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Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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Speaker 1: day we bring you insight and analysis into the most

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Speaker 1: important legal news of the day. You can find more

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Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud

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Speaker 1: and on Bloomberg dot com slash podcasts. In March, Commerce

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Speaker 1: Secretary Wilbur Ross testified before the House Weighs and Means Committee,

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Speaker 1: where he was asked about a potential question on the census,

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Speaker 1: asking whether residents are US citizens. Compartment of Justice, as

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Speaker 1: you know, initiated the request for inclusion of the sense

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Speaker 1: the citizenship question. We have been talking on the phone

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Speaker 1: and received written Carl spun and some quite a lot

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Speaker 1: of parties on both sides of that question. But despite

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Speaker 1: Ross's testimony, emails revealed that Ross was working to add

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Speaker 1: a citizenship question to the census months before or the

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Speaker 1: Justice Department's formal request in December of These contradictions are

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Speaker 1: at the center of several lawsuits challenging the addition of

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Speaker 1: a citizenship question, and now the Supreme Court has blocked

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Speaker 1: the plaintiffs from taking Ross's deposition. Joining me is Greg

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Speaker 1: Store Bloomberg New Supreme Court reporter Greg We've discussed the

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Speaker 1: question of whether the president can be disposed many times,

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Speaker 1: but what's the argument over whether a cabinet secretary can

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Speaker 1: be disposed deposed? When the trial judge and the Second

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Speaker 1: Circuit approved the deposition of Ross well June, cabinet secretaries

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Speaker 1: generally can't be deposed, not because they're not relevant to

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Speaker 1: a case, but because they are cabinet officials who are

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Speaker 1: very busy, and and courts generally only allow such a

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Speaker 1: deposition in an extraordinary case. The question here is really

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Speaker 1: whether this is an extraordinary case, given the testimony that

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Speaker 1: you played there and the strong suggestions that the reasons

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Speaker 1: for including this citizenship question we're not the ones that

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Speaker 1: Secretary Ross put forward during that congressional testimony. The order

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Speaker 1: from the court here was unsigned, and there's no explanation

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Speaker 1: of the reasoning. But it takes five justices. So could

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Speaker 1: this be an attempt by the court to avoid revealing

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Speaker 1: a five to four split in this first politically charged

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Speaker 1: decisions since the addition of new Justice Brett Kavanaugh. It

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Speaker 1: certainly has that feel to it um and that's in

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Speaker 1: part because this is kind of an awkward compromise that

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Speaker 1: they came out with Yes, they did say you can't

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Speaker 1: depose Wilbur Ross, but they didn't go further and say,

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Speaker 1: and oh, by the way, his testimony is not relevant

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Speaker 1: to your case at all. They didn't explicitly, for example,

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Speaker 1: say you can't calm as a trial witness. Um. And

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Speaker 1: in addition, the court refused to block the deposition of

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Speaker 1: the acting Assistant Attorney General who is in charge of

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Speaker 1: civil rights, a guy named John Gore. Um. The plaintiffs,

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Speaker 1: states and groups that are suing want to ask him

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Speaker 1: what he knows about the reasons behind the decision to

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Speaker 1: include the citizenship question. Uh. So we may well have

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Speaker 1: another fight that comes up to the Supreme Court that

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Speaker 1: that talks more specifically, are that deals more directly with

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Speaker 1: both whether Mr Gore's testimony is relevant and what is

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Speaker 1: that the plaintiffs are going to have to show ultimately

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Speaker 1: to win their case and get the question removed from

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Speaker 1: the From the the the Census justices Clarence Thomas and

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Speaker 1: Neil Gorshch would have gone further tell us about their descent. Yeah. Essentially,

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Speaker 1: what they said was there's no reason to make a

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Speaker 1: distinction between Wilburt Ross and John Gore. Uh. And Uh,

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Speaker 1: the thing that would have made sense, given that it

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Speaker 1: seems like the Court is likely to limit the scope

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Speaker 1: of this case, would have been to essentially stop everything.

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Speaker 1: So right now we're in a situation where the case

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Speaker 1: is still going forward and there may be a trial

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Speaker 1: in a couple of weeks, and Justice course it's writing

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Speaker 1: for the pair basically said, look, we should have gone

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Speaker 1: further and made it clear that we need to stop

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Speaker 1: this matter until the court can take up all these

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Speaker 1: issues and issue a definitive ruling. Greg the Justice Department

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Speaker 1: called this decision of the court a win for protecting

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Speaker 1: the rights of the executive branch. Does it augur rulings

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Speaker 1: to come perhaps regarding President Trump? You know, it might. Uh.

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Speaker 1: You know, this case has always felt to me a

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Speaker 1: lot like the case involving the travel ban, where the

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Speaker 1: question was where you're going to look behind the wording

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Speaker 1: of what what the the executive rent branch put out

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Speaker 1: and look at the motives of in that case, the

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Speaker 1: president and in this case the Commerce Secretary, and in

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Speaker 1: that case and and potentially in this case, the court

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Speaker 1: seems to be saying, you know, we're not going to

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Speaker 1: second guess this administry when they put forward reasons, even

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Speaker 1: if there's you know a lot of suggestions that those

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Speaker 1: aren't the real reasons. We're going to take the reasons

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Speaker 1: at face value and let them put put forward their

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Speaker 1: preferred policies. On a sad note, Greg retired Justice Sandra

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Speaker 1: Day O'Connor, the first woman to serve on the Supreme Court,

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Speaker 1: says she's been diagnosed with dementia. Tell us about her legacy,

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Speaker 1: remind us, Yeah, Well, she of course was the first

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Speaker 1: woman on the Supreme Court. Uh. She uh, you know,

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Speaker 1: carved out a niche for herself on the court as

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Speaker 1: the swing justice. She uh cast a huge vote in

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Speaker 1: to reaffirm abortion rights. That was a big disappointment to

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Speaker 1: the Conservatives who were behind her nomination by President Ronald Reagan. Uh.

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Speaker 1: And she's also just kind of been a, you know,

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Speaker 1: a symbol of women's rights and and the things that

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Speaker 1: women can do. She she has a very no nonsense,

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Speaker 1: uh nature to her, a very matter of fact nature

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Speaker 1: to her. She grew up on a on a ranch

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Speaker 1: in Arizona. Uh. She famously when she had breast cancer

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Speaker 1: in in the nineteen eighties, didn't miss any time on

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Speaker 1: the Supreme Court bench. And then she later advised Justice

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Speaker 1: Ruth Bader Ginsburg about how to handle chemotherapy and not

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Speaker 1: miss any time on the court. Uh So, she's certainly,

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Speaker 1: you know, a heroine and as Chief Justice John Roberts said,

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Speaker 1: a towering figure in American history. And has she been

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Speaker 1: very active in her retirement until now She had been

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Speaker 1: not in the last year or so so much, but

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Speaker 1: but uh in she retired in two thousand six, she's

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Speaker 1: been very active, and particularly in civic education. She uh

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Speaker 1: founded a program called ice Civics, which has some online

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Speaker 1: games and and materials that teach middle school and high

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Speaker 1: school students about civics. And that was in her letter.

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Speaker 1: That was what she stresses that that work of getting

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Speaker 1: getting Americans knowledgeable and active in civic affairs is crucial

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Speaker 1: and she very much hopes that will continue even though

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Speaker 1: she's no longer were able to take part in it.

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Speaker 1: And I understand I didn't know that Supreme retired Supreme

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Speaker 1: Court justice has still had offices and she gave her

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Speaker 1: office to retire Justice Anthony Kennedy. She did. She did.

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Speaker 1: That was the subject of an AP story earlier this week.

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Speaker 1: That was one of the symbols of one of the

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Speaker 1: signals that she was stepping stepping back. Um uh yeah,

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Speaker 1: So certainly an era has passed at the Supreme Court

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Speaker 1: without her having Chambers there. All right, thanks so much, Greg.

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Speaker 1: That's Bloomberg New Supreme Court reporter Greg's store. The trial

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Speaker 1: over whether Harvard discriminated against Asian American applicants is now

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Speaker 1: in its second week as District Judge Allison Burrows attempts

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Speaker 1: to create as full a record as possible for a

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Speaker 1: case that's likely to end up at the Supreme Court.

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Speaker 1: Joining me is Julie Parker, professor at the University of

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Speaker 1: Maryland College of Education and author of the book Race

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Speaker 1: on Campus. Julie, the plaintiffs lawyer, said in his opening

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Speaker 1: statement that affirmative action wasn't on trial, but the plaintiffs

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Speaker 1: want to eliminate all considerations of race in college admissions.

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Speaker 1: So how do you view this lawsuit? Yeah, given you

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Speaker 1: know the goal of the lawsuit, I would say, really,

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Speaker 1: at the heart of it, they are putting affirmative action

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Speaker 1: on trial. Very much so. Harvard says the percentage of

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Speaker 1: Asian Americans admitted to the college has grown by twent

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Speaker 1: in the last eight years. The Asian Americans make up

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Speaker 1: almost of the year's freshman class. What is the strongest

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Speaker 1: point you see Harvard presenting in its defense besides numbers? Yeah,

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Speaker 1: Before I continue, I said, give the disclosure that I

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Speaker 1: served as a consulting expert on this case on the

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Speaker 1: side of Harvard. UM. I think the strongest point that

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Speaker 1: they could make is that affirmative action helps Asian Americans

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Speaker 1: by opening the door to different types of Asian American

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Speaker 1: applicants UM, and also give institutions the ability to look

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Speaker 1: beyond just test scores and g p A s. The plaintiffs,

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Speaker 1: the applicants who say there were unfairly denied admission, are

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Speaker 1: not being called by their attorney to explain their position.

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Speaker 1: How unusual is that in a civil case? And might

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Speaker 1: the defense attorney call them? Yeah, I'm not exactly sure

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Speaker 1: whether the defense plans to call them. Um. You know,

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Speaker 1: I'm not a legal expert. I can't speak to how

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Speaker 1: common or uncommon that is. But it is interesting you

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Speaker 1: know that the plaintiffs themselves, UM wouldn't be called to testify.

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Speaker 1: Let's try to put the suit into context. The use

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Speaker 1: of race in college admissions has been under attack since

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Speaker 1: the Supreme Court upheld affirmative action without quatas embaki. Where

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Speaker 1: does it stand now as far as the Supreme Court

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Speaker 1: is concerned. Yeah, the Supreme Court has continued to affirm

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Speaker 1: the legality of race conscious admissions and all that means

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Speaker 1: in this context just being able to understand a student's race,

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Speaker 1: ethnicity UM in assessing their application and their potential contribution

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Speaker 1: to UM, to the student body in terms of UM

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Speaker 1: will they contribute to a sort of a diverse and

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Speaker 1: UM vital student body. And so it's absolutely nothing like quotas.

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Speaker 1: It's absolutely nothing like caps on any groups just because

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Speaker 1: those things are illegal. Now, there was testimony today about

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Speaker 1: Harvard also trying to maintain a souce from the from

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Speaker 1: the plaintiffs from trying to maintain a socio economic balance

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Speaker 1: as well, and the the concept of legacies getting an

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Speaker 1: extra step up and donors of you know, the children

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Speaker 1: of donors getting an extra step up in the admissions

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Speaker 1: process came up. How do you see that? Yeah, legacy

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Speaker 1: admissions are complicated. UM. Yeah, I think that they do

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Speaker 1: potentially undermine equity UM and within college admissions, and so

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Speaker 1: they should really be given a really hard look at UM. Yeah,

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Speaker 1: be really looked at UM with a critical eye, um

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Speaker 1: but very much um. Legacy admissions definitely is a different

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Speaker 1: thing from a fromat of action. If if the plaintiffs

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Speaker 1: got their way, would it would the admissions process only

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Speaker 1: be based on grades and you know, scores in the

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Speaker 1: essay t s UM they I believe Harvard would continue

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Speaker 1: to do an other institutions would be able to do

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Speaker 1: some level of a holistic review where they could look

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Speaker 1: at other contextual factors. They would very much still look

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Speaker 1: at the essay or things like that. Um, but very

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Speaker 1: much a student's racist A students race, ethnicity is you know,

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Speaker 1: potentially a very big part of their life story, and

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Speaker 1: they might not be able to access that information. So

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Speaker 1: I think one writer in the New York Times even

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Speaker 1: called it a potential threat of censorship, right if students

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Speaker 1: aren't able to showcase right their ethnicity and their culture

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Speaker 1: and how those experiences have potentially affected them. When I

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Speaker 1: was looking at the different kinds of evidence that have

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Speaker 1: come in at the trial, I noticed that they have

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Speaker 1: what they seem to be attacking is one part of

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Speaker 1: the analysis which focuses on the individual. So the interview,

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Speaker 1: the student activities report, and that is there any question

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Speaker 1: that that can be allowed in as part of the

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Speaker 1: determination of whether or not to accept a student. UM.

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Speaker 1: You know, I think it's just all sorts of the

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Speaker 1: entire application is very much weighed and assessed in um,

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Speaker 1: you know, informing the admissions offices, um assessment of a student.

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Speaker 1: So really I think anything is fair game. All right, Well,

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Speaker 1: this this trial is is still going on and it's

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Speaker 1: going to be probably into another week at least. Thanks

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Speaker 1: so much for joining us. That's Julie Park. She's a

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Speaker 1: professor at the University of Maryland College of Education. Aation

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Speaker 1: her book is called Race on Campus. Of those admitted

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Speaker 1: to Harvard's new freshman class, about twelve percent or Latino,

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Speaker 1: sixteen percent African Americans, and a record high twenty three

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Speaker 1: percent are Asian Americans. The plaintiff say that the Asian

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Speaker 1: percentage should be at least forty percent. Thanks for listening

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Speaker 1: to the Bloomberg Law Podcast. You can subscribe and listen

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Speaker 1: to the show on Apple Podcasts, SoundCloud, and on Bloomberg

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Speaker 1: dot com slash podcast. I'm June Rosso. This is Bloomberg