1 00:00:03,200 --> 00:00:09,879 Speaker 1: This is Bloomberg Law with June Brussel from Bloomberg Radio. Hi, 2 00:00:09,960 --> 00:00:13,440 Speaker 1: I'm Naomi, and this is an introduction to the people 3 00:00:13,720 --> 00:00:17,440 Speaker 1: that asked me what I do, so welcome to my brain. 4 00:00:19,720 --> 00:00:23,400 Speaker 1: Naomi Osaka, the highest paid female athlete of all time 5 00:00:23,440 --> 00:00:27,240 Speaker 1: at the age of twenty three. At press conferences, Osaka 6 00:00:27,400 --> 00:00:31,080 Speaker 1: is charming and funny, even in response to tedious or 7 00:00:31,240 --> 00:00:36,440 Speaker 1: sometimes ridiculous questions. How come that your last name is 8 00:00:36,479 --> 00:00:42,199 Speaker 1: the same name everyone's who was born in Osaka, their 9 00:00:42,280 --> 00:00:52,839 Speaker 1: last name is Osaka. No, not caught up in a 10 00:00:52,840 --> 00:00:56,000 Speaker 1: lot of bad stuff? How do you know? I'm not 11 00:00:56,040 --> 00:01:00,440 Speaker 1: caught off invested? When she's serving in boats and then 12 00:01:00,440 --> 00:01:03,080 Speaker 1: I'm arguing with myself, don't do it? Do it? Don't 13 00:01:03,120 --> 00:01:06,360 Speaker 1: do it? Do it? And then the ball comes and 14 00:01:06,400 --> 00:01:08,039 Speaker 1: then I hit it down the line and it goes 15 00:01:08,080 --> 00:01:10,000 Speaker 1: in the net, and then I'm like, why did I 16 00:01:10,120 --> 00:01:14,520 Speaker 1: do it? But Osaka skipped a post match news conference 17 00:01:14,560 --> 00:01:17,280 Speaker 1: after her first round victory at the French Open and 18 00:01:17,360 --> 00:01:20,640 Speaker 1: was slapped with a fifteen thousand dollar fine. She then 19 00:01:20,680 --> 00:01:24,520 Speaker 1: withdrew from the Open, tweeting that she experiences huge waves 20 00:01:24,600 --> 00:01:27,840 Speaker 1: of anxiety before speaking to the media and has suffered 21 00:01:27,880 --> 00:01:31,480 Speaker 1: long bouts of depression. There's no court case at this point, 22 00:01:31,800 --> 00:01:34,520 Speaker 1: but in the court of public opinion, it's ignited a 23 00:01:34,560 --> 00:01:38,839 Speaker 1: debate about whether sports organizations should provide their star athletes 24 00:01:38,920 --> 00:01:43,800 Speaker 1: with modifications or reasonable accommodations for mental health reasons. Joining 25 00:01:43,840 --> 00:01:46,840 Speaker 1: me is Ruth Kulker, a professor of constitutional law and 26 00:01:46,880 --> 00:01:51,840 Speaker 1: disability discrimination at Ohio State University. Ruth, what's your first 27 00:01:51,920 --> 00:01:56,600 Speaker 1: reaction to what happened to Osaka? Well, I think that 28 00:01:56,840 --> 00:02:00,360 Speaker 1: we need to think about this through a disability frame, 29 00:02:00,800 --> 00:02:04,600 Speaker 1: in that people for whom their disability is such that 30 00:02:04,640 --> 00:02:08,440 Speaker 1: they would request accommodations entity should be reasonable and considering 31 00:02:08,480 --> 00:02:11,280 Speaker 1: this requests, and I think in her case, her request 32 00:02:11,320 --> 00:02:15,320 Speaker 1: to skip post match press conference should certainly be considered 33 00:02:15,360 --> 00:02:19,080 Speaker 1: to be reasonable. Ruth, with the Americans with Disabilities Act 34 00:02:19,360 --> 00:02:22,880 Speaker 1: cover a situation like this if it happened in this country. 35 00:02:23,240 --> 00:02:26,280 Speaker 1: As you may know, the U. S t A has 36 00:02:26,320 --> 00:02:29,840 Speaker 1: stated publicly that they would expect Naomi a SOCCA to 37 00:02:29,880 --> 00:02:33,320 Speaker 1: attend press conferences if she participated in their tours, and 38 00:02:33,320 --> 00:02:38,399 Speaker 1: so they went through with that rule without accommodating her disability. 39 00:02:38,840 --> 00:02:40,799 Speaker 1: In my view, they would likely be in violation of 40 00:02:40,840 --> 00:02:44,000 Speaker 1: the ADA. The ADA says that a disability is a 41 00:02:44,080 --> 00:02:47,679 Speaker 1: physical or mental impairment that the stantcy limits one or 42 00:02:47,760 --> 00:02:51,760 Speaker 1: more major life activities. And so it specifically says physical 43 00:02:51,800 --> 00:02:54,880 Speaker 1: as well as mental and mental health issues are obviously 44 00:02:54,919 --> 00:02:59,360 Speaker 1: something that can constitute an impairment. The tennis organizations require 45 00:02:59,400 --> 00:03:03,400 Speaker 1: these press conferences, how would that requirement be viewed in 46 00:03:03,440 --> 00:03:06,919 Speaker 1: the framework of the AD. So, what the A d 47 00:03:07,040 --> 00:03:10,919 Speaker 1: A says is that employers can put down in writing 48 00:03:10,919 --> 00:03:13,720 Speaker 1: what they considered to be the essential job trunkstens of 49 00:03:13,720 --> 00:03:16,639 Speaker 1: our particular job. So I'm a law professor, so if 50 00:03:16,680 --> 00:03:19,640 Speaker 1: my employer would put down what are the essential fences 51 00:03:19,840 --> 00:03:22,320 Speaker 1: of my job, you would expect them to include things 52 00:03:22,360 --> 00:03:25,240 Speaker 1: like teaching my classes, right, something of that sort. And 53 00:03:25,280 --> 00:03:28,760 Speaker 1: if the employer puts down to something that's essential, then 54 00:03:29,200 --> 00:03:32,480 Speaker 1: the courts tend to air on the side or tend 55 00:03:32,520 --> 00:03:36,040 Speaker 1: to conclude that it probably is essential. But that doesn't 56 00:03:36,080 --> 00:03:38,760 Speaker 1: preclude the employee from saying, you know, actually that was personal, 57 00:03:39,200 --> 00:03:42,280 Speaker 1: not essential. And so if it's only a personal part 58 00:03:42,280 --> 00:03:44,800 Speaker 1: of the job, then you can ask for an accommodation 59 00:03:44,880 --> 00:03:48,160 Speaker 1: to be excused from engaging in that part of the activity. So, 60 00:03:48,160 --> 00:03:50,160 Speaker 1: when we think about tennis, we think about the U 61 00:03:50,240 --> 00:03:52,680 Speaker 1: s t A running a tennis tournament, we think that 62 00:03:52,720 --> 00:03:55,280 Speaker 1: most of us would say, well, the essential thing is 63 00:03:55,400 --> 00:03:58,200 Speaker 1: getting to the court, being there on time, using a 64 00:03:58,400 --> 00:04:01,440 Speaker 1: racket that meets the guide that they have. Possibly we're 65 00:04:01,440 --> 00:04:04,520 Speaker 1: in clothing that they they know is befitting of the 66 00:04:04,560 --> 00:04:07,000 Speaker 1: match that's going to be held. And so that's when 67 00:04:07,000 --> 00:04:09,800 Speaker 1: most of us, I think, would say is essential about tennis? 68 00:04:10,320 --> 00:04:12,360 Speaker 1: And now the U s t A is adding onto 69 00:04:12,400 --> 00:04:15,560 Speaker 1: that by saying what attendee press conferences is potential. That's 70 00:04:15,560 --> 00:04:18,159 Speaker 1: something that an employee would be able to challenge and say, 71 00:04:18,320 --> 00:04:20,960 Speaker 1: wait a minute, why are you saying that? Why is 72 00:04:21,000 --> 00:04:23,320 Speaker 1: that so essential? How does that affect the game that's 73 00:04:23,360 --> 00:04:27,799 Speaker 1: being played that I'm an employee of your entity and 74 00:04:27,880 --> 00:04:31,520 Speaker 1: engaging in that kind of activity. So, Ruth, twenty years ago, 75 00:04:32,000 --> 00:04:34,640 Speaker 1: Casey Martin sued the PGA to be able to use 76 00:04:34,680 --> 00:04:37,839 Speaker 1: a golf card during competition and that turned out to 77 00:04:37,880 --> 00:04:41,279 Speaker 1: be a victory for disability rights. How might that ruling 78 00:04:41,320 --> 00:04:45,640 Speaker 1: apply here? Right, that's the perfect analogy. So what happened 79 00:04:45,640 --> 00:04:48,599 Speaker 1: in the Casey Martin cases that Casey Martin has a 80 00:04:48,640 --> 00:04:52,560 Speaker 1: genetic disorder in his leg, which makes it very difficult 81 00:04:52,560 --> 00:04:55,359 Speaker 1: for him to stand for extended periods of time. He 82 00:04:55,480 --> 00:04:59,200 Speaker 1: can stand enough to go to the tea and play 83 00:04:59,279 --> 00:05:03,760 Speaker 1: golf um, but if he would walk from shot the shot, 84 00:05:03,839 --> 00:05:08,159 Speaker 1: hole the whole um, it would so impair him that 85 00:05:08,200 --> 00:05:10,040 Speaker 1: he had actually would be at risk of having his 86 00:05:10,120 --> 00:05:13,240 Speaker 1: like amputated. That's that's how serious his physical impairment is. 87 00:05:13,680 --> 00:05:18,440 Speaker 1: And so he could not literally play golf on in 88 00:05:18,600 --> 00:05:21,760 Speaker 1: certain PGA tournaments if they were not going to allow 89 00:05:21,880 --> 00:05:24,440 Speaker 1: him to use a golf card to advance from hole 90 00:05:24,520 --> 00:05:27,000 Speaker 1: to hole. And there was a rule in writing that 91 00:05:27,160 --> 00:05:29,760 Speaker 1: said that you had to walk on hole the whole 92 00:05:29,800 --> 00:05:31,760 Speaker 1: you were not allowed to use a golf card. So 93 00:05:31,800 --> 00:05:34,600 Speaker 1: that's a little bit like the Naomia Softwa situation. Right, 94 00:05:34,640 --> 00:05:37,120 Speaker 1: there's a rule in writing it says you're expected to 95 00:05:37,160 --> 00:05:41,560 Speaker 1: attend these press press conferences. Well, Casey Martin argued, was 96 00:05:41,640 --> 00:05:45,520 Speaker 1: it was reasonable to modify the rules to accommodate his 97 00:05:45,760 --> 00:05:48,880 Speaker 1: very serious physical impairment by allowing him to ride the 98 00:05:48,920 --> 00:05:51,880 Speaker 1: golf card from whole the whole, and that that would 99 00:05:51,880 --> 00:05:55,279 Speaker 1: not fundamentally alter the nature of the enterprise that the 100 00:05:55,320 --> 00:05:58,440 Speaker 1: PGA was running, and in particular would not give him 101 00:05:58,440 --> 00:06:01,440 Speaker 1: a competitive advantage by sitting in a golf cart rather 102 00:06:01,480 --> 00:06:03,600 Speaker 1: than walking from hole the whole the p g E 103 00:06:03,760 --> 00:06:05,800 Speaker 1: disagree with him. They felt that it gave him a 104 00:06:05,800 --> 00:06:09,240 Speaker 1: competitive advantage, and that was a factual question. There was 105 00:06:09,320 --> 00:06:15,120 Speaker 1: a hearing at which various renowned golfers testified in both directions, 106 00:06:15,120 --> 00:06:20,080 Speaker 1: and at the end of the day, the court concluded that, um, 107 00:06:20,080 --> 00:06:23,800 Speaker 1: writing a golf cart wasn't an essential aspect of the game. 108 00:06:24,080 --> 00:06:26,320 Speaker 1: It wasn't like changing the club or the way to 109 00:06:26,400 --> 00:06:29,640 Speaker 1: the balls, or the way you kept score. Um. And 110 00:06:29,680 --> 00:06:31,720 Speaker 1: so it's I think it's very analogous talking on a 111 00:06:31,760 --> 00:06:35,560 Speaker 1: Saki situation, because I think attending a press conference even 112 00:06:35,560 --> 00:06:39,599 Speaker 1: more peripheral to the game of tennis than writing a 113 00:06:39,640 --> 00:06:43,440 Speaker 1: golf cart when you play golf. So from that precedent, 114 00:06:43,560 --> 00:06:46,920 Speaker 1: it sounds like Naomi Osaka would have a great case 115 00:06:47,040 --> 00:06:49,640 Speaker 1: that she did decide to sue, right, and you know, 116 00:06:49,680 --> 00:06:52,599 Speaker 1: I would hope that that the U. S t A 117 00:06:52,839 --> 00:06:56,599 Speaker 1: got some lousy llegal advice and acted a little hastily, 118 00:06:57,160 --> 00:07:00,760 Speaker 1: and then upon further reflection, um, they require this to 119 00:07:00,760 --> 00:07:04,280 Speaker 1: become a legal case, that they'll they'll talk with Naomi 120 00:07:04,320 --> 00:07:07,520 Speaker 1: Osaka and they'll have a conversation they'll figure out how 121 00:07:08,080 --> 00:07:11,000 Speaker 1: they can recently accommodate her so that so that the 122 00:07:11,040 --> 00:07:13,360 Speaker 1: world has an opportunity to see this great tennis player 123 00:07:13,560 --> 00:07:17,960 Speaker 1: play tennis um and they have an opportunity to do 124 00:07:18,080 --> 00:07:20,480 Speaker 1: the kind of publicity that that's necessary for them as 125 00:07:20,520 --> 00:07:24,440 Speaker 1: a business to have these tournaments. When you compare the 126 00:07:24,520 --> 00:07:30,080 Speaker 1: reaction of the French Tennis Federation to Roger Federer withdrawing 127 00:07:30,160 --> 00:07:34,200 Speaker 1: to preserve his knee and his energy for Wimbledon, he said, 128 00:07:34,240 --> 00:07:36,200 Speaker 1: it's important that I listened to my body and I 129 00:07:36,240 --> 00:07:39,560 Speaker 1: don't push myself too quickly on my road to recovery. 130 00:07:39,840 --> 00:07:44,560 Speaker 1: And the president of the French Tennis Federation didn't question 131 00:07:44,600 --> 00:07:47,120 Speaker 1: his decision, said he had too much respect for Roger, 132 00:07:47,160 --> 00:07:50,760 Speaker 1: and Federer was not fine for the withdrawal. It seems 133 00:07:50,760 --> 00:07:54,560 Speaker 1: like a stark contrast to what happened to Osaka, wondering 134 00:07:54,600 --> 00:07:58,600 Speaker 1: that the comparison between you know, a physical problem and 135 00:07:58,640 --> 00:08:02,040 Speaker 1: a mental problem, or perhaps between a man and a woman. 136 00:08:02,120 --> 00:08:05,160 Speaker 1: I don't know. Yeah, Well, as I said, the French 137 00:08:05,200 --> 00:08:08,040 Speaker 1: Federation wouldn't be covered by the AD, they be covered 138 00:08:08,040 --> 00:08:10,040 Speaker 1: by their own domestic law, and I'm not an expert 139 00:08:10,120 --> 00:08:14,320 Speaker 1: in French domestic law. With regard to disability. But typically 140 00:08:14,480 --> 00:08:17,520 Speaker 1: what laws said both the US and the international level 141 00:08:17,720 --> 00:08:21,800 Speaker 1: says that both physical and mental impairments are equally considered 142 00:08:21,800 --> 00:08:25,400 Speaker 1: to be disabilities, and therefore the rules about accommodation would 143 00:08:25,440 --> 00:08:29,560 Speaker 1: be exactly the same um and if if someone is 144 00:08:29,600 --> 00:08:34,679 Speaker 1: treated differently, then that sounds to me like a discrimination problem. 145 00:08:34,760 --> 00:08:37,000 Speaker 1: But as I think you know in the United States 146 00:08:37,040 --> 00:08:39,480 Speaker 1: that there's been a lot of attention in recent years 147 00:08:39,480 --> 00:08:42,440 Speaker 1: that we should take mental health disabilities as seriously as 148 00:08:42,440 --> 00:08:46,000 Speaker 1: we take physical health impairments. And so I think one 149 00:08:46,000 --> 00:08:48,720 Speaker 1: of the things in Naomi Assaca case is raising for 150 00:08:48,880 --> 00:08:51,640 Speaker 1: us as a as a community is to just remember 151 00:08:52,120 --> 00:08:55,840 Speaker 1: that mental health impairments are everybody's real and physical impairments, 152 00:08:55,840 --> 00:08:59,360 Speaker 1: and so hopefully people are treating Miami Assaca with respect 153 00:08:59,480 --> 00:09:02,680 Speaker 1: that she entitled to as someone who's's claiming to have 154 00:09:02,720 --> 00:09:06,200 Speaker 1: a mental health compairment. Thanks Ruth, that's law Professor Ruth 155 00:09:06,240 --> 00:09:14,959 Speaker 1: Coulker of Ohio State University. This is Bloomberg Law with 156 00:09:15,040 --> 00:09:20,359 Speaker 1: June Brussel from Bloomberg Radio. The Supreme Court is approaching 157 00:09:20,360 --> 00:09:22,959 Speaker 1: the finished line of the term, with decisions in twenty 158 00:09:23,040 --> 00:09:26,240 Speaker 1: two cases to be handed down before the Jostices take 159 00:09:26,280 --> 00:09:29,920 Speaker 1: off for three months of vacation. Among those cases are 160 00:09:29,960 --> 00:09:34,320 Speaker 1: the constitutionality of Obamacare, a case involving Foster Care that 161 00:09:34,400 --> 00:09:38,080 Speaker 1: pits religious rights against gay rights, an election law case 162 00:09:38,160 --> 00:09:42,520 Speaker 1: that could be consequential, a case on college athletes compensation, 163 00:09:42,800 --> 00:09:46,480 Speaker 1: and on whether schools can regulate off campus speech. The 164 00:09:46,640 --> 00:09:49,560 Speaker 1: Jostices are also deciding which case is to take for 165 00:09:49,679 --> 00:09:53,679 Speaker 1: next term. Joining me is Kimberly, Strawbridge, Robinson, Bloomberg Law, 166 00:09:53,720 --> 00:09:57,560 Speaker 1: Supreme Court Reporter Kimberly, Let's start with a disagreement between 167 00:09:57,600 --> 00:10:00,480 Speaker 1: the White House and the Justice Department on a case 168 00:10:00,520 --> 00:10:04,160 Speaker 1: for next term. There's a provision in federal law that 169 00:10:04,240 --> 00:10:08,680 Speaker 1: the White House has expressed disagreement with, but the Justice 170 00:10:08,720 --> 00:10:12,440 Speaker 1: Department plans to defend at the Supreme Court tell us 171 00:10:12,440 --> 00:10:15,920 Speaker 1: about that right. So there's this case that the Supreme 172 00:10:15,960 --> 00:10:18,600 Speaker 1: Court has agreed to hear at the request of the 173 00:10:18,600 --> 00:10:22,960 Speaker 1: federal government, which is a lower court ruling that found 174 00:10:23,000 --> 00:10:26,360 Speaker 1: that the federal law violated equal protection. And what this 175 00:10:26,440 --> 00:10:30,439 Speaker 1: law does is it provides uh supplemental Social Security income 176 00:10:30,600 --> 00:10:35,040 Speaker 1: to UH low income individuals who are either elderly, blind, 177 00:10:35,160 --> 00:10:38,960 Speaker 1: or in another way disabled. The law, though applies in 178 00:10:39,000 --> 00:10:42,120 Speaker 1: the fifty States and DC and some other charactories, but 179 00:10:42,200 --> 00:10:45,600 Speaker 1: does not apply in Puerto Rico. And that's why the 180 00:10:45,600 --> 00:10:49,560 Speaker 1: lower court said, uh, that this law was invalid. The 181 00:10:49,600 --> 00:10:52,600 Speaker 1: Supreme Court is going to review that, and in doing so, 182 00:10:53,160 --> 00:10:55,960 Speaker 1: the parties have filed their brief and the Department of 183 00:10:56,000 --> 00:10:59,840 Speaker 1: Justice files there's earlier this week, and it was accompanied 184 00:10:59,840 --> 00:11:02,800 Speaker 1: by kind of a strange statement by the White House 185 00:11:02,840 --> 00:11:06,120 Speaker 1: which said, while the White House doesn't agree with this law, 186 00:11:06,280 --> 00:11:09,959 Speaker 1: it is the duty of the Justice Department to defend 187 00:11:10,080 --> 00:11:13,600 Speaker 1: federal laws, and that that's the approach that it's going 188 00:11:13,640 --> 00:11:17,720 Speaker 1: to take here as well. The Justice Department hasn't defended 189 00:11:18,040 --> 00:11:22,800 Speaker 1: every federal law. For example, recently, the Trump administration didn't 190 00:11:22,880 --> 00:11:27,199 Speaker 1: defend Obamacare. That's right. And you know, we we've seen 191 00:11:27,400 --> 00:11:32,480 Speaker 1: occasionally from not just the Trump administration but administrations before that, 192 00:11:32,480 --> 00:11:37,440 Speaker 1: that this so called duty to defend isn't really iron clad. Uh, 193 00:11:37,440 --> 00:11:40,520 Speaker 1: And so I think most famously, we saw the Obama 194 00:11:40,520 --> 00:11:45,240 Speaker 1: administration refused to defend the Defense of Marriage Act, which 195 00:11:45,320 --> 00:11:47,880 Speaker 1: defines marriage as between a man and a woman for 196 00:11:48,200 --> 00:11:51,560 Speaker 1: all federal purposes. And you know, this happens a handful 197 00:11:51,600 --> 00:11:54,000 Speaker 1: of times. That's happened a few dozen times since the 198 00:11:54,040 --> 00:11:57,680 Speaker 1: nineteen seventies, and it really depends on, you know, the 199 00:11:57,760 --> 00:12:00,880 Speaker 1: administration and how far they're they're willing to go to 200 00:12:01,000 --> 00:12:04,680 Speaker 1: defend a statute that they think is really not defensible. 201 00:12:05,200 --> 00:12:09,000 Speaker 1: There have been Supreme Court arguments where the Justices asked 202 00:12:09,400 --> 00:12:13,040 Speaker 1: the lawyers why they had changed positions in the case, 203 00:12:13,280 --> 00:12:17,640 Speaker 1: especially during the Trump administration. There were sometimes two different agencies, 204 00:12:17,800 --> 00:12:20,319 Speaker 1: the Justice Department and for example, the E O. C. 205 00:12:20,520 --> 00:12:23,679 Speaker 1: We're arguing against each other, even that's right, and so 206 00:12:23,720 --> 00:12:27,600 Speaker 1: that situation is a little bit different. Sometimes in those situations, 207 00:12:28,160 --> 00:12:31,400 Speaker 1: the administration is defending law, but they're defending it in 208 00:12:31,480 --> 00:12:34,000 Speaker 1: kind of a different way. Um, and so the Supreme 209 00:12:34,000 --> 00:12:37,560 Speaker 1: Court will ask will appoint someone to argue uh that 210 00:12:37,600 --> 00:12:41,040 Speaker 1: position as well. Uh. The Biden administration has done this 211 00:12:41,160 --> 00:12:44,360 Speaker 1: quite a bit as well, shifting positions from uh previous 212 00:12:44,400 --> 00:12:48,200 Speaker 1: positions taken by the Trump administration. And you know, I 213 00:12:48,200 --> 00:12:51,240 Speaker 1: think that's just something that the Justices expect to see 214 00:12:51,240 --> 00:12:55,560 Speaker 1: whenever they see administrations turnover, particularly when they turnover from 215 00:12:55,600 --> 00:12:58,679 Speaker 1: a Republican to a Democrat or vice versa. So now 216 00:12:58,679 --> 00:13:02,119 Speaker 1: the Supreme Court turn to way a case over the 217 00:13:02,160 --> 00:13:05,640 Speaker 1: mail only draft, the Supreme Court ruled on this. Tell 218 00:13:05,720 --> 00:13:09,400 Speaker 1: us about the ruling in one, Well, the Supreme Court 219 00:13:09,400 --> 00:13:11,480 Speaker 1: back in nine eight one did have a challenge for 220 00:13:11,559 --> 00:13:13,720 Speaker 1: the mail only draft, and they said at the time 221 00:13:13,760 --> 00:13:16,040 Speaker 1: that that was okay. One of the things that they 222 00:13:16,080 --> 00:13:18,240 Speaker 1: looked at was the fact that women at the time 223 00:13:18,240 --> 00:13:22,000 Speaker 1: were actually barred from combat duty, and of course that 224 00:13:22,080 --> 00:13:25,800 Speaker 1: has changed over the over the past decade. The reason 225 00:13:25,840 --> 00:13:28,000 Speaker 1: I think that the Supreme Court decided not to take 226 00:13:28,080 --> 00:13:31,040 Speaker 1: up this case wasn't because they think that that's still 227 00:13:31,080 --> 00:13:34,040 Speaker 1: a good rule, but because this is something that Congress 228 00:13:34,200 --> 00:13:37,559 Speaker 1: is actively considering. And so it seems, at least for now, 229 00:13:37,600 --> 00:13:39,520 Speaker 1: that the Supreme Court is going to let Congress take 230 00:13:39,520 --> 00:13:41,960 Speaker 1: a whack at the first uh, and then maybe down 231 00:13:41,960 --> 00:13:44,839 Speaker 1: the line if nothing happens, we'll see the Justice Stepan 232 00:13:45,120 --> 00:13:49,360 Speaker 1: who brought this case, Well, this was brought by a 233 00:13:49,440 --> 00:13:51,719 Speaker 1: group um who was in the A C. L U 234 00:13:51,880 --> 00:13:55,560 Speaker 1: who is challenging, Um, you know this mail only draft. 235 00:13:55,559 --> 00:13:58,720 Speaker 1: Who wants to see it really opened up? Uh? Two 236 00:13:58,800 --> 00:14:01,720 Speaker 1: females as well, um, which is something interesting. It's not 237 00:14:01,760 --> 00:14:03,640 Speaker 1: all the time that we see people asked to be 238 00:14:04,400 --> 00:14:07,240 Speaker 1: part of registering for the draft, but you know, that's 239 00:14:07,280 --> 00:14:10,480 Speaker 1: something I think that from a feminism or from equal 240 00:14:10,559 --> 00:14:13,720 Speaker 1: protection is something that is important for this group. And 241 00:14:13,760 --> 00:14:16,719 Speaker 1: what did the Fifth Circuits say about this? Well, the 242 00:14:16,960 --> 00:14:19,240 Speaker 1: Circuits said, you know, it's really up to the Supreme 243 00:14:19,280 --> 00:14:21,480 Speaker 1: Court to change the law, even though facts on the 244 00:14:21,480 --> 00:14:24,480 Speaker 1: ground have changed, it's not the prerogative of the lower 245 00:14:24,520 --> 00:14:28,560 Speaker 1: federal courts to you know, change or to ignore Supreme 246 00:14:28,600 --> 00:14:32,760 Speaker 1: Court precedent. That really the challengers were stuck making their 247 00:14:32,760 --> 00:14:36,320 Speaker 1: case to the Justice tell us about the comment that 248 00:14:36,440 --> 00:14:40,520 Speaker 1: was written by Justice Sonia Soto Mayor, joined in by 249 00:14:40,560 --> 00:14:45,040 Speaker 1: Justices Steven Bryan and Brett Kavanaugh. Right, so this is 250 00:14:45,240 --> 00:14:48,200 Speaker 1: uh kind of an odd matchup here, um, you know, 251 00:14:48,280 --> 00:14:51,520 Speaker 1: having two of the Court's liberals joined by Brett Kavanaugh. 252 00:14:51,880 --> 00:14:54,600 Speaker 1: But essentially they said, you know, this is something that 253 00:14:54,680 --> 00:14:59,000 Speaker 1: Congress is trying to work out for itself. And they said, 254 00:14:59,080 --> 00:15:01,840 Speaker 1: you know, at least now we're gonna go ahead and 255 00:15:02,200 --> 00:15:04,840 Speaker 1: defer to Congress and let them take you know, this 256 00:15:04,920 --> 00:15:07,800 Speaker 1: issue up and have the first shot at it. But 257 00:15:07,880 --> 00:15:10,200 Speaker 1: they didn't leave out the possibility that, you know, if 258 00:15:10,200 --> 00:15:12,560 Speaker 1: Congress fails to act, that the support will be there 259 00:15:12,560 --> 00:15:15,080 Speaker 1: waiting to hear the case. I was trying to figure 260 00:15:15,080 --> 00:15:18,480 Speaker 1: out why those three might want to make that kind 261 00:15:18,560 --> 00:15:22,680 Speaker 1: of a statement in this case. Yeah, we don't really know. 262 00:15:22,880 --> 00:15:26,720 Speaker 1: I mean, oftentimes we don't even have any statement from 263 00:15:26,720 --> 00:15:29,760 Speaker 1: the justices telling us, you know, who voted to turn 264 00:15:29,800 --> 00:15:32,440 Speaker 1: the case away, who voted to take it up. Uh. 265 00:15:32,440 --> 00:15:35,120 Speaker 1: Here we do have this statement from these three justices 266 00:15:35,600 --> 00:15:38,400 Speaker 1: again and an odd kind of mix. Um, we don't 267 00:15:38,400 --> 00:15:41,240 Speaker 1: know why others didn't join. But you know, it is 268 00:15:41,280 --> 00:15:44,680 Speaker 1: more information than we than we typically have. So let's 269 00:15:44,720 --> 00:15:47,160 Speaker 1: turn now to And this isn't an area that I 270 00:15:47,200 --> 00:15:50,040 Speaker 1: think a lot of people have heard about the Foreign 271 00:15:50,120 --> 00:15:54,760 Speaker 1: Intelligence Surveillance Act FISA. So tell us the issue here. Sure, 272 00:15:54,800 --> 00:15:56,800 Speaker 1: So this is the case that the Supreme Court agreed 273 00:15:56,800 --> 00:15:59,720 Speaker 1: to take up for next term, and it deals with 274 00:15:59,760 --> 00:16:03,080 Speaker 1: the vision that changes the way that courts are supposed 275 00:16:03,080 --> 00:16:06,440 Speaker 1: to look at evidence that's claimed by the government to 276 00:16:06,720 --> 00:16:09,520 Speaker 1: involve state secrets. So these are things that could threaten 277 00:16:10,160 --> 00:16:13,560 Speaker 1: national security. And the challenge here, um is that the 278 00:16:13,640 --> 00:16:17,600 Speaker 1: Ninth Circuit said that when Congress packed the Foreign Intelligence 279 00:16:17,640 --> 00:16:20,720 Speaker 1: Surveillance Act, that it actually did away with what courts 280 00:16:20,720 --> 00:16:25,360 Speaker 1: had been previously doing under judgments law UH and created 281 00:16:25,360 --> 00:16:30,120 Speaker 1: this new process for courts to consider UH. The state secrets, 282 00:16:30,160 --> 00:16:34,120 Speaker 1: and in this process, the government has to turn over 283 00:16:34,160 --> 00:16:37,120 Speaker 1: the information to the court, whereas before they did not. 284 00:16:37,800 --> 00:16:40,880 Speaker 1: The court kind of trusted that the government was was 285 00:16:40,960 --> 00:16:44,040 Speaker 1: protecting state secrets and that these things would implicate uh, 286 00:16:44,520 --> 00:16:47,440 Speaker 1: national security. Uh, that's not the case, at least not 287 00:16:47,520 --> 00:16:49,960 Speaker 1: in the Ninth Circuit, which is where this case comes from. 288 00:16:50,120 --> 00:16:52,080 Speaker 1: And so the Supreme Court has decided to take a 289 00:16:52,080 --> 00:16:55,920 Speaker 1: look as well. What was the distinction the Ninth Circuit 290 00:16:56,040 --> 00:16:59,720 Speaker 1: made to reject the government's argument. Yeah, they said that, 291 00:16:59,760 --> 00:17:03,760 Speaker 1: you know, once Congress passed this act fight so that 292 00:17:03,800 --> 00:17:07,400 Speaker 1: it actually did away with this kind of judgments rule. 293 00:17:07,880 --> 00:17:10,240 Speaker 1: It said, you know, we made up this rule in 294 00:17:10,280 --> 00:17:13,480 Speaker 1: the absence of their being a congressional statute. But now 295 00:17:13,480 --> 00:17:15,520 Speaker 1: that there is a statute, we have to follow what 296 00:17:15,560 --> 00:17:18,719 Speaker 1: the statute says. The government, for its part, says, you know, 297 00:17:19,200 --> 00:17:23,240 Speaker 1: Congress didn't want to do away with the whole way 298 00:17:23,240 --> 00:17:24,919 Speaker 1: that churts we're doing it. It was just really in 299 00:17:24,960 --> 00:17:29,040 Speaker 1: this really small deliver of cases where the government wants 300 00:17:29,040 --> 00:17:32,760 Speaker 1: to affirmatively use the evidence against someone else. Um, so 301 00:17:32,840 --> 00:17:36,080 Speaker 1: they're urging the stream Court just rule that this process 302 00:17:36,080 --> 00:17:39,600 Speaker 1: only applies in a really narrow circumstance and not in 303 00:17:39,680 --> 00:17:42,880 Speaker 1: in case like this where individuals are trying to use 304 00:17:43,040 --> 00:17:47,359 Speaker 1: the information against the government and explain who brought the case. 305 00:17:48,119 --> 00:17:51,040 Speaker 1: These are three Muslim men who claimed that they were 306 00:17:51,080 --> 00:17:54,400 Speaker 1: targets of what they call a dragnet surveillance program by 307 00:17:54,400 --> 00:17:57,360 Speaker 1: the FBI. You know, this was alleged to have been 308 00:17:57,800 --> 00:18:01,320 Speaker 1: a year long surveillance not just of these three people, 309 00:18:01,400 --> 00:18:06,200 Speaker 1: but of just Muslim individuals in general that eventually ended 310 00:18:06,280 --> 00:18:09,159 Speaker 1: up targeting these three. Um, so those are their claims. 311 00:18:09,200 --> 00:18:13,040 Speaker 1: This is on a really early process that this case 312 00:18:13,119 --> 00:18:15,399 Speaker 1: is in and so none of those facts have been 313 00:18:15,440 --> 00:18:17,760 Speaker 1: proven yet, but at least for now, that's the way 314 00:18:17,800 --> 00:18:21,040 Speaker 1: that the Court is operating, that what's been alleged it's true. 315 00:18:21,680 --> 00:18:26,119 Speaker 1: So it's June and we're waiting for the Supreme Court 316 00:18:26,400 --> 00:18:29,960 Speaker 1: decisions in cases that will argue this term, these really 317 00:18:30,040 --> 00:18:34,560 Speaker 1: high profile cases. Lately, they've been handing down opinions in 318 00:18:34,960 --> 00:18:38,840 Speaker 1: cases that didn't get a lot of notice, but the 319 00:18:38,960 --> 00:18:43,199 Speaker 1: big cases have yet to come. Obamacare. It's sort of 320 00:18:43,240 --> 00:18:46,360 Speaker 1: puzzling to me because it was argued in November. Most 321 00:18:46,359 --> 00:18:48,919 Speaker 1: people assume from the argument that the justices wouldn't be 322 00:18:48,920 --> 00:18:51,520 Speaker 1: doing away with Obamacare. Why do you think it's taking 323 00:18:51,640 --> 00:18:55,040 Speaker 1: so long? Well, I do agree with that the justices 324 00:18:55,119 --> 00:18:57,679 Speaker 1: didn't seem to want to go as far as the 325 00:18:57,760 --> 00:19:00,359 Speaker 1: challengdars here were urging them to go and on is 326 00:19:00,440 --> 00:19:03,280 Speaker 1: to find that the whole Act, all the provisions in 327 00:19:03,359 --> 00:19:06,600 Speaker 1: Obama here were invalid. I do think one of the 328 00:19:06,600 --> 00:19:08,399 Speaker 1: reasons that it's taking so long is that there are 329 00:19:08,400 --> 00:19:10,240 Speaker 1: a lot of other issues in the case, so that 330 00:19:10,880 --> 00:19:13,400 Speaker 1: you know, was just one part of kind of three 331 00:19:13,440 --> 00:19:16,399 Speaker 1: parts to the case, and all these issues. There's a 332 00:19:16,520 --> 00:19:19,080 Speaker 1: standing issue about who can bring a case. There's the 333 00:19:19,240 --> 00:19:22,760 Speaker 1: merits issue about whether or not the certain provisions of 334 00:19:22,800 --> 00:19:25,480 Speaker 1: the law is valid, and then there's this severance issue 335 00:19:25,480 --> 00:19:28,679 Speaker 1: about whether or not, you know, if that provision is valid, 336 00:19:28,760 --> 00:19:30,600 Speaker 1: if the whole Act must fall. And so there's a 337 00:19:30,640 --> 00:19:34,160 Speaker 1: lot of ways for the nine justices to come out differently, 338 00:19:34,240 --> 00:19:36,560 Speaker 1: and I think we're we're going to be expecting one 339 00:19:36,600 --> 00:19:39,480 Speaker 1: of those decisions where we get, you know, one justice 340 00:19:40,000 --> 00:19:43,160 Speaker 1: concurring and joining in part A one B two four, 341 00:19:43,680 --> 00:19:45,800 Speaker 1: but not A one B two five or or whatever 342 00:19:45,800 --> 00:19:50,000 Speaker 1: it might be looking forward to that um. And now 343 00:19:50,280 --> 00:19:54,080 Speaker 1: a case that has drawn a lot of attention is 344 00:19:54,280 --> 00:19:58,240 Speaker 1: the case where gay rights and religious rights seemed to 345 00:19:58,280 --> 00:20:02,400 Speaker 1: be in conflict. Tell us about that case that's right, 346 00:20:02,440 --> 00:20:05,439 Speaker 1: that was actually argued way back in November two. I 347 00:20:05,440 --> 00:20:07,560 Speaker 1: think one of the reasons that this case is taking 348 00:20:07,600 --> 00:20:10,760 Speaker 1: so long, it's just because it's genuinely a really difficult 349 00:20:10,840 --> 00:20:13,280 Speaker 1: issue for the justices to sort out. So this is, 350 00:20:13,760 --> 00:20:15,840 Speaker 1: as you hinted at, one in a long line of 351 00:20:15,880 --> 00:20:18,879 Speaker 1: cases where the justices are trying to balance you know, 352 00:20:18,920 --> 00:20:22,120 Speaker 1: these anti discrimination laws that are meant to protect LGBT 353 00:20:22,320 --> 00:20:26,040 Speaker 1: citizens and you know, the rights of other individuals to 354 00:20:26,200 --> 00:20:29,879 Speaker 1: practice their religion freely. And this case is made even 355 00:20:29,960 --> 00:20:33,760 Speaker 1: more difficult because we're dealing with the Philadelphia foster care 356 00:20:33,840 --> 00:20:38,000 Speaker 1: system and Catholic Social Services, which has actually been involved 357 00:20:38,040 --> 00:20:41,280 Speaker 1: in Philadelphia's foster care system longer than the city itself. 358 00:20:41,400 --> 00:20:43,680 Speaker 1: So these issues are really tough for the justices, and 359 00:20:43,760 --> 00:20:46,800 Speaker 1: I suspect that they're trying to work through an opinion 360 00:20:46,840 --> 00:20:52,560 Speaker 1: that really respects both sides. Often the most controversial cases 361 00:20:52,680 --> 00:20:56,120 Speaker 1: seem to get decided in the last days of the term, 362 00:20:56,160 --> 00:20:59,920 Speaker 1: and some people say it's because those are complicated decision 363 00:21:00,080 --> 00:21:02,159 Speaker 1: ends and it takes a while to get all the 364 00:21:02,240 --> 00:21:06,720 Speaker 1: opinions in etcetera, etcetera. But could the court be holding 365 00:21:06,760 --> 00:21:10,960 Speaker 1: back these controversial decisions until the last minute before they 366 00:21:11,000 --> 00:21:14,440 Speaker 1: scoot off for vacations. Well, they do say that as 367 00:21:14,480 --> 00:21:17,080 Speaker 1: the opinions there are finished, that's when they send them out. 368 00:21:17,400 --> 00:21:20,400 Speaker 1: It may be that the justices, you know, it does 369 00:21:20,520 --> 00:21:23,560 Speaker 1: just take more time to write an opinion that has 370 00:21:23,600 --> 00:21:26,000 Speaker 1: a majority and a descent than it does take to 371 00:21:26,040 --> 00:21:28,919 Speaker 1: write a unanimous opinion. And that's what we've been getting 372 00:21:28,920 --> 00:21:31,399 Speaker 1: most often so far up to the term. Are just 373 00:21:31,520 --> 00:21:35,800 Speaker 1: these really short unanimous opinions, sometimes just a few pages long, 374 00:21:36,280 --> 00:21:38,919 Speaker 1: where when you have one of these controversial cases that 375 00:21:38,920 --> 00:21:43,240 Speaker 1: are gonna divide the justices maybe five four or six three, 376 00:21:43,119 --> 00:21:45,119 Speaker 1: you have to put out a majority opinion, you have 377 00:21:45,160 --> 00:21:47,560 Speaker 1: to get a dissent, They have to respond to the descent. 378 00:21:47,680 --> 00:21:50,119 Speaker 1: The descent might change as well, and so you know, 379 00:21:50,240 --> 00:21:53,560 Speaker 1: it does just take them longer to even write the decision, 380 00:21:53,600 --> 00:21:55,960 Speaker 1: let alone come up with the right answer. Maybe I'm 381 00:21:56,000 --> 00:22:00,960 Speaker 1: just too suspicious, Kimberly. So. Also, there are two cases 382 00:22:00,960 --> 00:22:05,720 Speaker 1: from Arizona that involve election law that could have far 383 00:22:05,760 --> 00:22:09,040 Speaker 1: reaching impacts. That's right, and this case is really flying 384 00:22:09,200 --> 00:22:11,760 Speaker 1: under the radar. If so much has happened this term 385 00:22:11,760 --> 00:22:14,640 Speaker 1: with the death of RBT and with the newest justice 386 00:22:14,680 --> 00:22:16,879 Speaker 1: and trying to figure out how this court is going 387 00:22:16,920 --> 00:22:19,160 Speaker 1: to shake out that this one has been flying under 388 00:22:19,200 --> 00:22:22,400 Speaker 1: the radar. The issue in the case deals with two 389 00:22:22,440 --> 00:22:26,159 Speaker 1: specific Arizona provisions. But the case is important because it 390 00:22:26,200 --> 00:22:30,399 Speaker 1: could implicate really most voting rights challenges going forward. And 391 00:22:30,520 --> 00:22:33,119 Speaker 1: so to understand this case, you have to understand the 392 00:22:33,160 --> 00:22:37,240 Speaker 1: Supreme Court's decision in Shelby County, which undid a really 393 00:22:37,359 --> 00:22:41,760 Speaker 1: large protection for voting changes that required that dates with 394 00:22:41,920 --> 00:22:46,480 Speaker 1: a history of discrimination get their voting changes pre cleared 395 00:22:46,520 --> 00:22:49,760 Speaker 1: before those changes can go into effect. That's no longer 396 00:22:50,040 --> 00:22:53,600 Speaker 1: the law, although there are some efforts in Congress change that, 397 00:22:53,800 --> 00:22:55,960 Speaker 1: and now what's left is kind of an after the 398 00:22:56,080 --> 00:22:59,199 Speaker 1: fact challenge. And because it's an after the fact challenge, 399 00:22:59,400 --> 00:23:03,360 Speaker 1: most challenge just have happened under that preclearance formula. Now 400 00:23:03,840 --> 00:23:06,439 Speaker 1: the Supreme Court is kind of playing catchup and setting 401 00:23:06,440 --> 00:23:08,680 Speaker 1: the rules or what it's going to look like when 402 00:23:08,720 --> 00:23:12,680 Speaker 1: courts try to analyze those challenges under this other provision. Now, 403 00:23:12,720 --> 00:23:15,600 Speaker 1: a case that did not fly under the radar was 404 00:23:15,640 --> 00:23:21,000 Speaker 1: the case involving off campus speech and a cheerleader who 405 00:23:21,040 --> 00:23:24,840 Speaker 1: said some things that the school found objectionable. That's right. 406 00:23:24,920 --> 00:23:27,640 Speaker 1: This was, you know, an individual who was upset that 407 00:23:27,720 --> 00:23:30,400 Speaker 1: she didn't make the varsity team when someone else did. 408 00:23:30,400 --> 00:23:32,800 Speaker 1: I think we can all relate to how she was feeling. 409 00:23:33,040 --> 00:23:36,760 Speaker 1: But she did use the F word on social media 410 00:23:36,840 --> 00:23:41,200 Speaker 1: and was punished subsequently for using those terms. And this 411 00:23:41,240 --> 00:23:44,040 Speaker 1: is a really hard case for the justices too, because 412 00:23:44,160 --> 00:23:46,960 Speaker 1: they had decided a case long ago that says, when 413 00:23:47,000 --> 00:23:50,600 Speaker 1: you're at school, you lose some free speech protection, but 414 00:23:50,760 --> 00:23:52,919 Speaker 1: you do hold on to a lot of them. But 415 00:23:53,000 --> 00:23:55,480 Speaker 1: that is you just get, you know, kind of muddied 416 00:23:55,560 --> 00:23:59,080 Speaker 1: up whenever you're talking about social media, which maybe it 417 00:23:59,080 --> 00:24:02,479 Speaker 1: doesn't happen on campus, but it affects campus in a 418 00:24:02,520 --> 00:24:05,000 Speaker 1: way that those issues just weren't there when the Supreme 419 00:24:05,000 --> 00:24:07,920 Speaker 1: Court has decided that school speech cases before. And so 420 00:24:08,080 --> 00:24:10,159 Speaker 1: it's another one of these cases where the Justices are 421 00:24:10,160 --> 00:24:13,040 Speaker 1: trying to kind of update their old case longs to 422 00:24:13,480 --> 00:24:17,400 Speaker 1: incorporate new technology. Are there any other cases that you're 423 00:24:17,400 --> 00:24:21,359 Speaker 1: looking for particularly? I think that really does capture most 424 00:24:21,359 --> 00:24:23,800 Speaker 1: of the cases that we're watching really closely. There is 425 00:24:23,840 --> 00:24:27,200 Speaker 1: another challenge from the n C double A, which looks 426 00:24:27,240 --> 00:24:30,240 Speaker 1: at whether or not student athletes can be paid for 427 00:24:30,359 --> 00:24:33,480 Speaker 1: playing their sport, given that so many schools do really 428 00:24:33,480 --> 00:24:37,359 Speaker 1: benefit financially from things like football and basketball programs. So 429 00:24:37,440 --> 00:24:39,000 Speaker 1: that's another one to watch. But I'm going to be 430 00:24:39,000 --> 00:24:42,880 Speaker 1: watching to see too how this court, newly reconstituted with 431 00:24:43,119 --> 00:24:46,000 Speaker 1: these three Trump appointees, comes out, if they're going to 432 00:24:46,080 --> 00:24:48,480 Speaker 1: continue to be unanimous and a lot of these cases, 433 00:24:48,640 --> 00:24:50,720 Speaker 1: or as we get closer to the end of the term, 434 00:24:50,720 --> 00:24:53,919 Speaker 1: whether it's going to be more divided. And also all 435 00:24:53,920 --> 00:24:58,760 Speaker 1: eyes are on Justice Stephen Bryer because people think that 436 00:24:59,280 --> 00:25:01,679 Speaker 1: if he's going retire this year, he would do it 437 00:25:01,880 --> 00:25:03,879 Speaker 1: on the last day of the term. He doesn't have 438 00:25:04,119 --> 00:25:05,360 Speaker 1: to do it on the last day of the term, 439 00:25:05,480 --> 00:25:09,560 Speaker 1: right right, He can do can do whatever they want, 440 00:25:10,040 --> 00:25:12,560 Speaker 1: But that is a traditional time. You know, we saw 441 00:25:12,760 --> 00:25:16,800 Speaker 1: Justice Kennedy announced after the screen Court had announced his 442 00:25:16,920 --> 00:25:18,959 Speaker 1: last opinions for the term, say that he was going 443 00:25:19,000 --> 00:25:21,000 Speaker 1: to be stepping away from the bench. And that makes 444 00:25:21,000 --> 00:25:23,720 Speaker 1: a lot of sense because it gives the president time 445 00:25:23,760 --> 00:25:26,800 Speaker 1: to nominate someone in Congress, time to hold hearings and 446 00:25:26,840 --> 00:25:29,879 Speaker 1: to confirm someone. So I would suspect that if Justice 447 00:25:29,880 --> 00:25:31,720 Speaker 1: by our plants to step away that he'll do it 448 00:25:31,880 --> 00:25:33,960 Speaker 1: at the end of June, but as you mentioned, of 449 00:25:34,000 --> 00:25:36,840 Speaker 1: course he can do it whenever he wants. Thanks Kimberly, 450 00:25:37,280 --> 00:25:41,600 Speaker 1: that's Bloomberg Law. Supreme Court reporter Kimberly Strawbridge Robinson, this 451 00:25:41,680 --> 00:25:42,320 Speaker 1: is Bloomberg