Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every
Speaker 1: day we bring you insight and analysis into the most
Speaker 1: important legal news of the day. You can find more
Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud
Speaker 1: and on Bloomberg dot com slash podcasts. In March, Commerce
Speaker 1: Secretary Wilbur Ross testified before the House Weighs and Means Committee,
Speaker 1: where he was asked about a potential question on the census,
Speaker 1: asking whether residents are US citizens. Compartment of Justice, as
Speaker 1: you know, initiated the request for inclusion of the sense
Speaker 1: the citizenship question. We have been talking on the phone
Speaker 1: and received written Carl spun and some quite a lot
Speaker 1: of parties on both sides of that question. But despite
Speaker 1: Ross's testimony, emails revealed that Ross was working to add
Speaker 1: a citizenship question to the census months before or the
Speaker 1: Justice Department's formal request in December of These contradictions are
Speaker 1: at the center of several lawsuits challenging the addition of
Speaker 1: a citizenship question, and now the Supreme Court has blocked
Speaker 1: the plaintiffs from taking Ross's deposition. Joining me is Greg
Speaker 1: Store Bloomberg New Supreme Court reporter Greg We've discussed the
Speaker 1: question of whether the president can be disposed many times,
Speaker 1: but what's the argument over whether a cabinet secretary can
Speaker 1: be disposed deposed? When the trial judge and the Second
Speaker 1: Circuit approved the deposition of Ross well June, cabinet secretaries
Speaker 1: generally can't be deposed, not because they're not relevant to
Speaker 1: a case, but because they are cabinet officials who are
Speaker 1: very busy, and and courts generally only allow such a
Speaker 1: deposition in an extraordinary case. The question here is really
Speaker 1: whether this is an extraordinary case, given the testimony that
Speaker 1: you played there and the strong suggestions that the reasons
Speaker 1: for including this citizenship question we're not the ones that
Speaker 1: Secretary Ross put forward during that congressional testimony. The order
Speaker 1: from the court here was unsigned, and there's no explanation
Speaker 1: of the reasoning. But it takes five justices. So could
Speaker 1: this be an attempt by the court to avoid revealing
Speaker 1: a five to four split in this first politically charged
Speaker 1: decisions since the addition of new Justice Brett Kavanaugh. It
Speaker 1: certainly has that feel to it um and that's in
Speaker 1: part because this is kind of an awkward compromise that
Speaker 1: they came out with Yes, they did say you can't
Speaker 1: depose Wilbur Ross, but they didn't go further and say,
Speaker 1: and oh, by the way, his testimony is not relevant
Speaker 1: to your case at all. They didn't explicitly, for example,
Speaker 1: say you can't calm as a trial witness. Um. And
Speaker 1: in addition, the court refused to block the deposition of
Speaker 1: the acting Assistant Attorney General who is in charge of
Speaker 1: civil rights, a guy named John Gore. Um. The plaintiffs,
Speaker 1: states and groups that are suing want to ask him
Speaker 1: what he knows about the reasons behind the decision to
Speaker 1: include the citizenship question. Uh. So we may well have
Speaker 1: another fight that comes up to the Supreme Court that
Speaker 1: that talks more specifically, are that deals more directly with
Speaker 1: both whether Mr Gore's testimony is relevant and what is
Speaker 1: that the plaintiffs are going to have to show ultimately
Speaker 1: to win their case and get the question removed from
Speaker 1: the From the the the Census justices Clarence Thomas and
Speaker 1: Neil Gorshch would have gone further tell us about their descent. Yeah. Essentially,
Speaker 1: what they said was there's no reason to make a
Speaker 1: distinction between Wilburt Ross and John Gore. Uh. And Uh,
Speaker 1: the thing that would have made sense, given that it
Speaker 1: seems like the Court is likely to limit the scope
Speaker 1: of this case, would have been to essentially stop everything.
Speaker 1: So right now we're in a situation where the case
Speaker 1: is still going forward and there may be a trial
Speaker 1: in a couple of weeks, and Justice course it's writing
Speaker 1: for the pair basically said, look, we should have gone
Speaker 1: further and made it clear that we need to stop
Speaker 1: this matter until the court can take up all these
Speaker 1: issues and issue a definitive ruling. Greg the Justice Department
Speaker 1: called this decision of the court a win for protecting
Speaker 1: the rights of the executive branch. Does it augur rulings
Speaker 1: to come perhaps regarding President Trump? You know, it might. Uh.
Speaker 1: You know, this case has always felt to me a
Speaker 1: lot like the case involving the travel ban, where the
Speaker 1: question was where you're going to look behind the wording
Speaker 1: of what what the the executive rent branch put out
Speaker 1: and look at the motives of in that case, the
Speaker 1: president and in this case the Commerce Secretary, and in
Speaker 1: that case and and potentially in this case, the court
Speaker 1: seems to be saying, you know, we're not going to
Speaker 1: second guess this administry when they put forward reasons, even
Speaker 1: if there's you know a lot of suggestions that those
Speaker 1: aren't the real reasons. We're going to take the reasons
Speaker 1: at face value and let them put put forward their
Speaker 1: preferred policies. On a sad note, Greg retired Justice Sandra
Speaker 1: Day O'Connor, the first woman to serve on the Supreme Court,
Speaker 1: says she's been diagnosed with dementia. Tell us about her legacy,
Speaker 1: remind us, Yeah, Well, she of course was the first
Speaker 1: woman on the Supreme Court. Uh. She uh, you know,
Speaker 1: carved out a niche for herself on the court as
Speaker 1: the swing justice. She uh cast a huge vote in
Speaker 1: to reaffirm abortion rights. That was a big disappointment to
Speaker 1: the Conservatives who were behind her nomination by President Ronald Reagan. Uh.
Speaker 1: And she's also just kind of been a, you know,
Speaker 1: a symbol of women's rights and and the things that
Speaker 1: women can do. She she has a very no nonsense,
Speaker 1: uh nature to her, a very matter of fact nature
Speaker 1: to her. She grew up on a on a ranch
Speaker 1: in Arizona. Uh. She famously when she had breast cancer
Speaker 1: in in the nineteen eighties, didn't miss any time on
Speaker 1: the Supreme Court bench. And then she later advised Justice
Speaker 1: Ruth Bader Ginsburg about how to handle chemotherapy and not
Speaker 1: miss any time on the court. Uh So, she's certainly,
Speaker 1: you know, a heroine and as Chief Justice John Roberts said,
Speaker 1: a towering figure in American history. And has she been
Speaker 1: very active in her retirement until now She had been
Speaker 1: not in the last year or so so much, but
Speaker 1: but uh in she retired in two thousand six, she's
Speaker 1: been very active, and particularly in civic education. She uh
Speaker 1: founded a program called ice Civics, which has some online
Speaker 1: games and and materials that teach middle school and high
Speaker 1: school students about civics. And that was in her letter.
Speaker 1: That was what she stresses that that work of getting
Speaker 1: getting Americans knowledgeable and active in civic affairs is crucial
Speaker 1: and she very much hopes that will continue even though
Speaker 1: she's no longer were able to take part in it.
Speaker 1: And I understand I didn't know that Supreme retired Supreme
Speaker 1: Court justice has still had offices and she gave her
Speaker 1: office to retire Justice Anthony Kennedy. She did. She did.
Speaker 1: That was the subject of an AP story earlier this week.
Speaker 1: That was one of the symbols of one of the
Speaker 1: signals that she was stepping stepping back. Um uh yeah,
Speaker 1: So certainly an era has passed at the Supreme Court
Speaker 1: without her having Chambers there. All right, thanks so much, Greg.
Speaker 1: That's Bloomberg New Supreme Court reporter Greg's store. The trial
Speaker 1: over whether Harvard discriminated against Asian American applicants is now
Speaker 1: in its second week as District Judge Allison Burrows attempts
Speaker 1: to create as full a record as possible for a
Speaker 1: case that's likely to end up at the Supreme Court.
Speaker 1: Joining me is Julie Parker, professor at the University of
Speaker 1: Maryland College of Education and author of the book Race
Speaker 1: on Campus. Julie, the plaintiffs lawyer, said in his opening
Speaker 1: statement that affirmative action wasn't on trial, but the plaintiffs
Speaker 1: want to eliminate all considerations of race in college admissions.
Speaker 1: So how do you view this lawsuit? Yeah, given you
Speaker 1: know the goal of the lawsuit, I would say, really,
Speaker 1: at the heart of it, they are putting affirmative action
Speaker 1: on trial. Very much so. Harvard says the percentage of
Speaker 1: Asian Americans admitted to the college has grown by twent
Speaker 1: in the last eight years. The Asian Americans make up
Speaker 1: almost of the year's freshman class. What is the strongest
Speaker 1: point you see Harvard presenting in its defense besides numbers? Yeah,
Speaker 1: Before I continue, I said, give the disclosure that I
Speaker 1: served as a consulting expert on this case on the
Speaker 1: side of Harvard. UM. I think the strongest point that
Speaker 1: they could make is that affirmative action helps Asian Americans
Speaker 1: by opening the door to different types of Asian American
Speaker 1: applicants UM, and also give institutions the ability to look
Speaker 1: beyond just test scores and g p A s. The plaintiffs,
Speaker 1: the applicants who say there were unfairly denied admission, are
Speaker 1: not being called by their attorney to explain their position.
Speaker 1: How unusual is that in a civil case? And might
Speaker 1: the defense attorney call them? Yeah, I'm not exactly sure
Speaker 1: whether the defense plans to call them. Um. You know,
Speaker 1: I'm not a legal expert. I can't speak to how
Speaker 1: common or uncommon that is. But it is interesting you
Speaker 1: know that the plaintiffs themselves, UM wouldn't be called to testify.
Speaker 1: Let's try to put the suit into context. The use
Speaker 1: of race in college admissions has been under attack since
Speaker 1: the Supreme Court upheld affirmative action without quatas embaki. Where
Speaker 1: does it stand now as far as the Supreme Court
Speaker 1: is concerned. Yeah, the Supreme Court has continued to affirm
Speaker 1: the legality of race conscious admissions and all that means
Speaker 1: in this context just being able to understand a student's race,
Speaker 1: ethnicity UM in assessing their application and their potential contribution
Speaker 1: to UM, to the student body in terms of UM
Speaker 1: will they contribute to a sort of a diverse and
Speaker 1: UM vital student body. And so it's absolutely nothing like quotas.
Speaker 1: It's absolutely nothing like caps on any groups just because
Speaker 1: those things are illegal. Now, there was testimony today about
Speaker 1: Harvard also trying to maintain a souce from the from
Speaker 1: the plaintiffs from trying to maintain a socio economic balance
Speaker 1: as well, and the the concept of legacies getting an
Speaker 1: extra step up and donors of you know, the children
Speaker 1: of donors getting an extra step up in the admissions
Speaker 1: process came up. How do you see that? Yeah, legacy
Speaker 1: admissions are complicated. UM. Yeah, I think that they do
Speaker 1: potentially undermine equity UM and within college admissions, and so
Speaker 1: they should really be given a really hard look at UM. Yeah,
Speaker 1: be really looked at UM with a critical eye, um
Speaker 1: but very much um. Legacy admissions definitely is a different
Speaker 1: thing from a fromat of action. If if the plaintiffs
Speaker 1: got their way, would it would the admissions process only
Speaker 1: be based on grades and you know, scores in the
Speaker 1: essay t s UM they I believe Harvard would continue
Speaker 1: to do an other institutions would be able to do
Speaker 1: some level of a holistic review where they could look
Speaker 1: at other contextual factors. They would very much still look
Speaker 1: at the essay or things like that. Um, but very
Speaker 1: much a student's racist A students race, ethnicity is you know,
Speaker 1: potentially a very big part of their life story, and
Speaker 1: they might not be able to access that information. So
Speaker 1: I think one writer in the New York Times even
Speaker 1: called it a potential threat of censorship, right if students
Speaker 1: aren't able to showcase right their ethnicity and their culture
Speaker 1: and how those experiences have potentially affected them. When I
Speaker 1: was looking at the different kinds of evidence that have
Speaker 1: come in at the trial, I noticed that they have
Speaker 1: what they seem to be attacking is one part of
Speaker 1: the analysis which focuses on the individual. So the interview,
Speaker 1: the student activities report, and that is there any question
Speaker 1: that that can be allowed in as part of the
Speaker 1: determination of whether or not to accept a student. UM.
Speaker 1: You know, I think it's just all sorts of the
Speaker 1: entire application is very much weighed and assessed in um,
Speaker 1: you know, informing the admissions offices, um assessment of a student.
Speaker 1: So really I think anything is fair game. All right, Well,
Speaker 1: this this trial is is still going on and it's
Speaker 1: going to be probably into another week at least. Thanks
Speaker 1: so much for joining us. That's Julie Park. She's a
Speaker 1: professor at the University of Maryland College of Education. Aation
Speaker 1: her book is called Race on Campus. Of those admitted
Speaker 1: to Harvard's new freshman class, about twelve percent or Latino,
Speaker 1: sixteen percent African Americans, and a record high twenty three
Speaker 1: percent are Asian Americans. The plaintiff say that the Asian
Speaker 1: percentage should be at least forty percent. Thanks for listening
Speaker 1: to the Bloomberg Law Podcast. You can subscribe and listen
Speaker 1: to the show on Apple Podcasts, SoundCloud, and on Bloomberg
Speaker 1: dot com slash podcast. I'm June Rosso. This is Bloomberg