Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
Speaker 2: Let me be get by saying, I know there are
Speaker 2: millions of Americans, millions of Americans this country who feel
Speaker 2: disappointed and discouraged or even a little bit angry about
Speaker 2: the Court decision today on student debt, and I must
Speaker 2: admit I do too.
Speaker 1: For the second time in one week, President Joe Biden
Speaker 1: criticized a decision of the Supreme Court on Friday, saying
Speaker 1: the Court misinterpreted the Constitution when it tossed out his
Speaker 1: plan to forgive the student debt of more than forty
Speaker 1: million Americans.
Speaker 2: I believe the course decision to strike down my student
Speaker 2: debt relief program as a mistake was wrong.
Speaker 1: The Justices, again voting six to three along ideological lines,
Speaker 1: sided with six Republican led states that sued to challenge
Speaker 1: the roughly forty billion dollar program. Writing for the Court's conservatives,
Speaker 1: Chief Justice John Roberts said the administration was seizing the
Speaker 1: power of the legislature, echoing what he said at the
Speaker 1: oral arguments.
Speaker 3: I think most casual observers would say, if you're going
Speaker 3: to give up that much amount of money, if you're
Speaker 3: going to affect the obligations of that many Americans on
Speaker 3: a subject that's of great controversy, they would think that's
Speaker 3: something for Congress to act on.
Speaker 1: Justice Elena Kagan wrote for the three liberal justices in
Speaker 1: dissent and said, it was the Court that was making
Speaker 1: national policy in place of Congress and the executive branch.
Speaker 4: Congress used its voice in enacting this piece of legislation. Oh,
Speaker 4: this business about executive power, I mean, we worry about
Speaker 4: executive power when Congress hasn't authorized the use of executive power. Here,
Speaker 4: Congress has authorized the use of executive power in an
Speaker 4: emergency situation.
Speaker 1: My guest is constitutional law expert Harold Krant, a professor
Speaker 1: at the Chicago Kent College of Law. The key here
Speaker 1: was whether any of the challengers had or a stake
Speaker 1: in the case. Did the Chief Justice use a sort
Speaker 1: of attenuated theory to find standing here?
Speaker 5: The Chief Justice decided that the Loan Processing Agency from
Speaker 5: Missouri was the only entity amongst many that had standing
Speaker 5: to contest the student loan forgiveness of the Biden administration,
Speaker 5: and the Court reason that the loan Processing Agency stood
Speaker 5: to lose forty million dollars that the processing agency was
Speaker 5: part of Missouri, and that traditionally any kind of profits
Speaker 5: that the agency acquired were used to fund education programs
Speaker 5: in Missouri. And in part I'm sympathetic to the theory,
Speaker 5: and I think under federal law that the equivalents of
Speaker 5: the Loan Processing Agency and Missouri for purposes of a
Speaker 5: lawsuit would have been upheld. But I think that the
Speaker 5: dissent made a very strong argument that though that quite
Speaker 5: counts this way, that under Missouri law that the loan
Speaker 5: Processing Agent she was distinct from the state, and the
Speaker 5: Descent noticed that the Loan Processing Agency did not file suit,
Speaker 5: the Loan Processing Agency was incorporated separately, and that given
Speaker 5: those indisha for the purposes of Missouri law, that you
Speaker 5: could treat the Loan Processing Agency as being a separate entity,
Speaker 5: and because it didn't suit, the court should not have
Speaker 5: taken this case. So I don't think this was a
Speaker 5: clear cut case. The court did not say that any
Speaker 5: other entity had standing, and it made at least a
Speaker 5: colorable claim for the fact that this agency was sufficiently
Speaker 5: connected to Missouri in order to bring forward the case.
Speaker 5: Though I think the Descent could have even been on
Speaker 5: stronger ground by analyzing Missouri law in greater depths, which
Speaker 5: the majority failed to do.
Speaker 1: Once again, we're hearing about the major questions doctrine. That's
Speaker 1: a new legal concept that the Court has used to
Speaker 1: limit the power of the executive branch. How did Roberts
Speaker 1: use it in this case?
Speaker 5: He used to hear it by saying, there are two
Speaker 5: words in the statute that were key. And the statute
Speaker 5: that was enacted in the wake of nine to eleven
Speaker 5: gave the power to the Secretary of Education to waive
Speaker 5: or modify student debt obligations in an emergency. The emergency
Speaker 5: is COVID, and so the question is whether canceling up
Speaker 5: to twenty thousand a debt per individual, does that constitute
Speaker 5: either a waiver or a modification. I think the Court
Speaker 5: was clearly right in saying it wasn't a modification. And
Speaker 5: then the question is what about waiver? And here I
Speaker 5: think you can look at it in two different ways.
Speaker 5: To the majority, the idea of a waiver is sort
Speaker 5: of more of a modest effort to look at a
Speaker 5: procedural requirement, look at a timing issue, maybe include forbearance
Speaker 5: for a while. But the idea of waiver is simply
Speaker 5: cancelation and to back it up. The majority says, look,
Speaker 5: if Congress wanted to allow the agency to create a
Speaker 5: new rule, namely the loan cancelation that would affect forty
Speaker 5: million people and for four hundred billion dollars, it would
Speaker 5: have said so clearly. But that is how the Court
Speaker 5: employed the so called major questions doctrine to say that,
Speaker 5: you know, Congress needs to make these kinds of decisions
Speaker 5: if it wants to have the Ministry of Rule of
Speaker 5: such vast importance. And the Descent retorted and I think, well,
Speaker 5: it's like, look, this is emergency legislation. In an emergency,
Speaker 5: when the Secretary of Education has to face it, they
Speaker 5: have to take steps that are going to make radical changes.
Speaker 5: And indeed, what I felt was very well put by
Speaker 5: the Descent is that the power to even forbear alone,
Speaker 5: in other words, to say don't pay it back for
Speaker 5: a long time, already cost the government one hundred billion dollars.
Speaker 5: So even forbearance, which I think everybody would agree had
Speaker 5: been used by both the Top administration and the Biden administration,
Speaker 5: would have been consistent with the statutory scheme. So is
Speaker 5: cancelation that much more? But the majority it was one
Speaker 5: step too far, they were okay with forbearance, but they
Speaker 5: drew the line the idea that by waving a requirement,
Speaker 5: Congress did not intend that the Department of Education could
Speaker 5: actually canceled debt for so many people with such a
Speaker 5: large impact on the economy.
Speaker 1: During the COVID pandemic, the Court thwarted Biden's agenda several
Speaker 1: times on the rent moratorium, on trying to get people
Speaker 1: vaccinated at large employers. I mean, this was expected, wasn't it,
Speaker 1: no matter what the price tag of the program was.
Speaker 5: If you think about the billions and trillions of dollars
Speaker 5: that Congress passed for relief in the COVID era, this
Speaker 5: idea of being able to cancel four hundred billion dollars
Speaker 5: a debt doesn't seem as extravagant as the majority would
Speaker 5: make it, but it is significant. I think we have
Speaker 5: to recognize that that's a huge impact upon our economy.
Speaker 5: And I think the answer in this case boils down
Speaker 5: to one's view of administrative power. If one thinks that
Speaker 5: Congress traditionally has given administrative agencies the power to change
Speaker 5: for the times, to evolve and respond to emergencies as
Speaker 5: in this case, then the idea of the congressional delegation
Speaker 5: of authority to modify and waive prior requirements in the
Speaker 5: emergency empowers the agency to make that judgment subject to
Speaker 5: a congressional override, and that would be the position that
Speaker 5: the dissent took. On the other hand, if you're suspicious
Speaker 5: of administrative power and don't think that administrators should make
Speaker 5: decisions that has such a wide impact on the economy,
Speaker 5: then you'll read delegations more narrowly and say Congress could
Speaker 5: not have conceived that the agency could have wielded such
Speaker 5: vast authority to the extent of a four hundred billion
Speaker 5: dollar impact on the economy. So what's the stake here
Speaker 5: is just your view of the wisdom of administrative agencies.
Speaker 1: As you mentioned, Robert said, the administration was seizing the
Speaker 1: power of the legislation by trying to cancel so much
Speaker 1: student debt. But isn't the court seizing the power of
Speaker 1: the executive branch and the legislature by throwing out the plan?
Speaker 5: Well, that's precisely what the Ascent charged, and indeed they
Speaker 5: were pretesting in this case, and they've been civil in
Speaker 5: some cases. But Jessic Kagan and Chief Justice Roberts exchanged
Speaker 5: pointed barbs in this case, which doesn't bode well for
Speaker 5: their ability to get along in the court in the future.
Speaker 5: Maybe it is good that they're taking a break right now.
Speaker 5: But yeah, I mean to the dissent. Congress made the call.
Speaker 5: We want the agency to have the discretion in emergencies
Speaker 5: to take steps that are important in order to help
Speaker 5: preserve individuals who were settled with student debt. And so
Speaker 5: the Congress had made the call, and the agency, which
Speaker 5: is acting consistent with that delegation of authority.
Speaker 1: Okay, hell, you're going to stay with me. Coming up
Speaker 1: next on the Bloomberg Law Show, I'll continue this conversation
Speaker 1: with Professor Harold Krant of the Chicago Kent College of Law,
Speaker 1: and we'll talk about a third decision down ideological lines
Speaker 1: that dealt us setback to LGBTQ rights. I'm June Grosso
Speaker 1: and you're listening to Bloomberg. On the last day of
Speaker 1: Pride Month, the Supreme Court's conservative majority delta setback to
Speaker 1: LGBTQ rights in this country. In another six to three
Speaker 1: vote down ideological lines. The court rule that a Christian
Speaker 1: website designer doesn't have to create wedding pages for same
Speaker 1: sex couples, carving out a free speech exception to Colorado's
Speaker 1: anti discrimination law, a distinction brought out by Justice Brett
Speaker 1: Kavanaugh during the oral arguments.
Speaker 6: How do you characterize website designers? Are they more like
Speaker 6: the restaurants and the jewelers and the tailors, or are
Speaker 6: they more like, you know, the publishing houses and the
Speaker 6: other free speech analogs.
Speaker 1: Swords Three liberals blasted the ruling, with josh As Sonya
Speaker 1: Sotomayor saying in her dissent that this is a first
Speaker 1: for the Court.
Speaker 7: This would be the first time in the Court's history
Speaker 7: correct that it would say that a business open to
Speaker 7: the public that it could refuse to serve a customer
Speaker 7: based on race, sex, religion, or sexual orientation.
Speaker 1: I've been talking to Professor Harold Krant of the Chicago
Speaker 1: Kent College of Law. Hell, how much of a blow
Speaker 1: is this to LGBTQ rights.
Speaker 5: First of all, it's a symbolic blow. There's no question
Speaker 5: that the fact that the Supreme Court is putting its
Speaker 5: stamped in some ways on discrimination, just a couple of
Speaker 5: years after Overfell recognized the constitutionality of gay marriage is
Speaker 5: definitely a body blow. In terms of making a practical difference,
Speaker 5: that's a little bit unclear. I mean, why I think
Speaker 5: this case reveals is the lack of wisdom of taking
Speaker 5: a case pre enforcement that the court didn't need to take.
Speaker 5: In this case, the web designer has never designed a
Speaker 5: website yet for a marriage, has never been asked to
Speaker 5: do a website for a gay couple, and we don't
Speaker 5: know if that she ever would be asked to do
Speaker 5: a website or gay couple. The court simply didn't need
Speaker 5: to get involved in this case, and in general, these
Speaker 5: kind of pre enforcement cases where there are murky issues lingering,
Speaker 5: courts stayed their hands. So the fact that the court
Speaker 5: took this case, I think it is lamentable and it
Speaker 5: may end up with very unfortunate law. The difficulty in
Speaker 5: my mind in this case is where is the expressive conduct.
Speaker 5: The court has assumed that creating a website has a
Speaker 5: lot of First Amendment content to it, and indeed it
Speaker 5: relied upon a stipulation, kind of an admission by the
Speaker 5: State of Colorado that there was expressive conduct at play here.
Speaker 5: I don't see it. Maybe there would be in some context,
Speaker 5: you'd have some kind of First Amendment interests involved here
Speaker 5: in which case of first Amendment might arise. Generally, I
Speaker 5: think the presumption strongly should be that when you are incorporated,
Speaker 5: you must act to give goods and services to the public,
Speaker 5: just as you would if you're a restaurant or a
Speaker 5: hotel or a gas station. And so the court waded
Speaker 5: into very tumultuous waters really for no reason.
Speaker 1: At all in my view, what's the line What other
Speaker 1: establishments can find a way to refuse service to gay
Speaker 1: people by saying it's expression right and.
Speaker 5: We don't know? And that's the point that I think
Speaker 5: is really frightening about this case. What if you're a caterer,
Speaker 5: what if you're a photographer for the wedding set designer?
Speaker 5: Right to what extent then you can say, I have
Speaker 5: my gifts here, I have my creative energies. I don't
Speaker 5: want to use those to help a message to which
Speaker 5: I just agree. And that is the tricky line that
Speaker 5: the court has set up. And it didn't give any
Speaker 5: kind of guidance really to lower courts to figure out
Speaker 5: when that kind of expressive conduct should be protected and
Speaker 5: when it shouldn't. And I'm concerned because again creativity that
Speaker 5: was intrinsic to web design is prefin in my view.
Speaker 5: I mean, the Court has opened a can of worms
Speaker 5: in trying to reconcile public accommodation laws with the expressive
Speaker 5: viewpoint of those who are required to engage in business
Speaker 5: and not discriminate on the basis of sexual orientation, race, religion,
Speaker 5: and sex.
Speaker 1: This is supposed to be about speech rights. The Court
Speaker 1: took it and said we're going to consider speech rights,
Speaker 1: not religious rights. But it seems like it's just another
Speaker 1: in a long line of decisions where the Roberts Court
Speaker 1: puts the rights of religious groups and individuals ahead of
Speaker 1: every other right.
Speaker 5: I mean, again, the Court explicitly did not address the
Speaker 5: religious aspects of this, but I do agree with you
Speaker 5: that the court probably would say now as opposed to
Speaker 5: in the decide of the Masterpiece cake case. You know
Speaker 5: five or six years ago that if the website designer
Speaker 5: had ref use to work with the gay couple for
Speaker 5: religious reasons, they might have even had a stronger case.
Speaker 5: But what is troubling here is it's not just limited
Speaker 5: to religion, right. I mean, we can have First Amendment
Speaker 5: disagreements with Zionists, with Muslim organizations. We could have First
Speaker 5: Amendment disagreements with direct to life movement. Who knows where
Speaker 5: this could end up. And the idea of a public
Speaker 5: accommodation law is take your First Amendment views elsewhere, and
Speaker 5: if you engage in business in the public, for lodging
Speaker 5: and for dining, in construction or whatever, put your own
Speaker 5: thoughts to the back, because here we are engaging in
Speaker 5: public commerce, and that's what Colorado had decided.
Speaker 1: Some say that this ruling could undercut protections for racial
Speaker 1: minorities and women as well as LGBTQ people. Could it
Speaker 1: lead there?
Speaker 5: I mean theoretically it could. I mean if someone says,
Speaker 5: I have this view that interracial marriage is wrong, or
Speaker 5: I have this view that of the day at ventice
Speaker 5: are evil and so I don't want to work with
Speaker 5: seven day eventics, that's possible. It would come within the
Speaker 5: scope of the court ruling. The court simply did not
Speaker 5: delimit carefully the scope of its decision by saying there
Speaker 5: has to be exceptions to these public accommodations law. And
Speaker 5: I think that we can all imagine how friending would
Speaker 5: be if from builders to restauranteurs to caterers could simply
Speaker 5: refuse to cater the particular clients because of a perceived
Speaker 5: disagreement with their philosophies or religions.
Speaker 1: And there was another decision last week involving religion that
Speaker 1: didn't get as much attention because of the week that
Speaker 1: it was. So this involved a part time fill in
Speaker 1: postal worker who doesn't want to work on Sundays for
Speaker 1: religious reasons. And in this latest religious confrontation case, the
Speaker 1: Supreme Court has solidified protections for workers who ask for
Speaker 1: religious accommodations. Gerald Groff quit when the Post Office would
Speaker 1: not accommodate his request to be on on Sundays for
Speaker 1: religious reasons, and then he sued the post Office. Groff
Speaker 1: told ABC News it was important to him. I told
Speaker 1: my supervisor, it's the Lord's day, it's not the Lord's morning.
Speaker 6: It's not supposed to be like the other six days
Speaker 6: of the week.
Speaker 5: Why not just pick a different job that allows you
Speaker 5: to work on different hours in different days.
Speaker 1: I didn't really think I should have to quit. I
Speaker 1: really expected the Post Office to find a way to
Speaker 1: accommodate me. Hell tell us about his case.
Speaker 5: So the postal worker became a Sabbathae server on a
Speaker 5: Sunday and told the post office his employer that he
Speaker 5: wanted to have Sundays off for religious observance, and they
Speaker 5: tried to accommodate him in various ways by agreeing to
Speaker 5: swap shifts and occasionally the postmaster himself would deliver the mail,
Speaker 5: and it worked out until Amazon made an agreement with
Speaker 5: the postal service to serve parcels on Sunday so that
Speaker 5: their work picked up a great deal, and these shift
Speaker 5: swaps were no longer sufficient, so the employee complained and
Speaker 5: refused to go to work on Sunday is As superiors
Speaker 5: did not make any further accommodations, he was subject to discipline. Eventually,
Speaker 5: then he resigned, and he claimed he was forced to
Speaker 5: resign basically because they wouldn't accommodate his religious Sabbath observance.
Speaker 5: And this case requires an assessment of what is the
Speaker 5: extent of an employer's duty to accommodate a sincere religious observance,
Speaker 5: And the court unanimously held that the standard used by
Speaker 5: at least some courts of appeals had been too employer friendly.
Speaker 5: Some of the courts of appeals, including the Third Circuit
Speaker 5: in this case, had looked to language in a prior
Speaker 5: Supreme court case called Twa versus Tartisan, which said that
Speaker 5: any kind of cost above deminimus would be considered to
Speaker 5: be an undue burden upon the employer. And not all
Speaker 5: courts used the standard, but some did. Other courts looked
Speaker 5: to a different language and the same twa versus Hardest
Speaker 5: in case to have a more demanding standard on the
Speaker 5: employer that the employer couldn't just refuse to accommodate based
Speaker 5: upon some kind of minimal expenses in terms of overtime
Speaker 5: pay or not agreeing to give swapshifts or something along
Speaker 5: those lines.
Speaker 1: And tell us about the Court's decision.
Speaker 5: So the Supreme Court unanimously decided that an undue burden
Speaker 5: means more than just deminimous expense, rather that it must
Speaker 5: result in the words of the Supreme Court in the
Speaker 5: substantial increased costs. Now, it's low vague. The Court hasn't
Speaker 5: clarified exactly what our substantially increased costs. But the Court
Speaker 5: did give a couple of different guidelines. The Court said
Speaker 5: that the employer can respect a bargain for seniority rights.
Speaker 5: It doesn't have to infringe upon seniority rights that would
Speaker 5: be an under burden or substantial costs. The court also
Speaker 5: said that it's not enough for the employer to show
Speaker 5: that other employees don't like it. The Court made a
Speaker 5: very fine distinction here. What they said is that just
Speaker 5: because another employee doesn't like the fact that someone's religion
Speaker 5: is being accommodated, doesn't like the fact that somebody gets
Speaker 5: Sundays off to go to church while they want to
Speaker 5: stay home with family, that's not sufficient. Rather, the fine
Speaker 5: line drawn by the court is when the impact on
Speaker 5: other employees becomes so great as to burden the ability
Speaker 5: of the employer to actually conduct the business, then that
Speaker 5: would be an undue burden under Title seven, and the
Speaker 5: employer doesn't have to go beyond that. The other thing
Speaker 5: that the court clarified is that having to pay over
Speaker 5: time to other employees to pick up the shift, that's
Speaker 5: not an under burden in itself. Maybe at some point
Speaker 5: it would be, but just by having to pay some
Speaker 5: kind of overtime that wouldn't be demanding. And indeed, in
Speaker 5: this case, it's not clear that any kind of overtime
Speaker 5: would have been that significant in the long run. The
Speaker 5: court remanded it back to the Third Circuit to decide
Speaker 5: under this slightly more stringent standard than the court had
Speaker 5: used below. Unclear in my mind how the third Circuit
Speaker 5: will resolve on Remand this is a.
Speaker 1: Case where there was tension in the postal office where
Speaker 1: Groff worked because of what was happening, and they did
Speaker 1: have to pay overtime. Is the court clear on what
Speaker 1: else you would need to create and undo hardship? I
Speaker 1: mean that sounds like the business is really being affected
Speaker 1: by this.
Speaker 5: Yeah, the court was not clear. And the part that I,
Speaker 5: as a past employer, sort of wonder is how do
Speaker 5: you draw a line between a disgruntled employee staff and
Speaker 5: the staff that's not being productive because they're upset with
Speaker 5: these distractions? And when is that an impact on a
Speaker 5: business as opposed to just having an impact upon employees.
Speaker 5: The two seem to me to be on the same continuum,
Speaker 5: and I think maybe it's just a matter of particulation
Speaker 5: that the postal service in this case would have to say,
Speaker 5: you know, not only did our employees not like the
Speaker 5: fact that we're giving this benefit to one of their own,
Speaker 5: but rather that they started having fights, they started losing
Speaker 5: focus on their responsibilities, they didn't come to work in protests,
Speaker 5: and we are unable to continue our operations as smoothly
Speaker 5: as possible. That's the line I think that the court
Speaker 5: is demanding that the employers say not just that employees
Speaker 5: didn't like it, like a Heckler's veto, but rather that
Speaker 5: it's so affected the employee's cohesiveness and work that they
Speaker 5: were not able to function as a good post office should.
Speaker 1: Just as Alito said, the employer must show the burden
Speaker 1: of granting an accommodation would result in substantial increased costs
Speaker 1: in relation to the conduct of its particular business. Well,
Speaker 1: how do you define substantial?
Speaker 5: That's going to be fleshed out in the Courts of
Speaker 5: Appeals below. And this is not that different of a
Speaker 5: standard than what some courts of appeals had used, but
Speaker 5: some courts again it just latched on to that deminimous
Speaker 5: language in the prior Supreme Court case to give employers
Speaker 5: a relatively easy pass in terms of the duty to
Speaker 5: make an accommodation. So clearly this is a more stringent standard.
Speaker 5: Employers will have to give slightly broader accommodations than they
Speaker 5: have in the past, But the extent of the difference
Speaker 5: is really difficult to gauge. At this point.
Speaker 1: Is it surprising that this was a unanimous decision.
Speaker 5: I don't think it was surprising. I think that it
Speaker 5: was left so vague that the new standard could grab
Speaker 5: everyone one's approval. And I think there was a consensus
Speaker 5: that the more than the minimus standard that some courts
Speaker 5: had used to Luke's was to pro employer. So the
Speaker 5: court was able to agree unanimously that the standard would
Speaker 5: have to be toughened to a little extent. But the
Speaker 5: question is how much of an extent, And we just
Speaker 5: don't know because the language of substantial impact on an
Speaker 5: employer substantial costs is very difficult in the abstract to identify.
Speaker 1: During the arguments, the Postal Workers lawyer said, under the
Speaker 1: government's test, a diabetic employee could receive snack breaks under
Speaker 1: the ADA Americans with Disabilities Act, but not prayer breaks
Speaker 1: under Title seven. Does this equate snack breaks for a
Speaker 1: diabetic employee with prayer breaks for a religious employee.
Speaker 5: Well, the court was clear that it would not adopt
Speaker 5: standards under the American Disabilities Act in this opinion, but
Speaker 5: I think it does suggest that an employer would have
Speaker 5: to think twice before they said no prayer breaks, because
Speaker 5: In some workplaces you could take short prayer breaks without
Speaker 5: having it really affect the smooth operation of a plant.
Speaker 5: But in some a short prayer break would actually cause
Speaker 5: the entire assembly process to break down. So it again,
Speaker 5: it would be a context specific determination of what the
Speaker 5: impact of the prayer break would have on the operations
Speaker 5: of the employer. And it'll give lawyers for employers more
Speaker 5: reason to collect evidence and assess how an employer needs
Speaker 5: to join the business more than they did before. So
Speaker 5: the duty will be or the burden will be on
Speaker 5: employers that come up with reasons why they can't allow
Speaker 5: someone to take a prayer break or can't allow someone
Speaker 5: to stay at home on a Sunday.
Speaker 1: So last term we have had the high school football
Speaker 1: coach who insisted on praying right after a game on
Speaker 1: the fifty yard line and the Supreme Court okay that
Speaker 1: I can't remember the last time a case with religious
Speaker 1: implications was denied by this court.
Speaker 5: Now, this court clearly is far more in favor of
Speaker 5: having a large space for religious observance than prior courts were.
Speaker 5: And we're going to see a school funding case next
Speaker 5: term which will manifest this to even a greater extent,
Speaker 5: because the extent that we have now charter schools that
Speaker 5: can be religious, we are having direct funding of religious
Speaker 5: schools in a way that we only permitted indirect funding before.
Speaker 5: But that's for a future court this term. I don't
Speaker 5: think this case came out as a surprise because, as
Speaker 5: you mentioned, the trend has been towards greater need to
Speaker 5: accommodate and respect religious observances of all in society has
Speaker 5: been a feature of this court and it sort of
Speaker 5: unites both the left and the right to some extent.
Speaker 1: Do you think that we're seeing the crumbling of the
Speaker 1: line between church and state in.
Speaker 5: Many people's mind. We are seeing that the clarity between
Speaker 5: the two certainly has has water down, and this idea
Speaker 5: of an establishment clause has been changed somewhat remarkably in
Speaker 5: they'll past couple of terms, because the Court is not
Speaker 5: so weary of government mixing with religion, and I think
Speaker 5: that usually means, unfortunately, that the dominant religion gets most
Speaker 5: of the breaks.
Speaker 1: In the last week of the term, the Supreme Court's
Speaker 1: conservative majority ended affirmative action, struck down President Joe Biden's
Speaker 1: student loan relief plan, and delta setback to LGBTQ rights.
Speaker 1: And this is at a time when the Court has
Speaker 1: its lowest approval ratings and many Americans are questioning the
Speaker 1: Court and its authority. And there are the ethical concerns
Speaker 1: that have been raised lately about Justices Clarence Thomas and
Speaker 1: Samuel Alito, and the justices, of course are not held
Speaker 1: to account. So are the conservatives sort of fearless now
Speaker 1: in pursuing their agenda.
Speaker 5: Well, particularly the decisions in the last week of the term,
Speaker 5: I think have shivers up the spine of many individuals
Speaker 5: who are concerned about the drift of the Court. I
Speaker 5: will note that there have been some glimmerings in prior
Speaker 5: cases where the majority and dissent was not simply based
Speaker 5: upon a conservative liberal divide. The court came together with
Speaker 5: respect to religious accommodations for the postal worker, the court
Speaker 5: came together with respect to the Biden administrations needed discretion
Speaker 5: in enforcement of the immigration laws, and of course the
Speaker 5: voting rights. The Court came together for that as well.
Speaker 5: So there have been some cases where we think that
Speaker 5: the strong conservative liberal divide isn't despositive, But certainly in
Speaker 5: the last three big cases, firmative action, the gay rights
Speaker 5: case as well as student loans. That six ' three
Speaker 5: fracture appears way too deeply.
Speaker 1: And it's usually in the cases involving culture war issues
Speaker 1: that we see that strong six to three conservative liberal divide.
Speaker 5: No, I think that's right, though again you know there
Speaker 5: are indeed there was just about a United Court in
Speaker 5: terms of the Clean Water Act how to understand what
Speaker 5: is waters of the United States. And again there's a
Speaker 5: unanimity in terms of the religious employees need to get
Speaker 5: accommodated under Title seven. But when you talk about affirmative action,
Speaker 5: when you talk about LGBTQ, and we talk about this
Speaker 5: Major Questions doctrine, that's where the conservative liberal divide seems
Speaker 5: all too enscont some concrete.
Speaker 1: And I'm wondering if there are cracks in the relationships
Speaker 1: between the justices, because justices, when they feel strongly about
Speaker 1: their descents, read from the bench, and this week Justice
Speaker 1: Sonya Sotomayor, two days in a row, read her descent
Speaker 1: from the bench, and in her descents this week she
Speaker 1: didn't say I respectfully dissent, just I dissent. And you
Speaker 1: also saw the sort of dueling concurring and descents by
Speaker 1: the newest justice Katanji Brown Jackson and the oldest justice
Speaker 1: or the longest on the court, Clarence Thomas over affirmative action.
Speaker 1: Are we starting to see, you know, the disagreements that
Speaker 1: they've maybe been able to keep under wraps come to
Speaker 1: the surface.
Speaker 5: I think there's a great deal of frustration amongst the justices.
Speaker 5: And again I was somewhat shocked see the animassi spillover
Speaker 5: between Chief Justice Roberts and Justice Kay in the student
Speaker 5: loans case, because they had had a somewhat better relationship
Speaker 5: than some of the other justices. So it's going to
Speaker 5: be a challenge to get this court to work together
Speaker 5: and to be convivial. And I guess there's a reason
Speaker 5: for mild optimism, but also a reason for a real
Speaker 5: continued pessimism that that's going to happen.
Speaker 1: I suppose they have the summer to sort of cool down.
Speaker 1: Thanks so much for your analysis. How that's Professor Harold
Speaker 1: Krent of the Chicago Kent College of Law. And that's
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