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Speaker 1: What are the Ninth Circuit basics decision on Rick? The

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Speaker 1: Ninth Circuit decided that the football coaches lawsuit against the

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Speaker 1: school district failed because the school district was justified in

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Speaker 1: concluding that the football coaches conduct violated the First Amendment.

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Speaker 1: The point here is just the case involves an interplay

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Speaker 1: between an employment lawsuit because the football coach was filling

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Speaker 1: an employment lawsuit, but also the First Amendment because the

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Speaker 1: school district was invoking the First Amendment as a reason

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Speaker 1: for its actions. So you know, the nuts sell version,

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Speaker 1: as everybody knows from the media, is that the football

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Speaker 1: coach was praying publicly after gained on the field, and

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Speaker 1: this activity got a lot of public notice and comment.

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Speaker 1: And what the Ninth Circuit concluded was that under the

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Speaker 1: Supreme Court's First Amendment doctrines, it would violate the First

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Speaker 1: Amendment for the schools to have permitted the coach to

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Speaker 1: continue this practice. And why is that Because in the

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Speaker 1: Ninth Circuits view, considering all the factual circumstances, the football

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Speaker 1: coaches prayer practices constituted an unconstitutional quote unquote endorsements of religion.

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Speaker 1: Is this decision in line with Supreme Court opinions. You know,

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Speaker 1: the Supreme Court for nearly forty years now has been

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Speaker 1: trying to come up with some tests or rules that

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Speaker 1: will help us to decide when an official or a

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Speaker 1: public employees conduct is an unconstitutional endorsement or when it's

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Speaker 1: perfectly permissible private religious activity. Obviously, just because you work

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Speaker 1: for the government, you don't lose your right to prey,

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Speaker 1: including to pray in public sometimes. So it's important to

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Speaker 1: understand that this case is very fact specific. It does

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Speaker 1: not stand for a general rule that public school teachers

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Speaker 1: may not pray during the day. It doesn't stand for

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Speaker 1: a rule that football coaches may not pray before or

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Speaker 1: after games. And I'm sure if football coaches are going

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Speaker 1: to keep praying during games no matter what the court say.

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Speaker 1: But the Court went through the facts of this particular

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Speaker 1: case in pretty close detail and just determined that when

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Speaker 1: you consider the context and the publicity and various statements

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Speaker 1: that the coach had made, that when you put all

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Speaker 1: that together, the question to ask is would the reasonable

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Speaker 1: person think that the school district was endorsing the coach's

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Speaker 1: religious activity if it allowed him to continue that, or

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Speaker 1: would the reasonable observers think that the coach was just

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Speaker 1: engaging in private religious activity, which is permitted, and the

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Speaker 1: Ninth Circuit concluded that no. He considered all the facts,

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Speaker 1: a reasonable observer would come away thinking that the school district,

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Speaker 1: by allowing this, is actually endorsing the religious conduct, and

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Speaker 1: by endorsing it, perhaps also pressuring players to participate. And

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Speaker 1: the players, of course, are young people who are in school.

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Speaker 1: What do we learn about doctrine from this decision? This

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Speaker 1: is a case that enter terms of doctrine, I don't

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Speaker 1: think really breaks any new ground. There's certainly room for

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Speaker 1: disagreement about whether the court applied the doctrine correctly. That's

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Speaker 1: always true in these very fact specific cases. But one

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Speaker 1: way to think about what happens here is just that,

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Speaker 1: although it's high profile, it's just another illustration of the

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Speaker 1: fact that courts and litigants struggle to interpret exactly what

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Speaker 1: the Supreme Court's requirements are when it comes to the

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Speaker 1: no establishment rule, because again, it is not an establishment

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Speaker 1: of religion for public employees to engage in religious expressions.

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Speaker 1: At least, it's not necessarily an establishment of religion except

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Speaker 1: when it is so Rick, What would you say are

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Speaker 1: the outer limits of how a teacher can pray at

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Speaker 1: a school, for example, bowing her head and saying a

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Speaker 1: silent prayer, or bowing her head and saying a prayer

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Speaker 1: out loud. What do you are of those? Yeah? So

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Speaker 1: the court um, And there was a concurring opinion, uh,

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Speaker 1: in addition to the the lead one that really went

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Speaker 1: out of its way to sort of make sure that

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Speaker 1: readers didn't get the wrong impression and interpret this too broadly. Um.

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Speaker 1: So for a public school teacher, you know, at lunch

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Speaker 1: to bow her head and say a prayer, Um, it's permissible.

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Speaker 1: As I read this again, we're assuming that you know,

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Speaker 1: the teachers not like looking to her students on the

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Speaker 1: right saying hey, by the way, if you join me

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Speaker 1: in prayer, you get a right. You can't do that.

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Speaker 1: But expression, even religious expression, that's private, it's permissible so

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Speaker 1: long as the reasonable observer would think that the government

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Speaker 1: was adopting it. That's that's the key question. So nobody

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Speaker 1: thinks that if a high school science teacher at lunchtime

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Speaker 1: bows its head as a prayer, or even if the

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Speaker 1: high school science teacher, in my view, you know, has

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Speaker 1: a Bible on his death that he reads during downtime,

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Speaker 1: or something. The reasonable observer is not going to think, Ah,

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Speaker 1: the government is endorsing that religious activity and urging me

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Speaker 1: to participate in it too. But the Ninth Circuit thought

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Speaker 1: here in this in this case involving the coach, that

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Speaker 1: the behavior was public. It was on the fifty yard line,

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Speaker 1: it was widely commented on in the press, players and

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Speaker 1: opposing team members and other coaches were invited to join. Again,

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Speaker 1: it wasn't kind of full view on the field after

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Speaker 1: games in the context of a pretty public school activity

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Speaker 1: that if you put all that together, the reasonable observer

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Speaker 1: would think, Huh, this religious activity seems like it's not

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Speaker 1: just the coach's private activity. It's more of a school activity.

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Speaker 1: And because of that perception, it implicates the First Amendments

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Speaker 1: rule against establishment. Again, I can't underscore up that these

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Speaker 1: cases often just depends to almost always depend on facts

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Speaker 1: and context, and sometimes the question you know which side

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Speaker 1: of the line the behavior falls on is going to

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Speaker 1: be a judgment call. Let's talk about the Supreme Court,

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Speaker 1: which had declined to hear the coach's case on the

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Speaker 1: preliminary injunction. Justices Samuel Alito, Clarence Thomas Brett Kavanaugh, and

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Speaker 1: Neil Gorst signaled that they might intercede in the future

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Speaker 1: if the Ninth Circuit went too far to restrict religious

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Speaker 1: liberty in the workplace. Yeah, I mean again at the

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Speaker 1: time and initially went up. You know, it seems clearly

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Speaker 1: at least some of the justices. Again, keep in mind

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Speaker 1: that these cases really do tend to turn on fact, context,

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Speaker 1: and circumstances. And I took the justices just to be

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Speaker 1: highlighted the fact. But you want to be sure that's

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Speaker 1: the Washington Court or the Ninth Circuit isn't going so

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Speaker 1: far as to say that private prayer by a public

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Speaker 1: school employee is always unconstitutional, And the Nine Circuit doesn't

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Speaker 1: say that, And they take some paint to not say that.

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Speaker 1: You're right, the Ninth are getting almost sharply in some

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Speaker 1: places empathize that it did not agree with the coaches

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Speaker 1: characterization of the record. So not only do we have

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Speaker 1: a case that depends a lot on fact and circumstances,

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Speaker 1: we have a case where the parties and the court

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Speaker 1: don't agree on what the fact and circumstances are. And

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Speaker 1: you know, again, that makes that makes it all the

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Speaker 1: more important to not kind of overread this case as

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Speaker 1: standing for a broad rule against all visible prayer by

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Speaker 1: public school officials, because I think it's pretty clear that's

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Speaker 1: not what the court held. So they are going to

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Speaker 1: appeal this to try to get the Supreme Court to

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Speaker 1: take this case again. How likely do you think it is,

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Speaker 1: considering what the Ninth Circuit actually decided and what Justice

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Speaker 1: Alito said before, how likely do you think it is

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Speaker 1: that the Supreme Court would take the case? Yeah, I

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Speaker 1: don't think it's very likely that the Court will take it,

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Speaker 1: in part because you know, again the controversy about what

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Speaker 1: the facts or at least the disagreement about what the

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Speaker 1: facts are, and also just that the Court took such

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Speaker 1: pain to make to make it clear that it was

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Speaker 1: basing its decision on the particulars of this case. You know,

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Speaker 1: the rule of thumb as a general matter is that

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Speaker 1: the Supreme Court doesn't exist just the correct errors that

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Speaker 1: courts make when they're applying the laws of the facts. Instead,

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Speaker 1: the Supreme Court sees its job is making sure the

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Speaker 1: lower courts have the law right. And although the law

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Speaker 1: in this area is kind of confusing. Um as we

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Speaker 1: saw in the case about the War memorial Cross a

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Speaker 1: little while ago, the Ninth Circuit here, I think basically recited,

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Speaker 1: but the Supreme Court has said the rules are so

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Speaker 1: I don't see this as being a likely case for

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Speaker 1: Supreme Court review myself. I don't know if the coach

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Speaker 1: will try to take the case to the full Ninth

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Speaker 1: Circuit or to, you know, to a larger on bank panel.

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Speaker 1: I haven't read whether they plan to do that or not,

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Speaker 1: But if this particular decision were presented to the Supreme Court,

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Speaker 1: I don't think they would grant review. There seemed to

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Speaker 1: be a lot of factors here. For example, the coach

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Speaker 1: wanted to pray on the fifty yard line, and he

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Speaker 1: wanted to pray after the game. There was concern that

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Speaker 1: some of the students were feeling pressured to pray with him.

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Speaker 1: And it wasn't just the coach and a couple of players.

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Speaker 1: They have pictures of the coach surrounded by a group

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Speaker 1: of players and the media. So there's a lot going on.

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Speaker 1: Which do you think were the most important factors to

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Speaker 1: the court. I don't know that there is one particular factor.

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Speaker 1: Certainly one of the important factors though, was, you know,

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Speaker 1: the kind of prominent location at the fifty yard line.

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Speaker 1: The timing the end of a sort of the culmination

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Speaker 1: of an obvious school events, namely a football game, the

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Speaker 1: participation of not only players just kind of walking out

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Speaker 1: to join, but you know, the opposing team and others.

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Speaker 1: And then I think there's some language in the Ninth

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Speaker 1: Circuits opinion that suggests, I'm not saying so much they

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Speaker 1: relied on this, but it suggests that they were reacting

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Speaker 1: a bit to some of the coaches kind of public

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Speaker 1: statements that I think they thought were kind of like

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Speaker 1: defiant and uh, you know, drawing attention to the behavior.

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Speaker 1: Now again I'm not I'm not so sure that i'd

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Speaker 1: say that the court relied on that, but that did

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Speaker 1: seem to be part of the atmospherics, if you want,

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Speaker 1: you know, the the court thought it was relevant that

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Speaker 1: the school, in the courts of view, had tried to

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Speaker 1: accommodate the coach by telling him, you know, it's okay

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Speaker 1: to pray before and after game, here's a place where

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Speaker 1: you can do it. Do it somewhere else, but had

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Speaker 1: you know, directed him not to do it on the

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Speaker 1: fifty in this public way, and that he nonetheless persisted

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Speaker 1: in doing this. So it wasn't like a one off

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Speaker 1: thing where you know, a coach who didn't have any

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Speaker 1: advanced notice, you know, was sort of inspired by the

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Speaker 1: spirit to go out on the fifty yard lines, set

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Speaker 1: a prayer and then got fired for that. That's not

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Speaker 1: what happened here. I think that was relevant to the

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Speaker 1: court too. Thanks for joining me on the Bloomberg Last Show. Rick,

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Speaker 1: that's Professor Richard Garnett of Notre Dame Law School. The

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Speaker 1: Biden administration is on track to reverse the government's position

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Speaker 1: in more cases before the Supreme Court than the Justice

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Speaker 1: Department did during the first full High court term of

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Speaker 1: Donald Trump's presidency. The Trump Justice Department changed positions in

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Speaker 1: four high profile cases during the first full Supreme Court term.

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Speaker 1: In just under two months, the Biden Justice Department has

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Speaker 1: flipped positions in five cases. Joining me is Bloomberg Law

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Speaker 1: Supreme Court reporter Kimberly Strawbridge Robinson. But first of all,

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Speaker 1: how unusual is it to have an administration change position

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Speaker 1: one administration to the next. Well, it's not unheard of,

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Speaker 1: but it does happen pretty rarely, um at least before

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Speaker 1: the Trump administration. And that's because you know, these changes

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Speaker 1: in the federal government position can really hurt the credibility

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Speaker 1: with the justices. Uh. And so you know, we've seen

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Speaker 1: previous administrations really try to be careful, um and weigh

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Speaker 1: the decision whether or not to change the government's position

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Speaker 1: in these cases pending before the Supreme Court. Tell us

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Speaker 1: about the Biden administration, tell us about the number of

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Speaker 1: flips and how it compares with the Trump administrations. Well,

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Speaker 1: it looks like the Biden administration is going to be

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Speaker 1: on track to reverse the government's position in more cases,

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Speaker 1: um then the Justice Department did under Donald Trump's presidency.

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Speaker 1: And you know that's not really surprising if you if

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Speaker 1: you think about how opposed these two administrations are. UM.

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Speaker 1: But it's something interesting to watch in the Supreme Court

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Speaker 1: because you know, prior to the Trump administration, the justices

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Speaker 1: had really shown frustration um with these changes in positions

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Speaker 1: and and now you know, not so much so UM.

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Speaker 1: It's kind of it's something that we're seeing changing in

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Speaker 1: Supreme Court practice. Are these mostly because of policy changes?

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Speaker 1: So these cases involved really a change in the legal interpretation.

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Speaker 1: So there are some cases where the Biden administration has

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Speaker 1: changed policies and that's affected Supreme Court cases. So I'm

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Speaker 1: thinking of a lot of really um controversial immigration issues.

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Speaker 1: On Donald Trump's remain in Mexico policy, for example, the

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Speaker 1: Biden administration decided to wind that down, and so there's

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Speaker 1: really nothing for the federal government to take a position on.

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Speaker 1: The policy doesn't exist any longer. But the changes in

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Speaker 1: positions are typically in cases where the government is not

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Speaker 1: court and they've just changed the way that they look

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Speaker 1: at the law UM. And so that those are the

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Speaker 1: kind of changes that we're looking at here. Let's talk

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Speaker 1: about some of these cases where the Biden administration has

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Speaker 1: flipped position. So there was a change in the position

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Speaker 1: on the Affordable Care Act, which was expected, So tell

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Speaker 1: us a little bit about the change there. So the

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Speaker 1: Affordable Care Act, which was of course passed UM under

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Speaker 1: President Obama with the help of now President Biden UM,

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Speaker 1: was the first case where the Biden administration flipped position.

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Speaker 1: And there the Trump administration had really taken a surprising

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Speaker 1: position uh in order to say that the entirable Affordable

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Speaker 1: Care Act had to fall because one part of it

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Speaker 1: was unconstitutional. The Biden administration was expected to come in

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Speaker 1: and change that position, and they did very quickly. UM.

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Speaker 1: But we've seen them in some other cases changed positions

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Speaker 1: where you know, it was kind of a question mark

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Speaker 1: if the Biden administration was was going to risk its

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Speaker 1: credibility and changed courses, and in the number they did.

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Speaker 1: The case argue today involving union organizers in a taking case,

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Speaker 1: did the Biden administration also change positions from the Trump

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Speaker 1: administration in that case? They did? And so this was

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Speaker 1: a case UM really challenging a longtime California law. It's

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Speaker 1: kind of a new conservative push to take down, uh,

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Speaker 1: these laws that allow employers to have access to employees

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Speaker 1: at their work sites. UM. And you know, the Trump

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Speaker 1: administration had sided with the business owners and the Biden

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Speaker 1: administration UM changed courses, did a complete one eight in

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Speaker 1: that case and said, no, this is something that should

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Speaker 1: be allowed, of something that states should be able to do.

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Speaker 1: What's the voting the rights dispute that they changed positions on. Well,

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Speaker 1: that one's a really interesting change because that came in

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Speaker 1: a case out of Arizona, UM challenging to Arizona voting restrictions.

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Speaker 1: The Trump administration had said those voting restrictions were just fine,

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Speaker 1: and the Biden administration actually agrees, but the Biden administrations

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Speaker 1: said that the test that Trump administration was wrong, but

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Speaker 1: they didn't actually explain um what they think the test

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Speaker 1: should be UM. So that is still an open question.

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Speaker 1: We'll have to see what the Biden administration thinks the

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Speaker 1: law should be UM in a future case. But that's

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Speaker 1: really important case because you know, that is going to

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Speaker 1: set up the test that's gonna be at the center

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Speaker 1: of all a lot of these voting rights disputes that

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Speaker 1: we're going to see going forward. I can't really tell

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Speaker 1: us about the First Step Act and what the Biden

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Speaker 1: administration's position is. The First Step Act is a law

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Speaker 1: that was passed under President Trump that sought to reduce

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Speaker 1: harsh sentencing out of you know, laws that had really

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Speaker 1: tried to reduce crime in the nineties. So this case

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Speaker 1: to ask when an individual can receive a sentence reduction

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Speaker 1: for crack cocaine youth um or possession. And this is

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Speaker 1: eventually a surprising change in the Biden administration because typically

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Speaker 1: in you know, in criminal cases, the federal government positions

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Speaker 1: doesn't often change from one administration to the next. There's

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Speaker 1: kind of some institutional concerns that, you know, are the

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Speaker 1: same under Republican or democratic administration. But the Biden administration

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Speaker 1: did argue for sentence reduction here, and so the Spreme

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Speaker 1: Court is going to have to find somebody to step

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Speaker 1: into the federal government shoes and argue that case for them.

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Speaker 1: You spoke to former Deputy Solicitor General Michael Dreban and

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Speaker 1: he gave some advice about how the government should handle

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Speaker 1: these changes in positions. He did, and you know, he

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Speaker 1: was kind of hearkening back to the time under the

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Speaker 1: Obama administration where you know, the federal government cut a

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Speaker 1: lot of heat for changing positions, UM, and saying, you know,

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Speaker 1: upon for the reflection, we've decided to change positions. And

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Speaker 1: he saw a lot of the justices, particularly the Chief Justice,

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Speaker 1: these sort of offended, UM, saying that it wasn't a

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Speaker 1: reconsideration of this position. It's just because there was an

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Speaker 1: election and there's a new administration. So, you know, Michael

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Speaker 1: Dreben said that the Biden administration and any future administrations

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Speaker 1: should really just be honest about why they're changing positions

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Speaker 1: and set out, you know what the change is very

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Speaker 1: clearly so that the justices don't think they're trying to

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Speaker 1: hide anything. UM. And you know, they can really just

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Speaker 1: look at the merits of the point rather than trying

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Speaker 1: to determine, you know, what's the change here and why

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Speaker 1: is there change happening. With a lot of these changes,

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Speaker 1: it seems like it must be obvious to the justices

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Speaker 1: why the administration is changing position. That's true. I mean,

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Speaker 1: it's certainly and you know, the Affordable Care Act case,

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Speaker 1: you can understand why the government changed positions back to

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Speaker 1: one that you expect the government to to be making

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Speaker 1: that the Affordable Care Act can be saved, um. But

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Speaker 1: there are others where, you know, like this first step

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Speaker 1: back case, where it's not so obvious, and you know,

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Speaker 1: it'll be interesting to see the Solicitor General explain, um,

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Speaker 1: why it's taking this particular position. I remember there was

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Speaker 1: at least one case during the Trump administration where the

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Speaker 1: administration was arguing against itself. It was a case involving

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Speaker 1: the n l r B. But there might have been

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Speaker 1: another case along similar lines involving the E E O C.

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Speaker 1: So that's right and really kind of memorably. To kick

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Speaker 1: off the Trump administration's first full term in front of

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Speaker 1: the Supreme Court, the Trump's Solicitor General was arguing against

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Speaker 1: the n l r B. So you had the United

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Speaker 1: States versus the United States. And you know, that is

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Speaker 1: one reason why we see the Biden administration making so

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Speaker 1: many changes, because the Trump administration made changes that kind

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Speaker 1: of went against what you would expect the federal government

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Speaker 1: to be taking. But yes, that was a really memorable

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Speaker 1: case where you know, the Trump administration was arguing against

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Speaker 1: itself um in you know, it's kind of first showing

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Speaker 1: at the Supreme Court. Dreben also named some cases where

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Speaker 1: he thought the Biden aministration might change its position, and

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Speaker 1: one was in the death penalty for the Boston marathon

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Speaker 1: bomber Johars Naieve. An appeals court had vacated sar Naiev's

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Speaker 1: death sentence, and the Supreme Court is now going to

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Speaker 1: review that appeals court decision. I was surprised the Supreme

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Speaker 1: Court took up that case today when it seems likely

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Speaker 1: the Biden administration may change positions. Biden campaign on a

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Speaker 1: promise to eliminate the federal death penalty. Well, that's right,

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Speaker 1: and so a lower court actually undid uh the death

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Speaker 1: penalty um in that case, and the Trump administration thought

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Speaker 1: to reinstate it. The Biden administration hasn't actually filed anything

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Speaker 1: in this case, so it is possible that they could

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Speaker 1: change positions here, and I think that's really something that

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Speaker 1: the administration is currently trying to to, you know, figure

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Speaker 1: out whether or not they are going to change positions

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Speaker 1: in line with their policies um, or they're gonna stick

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Speaker 1: to more the institutional argument um which I mentioned in

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Speaker 1: criminal cases had not changed under you know, the different

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Speaker 1: administrations that I'm so curious as to why the Court

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Speaker 1: took that case when it's obviously one where there's going

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Speaker 1: to be some kind of friction between the Trump administration

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Speaker 1: the Biden Administration's position. Was that seen as a case

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Speaker 1: that the justices would take, Well, you know, it wasn't.

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Speaker 1: It was a real question mark, and the justices have

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Speaker 1: had it in front of them for a long time.

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Speaker 1: I will say that the Supreme Court has been just

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Speaker 1: fine with granting cases where it seems destined to um,

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Speaker 1: you know, eventually dismissed the case from its stock it

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Speaker 1: because the positions have changed. Um. We've seen that happen

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Speaker 1: a number of times already and has really led to

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Speaker 1: a pre light Supreme Court term because of that. But

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Speaker 1: you know, the other thing is that the Supreme Court

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Speaker 1: can always appoint an amicus um to argue what we

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Speaker 1: would think is the federal government's traditional position um, and

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Speaker 1: we saw them do that in the first Steptase recently.

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Speaker 1: It's not as if the Justices can't hear the case.

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Speaker 1: If the Federal government, which is side, it'll just be

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Speaker 1: a matter of if they want to go ahead with it.

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Speaker 1: And Kimberly, So, the justices had their first in person

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Speaker 1: meeting in a long time, that's right. They had met

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Speaker 1: in October. Most of them had met for the squaring

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Speaker 1: in of Amy Coney Barrett, but this was the first

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Speaker 1: time that the justices were actually in the courthouse for business.

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Speaker 1: They met on Friday in their private conference at least

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Speaker 1: most of them did we know at least one, although

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Speaker 1: we don't know who uh participated remotely. UM, but that

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Speaker 1: is a big development for the Supreme Court, which has

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Speaker 1: been working remotely like many of us since last March. UM.

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Speaker 1: And importantly, all of the justices have been fully vaccinated.

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Speaker 1: So UM, life starting to get a little bit back

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Speaker 1: to normal at the High Court. But they're still going

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Speaker 1: to continue with the oral arguments by telephone, that's right.

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Speaker 1: At least through April, and that's likely because you know,

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Speaker 1: while the justices are vaccinated, it's not as if they

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Speaker 1: can go into the courtroom and here live arguments with

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Speaker 1: just the nine of them. There are a lot of

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Speaker 1: other courts staff that have to be there. Of course,

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Speaker 1: the attorneys have to be in the courtroom, and you

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Speaker 1: know attorneys aren't being vaccinated in the d MP area

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Speaker 1: just yet. Thanks so much, Kimberly. That's Bloomberg Law Supreme

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Speaker 1: Court reporter Kimberly Strawbridge Robinson and that's it for the

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Speaker 1: edition of the Bloomberg Law Show. Remember you can always

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Speaker 1: get the latest legal news on our Bloomberg Law Podcast.

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Speaker 1: You can find them on Apple Podcasts, Spotify and at

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Speaker 1: www dot bloomberg dot com slash podcast Slash Law. I'm

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Speaker 1: June Grasso. Thanks so much for listening, and please sit

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Speaker 1: into the Bloomberg Law Show every week and attend Dann

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Speaker 1: Eastern right here on Bloomberg Radio.