WEBVTT - Conservatives Exert Power in Term's Final Days 0:00:03.200 --> 0:00:08.000 This is Bloomberg Law with June Brusso from Bloomberg Radio. 0:00:09.240 --> 0:00:10.680 Let me be get by saying, I know there are 0:00:10.720 --> 0:00:14.320 millions of Americans, millions of Americans this country who feel 0:00:14.360 --> 0:00:19.000 disappointed and discouraged or even a little bit angry about 0:00:19.000 --> 0:00:22.160 the Court decision today on student debt, and I must 0:00:22.160 --> 0:00:23.040 admit I do too. 0:00:23.560 --> 0:00:26.960 For the second time in one week, President Joe Biden 0:00:27.160 --> 0:00:31.120 criticized a decision of the Supreme Court on Friday, saying 0:00:31.200 --> 0:00:35.199 the Court misinterpreted the Constitution when it tossed out his 0:00:35.320 --> 0:00:38.000 plan to forgive the student debt of more than forty 0:00:38.000 --> 0:00:39.040 million Americans. 0:00:39.479 --> 0:00:41.920 I believe the course decision to strike down my student 0:00:41.960 --> 0:00:44.040 debt relief program as a mistake was wrong. 0:00:44.640 --> 0:00:48.800 The Justices, again voting six to three along ideological lines, 0:00:49.200 --> 0:00:53.040 sided with six Republican led states that sued to challenge 0:00:53.159 --> 0:00:57.720 the roughly forty billion dollar program. Writing for the Court's conservatives, 0:00:57.920 --> 0:01:02.040 Chief Justice John Roberts said the administration was seizing the 0:01:02.080 --> 0:01:05.200 power of the legislature, echoing what he said at the 0:01:05.319 --> 0:01:06.160 oral arguments. 0:01:06.560 --> 0:01:09.880 I think most casual observers would say, if you're going 0:01:09.959 --> 0:01:12.560 to give up that much amount of money, if you're 0:01:12.560 --> 0:01:15.959 going to affect the obligations of that many Americans on 0:01:16.000 --> 0:01:19.240 a subject that's of great controversy, they would think that's 0:01:19.240 --> 0:01:20.679 something for Congress to act on. 0:01:21.240 --> 0:01:24.640 Justice Elena Kagan wrote for the three liberal justices in 0:01:24.760 --> 0:01:27.839 dissent and said, it was the Court that was making 0:01:27.959 --> 0:01:31.840 national policy in place of Congress and the executive branch. 0:01:32.440 --> 0:01:36.080 Congress used its voice in enacting this piece of legislation. Oh, 0:01:36.120 --> 0:01:39.200 this business about executive power, I mean, we worry about 0:01:39.240 --> 0:01:44.240 executive power when Congress hasn't authorized the use of executive power. Here, 0:01:44.319 --> 0:01:47.560 Congress has authorized the use of executive power in an 0:01:47.600 --> 0:01:48.800 emergency situation. 0:01:49.680 --> 0:01:53.400 My guest is constitutional law expert Harold Krant, a professor 0:01:53.440 --> 0:01:56.840 at the Chicago Kent College of Law. The key here 0:01:57.240 --> 0:02:01.360 was whether any of the challengers had or a stake 0:02:01.400 --> 0:02:04.760 in the case. Did the Chief Justice use a sort 0:02:04.800 --> 0:02:07.919 of attenuated theory to find standing here? 0:02:08.560 --> 0:02:12.520 The Chief Justice decided that the Loan Processing Agency from 0:02:12.520 --> 0:02:16.640 Missouri was the only entity amongst many that had standing 0:02:16.720 --> 0:02:20.880 to contest the student loan forgiveness of the Biden administration, 0:02:21.480 --> 0:02:24.959 and the Court reason that the loan Processing Agency stood 0:02:24.960 --> 0:02:28.600 to lose forty million dollars that the processing agency was 0:02:28.639 --> 0:02:32.399 part of Missouri, and that traditionally any kind of profits 0:02:32.400 --> 0:02:36.720 that the agency acquired were used to fund education programs 0:02:37.080 --> 0:02:40.960 in Missouri. And in part I'm sympathetic to the theory, 0:02:41.040 --> 0:02:45.280 and I think under federal law that the equivalents of 0:02:45.360 --> 0:02:49.400 the Loan Processing Agency and Missouri for purposes of a 0:02:49.520 --> 0:02:51.920 lawsuit would have been upheld. But I think that the 0:02:52.120 --> 0:02:55.160 dissent made a very strong argument that though that quite 0:02:55.160 --> 0:02:59.200 counts this way, that under Missouri law that the loan 0:02:59.240 --> 0:03:02.760 Processing Agent she was distinct from the state, and the 0:03:02.840 --> 0:03:06.480 Descent noticed that the Loan Processing Agency did not file suit, 0:03:06.639 --> 0:03:11.320 the Loan Processing Agency was incorporated separately, and that given 0:03:11.360 --> 0:03:15.720 those indisha for the purposes of Missouri law, that you 0:03:15.720 --> 0:03:19.639 could treat the Loan Processing Agency as being a separate entity, 0:03:19.680 --> 0:03:21.920 and because it didn't suit, the court should not have 0:03:22.000 --> 0:03:23.960 taken this case. So I don't think this was a 0:03:24.040 --> 0:03:26.520 clear cut case. The court did not say that any 0:03:26.560 --> 0:03:29.280 other entity had standing, and it made at least a 0:03:29.720 --> 0:03:34.040 colorable claim for the fact that this agency was sufficiently 0:03:34.120 --> 0:03:38.000 connected to Missouri in order to bring forward the case. 0:03:38.320 --> 0:03:40.480 Though I think the Descent could have even been on 0:03:40.560 --> 0:03:44.920 stronger ground by analyzing Missouri law in greater depths, which 0:03:44.920 --> 0:03:46.120 the majority failed to do. 0:03:46.960 --> 0:03:50.280 Once again, we're hearing about the major questions doctrine. That's 0:03:50.320 --> 0:03:53.400 a new legal concept that the Court has used to 0:03:53.880 --> 0:03:57.600 limit the power of the executive branch. How did Roberts 0:03:57.680 --> 0:03:58.680 use it in this case? 0:03:59.120 --> 0:04:00.880 He used to hear it by saying, there are two 0:04:01.480 --> 0:04:04.920 words in the statute that were key. And the statute 0:04:04.920 --> 0:04:06.720 that was enacted in the wake of nine to eleven 0:04:07.240 --> 0:04:11.720 gave the power to the Secretary of Education to waive 0:04:11.920 --> 0:04:16.920 or modify student debt obligations in an emergency. The emergency 0:04:17.120 --> 0:04:20.760 is COVID, and so the question is whether canceling up 0:04:20.760 --> 0:04:24.480 to twenty thousand a debt per individual, does that constitute 0:04:24.560 --> 0:04:29.240 either a waiver or a modification. I think the Court 0:04:29.360 --> 0:04:32.120 was clearly right in saying it wasn't a modification. And 0:04:32.160 --> 0:04:35.240 then the question is what about waiver? And here I 0:04:35.240 --> 0:04:37.520 think you can look at it in two different ways. 0:04:37.680 --> 0:04:42.240 To the majority, the idea of a waiver is sort 0:04:42.279 --> 0:04:46.039 of more of a modest effort to look at a 0:04:46.040 --> 0:04:50.560 procedural requirement, look at a timing issue, maybe include forbearance 0:04:50.760 --> 0:04:53.960 for a while. But the idea of waiver is simply 0:04:54.160 --> 0:04:57.680 cancelation and to back it up. The majority says, look, 0:04:58.000 --> 0:05:02.120 if Congress wanted to allow the agency to create a 0:05:02.200 --> 0:05:07.040 new rule, namely the loan cancelation that would affect forty 0:05:07.040 --> 0:05:10.920 million people and for four hundred billion dollars, it would 0:05:10.920 --> 0:05:14.000 have said so clearly. But that is how the Court 0:05:14.120 --> 0:05:17.640 employed the so called major questions doctrine to say that, 0:05:17.720 --> 0:05:20.360 you know, Congress needs to make these kinds of decisions 0:05:20.440 --> 0:05:22.320 if it wants to have the Ministry of Rule of 0:05:22.360 --> 0:05:26.680 such vast importance. And the Descent retorted and I think, well, 0:05:26.720 --> 0:05:30.240 it's like, look, this is emergency legislation. In an emergency, 0:05:30.400 --> 0:05:33.039 when the Secretary of Education has to face it, they 0:05:33.080 --> 0:05:36.159 have to take steps that are going to make radical changes. 0:05:36.480 --> 0:05:39.360 And indeed, what I felt was very well put by 0:05:39.560 --> 0:05:43.560 the Descent is that the power to even forbear alone, 0:05:43.880 --> 0:05:45.960 in other words, to say don't pay it back for 0:05:46.000 --> 0:05:50.480 a long time, already cost the government one hundred billion dollars. 0:05:50.839 --> 0:05:55.040 So even forbearance, which I think everybody would agree had 0:05:55.040 --> 0:05:58.520 been used by both the Top administration and the Biden administration, 0:05:59.000 --> 0:06:02.640 would have been consistent with the statutory scheme. So is 0:06:02.839 --> 0:06:06.040 cancelation that much more? But the majority it was one 0:06:06.040 --> 0:06:08.680 step too far, they were okay with forbearance, but they 0:06:08.760 --> 0:06:11.800 drew the line the idea that by waving a requirement, 0:06:11.880 --> 0:06:15.640 Congress did not intend that the Department of Education could 0:06:15.839 --> 0:06:19.279 actually canceled debt for so many people with such a 0:06:19.320 --> 0:06:20.680 large impact on the economy. 0:06:21.080 --> 0:06:26.440 During the COVID pandemic, the Court thwarted Biden's agenda several 0:06:26.480 --> 0:06:31.080 times on the rent moratorium, on trying to get people 0:06:31.200 --> 0:06:36.359 vaccinated at large employers. I mean, this was expected, wasn't it, 0:06:36.360 --> 0:06:39.359 no matter what the price tag of the program was. 0:06:40.080 --> 0:06:43.640 If you think about the billions and trillions of dollars 0:06:43.640 --> 0:06:47.880 that Congress passed for relief in the COVID era, this 0:06:48.080 --> 0:06:51.520 idea of being able to cancel four hundred billion dollars 0:06:51.520 --> 0:06:54.839 a debt doesn't seem as extravagant as the majority would 0:06:54.960 --> 0:06:57.200 make it, but it is significant. I think we have 0:06:57.279 --> 0:07:01.840 to recognize that that's a huge impact upon our economy. 0:07:01.960 --> 0:07:04.760 And I think the answer in this case boils down 0:07:04.760 --> 0:07:07.359 to one's view of administrative power. If one thinks that 0:07:07.440 --> 0:07:11.720 Congress traditionally has given administrative agencies the power to change 0:07:11.720 --> 0:07:15.400 for the times, to evolve and respond to emergencies as 0:07:15.400 --> 0:07:19.360 in this case, then the idea of the congressional delegation 0:07:19.400 --> 0:07:22.960 of authority to modify and waive prior requirements in the 0:07:23.000 --> 0:07:27.040 emergency empowers the agency to make that judgment subject to 0:07:27.360 --> 0:07:29.880 a congressional override, and that would be the position that 0:07:29.920 --> 0:07:32.680 the dissent took. On the other hand, if you're suspicious 0:07:32.680 --> 0:07:36.240 of administrative power and don't think that administrators should make 0:07:36.280 --> 0:07:39.320 decisions that has such a wide impact on the economy, 0:07:39.720 --> 0:07:43.520 then you'll read delegations more narrowly and say Congress could 0:07:43.520 --> 0:07:46.280 not have conceived that the agency could have wielded such 0:07:46.360 --> 0:07:49.080 vast authority to the extent of a four hundred billion 0:07:49.120 --> 0:07:51.920 dollar impact on the economy. So what's the stake here 0:07:52.000 --> 0:07:55.600 is just your view of the wisdom of administrative agencies. 0:07:55.960 --> 0:07:58.920 As you mentioned, Robert said, the administration was seizing the 0:07:58.960 --> 0:08:02.280 power of the legislation by trying to cancel so much 0:08:02.320 --> 0:08:05.360 student debt. But isn't the court seizing the power of 0:08:05.360 --> 0:08:09.239 the executive branch and the legislature by throwing out the plan? 0:08:09.560 --> 0:08:12.920 Well, that's precisely what the Ascent charged, and indeed they 0:08:12.920 --> 0:08:15.040 were pretesting in this case, and they've been civil in 0:08:15.080 --> 0:08:18.680 some cases. But Jessic Kagan and Chief Justice Roberts exchanged 0:08:18.800 --> 0:08:21.240 pointed barbs in this case, which doesn't bode well for 0:08:21.320 --> 0:08:24.080 their ability to get along in the court in the future. 0:08:24.080 --> 0:08:26.440 Maybe it is good that they're taking a break right now. 0:08:26.760 --> 0:08:29.360 But yeah, I mean to the dissent. Congress made the call. 0:08:29.680 --> 0:08:32.480 We want the agency to have the discretion in emergencies 0:08:32.480 --> 0:08:35.440 to take steps that are important in order to help 0:08:35.520 --> 0:08:38.960 preserve individuals who were settled with student debt. And so 0:08:39.240 --> 0:08:42.320 the Congress had made the call, and the agency, which 0:08:42.360 --> 0:08:45.200 is acting consistent with that delegation of authority. 0:08:45.480 --> 0:08:47.880 Okay, hell, you're going to stay with me. Coming up 0:08:47.920 --> 0:08:51.240 next on the Bloomberg Law Show, I'll continue this conversation 0:08:51.400 --> 0:08:54.640 with Professor Harold Krant of the Chicago Kent College of Law, 0:08:55.000 --> 0:08:58.760 and we'll talk about a third decision down ideological lines 0:08:59.200 --> 0:09:03.680 that dealt us setback to LGBTQ rights. I'm June Grosso 0:09:03.800 --> 0:09:14.360 and you're listening to Bloomberg. On the last day of 0:09:14.400 --> 0:09:19.400 Pride Month, the Supreme Court's conservative majority delta setback to 0:09:19.640 --> 0:09:23.520 LGBTQ rights in this country. In another six to three 0:09:23.640 --> 0:09:27.640 vote down ideological lines. The court rule that a Christian 0:09:27.720 --> 0:09:31.760 website designer doesn't have to create wedding pages for same 0:09:31.880 --> 0:09:35.880 sex couples, carving out a free speech exception to Colorado's 0:09:35.880 --> 0:09:40.360 anti discrimination law, a distinction brought out by Justice Brett 0:09:40.440 --> 0:09:42.400 Kavanaugh during the oral arguments. 0:09:42.600 --> 0:09:48.040 How do you characterize website designers? Are they more like 0:09:48.440 --> 0:09:52.520 the restaurants and the jewelers and the tailors, or are 0:09:52.600 --> 0:09:56.400 they more like, you know, the publishing houses and the 0:09:56.480 --> 0:09:59.760 other free speech analogs. 0:10:00.000 --> 0:10:03.880 Swords Three liberals blasted the ruling, with josh As Sonya 0:10:03.920 --> 0:10:07.320 Sotomayor saying in her dissent that this is a first 0:10:07.360 --> 0:10:08.000 for the Court. 0:10:08.720 --> 0:10:12.240 This would be the first time in the Court's history 0:10:13.160 --> 0:10:17.840 correct that it would say that a business open to 0:10:17.920 --> 0:10:22.160 the public that it could refuse to serve a customer 0:10:23.160 --> 0:10:28.800 based on race, sex, religion, or sexual orientation. 0:10:29.800 --> 0:10:32.360 I've been talking to Professor Harold Krant of the Chicago 0:10:32.480 --> 0:10:35.640 Kent College of Law. Hell, how much of a blow 0:10:35.720 --> 0:10:37.920 is this to LGBTQ rights. 0:10:38.760 --> 0:10:41.040 First of all, it's a symbolic blow. There's no question 0:10:41.320 --> 0:10:44.559 that the fact that the Supreme Court is putting its 0:10:44.559 --> 0:10:47.800 stamped in some ways on discrimination, just a couple of 0:10:47.880 --> 0:10:52.440 years after Overfell recognized the constitutionality of gay marriage is 0:10:52.600 --> 0:10:56.000 definitely a body blow. In terms of making a practical difference, 0:10:56.120 --> 0:10:58.480 that's a little bit unclear. I mean, why I think 0:10:58.520 --> 0:11:01.760 this case reveals is the lack of wisdom of taking 0:11:01.760 --> 0:11:05.360 a case pre enforcement that the court didn't need to take. 0:11:05.880 --> 0:11:09.360 In this case, the web designer has never designed a 0:11:09.440 --> 0:11:13.040 website yet for a marriage, has never been asked to 0:11:13.440 --> 0:11:16.480 do a website for a gay couple, and we don't 0:11:16.480 --> 0:11:18.000 know if that she ever would be asked to do 0:11:18.120 --> 0:11:21.079 a website or gay couple. The court simply didn't need 0:11:21.120 --> 0:11:24.080 to get involved in this case, and in general, these 0:11:24.160 --> 0:11:27.600 kind of pre enforcement cases where there are murky issues lingering, 0:11:27.960 --> 0:11:30.400 courts stayed their hands. So the fact that the court 0:11:30.440 --> 0:11:33.240 took this case, I think it is lamentable and it 0:11:33.280 --> 0:11:36.680 may end up with very unfortunate law. The difficulty in 0:11:36.720 --> 0:11:39.760 my mind in this case is where is the expressive conduct. 0:11:40.040 --> 0:11:42.960 The court has assumed that creating a website has a 0:11:42.960 --> 0:11:45.360 lot of First Amendment content to it, and indeed it 0:11:45.400 --> 0:11:48.520 relied upon a stipulation, kind of an admission by the 0:11:48.520 --> 0:11:52.839 State of Colorado that there was expressive conduct at play here. 0:11:53.040 --> 0:11:55.800 I don't see it. Maybe there would be in some context, 0:11:55.840 --> 0:11:58.600 you'd have some kind of First Amendment interests involved here 0:11:58.640 --> 0:12:03.040 in which case of first Amendment might arise. Generally, I 0:12:03.040 --> 0:12:06.080 think the presumption strongly should be that when you are incorporated, 0:12:06.400 --> 0:12:09.480 you must act to give goods and services to the public, 0:12:09.720 --> 0:12:11.480 just as you would if you're a restaurant or a 0:12:11.520 --> 0:12:15.040 hotel or a gas station. And so the court waded 0:12:15.080 --> 0:12:18.359 into very tumultuous waters really for no reason. 0:12:18.120 --> 0:12:21.520 At all in my view, what's the line What other 0:12:21.679 --> 0:12:25.560 establishments can find a way to refuse service to gay 0:12:25.640 --> 0:12:29.000 people by saying it's expression right and. 0:12:29.000 --> 0:12:30.920 We don't know? And that's the point that I think 0:12:31.000 --> 0:12:33.640 is really frightening about this case. What if you're a caterer, 0:12:33.679 --> 0:12:36.520 what if you're a photographer for the wedding set designer? 0:12:36.760 --> 0:12:39.000 Right to what extent then you can say, I have 0:12:39.120 --> 0:12:42.080 my gifts here, I have my creative energies. I don't 0:12:42.120 --> 0:12:44.440 want to use those to help a message to which 0:12:44.480 --> 0:12:47.760 I just agree. And that is the tricky line that 0:12:47.800 --> 0:12:49.920 the court has set up. And it didn't give any 0:12:50.040 --> 0:12:53.040 kind of guidance really to lower courts to figure out 0:12:53.160 --> 0:12:56.800 when that kind of expressive conduct should be protected and 0:12:56.920 --> 0:13:01.000 when it shouldn't. And I'm concerned because again creativity that 0:13:01.400 --> 0:13:05.160 was intrinsic to web design is prefin in my view. 0:13:05.200 --> 0:13:07.280 I mean, the Court has opened a can of worms 0:13:07.280 --> 0:13:11.440 in trying to reconcile public accommodation laws with the expressive 0:13:11.520 --> 0:13:15.240 viewpoint of those who are required to engage in business 0:13:15.480 --> 0:13:20.199 and not discriminate on the basis of sexual orientation, race, religion, 0:13:20.600 --> 0:13:21.440 and sex. 0:13:22.400 --> 0:13:26.559 This is supposed to be about speech rights. The Court 0:13:26.679 --> 0:13:29.120 took it and said we're going to consider speech rights, 0:13:29.200 --> 0:13:33.040 not religious rights. But it seems like it's just another 0:13:33.080 --> 0:13:37.000 in a long line of decisions where the Roberts Court 0:13:37.360 --> 0:13:41.040 puts the rights of religious groups and individuals ahead of 0:13:41.040 --> 0:13:41.800 every other right. 0:13:42.040 --> 0:13:46.080 I mean, again, the Court explicitly did not address the 0:13:46.240 --> 0:13:49.320 religious aspects of this, but I do agree with you 0:13:49.360 --> 0:13:52.319 that the court probably would say now as opposed to 0:13:52.440 --> 0:13:55.360 in the decide of the Masterpiece cake case. You know 0:13:55.400 --> 0:13:58.840 five or six years ago that if the website designer 0:13:59.080 --> 0:14:02.680 had ref use to work with the gay couple for 0:14:02.760 --> 0:14:05.520 religious reasons, they might have even had a stronger case. 0:14:05.760 --> 0:14:08.000 But what is troubling here is it's not just limited 0:14:08.040 --> 0:14:10.680 to religion, right. I mean, we can have First Amendment 0:14:10.840 --> 0:14:14.679 disagreements with Zionists, with Muslim organizations. We could have First 0:14:14.720 --> 0:14:19.000 Amendment disagreements with direct to life movement. Who knows where 0:14:19.000 --> 0:14:21.600 this could end up. And the idea of a public 0:14:21.640 --> 0:14:26.040 accommodation law is take your First Amendment views elsewhere, and 0:14:26.120 --> 0:14:29.880 if you engage in business in the public, for lodging 0:14:29.920 --> 0:14:33.840 and for dining, in construction or whatever, put your own 0:14:33.920 --> 0:14:36.840 thoughts to the back, because here we are engaging in 0:14:36.880 --> 0:14:39.480 public commerce, and that's what Colorado had decided. 0:14:40.400 --> 0:14:45.800 Some say that this ruling could undercut protections for racial 0:14:45.880 --> 0:14:50.680 minorities and women as well as LGBTQ people. Could it 0:14:50.760 --> 0:14:51.160 lead there? 0:14:51.520 --> 0:14:54.040 I mean theoretically it could. I mean if someone says, 0:14:54.280 --> 0:14:58.080 I have this view that interracial marriage is wrong, or 0:14:58.240 --> 0:15:00.960 I have this view that of the day at ventice 0:15:01.080 --> 0:15:02.920 are evil and so I don't want to work with 0:15:02.960 --> 0:15:05.880 seven day eventics, that's possible. It would come within the 0:15:05.920 --> 0:15:08.960 scope of the court ruling. The court simply did not 0:15:09.280 --> 0:15:12.960 delimit carefully the scope of its decision by saying there 0:15:12.960 --> 0:15:16.000 has to be exceptions to these public accommodations law. And 0:15:16.040 --> 0:15:18.560 I think that we can all imagine how friending would 0:15:18.560 --> 0:15:24.160 be if from builders to restauranteurs to caterers could simply 0:15:24.200 --> 0:15:28.800 refuse to cater the particular clients because of a perceived 0:15:28.800 --> 0:15:31.440 disagreement with their philosophies or religions. 0:15:31.720 --> 0:15:35.000 And there was another decision last week involving religion that 0:15:35.160 --> 0:15:38.040 didn't get as much attention because of the week that 0:15:38.120 --> 0:15:42.040 it was. So this involved a part time fill in 0:15:42.160 --> 0:15:45.040 postal worker who doesn't want to work on Sundays for 0:15:45.080 --> 0:15:49.760 religious reasons. And in this latest religious confrontation case, the 0:15:49.760 --> 0:15:53.720 Supreme Court has solidified protections for workers who ask for 0:15:53.760 --> 0:15:57.880 religious accommodations. Gerald Groff quit when the Post Office would 0:15:57.920 --> 0:16:01.200 not accommodate his request to be on on Sundays for 0:16:01.320 --> 0:16:05.640 religious reasons, and then he sued the post Office. Groff 0:16:05.720 --> 0:16:09.600 told ABC News it was important to him. I told 0:16:09.600 --> 0:16:12.280 my supervisor, it's the Lord's day, it's not the Lord's morning. 0:16:12.320 --> 0:16:14.160 It's not supposed to be like the other six days 0:16:14.160 --> 0:16:14.560 of the week. 0:16:14.640 --> 0:16:16.920 Why not just pick a different job that allows you 0:16:17.000 --> 0:16:18.800 to work on different hours in different days. 0:16:18.880 --> 0:16:20.560 I didn't really think I should have to quit. I 0:16:20.600 --> 0:16:23.080 really expected the Post Office to find a way to 0:16:23.080 --> 0:16:25.680 accommodate me. Hell tell us about his case. 0:16:26.080 --> 0:16:30.800 So the postal worker became a Sabbathae server on a 0:16:30.880 --> 0:16:34.440 Sunday and told the post office his employer that he 0:16:34.520 --> 0:16:38.440 wanted to have Sundays off for religious observance, and they 0:16:38.480 --> 0:16:42.520 tried to accommodate him in various ways by agreeing to 0:16:42.600 --> 0:16:48.280 swap shifts and occasionally the postmaster himself would deliver the mail, 0:16:48.560 --> 0:16:52.640 and it worked out until Amazon made an agreement with 0:16:53.320 --> 0:16:57.080 the postal service to serve parcels on Sunday so that 0:16:57.120 --> 0:17:01.880 their work picked up a great deal, and these shift 0:17:01.880 --> 0:17:07.240 swaps were no longer sufficient, so the employee complained and 0:17:07.840 --> 0:17:11.600 refused to go to work on Sunday is As superiors 0:17:11.640 --> 0:17:15.840 did not make any further accommodations, he was subject to discipline. Eventually, 0:17:15.880 --> 0:17:19.199 then he resigned, and he claimed he was forced to 0:17:19.200 --> 0:17:23.480 resign basically because they wouldn't accommodate his religious Sabbath observance. 0:17:23.920 --> 0:17:27.600 And this case requires an assessment of what is the 0:17:27.640 --> 0:17:33.600 extent of an employer's duty to accommodate a sincere religious observance, 0:17:33.920 --> 0:17:39.479 And the court unanimously held that the standard used by 0:17:39.520 --> 0:17:43.040 at least some courts of appeals had been too employer friendly. 0:17:43.520 --> 0:17:46.840 Some of the courts of appeals, including the Third Circuit 0:17:46.920 --> 0:17:49.960 in this case, had looked to language in a prior 0:17:50.320 --> 0:17:54.400 Supreme court case called Twa versus Tartisan, which said that 0:17:54.560 --> 0:17:58.840 any kind of cost above deminimus would be considered to 0:17:58.880 --> 0:18:03.600 be an undue burden upon the employer. And not all 0:18:03.680 --> 0:18:07.920 courts used the standard, but some did. Other courts looked 0:18:07.920 --> 0:18:11.200 to a different language and the same twa versus Hardest 0:18:11.240 --> 0:18:14.800 in case to have a more demanding standard on the 0:18:14.840 --> 0:18:20.200 employer that the employer couldn't just refuse to accommodate based 0:18:20.280 --> 0:18:24.159 upon some kind of minimal expenses in terms of overtime 0:18:24.240 --> 0:18:29.000 pay or not agreeing to give swapshifts or something along 0:18:29.040 --> 0:18:29.879 those lines. 0:18:30.520 --> 0:18:32.120 And tell us about the Court's decision. 0:18:32.840 --> 0:18:37.760 So the Supreme Court unanimously decided that an undue burden 0:18:38.440 --> 0:18:43.520 means more than just deminimous expense, rather that it must 0:18:43.640 --> 0:18:46.439 result in the words of the Supreme Court in the 0:18:46.480 --> 0:18:51.240 substantial increased costs. Now, it's low vague. The Court hasn't 0:18:51.280 --> 0:18:55.880 clarified exactly what our substantially increased costs. But the Court 0:18:55.960 --> 0:18:59.840 did give a couple of different guidelines. The Court said 0:19:00.359 --> 0:19:05.560 that the employer can respect a bargain for seniority rights. 0:19:05.680 --> 0:19:08.840 It doesn't have to infringe upon seniority rights that would 0:19:08.840 --> 0:19:12.680 be an under burden or substantial costs. The court also 0:19:12.760 --> 0:19:16.919 said that it's not enough for the employer to show 0:19:16.960 --> 0:19:20.119 that other employees don't like it. The Court made a 0:19:20.200 --> 0:19:23.480 very fine distinction here. What they said is that just 0:19:23.560 --> 0:19:28.600 because another employee doesn't like the fact that someone's religion 0:19:28.680 --> 0:19:31.520 is being accommodated, doesn't like the fact that somebody gets 0:19:31.520 --> 0:19:33.480 Sundays off to go to church while they want to 0:19:33.480 --> 0:19:37.240 stay home with family, that's not sufficient. Rather, the fine 0:19:37.280 --> 0:19:40.720 line drawn by the court is when the impact on 0:19:40.800 --> 0:19:46.080 other employees becomes so great as to burden the ability 0:19:46.119 --> 0:19:49.439 of the employer to actually conduct the business, then that 0:19:49.480 --> 0:19:53.480 would be an undue burden under Title seven, and the 0:19:53.640 --> 0:19:56.880 employer doesn't have to go beyond that. The other thing 0:19:56.920 --> 0:20:00.800 that the court clarified is that having to pay over 0:20:00.840 --> 0:20:05.080 time to other employees to pick up the shift, that's 0:20:05.160 --> 0:20:08.359 not an under burden in itself. Maybe at some point 0:20:08.359 --> 0:20:10.240 it would be, but just by having to pay some 0:20:10.359 --> 0:20:13.359 kind of overtime that wouldn't be demanding. And indeed, in 0:20:13.400 --> 0:20:18.040 this case, it's not clear that any kind of overtime 0:20:18.080 --> 0:20:20.960 would have been that significant in the long run. The 0:20:21.000 --> 0:20:23.720 court remanded it back to the Third Circuit to decide 0:20:23.800 --> 0:20:28.160 under this slightly more stringent standard than the court had 0:20:28.240 --> 0:20:32.240 used below. Unclear in my mind how the third Circuit 0:20:32.280 --> 0:20:34.720 will resolve on Remand this is a. 0:20:34.680 --> 0:20:39.040 Case where there was tension in the postal office where 0:20:39.480 --> 0:20:43.000 Groff worked because of what was happening, and they did 0:20:43.119 --> 0:20:46.000 have to pay overtime. Is the court clear on what 0:20:46.240 --> 0:20:50.919 else you would need to create and undo hardship? I 0:20:50.920 --> 0:20:54.280 mean that sounds like the business is really being affected 0:20:54.320 --> 0:20:54.680 by this. 0:20:55.400 --> 0:20:57.959 Yeah, the court was not clear. And the part that I, 0:20:58.320 --> 0:21:01.560 as a past employer, sort of wonder is how do 0:21:01.600 --> 0:21:04.919 you draw a line between a disgruntled employee staff and 0:21:04.960 --> 0:21:07.520 the staff that's not being productive because they're upset with 0:21:07.560 --> 0:21:10.480 these distractions? And when is that an impact on a 0:21:10.520 --> 0:21:14.000 business as opposed to just having an impact upon employees. 0:21:14.200 --> 0:21:17.120 The two seem to me to be on the same continuum, 0:21:17.440 --> 0:21:19.640 and I think maybe it's just a matter of particulation 0:21:20.000 --> 0:21:22.440 that the postal service in this case would have to say, 0:21:22.840 --> 0:21:25.760 you know, not only did our employees not like the 0:21:25.800 --> 0:21:28.920 fact that we're giving this benefit to one of their own, 0:21:29.240 --> 0:21:32.800 but rather that they started having fights, they started losing 0:21:32.880 --> 0:21:36.760 focus on their responsibilities, they didn't come to work in protests, 0:21:36.880 --> 0:21:41.000 and we are unable to continue our operations as smoothly 0:21:41.040 --> 0:21:43.880 as possible. That's the line I think that the court 0:21:43.960 --> 0:21:47.760 is demanding that the employers say not just that employees 0:21:47.840 --> 0:21:50.960 didn't like it, like a Heckler's veto, but rather that 0:21:51.200 --> 0:21:55.199 it's so affected the employee's cohesiveness and work that they 0:21:55.240 --> 0:21:59.520 were not able to function as a good post office should. 0:22:00.280 --> 0:22:03.439 Just as Alito said, the employer must show the burden 0:22:03.480 --> 0:22:07.840 of granting an accommodation would result in substantial increased costs 0:22:08.200 --> 0:22:11.359 in relation to the conduct of its particular business. Well, 0:22:11.600 --> 0:22:13.080 how do you define substantial? 0:22:13.920 --> 0:22:16.240 That's going to be fleshed out in the Courts of 0:22:16.240 --> 0:22:19.600 Appeals below. And this is not that different of a 0:22:19.680 --> 0:22:23.240 standard than what some courts of appeals had used, but 0:22:23.359 --> 0:22:26.840 some courts again it just latched on to that deminimous 0:22:26.920 --> 0:22:31.720 language in the prior Supreme Court case to give employers 0:22:32.040 --> 0:22:35.040 a relatively easy pass in terms of the duty to 0:22:35.080 --> 0:22:38.880 make an accommodation. So clearly this is a more stringent standard. 0:22:38.960 --> 0:22:43.120 Employers will have to give slightly broader accommodations than they 0:22:43.119 --> 0:22:46.160 have in the past, But the extent of the difference 0:22:46.240 --> 0:22:48.640 is really difficult to gauge. At this point. 0:22:48.880 --> 0:22:51.440 Is it surprising that this was a unanimous decision. 0:22:52.920 --> 0:22:56.040 I don't think it was surprising. I think that it 0:22:56.119 --> 0:22:59.399 was left so vague that the new standard could grab 0:22:59.640 --> 0:23:03.680 everyone one's approval. And I think there was a consensus 0:23:03.920 --> 0:23:06.399 that the more than the minimus standard that some courts 0:23:06.400 --> 0:23:12.320 had used to Luke's was to pro employer. So the 0:23:12.880 --> 0:23:16.840 court was able to agree unanimously that the standard would 0:23:16.880 --> 0:23:19.800 have to be toughened to a little extent. But the 0:23:19.920 --> 0:23:22.359 question is how much of an extent, And we just 0:23:22.440 --> 0:23:26.479 don't know because the language of substantial impact on an 0:23:26.480 --> 0:23:31.600 employer substantial costs is very difficult in the abstract to identify. 0:23:32.440 --> 0:23:37.240 During the arguments, the Postal Workers lawyer said, under the 0:23:37.240 --> 0:23:41.440 government's test, a diabetic employee could receive snack breaks under 0:23:41.480 --> 0:23:45.840 the ADA Americans with Disabilities Act, but not prayer breaks 0:23:45.920 --> 0:23:50.280 under Title seven. Does this equate snack breaks for a 0:23:50.320 --> 0:23:54.520