Speaker 1: This is Bloomberg Law. Some complicated international law issues here.
Speaker 1: What kind of docket is Chief Justice Roberts facing interviews
Speaker 1: with prominent attorneys and Bloomberg Legal experts. Joining me is
Speaker 1: Bloomberg New Supreme Court reporter Greg's Store, Neil Devons, a
Speaker 1: professor at William and Mary Law School, and analysis of
Speaker 1: important legal issues, cases and headlines. President Trump lost resoundingly
Speaker 1: in the circuit courts and unusually large number of immigration cases.
Speaker 1: Bloomberg Law with June Grasso from Bloomberg Radio. Welcome to
Speaker 1: Bloomberg Law. I'm Greg's Store in for June Grosso. Coming
Speaker 1: up on the show. The Supreme Court rejects on the
Speaker 1: Nevada church that said the state's coronavirus capacity restrictions discriminate
Speaker 1: against religion. And we'll dive into the growing controversy over
Speaker 1: the way states are conducting bird zams during the pandemic.
Speaker 1: But first, earlier this month, Supreme Court Justice Ruth Bader
Speaker 1: Ginsburg revealed that she was again being treated for cancer.
Speaker 1: That was about a week and a half after the
Speaker 1: Court confirmed a Washington Post report that Chief Justice John R.
Speaker 1: Birds had been hospitalized after falling and hitting his forehead
Speaker 1: with me to talk about the Supreme Court's disclosure practices
Speaker 1: when it comes to health issues. Is Duke Law School
Speaker 1: professor Marin Levy Maran, thanks very much for joining us. UM,
Speaker 1: let's start with Justice Ginsburg. She's disclosed a lot of
Speaker 1: health information over the years, but twice in the last
Speaker 1: year a loan, she has revealed cancer only after the
Speaker 1: treatment was proved to be working. Is what she is
Speaker 1: revealing to the public enough in your mind? That's a
Speaker 1: great question, Greg, and I just want to say, thanks
Speaker 1: so much for having me on the show. Um. So,
Speaker 1: I think the Justice has been very clear and disclosing
Speaker 1: her health issues, but as you said, the issue seems
Speaker 1: to be alone with timing. So we just learned um
Speaker 1: a week and a half ago that she found out
Speaker 1: in February that the cancer had returned. Um. She underwent
Speaker 1: one treatment, meeto therapy that was not successful, and we
Speaker 1: only now know about it because she's undergone a second
Speaker 1: round of treatment, chemotherapy that seems to be doing much better.
Speaker 1: And I would say, um, it would have been helpful
Speaker 1: to know about this sooner. And what about John Roberts, So, uh,
Speaker 1: it was revealed this month he had fallen He hit
Speaker 1: his forehead, got stitches, the most hospitalized overnight. The Supreme
Speaker 1: Court doesn't reveal that until the Washington Post gets a
Speaker 1: tip and asked about it. Is that something that you
Speaker 1: would have liked to have seen John Roberts disclose on
Speaker 1: his own without having to be prompted. Absolutely. So there,
Speaker 1: I think we have two separate issues to one, as
Speaker 1: you mentioned, is the timing, so we don't learn about
Speaker 1: the incidents that happened in June until over two weeks
Speaker 1: after it happened. But then second is the fact that
Speaker 1: the Court did not come out and disclose the information.
Speaker 1: It was only after the Post that he said, received
Speaker 1: the tips, that they followed up with the Court, and
Speaker 1: then we get the confirmation. This is the kind of
Speaker 1: thing I think the Court really needs to be coming
Speaker 1: out in front with. So so why is that? Why
Speaker 1: do we need to know this sort of information about
Speaker 1: Supreme Court justices? Yeah? Absolutely, I think it's a hard
Speaker 1: question to be honest, really parsing out why the public
Speaker 1: has an interest to know. I would say a couple
Speaker 1: of things on this. The first is I think just
Speaker 1: as a general matter, the public is interested in knowing
Speaker 1: that the justices are in good health um to a
Speaker 1: given how important they are in our democracy really um,
Speaker 1: And the Court itself seems to acknowledge this. So if
Speaker 1: you go back to the beginning of the pandemics, the
Speaker 1: reporters actually asked the Court to start providing updates on
Speaker 1: the justices health just to make sure they were doing okay, um,
Speaker 1: they weren't being impacted by the coronavirus. And the Court
Speaker 1: said yes, And as far as we know, we've been
Speaker 1: receiving those updates. UM. So kind of general acknowledgment that
Speaker 1: the public is interested in the health of the justices.
Speaker 1: I think separately from that, we have a real interest
Speaker 1: going into an election like this, Um. The Court is
Speaker 1: on the mind of at least some voters. And if
Speaker 1: we know that some of the ss are not in
Speaker 1: good health, UM, that could impact the way people vote
Speaker 1: in the upcoming election. Does it make a difference that
Speaker 1: we're talking about physical ailments here as opposed to mental ailments? Uh,
Speaker 1: you know, to go back into history a little bit,
Speaker 1: when Justice William Douglas back in the early seventies was
Speaker 1: was losing some of his mental capacity. Uh. Arguably, perhaps
Speaker 1: that that raised a different issue. Doesn't matter that we're
Speaker 1: as far as we know, just talking about physical ailments.
Speaker 1: So I don't think so. Um and again for a
Speaker 1: couple of reasons. So the first being, and I hate
Speaker 1: to talk about this, it reminds me something Chief Justice
Speaker 1: Rank with that you know that there is this speculation
Speaker 1: about the health of the justices that can run into
Speaker 1: the kind of foolish if you put a territory um.
Speaker 1: But I do think, you know, it's fair to think about, um,
Speaker 1: will the next administration be appointing any justice to the court.
Speaker 1: And so part of that is we do think about
Speaker 1: their health overall, not just their mental acuity. UM. So
Speaker 1: So that's I think really the most important point. But
Speaker 1: the other is a larger point about transparency. You know,
Speaker 1: I think it's really critical for the legitimacy of the
Speaker 1: Court that the public feel that the justices are being
Speaker 1: honest with them um. And again, that we aren't having
Speaker 1: these issues like we are now, where we're learning about
Speaker 1: things only after the fact, and in some cases at
Speaker 1: the prompting of of the media. How confident are you
Speaker 1: that we know what we need to know? Um. You know,
Speaker 1: we've talked about some health issues, some other justices have
Speaker 1: have revealed things. Justice so do Mayor of course, has
Speaker 1: been very upfront about her lifelong diabetes. Are you concerned
Speaker 1: that there are other things that we don't know about
Speaker 1: perhaps some other justices? So I am. I think you know,
Speaker 1: the real problem is, at the end of the day,
Speaker 1: we we just don't have confidence that we know everything
Speaker 1: at this point, and in some ways, this most recent
Speaker 1: incident with Justice Ginsburg underscores that. Um. You know, I
Speaker 1: think all along we had fought we really knew everything
Speaker 1: about her health records because she had been what seemed
Speaker 1: to be quite forthcoming. And in fact, when Justice Roberts
Speaker 1: had this recent health scare, UM, some folks I thought
Speaker 1: it was problematic that we didn't hear about it sooner
Speaker 1: and pointed to Justice Ginsberg, that's kind of a model
Speaker 1: of somebody disclosing health issues. But now that that we
Speaker 1: didn't even know some of her health history, UM, I
Speaker 1: think raised as a whole host of questions. And it
Speaker 1: really would be better if we had a clear policy
Speaker 1: from the court um that we will know certain things
Speaker 1: to say if Justice has a serious health scare that
Speaker 1: we know within some you know, pretty quick timeframe. I
Speaker 1: want to thank our guests. That's Duke Law School professor
Speaker 1: Marin Levy talking about health issues and disclosures by Supreme
Speaker 1: Court justices. Thanks very much for joining us on Bloomberg Law.
Speaker 1: Coming up on the show, the coronavirus outbreak is giving
Speaker 1: new life of the push for alternatives to the in
Speaker 1: person bar exam. I'm Greg Store, this is Bloomberg. This
Speaker 1: is Bloomberg Law with June Grasso from Bloomberg Radio. I'm
Speaker 1: Greg's story and for June Grasso. Summer is the traditional
Speaker 1: time for recent law school graduates to gather in courthouses
Speaker 1: and convention centers around the country to take the bar exam.
Speaker 1: But this is the summer of COVID nineteen, which makes
Speaker 1: such large gatherings risky, and many states are scrambling to
Speaker 1: revamp their test protocols with me as Sam Skolnick, who
Speaker 1: has been covering these developments for Bloomberg Industry Group and
Speaker 1: Bloomberg Business Week. Sam, thanks for joining us. UM give
Speaker 1: us a big picture how many states are going ahead
Speaker 1: with in person bar exams over the next few weeks.
Speaker 1: As of actually Twomorrow and Wednesday, states are scheduled. Almost
Speaker 1: half of the states are scheduled for in person exams.
Speaker 1: UM and then in September and or September October. There
Speaker 1: are another thirteen, including a couple of the same states
Speaker 1: which are offering men twice, but most of these are
Speaker 1: separate states. UM. So in the end we're talking about
Speaker 1: more than half of the states are still going ahead
Speaker 1: with in personal exams UM over the next couple of months.
Speaker 1: And of course this is happening in many states that
Speaker 1: are now seeing COVID nineteen spikes for the first time,
Speaker 1: or they're seeing a resurgence of the disease UH in
Speaker 1: these states, and it's causing great and growing concern among
Speaker 1: the test takers who are being asked to sit in
Speaker 1: these in what are many cases huge examples UM right
Speaker 1: next to scores, if not hundreds of other test takers UM.
Speaker 1: Even if they're so, they're what the states are doing
Speaker 1: is UH there. They are mandating social distancing requirements in
Speaker 1: many cases, if not most, if not all, of these states.
Speaker 1: I have in fact each of these states, but I
Speaker 1: would imagine that almost all, if not all, are, and
Speaker 1: so they include, for example, temperatures to be taken upon
Speaker 1: entering the test site. They include a little bit more
Speaker 1: space in between the test takers. Then is usually the
Speaker 1: case UM. And then regarding masks, most of the states
Speaker 1: are acquiring that each of the test takers wear masks,
Speaker 1: but not all UM. I talked to, for example, a
Speaker 1: spokeswoman from the West Virginia Courts who noted that they
Speaker 1: are urging their test takers to put on masks. There
Speaker 1: are requiring them to at least bring them in. They're
Speaker 1: going to have spares on hand as needed, but they're
Speaker 1: not actually requiring it. Basically, they're giving folks in out
Speaker 1: there saying, if you think that it's going to interfere
Speaker 1: with your ability to take the exam as successfully as possible,
Speaker 1: then it's okay not to wear it. So yeah, well,
Speaker 1: so what are the people who are taking these exams
Speaker 1: are planning to these exams? Tell in you, I know
Speaker 1: you've talked to a lot of them. Give us a thinking.
Speaker 1: So a lot of the folks that I've talked to
Speaker 1: are greatly concerned. I mean, I saw I've been on
Speaker 1: the phone with folks UM who have who are immuno
Speaker 1: compromised for example, because for example, of their cancer survivors
Speaker 1: or one recently gave birth UM, and or others who
Speaker 1: live in multigenerational households or who have elderly parents come
Speaker 1: by regularly to help to help take care of these kids.
Speaker 1: In each of these kinds of cases, they're concerned about
Speaker 1: contracting the disease and then in another in other instances,
Speaker 1: possibly then spreading it to family members. I mean, this
Speaker 1: is it's a it's a brutal situation to be put
Speaker 1: through when you look at it from their point of view.
Speaker 1: It's on top of these other concerns. First off, these
Speaker 1: exams are aren't necessarily easy in some states to pass.
Speaker 1: Rangers can be less than fifty although like thinking most
Speaker 1: eight it's a bit higher, but don't quote me on that.
Speaker 1: But nevertheless, they're depending we're on the radio, Sam, you're quoted, Yes, exactly.
Speaker 1: They can be quite tough. Number one. Number two is
Speaker 1: they have financial considerations. Uh. And COVID nineteen is also
Speaker 1: impacting the legal industries, you know, Greg sort of written
Speaker 1: large and making it in some cases, it's tougher for
Speaker 1: these folks, young folks to find and secure legal jobs.
Speaker 1: And at the same time as all of this is,
Speaker 1: many of these folks don't come from wealthy backgrounds, and
Speaker 1: so they're coming in with a lot of indebtedness. While
Speaker 1: school loans that they're anxious to payoff. So when they're
Speaker 1: extra delays on top of the normal delays to get
Speaker 1: licensed as a lawyer, it adds tremendous amounts of pressure
Speaker 1: for these folks. Um, so yeah, they're they're going to
Speaker 1: rough ones, you know. Yeah, So are there any alternatives?
Speaker 1: Have states come up with any alternatives? And how are
Speaker 1: those being received? Yeah? So, um it's money you mentioned, right,
Speaker 1: So uh, state by state it really in a broad sense.
Speaker 1: I've had a couple of folks saving me out. It
Speaker 1: really is. It's a chaotic national scene when you look
Speaker 1: at it. The way that this is the way that
Speaker 1: lawyers are licensed in this country, it is state by state.
Speaker 1: But when you look at it nationally, many states have
Speaker 1: taken other alternatives, trying to take into account the health considerations,
Speaker 1: these public health considerations, and so some states several inns
Speaker 1: act more than twenty are offering online exams. But that's
Speaker 1: not necessarily a panacea in as much as literally just
Speaker 1: within the last week, two of these states. Um, I
Speaker 1: believe it's that at Indiana had had to delay their
Speaker 1: online exam, which they were set to run tomorrow because
Speaker 1: of technical software glitches from one of the vendors that
Speaker 1: they're using for the tests. So I've had some of
Speaker 1: these folks who are in states getting prepared for the
Speaker 1: exa online tests tell me that they're not even sure
Speaker 1: that ultimately these tests are going to go off as planned.
Speaker 1: Now there are a whole bunch of the states that
Speaker 1: are scheduled for their online exam that's being set by
Speaker 1: a national group in early October. But I think a
Speaker 1: lot of folks are concerned and noting that that might
Speaker 1: not even happen. So that's one old genders. There are
Speaker 1: yet other alternatives that have to go to the fundamental
Speaker 1: way in which lawyers are licensed, which typically has been
Speaker 1: through the bar exam. But these other models, the licensing models.
Speaker 1: One is called diploma privilege, the other provisional licensing, which
Speaker 1: is kind of like the compromise solution, would mean that
Speaker 1: these would be lawyers can either delay taking the bar
Speaker 1: or they can skip it entirely. In the case of
Speaker 1: diploma privilege, what that means is the states are basically
Speaker 1: conceding that law school is sufficient legal education that they
Speaker 1: don't need to take in best bar for them to
Speaker 1: be licensed as a lawyer. It takes not just the
Speaker 1: part sure of the students, but it takes also the
Speaker 1: pressure off of rego employers. Uh. We're talking to government agencies,
Speaker 1: private law firms and everything in between that are eager
Speaker 1: to get these young folks on board. Um and uh
Speaker 1: some of them are actually happy with that solution as well.
Speaker 1: There are now four states that have instituted diploma privilege Oregon,
Speaker 1: Washington State, Utah, and Louisiana just as a result of
Speaker 1: this COVID nineteen scare. There was only one state in
Speaker 1: the country that's added for more than a century at Wisconsin,
Speaker 1: and it's it's it's a smaller state, but it's run
Speaker 1: fairly well for the graduates of those two law schools
Speaker 1: in that state, according the most accounts, Sam, where you're
Speaker 1: going to have to leave it there, Uh, interesting story
Speaker 1: and interesting to watch it going forward. How states continue
Speaker 1: to to adapt trying to go forward with their bar
Speaker 1: exams in this time of coronavirus. Thanks to Sam Skolnick,
Speaker 1: who has been covering this issue for Bloomberg Into Street
Speaker 1: Group coming up on Bloomberg Law, environmentalists asked the Supreme
Speaker 1: Court to stop progress on President Trump's border wall. Could
Speaker 1: be a pivotal moment on a divisive issue. I'm Greg's store.
Speaker 1: This is Bloomberg. This is Bloomberg Law with June Grasso
Speaker 1: from Bloomberg Radio. I'm Greg's story in for June Grasso.
Speaker 1: A pivotal moment is coming in President Donald Trump's drive
Speaker 1: to build a wall along the Mexican border. Opponents are
Speaker 1: asking the Supreme Court to revisit a year old order
Speaker 1: that let the administration start using Pentagon funds to construct fencing.
Speaker 1: With me to talk about that is Bloomberg industry groups,
Speaker 1: Ellen Gilmour, Ellen, thanks for joining us on the show. Um.
Speaker 1: These groups include the cr Club, They're represented by the
Speaker 1: the A C l U. What exactly are they asking
Speaker 1: the Supreme Court for the court to lift a previous
Speaker 1: order that was issue about a year ago that allowed
Speaker 1: border wall construction forward while there was some litigation going
Speaker 1: on in the lower courts that was getting at whether
Speaker 1: the funding the President was using for the border wall
Speaker 1: was legal. And put put this in context for me,
Speaker 1: how much of the Trump's wall has has already been built?
Speaker 1: Roughly if we don't have exact numbers, using this this authority,
Speaker 1: using this other money, and and how much more is
Speaker 1: he hoping to build? Before election day or the end
Speaker 1: of the year. Yeah. So since President Trump took office, Uh,
Speaker 1: the administration has built more than two hundred miles of wall,
Speaker 1: but most of that was just replacing fencing that was
Speaker 1: already there. UM. And as far as how much they
Speaker 1: want to get done, it's kind of a moving target.
Speaker 1: But the President has said this year that he's hoping
Speaker 1: to get five hundred miles done by the end of UM.
Speaker 1: So that's obviously quite a bit more than the two
Speaker 1: hundred that's done so far. UM. And what's the what's
Speaker 1: the argument against the wall being made by these groups?
Speaker 1: Not so much at the at the Supreme Court yet,
Speaker 1: but what's what's the argument on the ground for why
Speaker 1: why a wall would be problematic? So the environmental groups
Speaker 1: who are involved in this case to see our club
Speaker 1: and a group of other communities that are along the border,
Speaker 1: and they are concerned about the environmental impacts um, the
Speaker 1: direct impacts UM that construction would have on the surrounding environment.
Speaker 1: But the legal question is really whether it was appropriate
Speaker 1: for the President to use this kind of emergency funding
Speaker 1: mechanism for the border wall after Congress declined to to
Speaker 1: provide the full amount of funding the President asked for.
Speaker 1: I mean, listeners will remember the big government shutdown about
Speaker 1: a year and a half ago, and that was all
Speaker 1: about this issue of whether Congress would make this money available.
Speaker 1: Congress didn't make all the money available. The President chose
Speaker 1: this emergency route. Question is was that legal was a
Speaker 1: constitutional So, as you said, this is really a follow
Speaker 1: up to UH in order the court issued a year ago.
Speaker 1: What did the court say then, and what, if anything,
Speaker 1: does that tell us about what the court might do
Speaker 1: with this request to lift this day order. So a
Speaker 1: year ago, the Supreme Court UH issued a short order
Speaker 1: that essentially just allowed border wall construction to move forward,
Speaker 1: even though lower courts were going to block construction from
Speaker 1: moving forward while the litigation and the lower courts was
Speaker 1: moving forward, they were going to block it. The Supreme
Speaker 1: Court said no. But, as is often the case in
Speaker 1: these short orders from the Supreme Court, there wasn't a
Speaker 1: lot there. You know, there wasn't a lot of of
Speaker 1: analysis there for for anybody to to glean anything from.
Speaker 1: So we don't know, you know, in depth what the
Speaker 1: court's reasonings were. But it is hard for I mean,
Speaker 1: it's rare for the Supreme Court to grant that kind
Speaker 1: of a stay. So it certainly suggests that the Supreme
Speaker 1: Court was potentially skeptical of what the lower courts had
Speaker 1: had decided in deciding to halt construction. UH. Now the
Speaker 1: CR Club in the A c l U are asking
Speaker 1: them to reconsider now that a year has gone by
Speaker 1: and construction is rolling forward. So this is not the
Speaker 1: only border wall litigation out there. UH. Can you put
Speaker 1: this in context in terms of the other legal fights?
Speaker 1: What else should we be looking for when it comes
Speaker 1: to litigation over the border fencing? So the CR Club
Speaker 1: and a c l U case that we're talking about
Speaker 1: that has to do with funding, UH, there are other
Speaker 1: cases that also have to do with funding, brought by state,
Speaker 1: brought by other groups, members of Congress. UM. But there's
Speaker 1: other litigation that goes beyond that that's looking at things
Speaker 1: like UH, the administration has used waivers to waive certain
Speaker 1: environmental laws and other statutes for border wall construction. That's
Speaker 1: being litigated so far been successful. UM. And there's other
Speaker 1: litigation that deals with specific border wall sections. There's one
Speaker 1: that crosses a butterfly refuge in Texas, things like that.
Speaker 1: There's just all kinds of stuff from landowners, from environmentalists,
Speaker 1: from states, etcetera. This kind of an unusual request, isn't
Speaker 1: it that they're asking the court to lift an earlier order?
Speaker 1: It is, I mean the Supreme Court. When the Supreme
Speaker 1: Court speaks, that's usually that's usually the final word on something.
Speaker 1: But because so much time has passed since that order,
Speaker 1: and because that is still in effect and construction can
Speaker 1: keep on going while the legal questions are kind of
Speaker 1: still out there, the cra club says it deserves second look,
Speaker 1: a lot for you to follow. That's all the time
Speaker 1: we have. I want to thank Bloomberg Industry Groups Ellen
Speaker 1: Gilmore for talking to us about the Supreme Court request
Speaker 1: by environmental groups to stop construction on Donald Trump's border wall.
Speaker 1: Coming up on Bloomberg Law is Nevada favoring casinos over
Speaker 1: churches and trying to reopen the state during the coronavirus
Speaker 1: app arache. I'm Greg Store, this is Bloomberg. This is
Speaker 1: Bloomberg Law with June Grasso from Bloomberg Radio. I'm Gregg's
Speaker 1: story in for June Grasso. Late Friday, the Supreme Court
Speaker 1: said it wouldn't ease Nevada's coronavirus capacity restrictions for worship services,
Speaker 1: rejecting a discrimination claim by a church near Reno. The
Speaker 1: vote was five to four, with Chief Justice John Roberts
Speaker 1: joining the liberals in the majority. With us to talk
Speaker 1: about this development to religious liberties experts Stanford law professor
Speaker 1: Michael McConnell and the University of Miami law professor Caroline
Speaker 1: Mala Corbin. Thanks to both of you for joining us. UM,
Speaker 1: But Mike, let me start with you. UM. Can you
Speaker 1: just lay out the basics for us? What was the
Speaker 1: church arguing here and what was it seeking from the
Speaker 1: Supreme Court. I think it's important to stress that what
Speaker 1: they were asking for was a temporary injunction pen appeal, uh,
Speaker 1: and there's a very high standard for those, So I
Speaker 1: don't think we should interpret the Supreme Court's decision as
Speaker 1: the final word on the merits of their argument, And
Speaker 1: the merits the argument are really very powerful. The church
Speaker 1: argues that it under the Nevada Order, the activities like
Speaker 1: the for profit activities like the casinos and gym's and
Speaker 1: bowling alleys and a number of other activities of that
Speaker 1: sort are allowed to meet with more than fifty fifty persons.
Speaker 1: President back Casinos it can be thousands and under circumstances
Speaker 1: where people are together for extended periods of time without
Speaker 1: the kind of social distancing that the church is provided,
Speaker 1: and that uh it is unconstitutional. The church argues UH
Speaker 1: to single out of religious activity and say, well, churches
Speaker 1: can't meet when organizations secular activities of of other natures
Speaker 1: such as these for profit businesses, are able to meet
Speaker 1: with no explanation, or at least the government is required
Speaker 1: to provide an explanation for why it is discriminating against
Speaker 1: the religious activity, and Nevada provided none. Caroline, we didn't
Speaker 1: actually get a majority opinion here. The court rejected the
Speaker 1: application without explanation. We did have a case Lass Beck
Speaker 1: in uh May where the court had a similar issue.
Speaker 1: M Can you try to fill in the blanks. What
Speaker 1: is your understanding of what the courts likely or probable
Speaker 1: rationale was here in in rejecting the application from the church. Um.
Speaker 1: There could be two ways of thinking about this. One
Speaker 1: of them is as she Justice Roberts did in the
Speaker 1: earlier decision. The majority is taking a very deferential approach
Speaker 1: to emergency orders during a pandemic, and in that case,
Speaker 1: the usually more rigorous standards that they would apply are
Speaker 1: not applied because there is a public health emergency. Um. Ultimately,
Speaker 1: they don't think that religion is being singled out in
Speaker 1: the way that amounts to odious discrimination against worship services. Now, Mike, Um,
Speaker 1: we've got three dissenting opinions to choose from in this gaze,
Speaker 1: from the Justice as Alito, Gorsage, and Kavanaugh saying the
Speaker 1: courts should have intervened. Um. You described earlier the church
Speaker 1: is having a pretty powerful argument. Um. Spell that out
Speaker 1: a little bit. Uh, Why on the merits of it
Speaker 1: does does the church have a pretty good claim in
Speaker 1: your case? In your mind? Well, first of all, I
Speaker 1: want to say that I think the bought A case
Speaker 1: is quite different from the earlier California case where which
Speaker 1: was also five to four, and where Chief Justice Roberts
Speaker 1: wrote an opinion explaining why they rejected the argument of
Speaker 1: the churches. There. Just read one let me read one
Speaker 1: short sentence from that California case where the Chief Justice
Speaker 1: Roberts says that the California order treats more leniently only
Speaker 1: dissimilar activities in which people neither congregate in large groups
Speaker 1: nor remain in close proximity. For extended periods. So that
Speaker 1: may have been true in California, but it certainly is
Speaker 1: not true in the Nevada case, where if you look
Speaker 1: at pictures of the of the casinos that are open now,
Speaker 1: you have huge numbers of people and very close proximity.
Speaker 1: They stay there for a very long time. Um, it's
Speaker 1: much more dangerous from at least no public health expert,
Speaker 1: but at least in terms of being congregating in close proximity,
Speaker 1: it looks much more dangerous. And add in the alcohol
Speaker 1: that served at at casinos, which means people, even if
Speaker 1: they are trying to to wear masks, they're going to
Speaker 1: be lifting them up in order to drink their beverages.
Speaker 1: And we all know that alcohol, you know, causes certain
Speaker 1: decline in good judgment. Whereas this church is going to
Speaker 1: has basically eighty people, uh they want, the capacity is
Speaker 1: over twice that large, so they are spaced with families
Speaker 1: more than six persons apart, and with a number of
Speaker 1: protocols that, according to the expert in the case, are
Speaker 1: more stringent than those required by the by the c
Speaker 1: d C. So it's very hard to understand, I mean,
Speaker 1: how Nevada can justify saying that the churches cannot meet
Speaker 1: with more than fifty people, whereas these other activities like
Speaker 1: casinos can now there in order to decide the case, though,
Speaker 1: the court should not be making up its own public
Speaker 1: health policy. But what the constitution requires is that the
Speaker 1: government justify what it's doing, and Nevada has offered no
Speaker 1: justification for this. I think the same. The Supreme Court
Speaker 1: has been quite consistent, you know, left and right on
Speaker 1: demanding that the government justify itself in in recent cases
Speaker 1: like the Census case or like the the Adappa case. Recently,
Speaker 1: the Court has struck down government action that may very
Speaker 1: well be lawful on the ground that the government failed
Speaker 1: to offer any serious justification sational Here, Nevada has offered
Speaker 1: no justification for treating churches differently than it does these
Speaker 1: for profit businesses, and I think that that would be
Speaker 1: a sufficient basis for holding their action unconstitutional, at least
Speaker 1: if they If we're talking about on the merits now,
Speaker 1: maybe preliminary injunctions are a different thing. Let me circle
Speaker 1: back to that. If if we have a mant Caroline,
Speaker 1: do you disagree with any of that? And is Mike
Speaker 1: asking the right questions here? Is that it should we
Speaker 1: be comparing. I think that I think that question is
Speaker 1: not so different, because I think what is really crucial
Speaker 1: is the state treating worship services the same as comparable
Speaker 1: secular activities are worse than comparable secular activities. If they're
Speaker 1: treating the same as activities that pose the same kind
Speaker 1: of health risk, then there's really no constitutional problem. And
Speaker 1: I think, um that was at least a case in
Speaker 1: the first religious challenge that related its organizations were not
Speaker 1: treated worse than comparable secular activities. Now, if religious worship
Speaker 1: services alone are singled out for worse treatment, then you
Speaker 1: clearly have a problem here. The case is a little
Speaker 1: tricky because worship services are treated the same as some
Speaker 1: comparable secular activities like going to a museum or the
Speaker 1: movies or a concert. It is also treated worse than
Speaker 1: many other secular activities, such as the ones listed like restaurants, bars, jims,
Speaker 1: and casinos. And I think in that case it's not
Speaker 1: quite as clear cut as it is when it's treated
Speaker 1: the same as all comparable activities, or religion alone is
Speaker 1: treated differently than comparable secular activities. Mike, you were about
Speaker 1: to talk about the kind of the procedural status of
Speaker 1: this case is preliminary injunction, and we've got a Supreme
Speaker 1: Court order here that happened on kind of a spaces
Speaker 1: And I guess my question for both of you in
Speaker 1: the in the last few minutes we have left, is
Speaker 1: his is a good way to be deciding these these issues?
Speaker 1: Is there? And should the standards be different when uh,
Speaker 1: it comes to the courts, both the lower courts and
Speaker 1: the Supreme Court, on such a rush basis, without without
Speaker 1: a full record, without a real chance to dive as
Speaker 1: deeply into these issues as perhaps the court needs to. Michael,
Speaker 1: what do you think? I do think that that that
Speaker 1: it's a real problem for the courts to have these
Speaker 1: things on, as you say, such a rushed basis, especially
Speaker 1: when uh, you know, it's potentially life and death at stake.
Speaker 1: And I think this is the best way to understand
Speaker 1: what Chief Justice Roberts has done, because he has been
Speaker 1: um against the issuance of these rushed preliminary injunctions in
Speaker 1: a number of contexts where he's been somewhat consistent about
Speaker 1: pretty actually pretty dagon consistent, whereas the left and the
Speaker 1: right of the Court have tended to, uh to go
Speaker 1: there sort of ideological ways. He has voted to vacate. Uh,
Speaker 1: these sort of rushed in junctions in cases favored by
Speaker 1: the left and favored by the right. And I think
Speaker 1: that may be what's going on here, Caroline, what's your
Speaker 1: take on that. I don't know. I do want to
Speaker 1: pick up on the one point you mentioned, which is
Speaker 1: this is literally about a life and death situation, and
Speaker 1: I think the Court is really concerned about the granted
Speaker 1: it perhaps should not be influenced decisions, but I don't
Speaker 1: think you can the Supreme Court can ignore the fact
Speaker 1: that we are in the midst of a global pandemic um,
Speaker 1: and that these kinds of activities, both worship services and
Speaker 1: he knows, serve as vectors for the spread of the contagion,
Speaker 1: and that really they should both be shut down. Um,
Speaker 1: they may be worry that they're both going to end
Speaker 1: up being open and and and and and again. That
Speaker 1: may explain why they may be more deferential than they
Speaker 1: really should be in in these cases. We're gonna have
Speaker 1: to leave it there. I want to thank I guess
Speaker 1: Caroline Mala Corbin and Michael McConnell, both religious liberty experts,
Speaker 1: for joining us on Bloomberg Law. And that's it for
Speaker 1: this edition of Bloomberg Law. I'm Greg Storing for June Grass.
Speaker 1: This is Bloomberg