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Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.

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Speaker 2: Let me be get by saying, I know there are

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Speaker 2: millions of Americans, millions of Americans this country who feel

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Speaker 2: disappointed and discouraged or even a little bit angry about

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Speaker 2: the Court decision today on student debt, and I must

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Speaker 2: admit I do too.

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Speaker 1: For the second time in one week, President Joe Biden

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Speaker 1: criticized a decision of the Supreme Court on Friday, saying

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Speaker 1: the Court misinterpreted the Constitution when it tossed out his

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Speaker 1: plan to forgive the student debt of more than forty

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Speaker 1: million Americans.

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Speaker 2: I believe the course decision to strike down my student

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Speaker 2: debt relief program as a mistake was wrong.

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Speaker 1: The Justices, again voting six to three along ideological lines,

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Speaker 1: sided with six Republican led states that sued to challenge

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Speaker 1: the roughly forty billion dollar program. Writing for the Court's conservatives,

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Speaker 1: Chief Justice John Roberts said the administration was seizing the

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Speaker 1: power of the legislature, echoing what he said at the

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Speaker 1: oral arguments.

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Speaker 3: I think most casual observers would say, if you're going

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Speaker 3: to give up that much amount of money, if you're

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Speaker 3: going to affect the obligations of that many Americans on

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Speaker 3: a subject that's of great controversy, they would think that's

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Speaker 3: something for Congress to act on.

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Speaker 1: Justice Elena Kagan wrote for the three liberal justices in

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Speaker 1: dissent and said, it was the Court that was making

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Speaker 1: national policy in place of Congress and the executive branch.

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Speaker 4: Congress used its voice in enacting this piece of legislation. Oh,

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Speaker 4: this business about executive power, I mean, we worry about

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Speaker 4: executive power when Congress hasn't authorized the use of executive power. Here,

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Speaker 4: Congress has authorized the use of executive power in an

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Speaker 4: emergency situation.

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Speaker 1: My guest is constitutional law expert Harold Krant, a professor

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Speaker 1: at the Chicago Kent College of Law. The key here

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Speaker 1: was whether any of the challengers had or a stake

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Speaker 1: in the case. Did the Chief Justice use a sort

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Speaker 1: of attenuated theory to find standing here?

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Speaker 5: The Chief Justice decided that the Loan Processing Agency from

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Speaker 5: Missouri was the only entity amongst many that had standing

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Speaker 5: to contest the student loan forgiveness of the Biden administration,

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Speaker 5: and the Court reason that the loan Processing Agency stood

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Speaker 5: to lose forty million dollars that the processing agency was

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Speaker 5: part of Missouri, and that traditionally any kind of profits

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Speaker 5: that the agency acquired were used to fund education programs

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Speaker 5: in Missouri. And in part I'm sympathetic to the theory,

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Speaker 5: and I think under federal law that the equivalents of

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Speaker 5: the Loan Processing Agency and Missouri for purposes of a

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Speaker 5: lawsuit would have been upheld. But I think that the

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Speaker 5: dissent made a very strong argument that though that quite

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Speaker 5: counts this way, that under Missouri law that the loan

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Speaker 5: Processing Agent she was distinct from the state, and the

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Speaker 5: Descent noticed that the Loan Processing Agency did not file suit,

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Speaker 5: the Loan Processing Agency was incorporated separately, and that given

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Speaker 5: those indisha for the purposes of Missouri law, that you

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Speaker 5: could treat the Loan Processing Agency as being a separate entity,

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Speaker 5: and because it didn't suit, the court should not have

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Speaker 5: taken this case. So I don't think this was a

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Speaker 5: clear cut case. The court did not say that any

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Speaker 5: other entity had standing, and it made at least a

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Speaker 5: colorable claim for the fact that this agency was sufficiently

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Speaker 5: connected to Missouri in order to bring forward the case.

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Speaker 5: Though I think the Descent could have even been on

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Speaker 5: stronger ground by analyzing Missouri law in greater depths, which

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Speaker 5: the majority failed to do.

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Speaker 1: Once again, we're hearing about the major questions doctrine. That's

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Speaker 1: a new legal concept that the Court has used to

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Speaker 1: limit the power of the executive branch. How did Roberts

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Speaker 1: use it in this case?

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Speaker 5: He used to hear it by saying, there are two

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Speaker 5: words in the statute that were key. And the statute

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Speaker 5: that was enacted in the wake of nine to eleven

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Speaker 5: gave the power to the Secretary of Education to waive

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Speaker 5: or modify student debt obligations in an emergency. The emergency

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Speaker 5: is COVID, and so the question is whether canceling up

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Speaker 5: to twenty thousand a debt per individual, does that constitute

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Speaker 5: either a waiver or a modification. I think the Court

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Speaker 5: was clearly right in saying it wasn't a modification. And

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Speaker 5: then the question is what about waiver? And here I

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Speaker 5: think you can look at it in two different ways.

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Speaker 5: To the majority, the idea of a waiver is sort

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Speaker 5: of more of a modest effort to look at a

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Speaker 5: procedural requirement, look at a timing issue, maybe include forbearance

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Speaker 5: for a while. But the idea of waiver is simply

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Speaker 5: cancelation and to back it up. The majority says, look,

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Speaker 5: if Congress wanted to allow the agency to create a

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Speaker 5: new rule, namely the loan cancelation that would affect forty

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Speaker 5: million people and for four hundred billion dollars, it would

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Speaker 5: have said so clearly. But that is how the Court

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Speaker 5: employed the so called major questions doctrine to say that,

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Speaker 5: you know, Congress needs to make these kinds of decisions

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Speaker 5: if it wants to have the Ministry of Rule of

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Speaker 5: such vast importance. And the Descent retorted and I think, well,

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Speaker 5: it's like, look, this is emergency legislation. In an emergency,

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Speaker 5: when the Secretary of Education has to face it, they

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Speaker 5: have to take steps that are going to make radical changes.

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Speaker 5: And indeed, what I felt was very well put by

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Speaker 5: the Descent is that the power to even forbear alone,

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Speaker 5: in other words, to say don't pay it back for

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Speaker 5: a long time, already cost the government one hundred billion dollars.

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Speaker 5: So even forbearance, which I think everybody would agree had

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Speaker 5: been used by both the Top administration and the Biden administration,

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Speaker 5: would have been consistent with the statutory scheme. So is

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Speaker 5: cancelation that much more? But the majority it was one

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Speaker 5: step too far, they were okay with forbearance, but they

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Speaker 5: drew the line the idea that by waving a requirement,

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Speaker 5: Congress did not intend that the Department of Education could

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Speaker 5: actually canceled debt for so many people with such a

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Speaker 5: large impact on the economy.

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Speaker 1: During the COVID pandemic, the Court thwarted Biden's agenda several

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Speaker 1: times on the rent moratorium, on trying to get people

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Speaker 1: vaccinated at large employers. I mean, this was expected, wasn't it,

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Speaker 1: no matter what the price tag of the program was.

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Speaker 5: If you think about the billions and trillions of dollars

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Speaker 5: that Congress passed for relief in the COVID era, this

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Speaker 5: idea of being able to cancel four hundred billion dollars

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Speaker 5: a debt doesn't seem as extravagant as the majority would

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Speaker 5: make it, but it is significant. I think we have

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Speaker 5: to recognize that that's a huge impact upon our economy.

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Speaker 5: And I think the answer in this case boils down

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Speaker 5: to one's view of administrative power. If one thinks that

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Speaker 5: Congress traditionally has given administrative agencies the power to change

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Speaker 5: for the times, to evolve and respond to emergencies as

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Speaker 5: in this case, then the idea of the congressional delegation

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Speaker 5: of authority to modify and waive prior requirements in the

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Speaker 5: emergency empowers the agency to make that judgment subject to

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Speaker 5: a congressional override, and that would be the position that

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Speaker 5: the dissent took. On the other hand, if you're suspicious

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Speaker 5: of administrative power and don't think that administrators should make

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Speaker 5: decisions that has such a wide impact on the economy,

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Speaker 5: then you'll read delegations more narrowly and say Congress could

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Speaker 5: not have conceived that the agency could have wielded such

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Speaker 5: vast authority to the extent of a four hundred billion

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Speaker 5: dollar impact on the economy. So what's the stake here

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Speaker 5: is just your view of the wisdom of administrative agencies.

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Speaker 1: As you mentioned, Robert said, the administration was seizing the

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Speaker 1: power of the legislation by trying to cancel so much

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Speaker 1: student debt. But isn't the court seizing the power of

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Speaker 1: the executive branch and the legislature by throwing out the plan?

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Speaker 5: Well, that's precisely what the Ascent charged, and indeed they

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Speaker 5: were pretesting in this case, and they've been civil in

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Speaker 5: some cases. But Jessic Kagan and Chief Justice Roberts exchanged

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Speaker 5: pointed barbs in this case, which doesn't bode well for

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Speaker 5: their ability to get along in the court in the future.

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Speaker 5: Maybe it is good that they're taking a break right now.

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Speaker 5: But yeah, I mean to the dissent. Congress made the call.

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Speaker 5: We want the agency to have the discretion in emergencies

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Speaker 5: to take steps that are important in order to help

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Speaker 5: preserve individuals who were settled with student debt. And so

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Speaker 5: the Congress had made the call, and the agency, which

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Speaker 5: is acting consistent with that delegation of authority.

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Speaker 1: Okay, hell, you're going to stay with me. Coming up

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Speaker 1: next on the Bloomberg Law Show, I'll continue this conversation

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Speaker 1: with Professor Harold Krant of the Chicago Kent College of Law,

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Speaker 1: and we'll talk about a third decision down ideological lines

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Speaker 1: that dealt us setback to LGBTQ rights. I'm June Grosso

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Speaker 1: and you're listening to Bloomberg. On the last day of

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Speaker 1: Pride Month, the Supreme Court's conservative majority delta setback to

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Speaker 1: LGBTQ rights in this country. In another six to three

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Speaker 1: vote down ideological lines. The court rule that a Christian

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Speaker 1: website designer doesn't have to create wedding pages for same

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Speaker 1: sex couples, carving out a free speech exception to Colorado's

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Speaker 1: anti discrimination law, a distinction brought out by Justice Brett

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Speaker 1: Kavanaugh during the oral arguments.

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Speaker 6: How do you characterize website designers? Are they more like

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Speaker 6: the restaurants and the jewelers and the tailors, or are

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Speaker 6: they more like, you know, the publishing houses and the

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Speaker 6: other free speech analogs.

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Speaker 1: Swords Three liberals blasted the ruling, with josh As Sonya

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Speaker 1: Sotomayor saying in her dissent that this is a first

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Speaker 1: for the Court.

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Speaker 7: This would be the first time in the Court's history

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Speaker 7: correct that it would say that a business open to

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Speaker 7: the public that it could refuse to serve a customer

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Speaker 7: based on race, sex, religion, or sexual orientation.

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Speaker 1: I've been talking to Professor Harold Krant of the Chicago

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Speaker 1: Kent College of Law. Hell, how much of a blow

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Speaker 1: is this to LGBTQ rights.

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Speaker 5: First of all, it's a symbolic blow. There's no question

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Speaker 5: that the fact that the Supreme Court is putting its

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Speaker 5: stamped in some ways on discrimination, just a couple of

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Speaker 5: years after Overfell recognized the constitutionality of gay marriage is

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Speaker 5: definitely a body blow. In terms of making a practical difference,

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Speaker 5: that's a little bit unclear. I mean, why I think

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Speaker 5: this case reveals is the lack of wisdom of taking

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Speaker 5: a case pre enforcement that the court didn't need to take.

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Speaker 5: In this case, the web designer has never designed a

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Speaker 5: website yet for a marriage, has never been asked to

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Speaker 5: do a website for a gay couple, and we don't

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Speaker 5: know if that she ever would be asked to do

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Speaker 5: a website or gay couple. The court simply didn't need

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Speaker 5: to get involved in this case, and in general, these

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Speaker 5: kind of pre enforcement cases where there are murky issues lingering,

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Speaker 5: courts stayed their hands. So the fact that the court

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Speaker 5: took this case, I think it is lamentable and it

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Speaker 5: may end up with very unfortunate law. The difficulty in

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Speaker 5: my mind in this case is where is the expressive conduct.

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Speaker 5: The court has assumed that creating a website has a

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Speaker 5: lot of First Amendment content to it, and indeed it

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Speaker 5: relied upon a stipulation, kind of an admission by the

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Speaker 5: State of Colorado that there was expressive conduct at play here.

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Speaker 5: I don't see it. Maybe there would be in some context,

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Speaker 5: you'd have some kind of First Amendment interests involved here

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Speaker 5: in which case of first Amendment might arise. Generally, I

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Speaker 5: think the presumption strongly should be that when you are incorporated,

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Speaker 5: you must act to give goods and services to the public,

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Speaker 5: just as you would if you're a restaurant or a

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Speaker 5: hotel or a gas station. And so the court waded

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Speaker 5: into very tumultuous waters really for no reason.

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Speaker 1: At all in my view, what's the line What other

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Speaker 1: establishments can find a way to refuse service to gay

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Speaker 1: people by saying it's expression right and.

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Speaker 5: We don't know? And that's the point that I think

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Speaker 5: is really frightening about this case. What if you're a caterer,

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Speaker 5: what if you're a photographer for the wedding set designer?

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Speaker 5: Right to what extent then you can say, I have

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Speaker 5: my gifts here, I have my creative energies. I don't

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Speaker 5: want to use those to help a message to which

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Speaker 5: I just agree. And that is the tricky line that

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Speaker 5: the court has set up. And it didn't give any

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Speaker 5: kind of guidance really to lower courts to figure out

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Speaker 5: when that kind of expressive conduct should be protected and

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Speaker 5: when it shouldn't. And I'm concerned because again creativity that

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Speaker 5: was intrinsic to web design is prefin in my view.

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Speaker 5: I mean, the Court has opened a can of worms

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Speaker 5: in trying to reconcile public accommodation laws with the expressive

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Speaker 5: viewpoint of those who are required to engage in business

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Speaker 5: and not discriminate on the basis of sexual orientation, race, religion,

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Speaker 5: and sex.

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Speaker 1: This is supposed to be about speech rights. The Court

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Speaker 1: took it and said we're going to consider speech rights,

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Speaker 1: not religious rights. But it seems like it's just another

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Speaker 1: in a long line of decisions where the Roberts Court

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Speaker 1: puts the rights of religious groups and individuals ahead of

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Speaker 1: every other right.

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Speaker 5: I mean, again, the Court explicitly did not address the

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Speaker 5: religious aspects of this, but I do agree with you

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Speaker 5: that the court probably would say now as opposed to

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Speaker 5: in the decide of the Masterpiece cake case. You know

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Speaker 5: five or six years ago that if the website designer

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Speaker 5: had ref use to work with the gay couple for

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Speaker 5: religious reasons, they might have even had a stronger case.

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Speaker 5: But what is troubling here is it's not just limited

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Speaker 5: to religion, right. I mean, we can have First Amendment

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Speaker 5: disagreements with Zionists, with Muslim organizations. We could have First

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Speaker 5: Amendment disagreements with direct to life movement. Who knows where

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Speaker 5: this could end up. And the idea of a public

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Speaker 5: accommodation law is take your First Amendment views elsewhere, and

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Speaker 5: if you engage in business in the public, for lodging

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Speaker 5: and for dining, in construction or whatever, put your own

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Speaker 5: thoughts to the back, because here we are engaging in

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Speaker 5: public commerce, and that's what Colorado had decided.

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Speaker 1: Some say that this ruling could undercut protections for racial

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Speaker 1: minorities and women as well as LGBTQ people. Could it

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Speaker 1: lead there?

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Speaker 5: I mean theoretically it could. I mean if someone says,

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Speaker 5: I have this view that interracial marriage is wrong, or

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Speaker 5: I have this view that of the day at ventice

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Speaker 5: are evil and so I don't want to work with

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Speaker 5: seven day eventics, that's possible. It would come within the

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Speaker 5: scope of the court ruling. The court simply did not

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Speaker 5: delimit carefully the scope of its decision by saying there

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Speaker 5: has to be exceptions to these public accommodations law. And

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Speaker 5: I think that we can all imagine how friending would

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Speaker 5: be if from builders to restauranteurs to caterers could simply

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Speaker 5: refuse to cater the particular clients because of a perceived

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Speaker 5: disagreement with their philosophies or religions.

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Speaker 1: And there was another decision last week involving religion that

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Speaker 1: didn't get as much attention because of the week that

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Speaker 1: it was. So this involved a part time fill in

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Speaker 1: postal worker who doesn't want to work on Sundays for

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Speaker 1: religious reasons. And in this latest religious confrontation case, the

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Speaker 1: Supreme Court has solidified protections for workers who ask for

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Speaker 1: religious accommodations. Gerald Groff quit when the Post Office would

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Speaker 1: not accommodate his request to be on on Sundays for

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Speaker 1: religious reasons, and then he sued the post Office. Groff

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Speaker 1: told ABC News it was important to him. I told

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Speaker 1: my supervisor, it's the Lord's day, it's not the Lord's morning.

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Speaker 6: It's not supposed to be like the other six days

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Speaker 6: of the week.

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Speaker 5: Why not just pick a different job that allows you

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Speaker 5: to work on different hours in different days.

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Speaker 1: I didn't really think I should have to quit. I

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Speaker 1: really expected the Post Office to find a way to

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Speaker 1: accommodate me. Hell tell us about his case.

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Speaker 5: So the postal worker became a Sabbathae server on a

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Speaker 5: Sunday and told the post office his employer that he

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Speaker 5: wanted to have Sundays off for religious observance, and they

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Speaker 5: tried to accommodate him in various ways by agreeing to

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Speaker 5: swap shifts and occasionally the postmaster himself would deliver the mail,

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Speaker 5: and it worked out until Amazon made an agreement with

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Speaker 5: the postal service to serve parcels on Sunday so that

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Speaker 5: their work picked up a great deal, and these shift

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Speaker 5: swaps were no longer sufficient, so the employee complained and

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Speaker 5: refused to go to work on Sunday is As superiors

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Speaker 5: did not make any further accommodations, he was subject to discipline. Eventually,

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Speaker 5: then he resigned, and he claimed he was forced to

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Speaker 5: resign basically because they wouldn't accommodate his religious Sabbath observance.

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Speaker 5: And this case requires an assessment of what is the

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Speaker 5: extent of an employer's duty to accommodate a sincere religious observance,

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Speaker 5: And the court unanimously held that the standard used by

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Speaker 5: at least some courts of appeals had been too employer friendly.

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Speaker 5: Some of the courts of appeals, including the Third Circuit

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Speaker 5: in this case, had looked to language in a prior

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Speaker 5: Supreme court case called Twa versus Tartisan, which said that

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Speaker 5: any kind of cost above deminimus would be considered to

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Speaker 5: be an undue burden upon the employer. And not all

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Speaker 5: courts used the standard, but some did. Other courts looked

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Speaker 5: to a different language and the same twa versus Hardest

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Speaker 5: in case to have a more demanding standard on the

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Speaker 5: employer that the employer couldn't just refuse to accommodate based

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Speaker 5: upon some kind of minimal expenses in terms of overtime

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Speaker 5: pay or not agreeing to give swapshifts or something along

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Speaker 5: those lines.

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Speaker 1: And tell us about the Court's decision.

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Speaker 5: So the Supreme Court unanimously decided that an undue burden

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Speaker 5: means more than just deminimous expense, rather that it must

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Speaker 5: result in the words of the Supreme Court in the

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Speaker 5: substantial increased costs. Now, it's low vague. The Court hasn't

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Speaker 5: clarified exactly what our substantially increased costs. But the Court

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Speaker 5: did give a couple of different guidelines. The Court said

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Speaker 5: that the employer can respect a bargain for seniority rights.

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Speaker 5: It doesn't have to infringe upon seniority rights that would

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Speaker 5: be an under burden or substantial costs. The court also

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Speaker 5: said that it's not enough for the employer to show

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Speaker 5: that other employees don't like it. The Court made a

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Speaker 5: very fine distinction here. What they said is that just

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Speaker 5: because another employee doesn't like the fact that someone's religion

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Speaker 5: is being accommodated, doesn't like the fact that somebody gets

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Speaker 5: Sundays off to go to church while they want to

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Speaker 5: stay home with family, that's not sufficient. Rather, the fine

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Speaker 5: line drawn by the court is when the impact on

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Speaker 5: other employees becomes so great as to burden the ability

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Speaker 5: of the employer to actually conduct the business, then that

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Speaker 5: would be an undue burden under Title seven, and the

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Speaker 5: employer doesn't have to go beyond that. The other thing

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Speaker 5: that the court clarified is that having to pay over

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Speaker 5: time to other employees to pick up the shift, that's

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Speaker 5: not an under burden in itself. Maybe at some point

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Speaker 5: it would be, but just by having to pay some

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Speaker 5: kind of overtime that wouldn't be demanding. And indeed, in

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Speaker 5: this case, it's not clear that any kind of overtime

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Speaker 5: would have been that significant in the long run. The

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Speaker 5: court remanded it back to the Third Circuit to decide

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Speaker 5: under this slightly more stringent standard than the court had

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Speaker 5: used below. Unclear in my mind how the third Circuit

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Speaker 5: will resolve on Remand this is a.

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Speaker 1: Case where there was tension in the postal office where

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Speaker 1: Groff worked because of what was happening, and they did

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Speaker 1: have to pay overtime. Is the court clear on what

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Speaker 1: else you would need to create and undo hardship? I

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Speaker 1: mean that sounds like the business is really being affected

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Speaker 1: by this.

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Speaker 5: Yeah, the court was not clear. And the part that I,

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Speaker 5: as a past employer, sort of wonder is how do

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Speaker 5: you draw a line between a disgruntled employee staff and

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Speaker 5: the staff that's not being productive because they're upset with

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Speaker 5: these distractions? And when is that an impact on a

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Speaker 5: business as opposed to just having an impact upon employees.

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Speaker 5: The two seem to me to be on the same continuum,

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Speaker 5: and I think maybe it's just a matter of particulation

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Speaker 5: that the postal service in this case would have to say,

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Speaker 5: you know, not only did our employees not like the

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Speaker 5: fact that we're giving this benefit to one of their own,

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Speaker 5: but rather that they started having fights, they started losing

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Speaker 5: focus on their responsibilities, they didn't come to work in protests,

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Speaker 5: and we are unable to continue our operations as smoothly

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Speaker 5: as possible. That's the line I think that the court

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Speaker 5: is demanding that the employers say not just that employees

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Speaker 5: didn't like it, like a Heckler's veto, but rather that

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Speaker 5: it's so affected the employee's cohesiveness and work that they

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Speaker 5: were not able to function as a good post office should.

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Speaker 1: Just as Alito said, the employer must show the burden

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Speaker 1: of granting an accommodation would result in substantial increased costs

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Speaker 1: in relation to the conduct of its particular business. Well,

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Speaker 1: how do you define substantial?

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Speaker 5: That's going to be fleshed out in the Courts of

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Speaker 5: Appeals below. And this is not that different of a

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Speaker 5: standard than what some courts of appeals had used, but

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Speaker 5: some courts again it just latched on to that deminimous

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Speaker 5: language in the prior Supreme Court case to give employers

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Speaker 5: a relatively easy pass in terms of the duty to

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Speaker 5: make an accommodation. So clearly this is a more stringent standard.

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Speaker 5: Employers will have to give slightly broader accommodations than they

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Speaker 5: have in the past, But the extent of the difference

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Speaker 5: is really difficult to gauge. At this point.

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Speaker 1: Is it surprising that this was a unanimous decision.

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Speaker 5: I don't think it was surprising. I think that it

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Speaker 5: was left so vague that the new standard could grab

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Speaker 5: everyone one's approval. And I think there was a consensus

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Speaker 5: that the more than the minimus standard that some courts

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Speaker 5: had used to Luke's was to pro employer. So the

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Speaker 5: court was able to agree unanimously that the standard would

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Speaker 5: have to be toughened to a little extent. But the

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Speaker 5: question is how much of an extent, And we just

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Speaker 5: don't know because the language of substantial impact on an

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Speaker 5: employer substantial costs is very difficult in the abstract to identify.

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Speaker 1: During the arguments, the Postal Workers lawyer said, under the

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Speaker 1: government's test, a diabetic employee could receive snack breaks under

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Speaker 1: the ADA Americans with Disabilities Act, but not prayer breaks

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Speaker 1: under Title seven. Does this equate snack breaks for a

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Speaker 1: diabetic employee with prayer breaks for a religious employee.

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Speaker 5: Well, the court was clear that it would not adopt

403
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Speaker 5: standards under the American Disabilities Act in this opinion, but

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Speaker 5: I think it does suggest that an employer would have

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Speaker 5: to think twice before they said no prayer breaks, because

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Speaker 5: In some workplaces you could take short prayer breaks without

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Speaker 5: having it really affect the smooth operation of a plant.

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Speaker 5: But in some a short prayer break would actually cause

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Speaker 5: the entire assembly process to break down. So it again,

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Speaker 5: it would be a context specific determination of what the

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Speaker 5: impact of the prayer break would have on the operations

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Speaker 5: of the employer. And it'll give lawyers for employers more

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Speaker 5: reason to collect evidence and assess how an employer needs

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Speaker 5: to join the business more than they did before. So

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Speaker 5: the duty will be or the burden will be on

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Speaker 5: employers that come up with reasons why they can't allow

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Speaker 5: someone to take a prayer break or can't allow someone

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Speaker 5: to stay at home on a Sunday.

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Speaker 1: So last term we have had the high school football

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Speaker 1: coach who insisted on praying right after a game on

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Speaker 1: the fifty yard line and the Supreme Court okay that

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Speaker 1: I can't remember the last time a case with religious

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Speaker 1: implications was denied by this court.

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Speaker 5: Now, this court clearly is far more in favor of

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Speaker 5: having a large space for religious observance than prior courts were.

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Speaker 5: And we're going to see a school funding case next

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Speaker 5: term which will manifest this to even a greater extent,

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Speaker 5: because the extent that we have now charter schools that

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Speaker 5: can be religious, we are having direct funding of religious

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Speaker 5: schools in a way that we only permitted indirect funding before.

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Speaker 5: But that's for a future court this term. I don't

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Speaker 5: think this case came out as a surprise because, as

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Speaker 5: you mentioned, the trend has been towards greater need to

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Speaker 5: accommodate and respect religious observances of all in society has

435
00:26:02,000 --> 00:26:05,520
Speaker 5: been a feature of this court and it sort of

436
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Speaker 5: unites both the left and the right to some extent.

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Speaker 1: Do you think that we're seeing the crumbling of the

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Speaker 1: line between church and state in.

439
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Speaker 5: Many people's mind. We are seeing that the clarity between

440
00:26:19,480 --> 00:26:23,760
Speaker 5: the two certainly has has water down, and this idea

441
00:26:24,000 --> 00:26:30,480
Speaker 5: of an establishment clause has been changed somewhat remarkably in

442
00:26:30,560 --> 00:26:34,320
Speaker 5: they'll past couple of terms, because the Court is not

443
00:26:34,400 --> 00:26:37,960
Speaker 5: so weary of government mixing with religion, and I think

444
00:26:38,080 --> 00:26:42,520
Speaker 5: that usually means, unfortunately, that the dominant religion gets most

445
00:26:42,600 --> 00:26:44,120
Speaker 5: of the breaks.

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00:26:44,880 --> 00:26:48,080
Speaker 1: In the last week of the term, the Supreme Court's

447
00:26:48,440 --> 00:26:54,320
Speaker 1: conservative majority ended affirmative action, struck down President Joe Biden's

448
00:26:54,320 --> 00:26:59,240
Speaker 1: student loan relief plan, and delta setback to LGBTQ rights.

449
00:26:59,800 --> 00:27:02,840
Speaker 1: And this is at a time when the Court has

450
00:27:02,880 --> 00:27:07,880
Speaker 1: its lowest approval ratings and many Americans are questioning the

451
00:27:07,880 --> 00:27:11,800
Speaker 1: Court and its authority. And there are the ethical concerns

452
00:27:11,800 --> 00:27:15,800
Speaker 1: that have been raised lately about Justices Clarence Thomas and

453
00:27:15,920 --> 00:27:19,840
Speaker 1: Samuel Alito, and the justices, of course are not held

454
00:27:19,880 --> 00:27:24,840
Speaker 1: to account. So are the conservatives sort of fearless now

455
00:27:25,080 --> 00:27:26,480
Speaker 1: in pursuing their agenda.

456
00:27:26,800 --> 00:27:29,600
Speaker 5: Well, particularly the decisions in the last week of the term,

457
00:27:30,040 --> 00:27:33,919
Speaker 5: I think have shivers up the spine of many individuals

458
00:27:33,960 --> 00:27:37,159
Speaker 5: who are concerned about the drift of the Court. I

459
00:27:37,200 --> 00:27:40,119
Speaker 5: will note that there have been some glimmerings in prior

460
00:27:40,200 --> 00:27:45,480
Speaker 5: cases where the majority and dissent was not simply based

461
00:27:45,560 --> 00:27:48,880
Speaker 5: upon a conservative liberal divide. The court came together with

462
00:27:48,920 --> 00:27:52,440
Speaker 5: respect to religious accommodations for the postal worker, the court

463
00:27:52,480 --> 00:27:56,080
Speaker 5: came together with respect to the Biden administrations needed discretion

464
00:27:56,480 --> 00:27:59,359
Speaker 5: in enforcement of the immigration laws, and of course the

465
00:27:59,440 --> 00:28:01,800
Speaker 5: voting rights. The Court came together for that as well.

466
00:28:01,840 --> 00:28:04,760
Speaker 5: So there have been some cases where we think that

467
00:28:04,880 --> 00:28:09,919
Speaker 5: the strong conservative liberal divide isn't despositive, But certainly in

468
00:28:09,960 --> 00:28:14,280
Speaker 5: the last three big cases, firmative action, the gay rights

469
00:28:14,320 --> 00:28:17,160
Speaker 5: case as well as student loans. That six ' three

470
00:28:17,760 --> 00:28:20,320
Speaker 5: fracture appears way too deeply.

471
00:28:21,640 --> 00:28:25,800
Speaker 1: And it's usually in the cases involving culture war issues

472
00:28:25,840 --> 00:28:31,280
Speaker 1: that we see that strong six to three conservative liberal divide.

473
00:28:31,760 --> 00:28:34,280
Speaker 5: No, I think that's right, though again you know there

474
00:28:34,280 --> 00:28:37,960
Speaker 5: are indeed there was just about a United Court in

475
00:28:38,040 --> 00:28:40,920
Speaker 5: terms of the Clean Water Act how to understand what

476
00:28:41,000 --> 00:28:43,800
Speaker 5: is waters of the United States. And again there's a

477
00:28:44,040 --> 00:28:48,600
Speaker 5: unanimity in terms of the religious employees need to get

478
00:28:48,600 --> 00:28:52,720
Speaker 5: accommodated under Title seven. But when you talk about affirmative action,

479
00:28:52,880 --> 00:28:56,080
Speaker 5: when you talk about LGBTQ, and we talk about this

480
00:28:56,280 --> 00:29:00,400
Speaker 5: Major Questions doctrine, that's where the conservative liberal divide seems

481
00:29:00,400 --> 00:29:03,800
Speaker 5: all too enscont some concrete.

482
00:29:03,520 --> 00:29:09,720
Speaker 1: And I'm wondering if there are cracks in the relationships

483
00:29:09,800 --> 00:29:13,760
Speaker 1: between the justices, because justices, when they feel strongly about

484
00:29:13,880 --> 00:29:17,080
Speaker 1: their descents, read from the bench, and this week Justice

485
00:29:17,120 --> 00:29:20,720
Speaker 1: Sonya Sotomayor, two days in a row, read her descent

486
00:29:20,880 --> 00:29:24,760
Speaker 1: from the bench, and in her descents this week she

487
00:29:24,840 --> 00:29:29,720
Speaker 1: didn't say I respectfully dissent, just I dissent. And you

488
00:29:29,840 --> 00:29:34,320
Speaker 1: also saw the sort of dueling concurring and descents by

489
00:29:34,520 --> 00:29:39,480
Speaker 1: the newest justice Katanji Brown Jackson and the oldest justice

490
00:29:39,560 --> 00:29:44,320
Speaker 1: or the longest on the court, Clarence Thomas over affirmative action.

491
00:29:44,840 --> 00:29:48,840
Speaker 1: Are we starting to see, you know, the disagreements that

492
00:29:49,000 --> 00:29:52,440
Speaker 1: they've maybe been able to keep under wraps come to

493
00:29:52,520 --> 00:29:53,080
Speaker 1: the surface.

494
00:29:53,840 --> 00:29:57,480
Speaker 5: I think there's a great deal of frustration amongst the justices.

495
00:29:57,680 --> 00:30:02,080
Speaker 5: And again I was somewhat shocked see the animassi spillover

496
00:30:02,160 --> 00:30:07,160
Speaker 5: between Chief Justice Roberts and Justice Kay in the student

497
00:30:07,200 --> 00:30:10,320
Speaker 5: loans case, because they had had a somewhat better relationship

498
00:30:10,520 --> 00:30:12,920
Speaker 5: than some of the other justices. So it's going to

499
00:30:12,920 --> 00:30:16,160
Speaker 5: be a challenge to get this court to work together

500
00:30:16,560 --> 00:30:19,920
Speaker 5: and to be convivial. And I guess there's a reason

501
00:30:19,960 --> 00:30:23,000
Speaker 5: for mild optimism, but also a reason for a real

502
00:30:23,080 --> 00:30:24,880
Speaker 5: continued pessimism that that's going to happen.

503
00:30:25,240 --> 00:30:28,360
Speaker 1: I suppose they have the summer to sort of cool down.

504
00:30:28,960 --> 00:30:32,280
Speaker 1: Thanks so much for your analysis. How that's Professor Harold

505
00:30:32,320 --> 00:30:35,320
Speaker 1: Krent of the Chicago Kent College of Law. And that's

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00:30:35,360 --> 00:30:38,000
Speaker 1: it for this edition of the Bloomberg Law Show. Remember

507
00:30:38,040 --> 00:30:40,080
Speaker 1: you can always get the latest legal news on our

508
00:30:40,120 --> 00:30:44,280
Speaker 1: Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify,

509
00:30:44,480 --> 00:30:49,520
Speaker 1: and at www Dot Bloomberg dot com, slash podcast Slash Law,

510
00:30:49,920 --> 00:30:52,520
Speaker 1: and remember to tune into The Bloomberg Law Show every

511
00:30:52,560 --> 00:30:56,440
Speaker 1: weeknight at ten pm Wall Street Time. I'm June Grosso

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Speaker 1: and you're listening to Bloomberg