesn't have
Speaker 1: an important public purpose. Indeed, it doesn't even have a
Speaker 1: legitimate public purpose in denying funding that the constitution permits.
Speaker 1: So although some critics framed this in terms of separation
Speaker 1: of church and state and so on, I think for
Speaker 1: the Chief this is really a case about equal treatment
Speaker 1: and non discrimination. Right. The free exercise clause requires, among
Speaker 1: other things, that religious activities and religious believers not be
Speaker 1: discriminated against just because they're religious. And as he saw it,
Speaker 1: that's what this Montana rule did. Didn't say that the
Speaker 1: education being provided, you know, wasn't of a certain quality.
Speaker 1: It didn't say that the beneficiaries were somehow disqualified because
Speaker 1: of income or something. The only reason why the benefits
Speaker 1: couldn't be used to these schools was because of the
Speaker 1: religious nature, the religious status as he calls it, of
Speaker 1: the schools. And so that kind of discrimination on the
Speaker 1: basis of religious status is current law. It is very
Speaker 1: hard to justify, and again Montana's reasoning that wasn't determined
Speaker 1: to rest on a strong enough government interest to justify
Speaker 1: that discrimination. The dissent basically said, you know, Montana is
Speaker 1: treating people neutrally because it closed down the scholarship program
Speaker 1: to all and justice, so to Mayor called this decision
Speaker 1: by the majority perverse without any need or power to
Speaker 1: do so. The Court appears to require a state to
Speaker 1: reinstate a tax credit program that the Constitution did not
Speaker 1: demand in the first place. The dissenters have a number
Speaker 1: of kind of lines of attack. UM. One lineup attack
Speaker 1: is that the dissenting justices believe that the established I
Speaker 1: think they believe that they really are strong establishment cause
Speaker 1: reasons why a state would want to not fund religious schools. Um.
Speaker 1: They don't necessarily come out and say that they want
Speaker 1: to reverse the Supreme Court's decisions permitting school choice, but
Speaker 1: it's clear that for the dissenters, they're more sympathetic to
Speaker 1: Montana's desire just to keep public funds away from religious
Speaker 1: school So that's that's part of what's going on on
Speaker 1: the dissenting side. Another thing that's going on, as you said,
Speaker 1: is that there was a kind of a procedural oddity
Speaker 1: in this case, which is that what the Montana Supreme
Speaker 1: Court did was to say, you know, no, no one
Speaker 1: can get the benefits of this UM tax credit program
Speaker 1: whether they're going to secular or religious private school. So
Speaker 1: that that was the remedy that the Montana Court granted.
Speaker 1: But I think what the majority UH says in response is, look,
Speaker 1: the reason why the Montana Supreme Court shut down this
Speaker 1: program was because of its interpretation of the Montana Provision,
Speaker 1: which requires discrimination against religious schools. So the the in
Speaker 1: a sense, the majority and that the centers are talking
Speaker 1: past each other a little bit, because the majority says, look,
Speaker 1: the Montana Court did what it did because of this
Speaker 1: discriminatory UM Montana Provision, and the reason why these parents
Speaker 1: ended up losing the benefits that they were otherwise entitled
Speaker 1: to was because of this discriminatory provision. But as you
Speaker 1: point out, the dissenters say, well, you know, maybe it's
Speaker 1: an interesting theoretical question whether UM this kind of discrimination
Speaker 1: is unconstitutional, But in this particular case, what Montana did
Speaker 1: was treat non public school kids the same. So in
Speaker 1: a way, the dissenters are focusing on the Montana Supreme
Speaker 1: Court's remedy, and the majority is focusing on the Montana
Speaker 1: constitutional provision and that that that is a really interesting
Speaker 1: point of of disagreement between the two. I suspect that um,
Speaker 1: the four dissenters would have dissented in any event, that is,
Speaker 1: even if the even if the Montana Supreme Court had
Speaker 1: only singled out the parents who were attending religious schools.
Speaker 1: I think that the Center's position is being um driven
Speaker 1: substantially by this idea that Montana should be permitted to
Speaker 1: decide not to fund religious schools. That's really the that's
Speaker 1: really the sticking point between the majority and the descent.
Speaker 1: I believe states have these blamee amendments that block religious
Speaker 1: schools from getting pel like funds. Are those now unconstitutional? Well,
Speaker 1: a couple of things, they're The first thing to keep
Speaker 1: in mind is that, UM, a lot of these these
Speaker 1: provisions in the various state constitutions, there are slight but
Speaker 1: often important variations among them. So, you know, state state
Speaker 1: supreme courts have the primary authority to interpret state constitutions,
Speaker 1: and with respect to a lot of those provisions, the
Speaker 1: state supreme courts have already said, you know, these provisions.
Speaker 1: We know, we know how they're worded, but we think
Speaker 1: they actually do permit things like vouchers and tax credits
Speaker 1: and scholarships so long as their neutral. So um, this
Speaker 1: opinion doesn't do anything to undermine or to change the
Speaker 1: law in those states. So a state like Arizona, as
Speaker 1: an example, it has a a blame blame amendment type provision,
Speaker 1: but the state court had already interpreted it to allow
Speaker 1: even handed funding. But with respect to those states like Montana, Um,
Speaker 1: you know my neighbor state of Michigan. I think it
Speaker 1: is another example with respect to those states that have
Speaker 1: interpreted their own constitutions to require um discrimination against religious schools,
Speaker 1: than what this latest Supreme Court decision means is that
Speaker 1: those state constitutional provisions can't be enforced. The Supreme Court
Speaker 1: can't tell a state like, hey, take that out of
Speaker 1: your constitution. That's not how it works. But given the
Speaker 1: Espinosa decision, the states can't use their state constitutions in
Speaker 1: order to require or to excuse differential treatment in these
Speaker 1: kinds of programs. How far does this decision open the
Speaker 1: door to more public funding of religious education. Well, it
Speaker 1: opens the door in the sense that it permits the
Speaker 1: legislative process to consider this issue. Right, So this decision
Speaker 1: doesn't require a state to have about your program or
Speaker 1: a scholarship program, right like that. Um. But you know,
Speaker 1: for the last several decades, a lot of times, UM,
Speaker 1: political movements to get more school choice has kind of
Speaker 1: bumped up against these provisions. Um. These provisions have stood
Speaker 1: as kind of an obstacle to choice based reform, even
Speaker 1: in states that have wanted to enact it. So what
Speaker 1: this decision says basically is, look going forward, UM, these
Speaker 1: blame Amendment type provisions. They can't stand in the way
Speaker 1: of even handed school aboucher programs. No states required to
Speaker 1: adopt them. A state, if it wants to, can say
Speaker 1: public money is for government run schools only, or government
Speaker 1: run schools and charter schools only. But what this decision
Speaker 1: does mean is that if the state decides no, we're
Speaker 1: open to some experiments with programs that allow kids to
Speaker 1: use scholarships and tax credit the private schools. They can't
Speaker 1: single out religious schools for exclusion or flip it around,
Speaker 1: since most private schools are religious in a lot of states.
Speaker 1: What this decision means is that the option of including
Speaker 1: private schools in your in your kind of menu of
Speaker 1: publicly funded options. That option is now available, but it's
Speaker 1: still going to be a political decision, right. That doesn't
Speaker 1: mandate school choice. It just kind of opens up the
Speaker 1: debate a little bit, and now people have to convince
Speaker 1: each other what the best and most just and most
Speaker 1: efficient way they think to fund educational opportunity is. This
Speaker 1: was another decision where the five to four majority, where
Speaker 1: the Chief was the deciding vote or the swing vote.
Speaker 1: What's your take on that whole thing about the chief
Speaker 1: being now the most powerful chief justice almost in history
Speaker 1: history is big, And I think there's a lot to
Speaker 1: admire about John Roart. I suspect he wouldn't want to
Speaker 1: say that he was more powerful than say John Marshall
Speaker 1: or something like that yet, But um, this year has
Speaker 1: been in this has been a year where he's been
Speaker 1: in the majority of all the close cases. As for
Speaker 1: the swing votes thing, I'm not sure that fits in
Speaker 1: this case. Roberts has for the entire fifteen years he's
Speaker 1: been on the court been entirely consistent. I think in
Speaker 1: law and religion cases he has voted in every case
Speaker 1: that I can recall in favor of free exercise claims.
Speaker 1: So this this isn't a case where his voted the
Speaker 1: majority is some kind of a surprise or goes against
Speaker 1: other things. He said again, he wrote the decision just
Speaker 1: two years ago in Trinity Lutheran. In the past, some
Speaker 1: justices like Justices Kagan and Brier have joined with the
Speaker 1: more conservative justices in some of these religion cases, and
Speaker 1: here the more liberal block of justices all all stayed together.
Speaker 1: Thanks Rick. That's Richard Garnett, a professor at the University
Speaker 1: of Notre Dame Law School. And that's it for the
Speaker 1: sedition of Bloomberg Law. Remember you can always get the
Speaker 1: latest legal news on our Bloomberg Law Podcast. You can
Speaker 1: find them on iTunes, SoundCloud, or Bloomberg dot com Slash
Speaker 1: podcast Slash Law. I'm June Grosso. Thanks so much for listening,
Speaker 1: and remember to tune to the Bloomberg Law Show weeknights
Speaker 1: at ten pm Eastern right here on Bloomberg Radio. How
Speaker 1: far does this decision open the door to more public
Speaker 1: funding of religious education. Well, it opened the door in
Speaker 1: the sense that it permits the legislative process to consider
Speaker 1: this issue. Right, So this decision doesn't require a state
Speaker 1: to have about your program or a scholarship program or
Speaker 1: anything like that. But for the last several decades, a
Speaker 1: lot of times political movements to get more school choice
Speaker 1: have kind of bumped up against these provisions. These provisions
Speaker 1: have stood as kind of an obstacle to choice based
Speaker 1: reform even in states that have wanted to enact it.
Speaker 1: So what this decision says basically is, look going forward,
Speaker 1: these blame amendment type provisions can't stand in the way
Speaker 1: of even handed school ut your programs, no states required
Speaker 1: to adopt them. A state, if it wants to, can
Speaker 1: say public money is for government run schools and charter
Speaker 1: schools only. But if the state decides no, we're open
Speaker 1: to some experiments with programs that allow kids to use
Speaker 1: scholarships and tax credits at private schools. They can't single
Speaker 1: out religious schools for exclusion. Thanks Rick. That's Richard Garnett,
Speaker 1: a professor at No. Tre Dame Law School. Coming up
Speaker 1: next on Bloomberg Law, the chief joins with the liberal
Speaker 1: justices in giving abortion rights activists a win. I'm juring
Speaker 1: Grosso and this is Bloomberg