WEBVTT - Must Tennis Accommodate Naomi Osaka? 0:00:03.200 --> 0:00:09.879 This is Bloomberg Law with June Brussel from Bloomberg Radio. Hi, 0:00:09.960 --> 0:00:13.440 I'm Naomi, and this is an introduction to the people 0:00:13.720 --> 0:00:17.440 that asked me what I do, so welcome to my brain. 0:00:19.720 --> 0:00:23.400 Naomi Osaka, the highest paid female athlete of all time 0:00:23.440 --> 0:00:27.240 at the age of twenty three. At press conferences, Osaka 0:00:27.400 --> 0:00:31.080 is charming and funny, even in response to tedious or 0:00:31.240 --> 0:00:36.440 sometimes ridiculous questions. How come that your last name is 0:00:36.479 --> 0:00:42.199 the same name everyone's who was born in Osaka, their 0:00:42.280 --> 0:00:52.839 last name is Osaka. No, not caught up in a 0:00:52.840 --> 0:00:56.000 lot of bad stuff? How do you know? I'm not 0:00:56.040 --> 0:01:00.440 caught off invested? When she's serving in boats and then 0:01:00.440 --> 0:01:03.080 I'm arguing with myself, don't do it? Do it? Don't 0:01:03.120 --> 0:01:06.360 do it? Do it? And then the ball comes and 0:01:06.400 --> 0:01:08.039 then I hit it down the line and it goes 0:01:08.080 --> 0:01:10.000 in the net, and then I'm like, why did I 0:01:10.120 --> 0:01:14.520 do it? But Osaka skipped a post match news conference 0:01:14.560 --> 0:01:17.280 after her first round victory at the French Open and 0:01:17.360 --> 0:01:20.640 was slapped with a fifteen thousand dollar fine. She then 0:01:20.680 --> 0:01:24.520 withdrew from the Open, tweeting that she experiences huge waves 0:01:24.600 --> 0:01:27.840 of anxiety before speaking to the media and has suffered 0:01:27.880 --> 0:01:31.480 long bouts of depression. There's no court case at this point, 0:01:31.800 --> 0:01:34.520 but in the court of public opinion, it's ignited a 0:01:34.560 --> 0:01:38.839 debate about whether sports organizations should provide their star athletes 0:01:38.920 --> 0:01:43.800 with modifications or reasonable accommodations for mental health reasons. Joining 0:01:43.840 --> 0:01:46.840 me is Ruth Kulker, a professor of constitutional law and 0:01:46.880 --> 0:01:51.840 disability discrimination at Ohio State University. Ruth, what's your first 0:01:51.920 --> 0:01:56.600 reaction to what happened to Osaka? Well, I think that 0:01:56.840 --> 0:02:00.360 we need to think about this through a disability frame, 0:02:00.800 --> 0:02:04.600 in that people for whom their disability is such that 0:02:04.640 --> 0:02:08.440 they would request accommodations entity should be reasonable and considering 0:02:08.480 --> 0:02:11.280 this requests, and I think in her case, her request 0:02:11.320 --> 0:02:15.320 to skip post match press conference should certainly be considered 0:02:15.360 --> 0:02:19.080 to be reasonable. Ruth, with the Americans with Disabilities Act 0:02:19.360 --> 0:02:22.880 cover a situation like this if it happened in this country. 0:02:23.240 --> 0:02:26.280 As you may know, the U. S t A has 0:02:26.320 --> 0:02:29.840 stated publicly that they would expect Naomi a SOCCA to 0:02:29.880 --> 0:02:33.320 attend press conferences if she participated in their tours, and 0:02:33.320 --> 0:02:38.399 so they went through with that rule without accommodating her disability. 0:02:38.840 --> 0:02:40.799 In my view, they would likely be in violation of 0:02:40.840 --> 0:02:44.000 the ADA. The ADA says that a disability is a 0:02:44.080 --> 0:02:47.679 physical or mental impairment that the stantcy limits one or 0:02:47.760 --> 0:02:51.760 more major life activities. And so it specifically says physical 0:02:51.800 --> 0:02:54.880 as well as mental and mental health issues are obviously 0:02:54.919 --> 0:02:59.360 something that can constitute an impairment. The tennis organizations require 0:02:59.400 --> 0:03:03.400 these press conferences, how would that requirement be viewed in 0:03:03.440 --> 0:03:06.919 the framework of the AD. So, what the A d 0:03:07.040 --> 0:03:10.919 A says is that employers can put down in writing 0:03:10.919 --> 0:03:13.720 what they considered to be the essential job trunkstens of 0:03:13.720 --> 0:03:16.639 our particular job. So I'm a law professor, so if 0:03:16.680 --> 0:03:19.640 my employer would put down what are the essential fences 0:03:19.840 --> 0:03:22.320 of my job, you would expect them to include things 0:03:22.360 --> 0:03:25.240 like teaching my classes, right, something of that sort. And 0:03:25.280 --> 0:03:28.760 if the employer puts down to something that's essential, then 0:03:29.200 --> 0:03:32.480 the courts tend to air on the side or tend 0:03:32.520 --> 0:03:36.040 to conclude that it probably is essential. But that doesn't 0:03:36.080 --> 0:03:38.760 preclude the employee from saying, you know, actually that was personal, 0:03:39.200 --> 0:03:42.280 not essential. And so if it's only a personal part 0:03:42.280 --> 0:03:44.800 of the job, then you can ask for an accommodation 0:03:44.880 --> 0:03:48.160 to be excused from engaging in that part of the activity. So, 0:03:48.160 --> 0:03:50.160 when we think about tennis, we think about the U 0:03:50.240 --> 0:03:52.680 s t A running a tennis tournament, we think that 0:03:52.720 --> 0:03:55.280 most of us would say, well, the essential thing is 0:03:55.400 --> 0:03:58.200 getting to the court, being there on time, using a 0:03:58.400 --> 0:04:01.440 racket that meets the guide that they have. Possibly we're 0:04:01.440 --> 0:04:04.520 in clothing that they they know is befitting of the 0:04:04.560 --> 0:04:07.000 match that's going to be held. And so that's when 0:04:07.000 --> 0:04:09.800 most of us, I think, would say is essential about tennis? 0:04:10.320 --> 0:04:12.360 And now the U s t A is adding onto 0:04:12.400 --> 0:04:15.560 that by saying what attendee press conferences is potential. That's 0:04:15.560 --> 0:04:18.159 something that an employee would be able to challenge and say, 0:04:18.320 --> 0:04:20.960 wait a minute, why are you saying that? Why is 0:04:21.000 --> 0:04:23.320 that so essential? How does that affect the game that's 0:04:23.360 --> 0:04:27.799 being played that I'm an employee of your entity and 0:04:27.880 --> 0:04:31.520 engaging in that kind of activity. So, Ruth, twenty years ago, 0:04:32.000 --> 0:04:34.640 Casey Martin sued the PGA to be able to use 0:04:34.680 --> 0:04:37.839 a golf card during competition and that turned out to 0:04:37.880 --> 0:04:41.279 be a victory for disability rights. How might that ruling 0:04:41.320 --> 0:04:45.640 apply here? Right, that's the perfect analogy. So what happened 0:04:45.640 --> 0:04:48.599 in the Casey Martin cases that Casey Martin has a 0:04:48.640 --> 0:04:52.560 genetic disorder in his leg, which makes it very difficult 0:04:52.560 --> 0:04:55.359 for him to stand for extended periods of time. He 0:04:55.480 --> 0:04:59.200 can stand enough to go to the tea and play 0:04:59.279 --> 0:05:03.760 golf um, but if he would walk from shot the shot, 0:05:03.839 --> 0:05:08.159 hole the whole um, it would so impair him that 0:05:08.200 --> 0:05:10.040 he had actually would be at risk of having his 0:05:10.120 --> 0:05:13.240 like amputated. That's that's how serious his physical impairment is. 0:05:13.680 --> 0:05:18.440 And so he could not literally play golf on in 0:05:18.600 --> 0:05:21.760 certain PGA tournaments if they were not going to allow 0:05:21.880 --> 0:05:24.440 him to use a golf card to advance from hole 0:05:24.520 --> 0:05:27.000 to hole. And there was a rule in writing that 0:05:27.160 --> 0:05:29.760 said that you had to walk on hole the whole 0:05:29.800 --> 0:05:31.760 you were not allowed to use a golf card. So 0:05:31.800 --> 0:05:34.600 that's a little bit like the Naomia Softwa situation. Right, 0:05:34.640 --> 0:05:37.120 there's a rule in writing it says you're expected to 0:05:37.160 --> 0:05:41.560 attend these press press conferences. Well, Casey Martin argued, was 0:05:41.640 --> 0:05:45.520 it was reasonable to modify the rules to accommodate his 0:05:45.760 --> 0:05:48.880 very serious physical impairment by allowing him to ride the 0:05:48.920 --> 0:05:51.880 golf card from whole the whole, and that that would 0:05:51.880 --> 0:05:55.279 not fundamentally alter the nature of the enterprise that the 0:05:55.320 --> 0:05:58.440 PGA was running, and in particular would not give him 0:05:58.440 --> 0:06:01.440 a competitive advantage by sitting in a golf cart rather 0:06:01.480 --> 0:06:03.600 than walking from hole the whole the p g E 0:06:03.760 --> 0:06:05.800 disagree with him. They felt that it gave him a 0:06:05.800 --> 0:06:09.240 competitive advantage, and that was a factual question. There was 0:06:09.320 --> 0:06:15.120 a hearing at which various renowned golfers testified in both directions, 0:06:15.120 --> 0:06:20.080 and at the end of the day, the court concluded that, um, 0:06:20.080 --> 0:06:23.800 writing a golf cart wasn't an essential aspect of the game. 0:06:24.080 --> 0:06:26.320 It wasn't like changing the club or the way to 0:06:26.400 --> 0:06:29.640 the balls, or the way you kept score. Um. And 0:06:29.680 --> 0:06:31.720 so it's I think it's very analogous talking on a 0:06:31.760 --> 0:06:35.560 Saki situation, because I think attending a press conference even 0:06:35.560 --> 0:06:39.599 more peripheral to the game of tennis than writing a 0:06:39.640 --> 0:06:43.440 golf cart when you play golf. So from that precedent, 0:06:43.560 --> 0:06:46.920 it sounds like Naomi Osaka would have a great case 0:06:47.040 --> 0:06:49.640 that she did decide to sue, right, and you know, 0:06:49.680 --> 0:06:52.599 I would hope that that the U. S t A 0:06:52.839 --> 0:06:56.599 got some lousy llegal advice and acted a little hastily, 0:06:57.160 --> 0:07:00.760 and then upon further reflection, um, they require this to 0:07:00.760 --> 0:07:04.280 become a legal case, that they'll they'll talk with Naomi 0:07:04.320 --> 0:07:07.520 Osaka and they'll have a conversation they'll figure out how 0:07:08.080 --> 0:07:11.000 they can recently accommodate her so that so that the 0:07:11.040 --> 0:07:13.360 world has an opportunity to see this great tennis player 0:07:13.560 --> 0:07:17.960 play tennis um and they have an opportunity to do 0:07:18.080 --> 0:07:20.480 the kind of publicity that that's necessary for them as 0:07:20.520 --> 0:07:24.440 a business to have these tournaments. When you compare the 0:07:24.520 --> 0:07:30.080 reaction of the French Tennis Federation to Roger Federer withdrawing 0:07:30.160 --> 0:07:34.200 to preserve his knee and his energy for Wimbledon, he said, 0:07:34.240 --> 0:07:36.200 it's important that I listened to my body and I 0:07:36.240 --> 0:07:39.560 don't push myself too quickly on my road to recovery. 0:07:39.840 --> 0:07:44.560 And the president of the French Tennis Federation didn't question 0:07:44.600 --> 0:07:47.120 his decision, said he had too much respect for Roger, 0:07:47.160 --> 0:07:50.760 and Federer was not fine for the withdrawal. It seems 0:07:50.760 --> 0:07:54.560 like a stark contrast to what happened to Osaka, wondering 0:07:54.600 --> 0:07:58.600 that the comparison between you know, a physical problem and 0:07:58.640 --> 0:08:02.040 a mental problem, or perhaps between a man and a woman. 0:08:02.120 --> 0:08:05.160 I don't know. Yeah, Well, as I said, the French 0:08:05.200 --> 0:08:08.040 Federation wouldn't be covered by the AD, they be covered 0:08:08.040 --> 0:08:10.040 by their own domestic law, and I'm not an expert 0:08:10.120 --> 0:08:14.320 in French domestic law. With regard to disability. But typically 0:08:14.480 --> 0:08:17.520 what laws said both the US and the international level 0:08:17.720 --> 0:08:21.800 says that both physical and mental impairments are equally considered 0:08:21.800 --> 0:08:25.400 to be disabilities, and therefore the rules about accommodation would 0:08:25.440 --> 0:08:29.560 be exactly the same um and if if someone is 0:08:29.600 --> 0:08:34.679 treated differently, then that sounds to me like a discrimination problem. 0:08:34.760 --> 0:08:37.000 But as I think you know in the United States 0:08:37.040 --> 0:08:39.480 that there's been a lot of attention in recent years 0:08:39.480 --> 0:08:42.440 that we should take mental health disabilities as seriously as 0:08:42.440 --> 0:08:46.000 we take physical health impairments. And so I think one 0:08:46.000 --> 0:08:48.720 of the things in Naomi Assaca case is raising for 0:08:48.880 --> 0:08:51.640 us as a as a community is to just remember 0:08:52.120 --> 0:08:55.840 that mental health impairments are everybody's real and physical impairments, 0:08:55.840 --> 0:08:59.360 and so hopefully people are treating Miami Assaca with respect 0:08:59.480 --> 0:09:02.680 that she entitled to as someone who's's claiming to have 0:09:02.720 --> 0:09:06.200 a mental health compairment. Thanks Ruth, that's law Professor Ruth 0:09:06.240 --> 0:09:14.959 Coulker of Ohio State University. This is Bloomberg Law with 0:09:15.040 --> 0:09:20.359 June Brussel from Bloomberg Radio. The Supreme Court is approaching 0:09:20.360 --> 0:09:22.959 the finished line of the term, with decisions in twenty 0:09:23.040 --> 0:09:26.240 two cases to be handed down before the Jostices take 0:09:26.280 --> 0:09:29.920 off for three months of vacation. Among those cases are 0:09:29.960 --> 0:09:34.320 the constitutionality of Obamacare, a case involving Foster Care that 0:09:34.400 --> 0:09:38.080 pits religious rights against gay rights, an election law case 0:09:38.160 --> 0:09:42.520 that could be consequential, a case on college athletes compensation, 0:09:42.800 --> 0:09:46.480 and on whether schools can regulate off campus speech. The 0:09:46.640 --> 0:09:49.560 Jostices are also deciding which case is to take for 0:09:49.679 --> 0:09:53.679 next term. Joining me is Kimberly, Strawbridge, Robinson, Bloomberg Law, 0:09:53.720 --> 0:09:57.560 Supreme Court Reporter Kimberly, Let's start with a disagreement between 0:09:57.600 --> 0:10:00.480 the White House and the Justice Department on a case 0:10:00.520 --> 0:10:04.160 for next term. There's a provision in federal law that 0:10:04.240 --> 0:10:08.680 the White House has expressed disagreement with, but the Justice 0:10:08.720 --> 0:10:12.440 Department plans to defend at the Supreme Court tell us 0:10:12.440 --> 0:10:15.920 about that right. So there's this case that the Supreme 0:10:15.960 --> 0:10:18.600 Court has agreed to hear at the request of the 0:10:18.600 --> 0:10:22.960 federal government, which is a lower court ruling that found 0:10:23.000 --> 0:10:26.360 that the federal law violated equal protection. And what this 0:10:26.440 --> 0:10:30.439 law does is it provides uh supplemental Social Security income 0:10:30.600 --> 0:10:35.040 to UH low income individuals who are either elderly, blind, 0:10:35.160 --> 0:10:38.960 or in another way disabled. The law, though applies in 0:10:39.000 --> 0:10:42.120 the fifty States and DC and some other charactories, but 0:10:42.200 --> 0:10:45.600 does not apply in Puerto Rico. And that's why the 0:10:45.600 --> 0:10:49.560 lower court said, uh, that this law was invalid. The 0:10:49.600 --> 0:10:52.600 Supreme Court is going to review that, and in doing so, 0:10:53.160 --> 0:10:55.960 the parties have filed their brief and the Department of 0:10:56.000 --> 0:10:59.840 Justice files there's earlier this week, and it was accompanied 0:10:59.840 --> 0:11:02.800 by kind of a strange statement by the White House 0:11:02.840 --> 0:11:06.120 which said, while the White House doesn't agree with this law, 0:11:06.280 --> 0:11:09.959 it is the duty of the Justice Department to defend 0:11:10.080 --> 0:11:13.600 federal laws, and that that's the approach that it's going 0:11:13.640 --> 0:11:17.720 to take here as well. The Justice Department hasn't defended 0:11:18.040 --> 0:11:22.800 every federal law. For example, recently, the Trump administration didn't 0:11:22.880 --> 0:11:27.199 defend Obamacare. That's right. And you know, we we've seen 0:11:27.400 --> 0:11:32.480 occasionally from not just the Trump administration but administrations before that, 0:11:32.480 --> 0:11:37.440 that this so called duty to defend isn't really iron clad. Uh, 0:11:37.440 --> 0:11:40.520 And so I think most famously, we saw the Obama 0:11:40.520 --> 0:11:45.240 administration refused to defend the Defense of Marriage Act, which 0:11:45.320 --> 0:11:47.880 defines marriage as between a man and a woman for 0:11:48.200 --> 0:11:51.560 all federal purposes. And you know, this happens a handful 0:11:51.600 --> 0:11:54.000 of times. That's happened a few dozen times since the 0:11:54.040 --> 0:11:57.680 nineteen seventies, and it really depends on, you know, the 0:11:57.760 --> 0:12:00.880 administration and how far they're they're willing to go to 0:12:01.000 --> 0:12:04.680 defend a statute that they think is really not defensible. 0:12:05.200 --> 0:12:09.000 There have been Supreme Court arguments where the Justices asked 0:12:09.400 --> 0:12:13.040 the lawyers why they had changed positions in the case, 0:12:13.280 --> 0:12:17.640 especially during the Trump administration. There were sometimes two different agencies, 0:12:17.800 --> 0:12:20.319 the Justice Department and for example, the E O. C. 0:12:20.520 --> 0:12:23.679 We're arguing against each other, even that's right, and so 0:12:23.720 --> 0:12:27.600 that situation is a little bit different. Sometimes in those situations, 0:12:28.160 --> 0:12:31.400 the administration is defending law, but they're defending it in 0:12:31.480 --> 0:12:34.000 kind of a different way. Um, and so the Supreme 0:12:34.000 --> 0:12:37.560 Court will ask will appoint someone to argue uh that 0:12:37.600 --> 0:12:41.040 position as well. Uh. The Biden administration has done this 0:12:41.160 --> 0:12:44.360 quite a bit as well, shifting positions from uh previous 0:12:44.400 --> 0:12:48.200 positions taken by the Trump administration. And you know, I 0:12:48.200 --> 0:12:51.240 think that's just something that the Justices expect to see 0:12:51.240 --> 0:12:55.560 whenever they see administrations turnover, particularly when they turnover from 0:12:55.600 --> 0:12:58.679 a Republican to a Democrat or vice versa. So now 0:12:58.679 --> 0:13:02.119 the Supreme Court turn to way a case over the 0:13:02.160 --> 0:13:05.640 mail only draft, the Supreme Court ruled on this. Tell 0:13:05.720 --> 0:13:09.400 us about the ruling in one, Well, the Supreme Court 0:13:09.400 --> 0:13:11.480 back in nine eight one did have a challenge for 0:13:11.559 --> 0:13:13.720 the mail only draft, and they said at the time 0:13:13.760 --> 0:13:16.040 that that was okay. One of the things that they 0:13:16.080 --> 0:13:18.240 looked at was the fact that women at the time 0:13:18.240 --> 0:13:22.000 were actually barred from combat duty, and of course that 0:13:22.080 --> 0:13:25.800 has changed over the over the past decade. The reason 0:13:25.840 --> 0:13:28.000 I think that the Supreme Court decided not to take 0:13:28.080 --> 0:13:31.040 up this case wasn't because they think that that's still 0:13:31.080 --> 0:13:34.040 a good rule, but because this is something that Congress 0:13:34.200 --> 0:13:37.559 is actively considering. And so it seems, at least for now, 0:13:37.600 --> 0:13:39.520 that the Supreme Court is going to let Congress take 0:13:39.520 --> 0:13:41.960 a whack at the first uh, and then maybe down 0:13:41.960 --> 0:13:44.839 the line if nothing happens, we'll see the Justice Stepan 0:13:45.120 --> 0:13:49.360 who brought this case, Well, this was brought by a 0:13:49.440 --> 0:13:51.719 group um who was in the A C. L U 0:13:51.880 --> 0:13:55.560 who is challenging, Um, you know this mail only draft. 0:13:55.559 --> 0:13:58.720 Who wants to see it really opened up? Uh? Two 0:13:58.800 --> 0:14:01.720 females as well, um, which is something interesting. It's not 0:14:01.760 --> 0:14:03.640 all the time that we see people asked to be 0:14:04.400 --> 0:14:07.240 part of registering for the draft, but you know, that's 0:14:07.280 --> 0:14:10.480 something I think that from a feminism or from equal 0:14:10.559 --> 0:14:13.720 protection is something that is important for this group. And 0:14:13.760 --> 0:14:16.719 what did the Fifth Circuits say about this? Well, the 0:14:16.960 --> 0:14:19.240 Circuits said, you know, it's really up to the Supreme 0:14:19.280 --> 0:14:21.480 Court to change the law, even though facts on the 0:14:21.480 --> 0:14:24.480 ground have changed, it's not the prerogative of the lower 0:14:24.520 --> 0:14:28.560 federal courts to you know, change or to ignore Supreme 0:14:28.600 --> 0:14:32.760 Court precedent. That really the challengers were stuck making their 0:14:32.760 --> 0:14:36.320 case to the Justice tell us about the comment that 0:14:36.440 --> 0:14:40.520 was written by Justice Sonia Soto Mayor, joined in by 0:14:40.560 --> 0:14:45.040 Justices Steven Bryan and Brett Kavanaugh. Right, so this is 0:14:45.240 --> 0:14:48.200 uh kind of an odd matchup here, um, you know, 0:14:48.280 --> 0:14:51.520 having two of the Court's liberals joined by Brett Kavanaugh. 0:14:51.880 --> 0:14:54.600 But essentially they said, you know, this is something that 0:14:54.680 --> 0:14:59.000 Congress is trying to work out for itself. And they said, 0:14:59.080 --> 0:15:01.840 you know, at least now we're gonna go ahead and 0:15:02.200 --> 0:15:04.840 defer to Congress and let them take you know, this 0:15:04.920 --> 0:15:07.800 issue up and have the first shot at it. But 0:15:07.880 --> 0:15:10.200 they didn't leave out the possibility that, you know, if 0:15:10.200 --> 0:15:12.560 Congress fails to act, that the support will be there 0:15:12.560 --> 0:15:15.080 waiting to hear the case. I was trying to figure 0:15:15.080 --> 0:15:18.480 out why those three might want to make that kind 0:15:18.560 --> 0:15:22.680 of a statement in this case. Yeah, we don't really know. 0:15:22.880 --> 0:15:26.720 I mean, oftentimes we don't even have any statement from 0:15:26.720 --> 0:15:29.760 the justices telling us, you know, who voted to turn 0:15:29.800 --> 0:15:32.440 the case away, who voted to take it up. Uh. 0:15:32.440 --> 0:15:35.120 Here we do have this statement from these three justices 0:15:35.600 --> 0:15:38.400 again and an odd kind of mix. Um, we don't 0:15:38.400 --> 0:15:41.240 know why others didn't join. But you know, it is 0:15:41.280 --> 0:15:44.680 more information than we than we typically have. So let's 0:15:44.720 --> 0:15:47.160 turn now to And this isn't an area that I 0:15:47.200 --> 0:15:50.040 think a lot of people have heard about the Foreign 0:15:50.120 --> 0:15:54.760 Intelligence Surveillance Act FISA. So tell us the issue here. Sure, 0:15:54.800 --> 0:15:56.800 So this is the case that the Supreme Court agreed 0:15:56.800 --> 0:15:59.720 to take up for next term, and it deals with 0:15:59.760 --> 0:16:03.080 the vision that changes the way that courts are supposed 0:16:03.080 --> 0:16:06.440 to look at evidence that's claimed by the government to 0:16:06.720 --> 0:16:09.520 involve state secrets. So these are things that could threaten 0:16:10.160 --> 0:16:13.560 national security. And the challenge here, um is that the 0:16:13.640 --> 0:16:17.600 Ninth Circuit said that when Congress packed the Foreign Intelligence 0:16:17.640 --> 0:16:20.720 Surveillance Act, that it actually did away with what courts 0:16:20.720 --> 0:16:25.360 had been previously doing under judgments law UH and created 0:16:25.360 --> 0:16:30.120 this new process for courts to consider UH. The state secrets, 0:16:30.160 --> 0:16:34.120 and in this process, the government has to turn over 0:16:34.160 --> 0:16:37.120 the information to the court, whereas before they did not. 0:16:37.800 --> 0:16:40.880 The court kind of trusted that the government was was 0:16:40.960 --> 0:16:44.040 protecting state secrets and that these things would implicate uh, 0:16:44.520 --> 0:16:47.440 national security. Uh, that's not the case, at least not 0:16:47.520 --> 0:16:49.960 in the Ninth Circuit, which is where this case comes from. 0:16:50.120 --> 0:16:52.080 And so the Supreme Court has decided to take a 0:16:52.080 --> 0:16:55.920 look as well. What was the distinction the Ninth Circuit 0:16:56.040 --> 0:16:59.720 made to reject the government's argument. Yeah, they said that, 0:16:59.760 --> 0:17:03.760 you know, once Congress passed this act fight so that 0:17:03.800 --> 0:17:07.400 it actually did away with this kind of judgments rule. 0:17:07.880 --> 0:17:10.240 It said, you know, we made up this rule in 0:17:10.280 --> 0:17:13.480 the absence of their being a congressional statute. But now 0:17:13.480 --> 0:17:15.520 that there is a statute, we have to follow what 0:17:15.560 --> 0:17:18.719 the statute says. The government, for its part, says, you know, 0:17:19.200 --> 0:17:23.240 Congress didn't want to do away with the whole way 0:17:23.240 --> 0:17:24.919 that churts we're doing it. It was just really in 0:17:24.960 --> 0:17:29.040 this really small deliver of cases where the government wants 0:17:29.040 --> 0:17:32.760 to affirmatively use the evidence against someone else. Um, so 0:17:32.840 --> 0:17:36.080 they're urging the stream Court just rule that this process 0:17:36.080 --> 0:17:39.600 only applies in a really narrow circumstance and not in 0:17:39.680 --> 0:17:42.880 in case like this where individuals are trying to use 0:17:43.040 --> 0:17:47.359 the information against the government and explain who brought the case. 0:17:48.119 --> 0:17:51.040 These are three Muslim men who claimed that they were 0:17:51.080 --> 0:17:54.400 targets of what they call a dragnet surveillance program by 0:17:54.400 --> 0:17:57.360 the FBI. You know, this was alleged to have been 0:17:57.800 --> 0:18:01.320 a year long surveillance not just of these three people, 0:18:01.400 --> 0:18:06.200 but of just Muslim individuals in general that eventually ended 0:18:06.280 --> 0:18:09.159 up targeting these three. Um, so those are their claims. 0:18:09.200 --> 0:18:13.040 This is on a really early process that this case 0:18:13.119 --> 0:18:15.399 is in and so none of those facts have been 0:18:15.440 --> 0:18:17.760 proven yet, but at least for now, that's the way 0:18:17.800 --> 0:18:21.040 that the Court is operating, that what's been alleged it's true. 0:18:21.680 --> 0:18:26.119 So it's June and we're waiting for the Supreme Court 0:18:26.400 --> 0:18:29.960 decisions in cases that will argue this term, these really 0:18:30.040 --> 0:18:34.560 high profile cases. Lately, they've been handing down opinions in 0:18:34.960 --> 0:18:38.840 cases that didn't get a lot of notice, but the 0:18:38.960 --> 0:18:43.199 big cases have yet to come. Obamacare. It's sort of 0:18:43.240 --> 0:18:46.360 puzzling to me because it was argued in November. Most 0:18:46.359 --> 0:18:48.919 people assume from the argument that the justices wouldn't be 0:18:48.920 --> 0:18:51.520 doing away with Obamacare. Why do you think it's taking 0:18:51.640 --> 0:18:55.040 so long? Well, I do agree with that the justices 0:18:55.119 --> 0:18:57.679 didn't seem to want to go as far as the 0:18:57.760 --> 0:19:00.359 challengdars here were urging them to go and on is 0:19:00.440 --> 0:19:03.280 to find that the whole Act, all the provisions in 0:19:03.359 --> 0:19:06.600 Obama here were invalid. I do think one of the 0:19:06.600 --> 0:19:08.399 reasons that it's taking so long is that there are 0:19:08.400 --> 0:19:10.240 a lot of other issues in the case, so that 0:19:10.880 --> 0:19:13.400 you know, was just one part of kind of three 0:19:13.440 --> 0:19:16.399 parts to the case, and all these issues. There's a 0:19:16.520 --> 0:19:19.080 standing issue about who can bring a case. There's the 0:19:19.240 --> 0:19:22.760 merits issue about whether or not the certain provisions of 0:19:22.800 --> 0:19:25.480 the law is valid, and then there's this severance issue 0:19:25.480 --> 0:19:28.679 about whether or not, you know, if that provision is valid, 0:19:28.760 --> 0:19:30.600 if the whole Act must fall. And so there's a 0:19:30.640 --> 0:19:34.160 lot of ways for the nine justices to come out differently, 0:19:34.240 --> 0:19:36.560 and I think we're we're going to be expecting one 0:19:36.600 --> 0:19:39.480 of those decisions where we get, you know, one justice 0:19:40.000 --> 0:19:43.160 concurring and joining in part A one B two four, 0:19:43.680 --> 0:19:45.800 but not A one B two five or or whatever 0:19:45.800 --> 0:19:50.000 it might be looking forward to that um. And now 0:19:50.280 --> 0:19:54.080 a case that has drawn a lot of attention is 0:19:54.280 --> 0:19:58.240 the case where gay rights and religious rights seemed to 0:19:58.280 --> 0:20:02.400 be in conflict. Tell us about that case that's right, 0:20:02.440 --> 0:20:05.439 that was actually argued way back in November two. I 0:20:05.440 --> 0:20:07.560 think one of the reasons that this case is taking 0:20:07.600 --> 0:20:10.760 so long, it's just because it's genuinely a really difficult 0:20:10.840 --> 0:20:13.280 issue for the justices to sort out. So this is, 0:20:13.760 --> 0:20:15.840 as you hinted at, one in a long line of 0:20:15.880 --> 0:20:18.879 cases where the justices are trying to balance you know, 0:20:18.920 --> 0:20:22.120 these anti discrimination laws that are meant to protect LGBT 0:20:22.320 --> 0:20:26.040 citizens and you know, the rights of other individuals to 0:20:26.200 --> 0:20:29.879 practice their religion freely. And this case is made even 0:20:29.960 --> 0:20:33.760 more difficult because we're dealing with the Philadelphia foster care 0:20:33.840 --> 0:20:38.000 system and Catholic Social Services, which has actually been involved 0:20:38.040 --> 0:20:41.280 in Philadelphia's foster care system longer than the city itself. 0:20:41.400 --> 0:20:43.680 So these issues are really tough for the justices, and 0:20:43.760 --> 0:20:46.800 I suspect that they're trying to work through an opinion 0:20:46.840 --> 0:20:52.560 that really respects both sides. Often the most controversial cases 0:20:52.680 --> 0:20:56.120 seem to get decided in the last days of the term, 0:20:56.160 --> 0:20:59.920 and some people say it's because those are complicated decision 0:21:00.080 --> 0:21:02.159 ends and it takes a while to get all the 0:21:02.240 --> 0:21:06.720 opinions in etcetera, etcetera. But could the court be holding 0:21:06.760 --> 0:21:10.960 back these controversial decisions until the last minute before they 0:21:11.000 --> 0:21:14.440 scoot off for vacations. Well, they do say that as 0:21:14.480 --> 0:21:17.080 the opinions there are finished, that's when they send them out. 0:21:17.400 --> 0:21:20.400 It may be that the justices, you know, it does 0:21:20.520 --> 0:21:23.560 just take more time to write an opinion that has 0:21:23.600 --> 0:21:26.000 a majority and a descent than it does take to 0:21:26.040 --> 0:21:28.919 write a unanimous opinion. And that's what we've been getting 0:21:28.920 --> 0:21:31.399 most often so far up to the term. Are just 0:21:31.520 --> 0:21:35.800 these really short unanimous opinions, sometimes just a few pages long, 0:21:36.280 --> 0:21:38.919 where when you have one of these controversial cases that 0:21:38.920 --> 0:21:43.240 are gonna divide the justices maybe five four or six three, 0:21:43.119 --> 0:21:45.119 you have to put out a majority opinion, you have 0:21:45.160 --> 0:21:47.560 to get a dissent, They have to respond to the descent. 0:21:47.680 --> 0:21:50.119 The descent might change as well, and so you know, 0:21:50.240 --> 0:21:53.560 it does just take them longer to even write the decision, 0:21:53.600 --> 0:21:55.960 let alone come up with the right answer. Maybe I'm 0:21:56.000 --> 0:22:00.960 just too suspicious, Kimberly. So. Also, there are two cases 0:22:00.960 --> 0:22:05.720 from Arizona that involve election law that could have far 0:22:05.760 --> 0:22:09.040 reaching impacts. That's right, and this case is really flying 0:22:09.200 --> 0:22:11.760 under the radar. If so much has happened this term 0:22:11.760 --> 0:22:14.640 with the death of RBT and with the newest justice 0:22:14.680 --> 0:22:16.879 and trying to figure out how this court is going 0:22:16.920 --> 0:22:19.160 to shake out that this one has been flying under 0:22:19.200 --> 0:22:22.400 the radar. The issue in the case deals with two 0:22:22.440 --> 0:22:26.159 specific Arizona provisions. But the case is important because it 0:22:26.200 --> 0:22:30.399 could implicate really most voting rights challenges going forward. And 0:22:30.520 --> 0:22:33.119 so to understand this case, you have to understand the 0:22:33.160 --> 0:22:37.240 Supreme Court's decision in Shelby County, which undid a really 0:22:37.359 --> 0:22:41.760 large protection for voting changes that required that dates with 0:22:41.920 --> 0:22:46.480 a history of discrimination get their voting changes pre cleared 0:22:46.520 --> 0:22:49.760 before those changes can go into effect. That's no longer 0:22:50.040 --> 0:22:53.600 the law, although there are some efforts in Congress change that, 0:22:53.800 --> 0:22:55.960 and now what's left is kind of an after the 0:22:56.080 --> 0:22:59.199 fact challenge. And because it's an after the fact challenge, 0:22:59.400 --> 0:23:03.360 most challenge just have happened under that preclearance formula. Now 0:23:03.840 --> 0:23:06.439 the Supreme Court is kind of playing catchup and setting 0:23:06.440 --> 0:23:08.680