Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
Speaker 2: The opinion issue today by the United States Supreme Court
Speaker 2: marks the beginning of the restoration of the color blind
Speaker 2: legal covenant that binds together our multi racial, multi ethnic nation.
Speaker 1: Conservative activist Edward Blum won his decades long fight against
Speaker 1: affirmative action in college admissions in June. Now Blum is
Speaker 1: turning his attention to the corporate world. He's suing Fearless Fund,
Speaker 1: an Atlanta based venture capital firm that supports black women
Speaker 1: who own small businesses, accusing it of unlawful racial discrimination
Speaker 1: and using the same playbook he used to get rid
Speaker 1: of affirmative action in colleges. Joining me is Anthony Michael Christ,
Speaker 1: a professor at the Georgia State University Knowledge of Law
Speaker 1: tell us about Blum and his anti affirmative action efforts.
Speaker 3: Yeah, so, Blum is part of the group individuals who
Speaker 3: have been kind of on a wor path for lack
Speaker 3: of a better term, against all kinds of race conscious programming,
Speaker 3: and namely, what most people might be familiar with is
Speaker 3: the recent Supreme Court ruling about race conscious student admissions
Speaker 3: policies at Harvard and UNC Chapel Hill. There was a
Speaker 3: challenge under the fourteenth Amendment and under the Civil Rights
Speaker 3: Act in nineteen sixty four, which was successful. And so
Speaker 3: now you know, Blum and associated groups are certainly moving
Speaker 3: a pace and trying to take that with victory and
Speaker 3: expand its footprints into other spaces.
Speaker 4: Yeah.
Speaker 1: So the space he try and expand into is an
Speaker 1: Atlanta based venture capital fund and the lawsuit specifically targets
Speaker 1: a grand program that awards twenty thousand dollars to black
Speaker 1: women entrepreneurs.
Speaker 3: So this is a group that was founded in twenty
Speaker 3: nineteen and it was three black women who decided that
Speaker 3: there needed to be more investment in black owned businesses,
Speaker 3: and so this entity was created in order to fundraise
Speaker 3: from a variety of investors. And so they were very
Speaker 3: successful in getting big investors like Bank of America in General,
Speaker 3: Mills and JP Mortgage Chase and the Lights. And what
Speaker 3: they were going to do would be to provide grants
Speaker 3: to help entrepreneurs get a good start and invest in
Speaker 3: their businesses and their future endeavors with their small businesses.
Speaker 3: And so there is this backlash from Blum and other
Speaker 3: folks who believe that that kind of targeted investment in
Speaker 3: certain minority owned businesses is unlawful and should not be
Speaker 3: permissible under federal law.
Speaker 1: With the affirmative action suits, he formed a group called
Speaker 1: Students for Fair Admissions and he sued on behalf of
Speaker 1: Asian American students. Here, he's formed a group called American
Speaker 1: Alliance for Equal Rights and it purports to represent and
Speaker 1: sixty white and Asian business owners who are ineligible for
Speaker 1: these grants based on their race. Is he using the
Speaker 1: same playbook?
Speaker 4: So?
Speaker 3: I think that's a really interesting tactic. I think part
Speaker 3: of it is, perhaps, you know, to be able to
Speaker 3: identify the group and fundraise off of that, and to
Speaker 3: kind of give the litigations greater public exposure. You know,
Speaker 3: that is certainly something that I think folks have tried
Speaker 3: before in a variety of ways, right to get the
Speaker 3: most sympathetic kinds of clients when you go before federal
Speaker 3: judiciary and impact litigation. I think it's really kind of
Speaker 3: consistent with that trend and that trajectory and that history.
Speaker 3: And here the people that they have organized, and I
Speaker 3: think this is particularly true in the Harbord case, right
Speaker 3: that they're looking for individuals who are you know, perhaps
Speaker 3: the most sympathetic and I think that that's part of
Speaker 3: the strategy here, and part of the strategy is the
Speaker 3: fundraise and to kind of build on all these victories
Speaker 3: that they're starting to aggregate in the federal judiciary and
Speaker 3: really make a litigation based movement out of that. And
Speaker 3: so I think we need to understand what Blum is
Speaker 3: doing here, both in terms of traditional strategy right to
Speaker 3: get the most sympathetic kinds of plaintiffs, but also there's
Speaker 3: an aim here to build an infrastructure here to support
Speaker 3: long term litigation strategies.
Speaker 1: I know that you know, with the Harvard case, a
Speaker 1: lot of Asian Americans and Asian American students at Harvard
Speaker 1: disagreed with that lawsuit, oh absolutely.
Speaker 3: And I think part of the strategy here and was
Speaker 3: shoot in the Harvard case, is that you know, very
Speaker 3: oftentimes there are segments of people who you know, recoil
Speaker 3: at this idea of reverse discrimination, right, This idea that
Speaker 3: white Americans are somehow a beliegued group of people doesn't
Speaker 3: really sit well with a good chunk of Americans. And
Speaker 3: so I think there was a really calculated strategy there
Speaker 3: to use a non white group in order to lodge
Speaker 3: this complaint against Harvard, and we're seeing that kind of
Speaker 3: tactic repeated here. So again, I think it's this idea of,
Speaker 3: you know, you want to bring your most sympathetic potential plaintiffs,
Speaker 3: but they're certainly not to be a uniformity in any
Speaker 3: group in terms of how they respond to being kind
Speaker 3: of put front and center or being used to justify
Speaker 3: and that litigation strategy.
Speaker 1: He claims that there's a violation of section nineteen eighty
Speaker 1: one of the Civil Rights Act.
Speaker 3: Yeah. So Section nineteen eighty one is an old law
Speaker 3: from the reconstruction era. Its origins date back to the
Speaker 3: thirteenth Amendment, and it was passed in eighteen sixty six
Speaker 3: really in response to the Black Codes in the South,
Speaker 3: where say, the first post Civil War governments that were
Speaker 3: coming up back in former Confederate states were passing laws
Speaker 3: that were incredibly restrictive of recently freed persons and their
Speaker 3: ability to contract and their ability to buy and rent
Speaker 3: and access property. And so the The Rights Act of
Speaker 3: eighteen sixty six was passed in order to ensure that
Speaker 3: all recently freed persons, all non white persons, enjoyed and
Speaker 3: this is basically the verbiage that the law uses enjoyed
Speaker 3: this same right as white persons. And so this particular
Speaker 3: part of that Civil Rights Act is now codified in
Speaker 3: section nineteen eighty one. And what's important about this is,
Speaker 3: unlike say the Civil Rights Act in nineteen sixty four
Speaker 3: and Title seven, section nineteen eighty one applies to all
Speaker 3: contractual relationships, so it's not just employment. So it covers
Speaker 3: a large number of entities, you know, it's not limited
Speaker 3: to just employment relationships. And so that's really a big
Speaker 3: question here because at the end of the day, you know,
Speaker 3: I think there's those serious debates to be had whether
Speaker 3: a small grant funding program is really a contractual relationship. Now,
Speaker 3: the terms under which these grants are given, you know,
Speaker 3: the Fearless Fund does basically say that it creates a
Speaker 3: contractual relationship for the grant recipient to do the work
Speaker 3: consistent with what the grant's purpose is for. And so
Speaker 3: there's a real interesting question there about what kind of
Speaker 3: relationship exists between these entrepreneurs who are receiving these grants
Speaker 3: and the Fearless Fund. So I think it's a really
Speaker 3: novel question in some ways. It will be interesting to
Speaker 3: see how the federal court here in Atlanta deals with that.
Speaker 1: Let's say this is successful, does that open up a
Speaker 1: lot of corporations to lawsuits if they have contracts, you know,
Speaker 1: which preference minorities in some way?
Speaker 3: Certainly, I think it opens up the doors to challenging
Speaker 3: preferences for you know, minority owned businesses and subcontracts. It
Speaker 3: opens up the door to attacking other programs like the
Speaker 3: Fearless fun It also potentially opens up the door to
Speaker 3: maybe attacking scholarship programs that are targeted towards certain affinity
Speaker 3: groups or certain racial groups. So for Sec. Nineteen eighty
Speaker 3: one to apply, though, it really would have to be
Speaker 3: a contractual relationship. So if a case like this was successful,
Speaker 3: there would be certainly some if not many, programs in
Speaker 3: the corporate world which would be subject to litigation and attack.
Speaker 3: And there might be some other areas that you know,
Speaker 3: advocates like Blum might well try to target for future litigation.
Speaker 3: If I think at the end of the day, there
Speaker 3: would be some significant change in how multiple businesses conduct
Speaker 3: their practices and the kinds of opportunities that they affirmatively
Speaker 3: provide and they consciously consider race in their process.
Speaker 1: And Blum said, this lawsuit is the first of many
Speaker 1: that he intends to file through this group to contest
Speaker 1: race based corporate practices. How important is this lawsuit as
Speaker 1: an opening salvo.
Speaker 3: I think it's a huge risk in terms of the
Speaker 3: kinds of programs that have existed throughout corporate America. There
Speaker 3: are two main avenues of attack that the business community
Speaker 3: will see in this space. There will be and there
Speaker 3: are questions about affirmative action programs under Title seven in
Speaker 3: the employment setting. And then there are these kinds of
Speaker 3: contractual quosi contractual relationships that are removed from the employment
Speaker 3: space but which are very important in the business community
Speaker 3: as well. And we see both of those things simultaneously
Speaker 3: being undertaken by Blum and folks like him. So it's
Speaker 3: really a very perilous time for any business or any
Speaker 3: corporation that has race conscious programming of any kind. And
Speaker 3: I think we'll really have to see what the federal
Speaker 3: courts do with it going forward, but certainly, you know,
Speaker 3: it's a space that people should watch if they're particularly
Speaker 3: concerned about issues of diversity, equity, and inclusion in the
Speaker 3: corporate space.
Speaker 1: So he's also launched a new campaign with a website
Speaker 1: called West Point not fair. It asks were you rejected
Speaker 1: from West Point or the Naval Academy or the Air
Speaker 1: Force Academy, It maybe because you're the wrong race. So
Speaker 1: would you just explain how there was a footnote in
Speaker 1: the Supreme Court affirmative action cases that exempted military academies
Speaker 1: and now it appears he's going to try to go
Speaker 1: after that footnote.
Speaker 3: Yeah. So an important part of the Grass and Grutterer
Speaker 3: decisions which upheld affirmive action in certain contexts in the
Speaker 3: early two thousands out of the University of Michigan, was
Speaker 3: that there were impa is articulated by former military braath
Speaker 3: about how affirmative action and how race conscious programming was
Speaker 3: important in order to ensure a diverse military, and that
Speaker 3: a diverse military was essential for national security, and that
Speaker 3: diversity was a real important strength in order to preserve
Speaker 3: better decision making and better unit cohesion and things of
Speaker 3: that nature. And so that the Supreme Court, I think,
Speaker 3: in the recent UNC Harvard case acknowledged that there might
Speaker 3: be a significantly different and perhaps constitutionally justifiable reason to
Speaker 3: have race conscious programs or race conscious admissions in the
Speaker 3: military academy is given that line of history that goes
Speaker 3: back to those cases from the early two thousands, and
Speaker 3: so they were essentially exempted from the decision that came
Speaker 3: out this past June. And so now that's where we're
Speaker 3: at where it'll take an additional challenge that specifically targets
Speaker 3: the military academy for the federal courts to weigh. And
Speaker 3: so BLOB is now using the UNC Harvard decision to
Speaker 3: kind of go the next step and challenge any kind
Speaker 3: of race conscious programming in the military academy.
Speaker 1: Although that might not be an area the Supreme Court
Speaker 1: wants to wade into. We'll have to wait and see.
Speaker 1: Thank you so much. That's Anthony Michael Christ, Professor at
Speaker 1: Georgia State University College of Law.
Speaker 4: Honorable the Chief Justice and the Associate Justices of the
Speaker 4: Supreme Court of the United States. Oh yay, oh yay,
Speaker 4: oh yay. All persons having business before the Honorable the
Speaker 4: Supreme Court of the United States are admonished to give
Speaker 4: their attention. So the court is now sitting.
Speaker 1: When the Supreme Court kicks off its next term on
Speaker 1: the first Monday in October, it will be off to
Speaker 1: a slow start. The justices will hear just six cases
Speaker 1: in October, even though they have ten slots available. In addition,
Speaker 1: they have just over half the number of cases they
Speaker 1: normally hear for the first three months of the term.
Speaker 1: Joining me is someone who's looked into this all the numbers,
Speaker 1: Bloomberg Laws, Supreme Court reporter Kimberly Strawbridge Robinson. So it
Speaker 1: appears that the Court will be off to a slow
Speaker 1: start in October.
Speaker 5: Yeah, well, it actually may be surprising to some listeners,
Speaker 5: but that's been a recent trend of the Supreme Court.
Speaker 5: And we hear so much about these huge, big cases
Speaker 5: that the justices are deciding, but on the whole, they've
Speaker 5: actually been deciding a lot less and it looks like
Speaker 5: this next term is going to follow that. At least
Speaker 5: at the start. The justices released to their first sitting
Speaker 5: of arguments for October and there's just six cases on
Speaker 5: the docket, which is you know, as E've been saying
Speaker 5: something that's a trend.
Speaker 1: Why is this? Why have they been cutting back on
Speaker 1: cases year after year?
Speaker 5: Well, it's been at its highest in the nineteen eighties,
Speaker 5: they were deciding some one hundred and fifty cases. Now
Speaker 5: we're around sixty at best. So it's slowly happening, and
Speaker 5: there's not a real reason that anybody's been able to
Speaker 5: put their thumb on. You know, the Supreme Court justices
Speaker 5: themselves have said that they are aware that the case
Speaker 5: flowed is getting lighter, and they're looking for cases, but
Speaker 5: that they're just not there for them. You know. Other
Speaker 5: people say, you know, there are plenty of cases for
Speaker 5: the justices here, but there's really no one reason that
Speaker 5: I can think of for why this keeps happening.
Speaker 1: And in contrast, is the shadow docket, which are the
Speaker 1: cases that are not argued or fully briefed. Is that
Speaker 1: getting larger.
Speaker 5: It is getting larger, and we're seeing you know, the
Speaker 5: emergency doctor used to be mostly about death penalty cases,
Speaker 5: you know, trying to stop executions that are getting ready
Speaker 5: to happen imminently. But during the Obama administration, during the
Speaker 5: Trump administration, and now continuing on into the Biden administration,
Speaker 5: we're seeing so many of these culture war cases coming
Speaker 5: up to the justices, and they've been more willing to
Speaker 5: jump in at early stages rather than sort of let
Speaker 5: them play out in the lower courts. And so not
Speaker 5: only are those things to be happening without breathing an argument.
Speaker 5: But there have been some cases you think about the
Speaker 5: vaccine mandate, the abortion a lot of Texas where they've
Speaker 5: actually said, you know, we do need briefing an argument
Speaker 5: on this, and they've set a really expedited process for those.
Speaker 5: And even still with those added cases, the case flowed
Speaker 5: overall is really low.
Speaker 1: So how many cases were decided last term and how
Speaker 1: does that compare to prior terms.
Speaker 5: Well, last term they decided just under sixty cases. If
Speaker 5: you look at the Supreme Court's website, it will say
Speaker 5: the justices here about seventy cases each term. So the
Speaker 5: little out of dates, but you know, as I've been
Speaker 5: saying each year, it's sort of been ticking down. We
Speaker 5: had a historical load during twenty twenty or twenty twenty one,
Speaker 5: whenever the court was disrupted for the pandemic.
Speaker 3: But without that.
Speaker 5: Blip, we're still seeing this kind of flowed to decline.
Speaker 5: And so the six cases that they have kicking off
Speaker 5: their first sitting is something I haven't seen in a
Speaker 5: really long time.
Speaker 1: The Justices did just take the case over Purdue Pharma's
Speaker 1: six billion dollars opioid settlement off the shadow docket and
Speaker 1: scheduled it for arguments in the December sitting, So are
Speaker 1: they likely to add more cases.
Speaker 5: What happens is that why the justices are taking their
Speaker 5: summer breaks and doing teaching gigs. All these cases will
Speaker 5: sort of build up over the summertime, and then the
Speaker 5: justices come back in September to what we call the
Speaker 5: Long Conference and they'll grant a handful of cases.
Speaker 3: Off of that.
Speaker 5: But those cases, because there has to be briefing before
Speaker 5: they can be argument, those cases probably won't get hurt
Speaker 5: until twenty twenty four, so still in this term. But
Speaker 5: the cases that the justices have now are the ones
Speaker 5: that sort of stuck with through.
Speaker 3: The end of the year.
Speaker 1: And I take it there hasn't been a slowed down
Speaker 1: in surf petitions, which the parties file to ask the
Speaker 1: court to take their case.
Speaker 5: No, there's not been a slowdown in the number of
Speaker 5: filings that they get. You know, we see a lot
Speaker 5: of cases dealing with everything from guns to abortion to
Speaker 5: admin law, and for some reason or another, the justices
Speaker 5: just can't get for to agree that it's cases they
Speaker 5: need to take up.
Speaker 1: So let's talk about a couple of the cases that
Speaker 1: are coming up in October, and in one the Consumer
Speaker 1: Financial Protection Board will be under fire again at the court.
Speaker 1: We already saw in twenty twenty where the court rule
Speaker 1: that the president can fire the director for any reason.
Speaker 3: Right.
Speaker 5: So, as you mentioned, this is the latest challenge to
Speaker 5: the CFPD, which of course came up in the wake
Speaker 5: of the two thousand and eight financial crisis. You mentioned
Speaker 5: that twenty twenty case. The more the Supreme Court, you know,
Speaker 5: did rule against the CSPV, but they were able to
Speaker 5: sort of lighten the blow a little bit and they
Speaker 5: just sort of struck that provision, but less the CFPB
Speaker 5: as a whole in place and it was able to
Speaker 5: go on mostly businesses normal. This case presents a much
Speaker 5: bigger challenge to the Supreme Court and the CFPB if
Speaker 5: they do find if they agree with the challengers here,
Speaker 5: who are saying that the funding mechanism that funds the
Speaker 5: agency is unconstitutional. And you know, the cfpv's funding mechanism
Speaker 5: is a little complex, but basically, you know, the argument
Speaker 5: is that it bypasses Congress, that really takes Congress's role
Speaker 5: over the purse out of the CSPB, and that that
Speaker 5: in and of itself is unconstitutional.
Speaker 1: The Biden administration is saying that it could cast out
Speaker 1: on every action the agency has taken for twelve years,
Speaker 1: and it could have implications for the Federal Reserve Board,
Speaker 1: the FDIC, and the Controller of the Currency.
Speaker 5: That's right. So you know, there are other agencies, very
Speaker 5: important agencies like the ones you mentioned, who are funded
Speaker 5: in a similar way, and so you know, the implications
Speaker 5: beyond the cfpbre are pretty enormous. But even within the CSPP,
Speaker 5: you know, these are really a string of cases that
Speaker 5: the justices have been very closely trying to police the
Speaker 5: power between the judiciary, the executive and Congress. And they've
Speaker 5: been tinkering a lot of these cases. And what we've
Speaker 5: seen is why they've made pretty sweeping constitutional rulings sort
Speaker 5: of digging out that power. They've really tried to limit
Speaker 5: the effect it has. So, you know, so they do
Speaker 5: what they've done in the past, and the actions the
Speaker 5: CFPP had taken will probably be okay. What will be
Speaker 5: the big question is how they move forward without that
Speaker 5: funding mechanism. That really seems like they'll have to go
Speaker 5: to Congress for something.
Speaker 1: Like that, And the Court is going to hear an
Speaker 1: argument in a challenge to Congressional redistricting in South Carolina.
Speaker 1: Tell us about that.
Speaker 5: That's right. I mean this may sound familiar or because well,
Speaker 5: the Supreme Court, you know, at the end of its term,
Speaker 5: we've decided a similar case out of Alabama. These redistricting
Speaker 5: cases kind of have a fast track up to the
Speaker 5: Supreme Court, so we talk about them a lot. We have,
Speaker 5: you know, one or two or three every year. This
Speaker 5: one comes out of South Carolina, but it's very similar
Speaker 5: to that Alabama case. In it, black and minority voters
Speaker 5: say that a Republican led redistricting process to draw maps
Speaker 5: unconstitutionally used race. So that's you know, this time it's
Speaker 5: involving South Carolina. You know, all of these cases when
Speaker 5: we look at the House and how close it is,
Speaker 5: have major implications for the balance of power between Republicans
Speaker 5: and Democrats. So it's going to be another big one.
Speaker 1: Yeah, And Republicans say they were motivated by politics, which
Speaker 1: is permissible, not race, which is not. Well, that's due
Speaker 1: to a Supreme Court opinion from a couple of years ago.
Speaker 5: That is, you know, the Supreme Court really had been
Speaker 5: for a long time really not sure whether or not
Speaker 5: federal courts could police sort of challenges to partisanship in
Speaker 5: the redistricting process. Ultimately, you know, a few years ago
Speaker 5: they decided no, there's no real way for federal courts
Speaker 5: to wag through this. They left the possibility for state
Speaker 5: courts to do it. But as we saw in the last term,
Speaker 5: that can get even messy as well. You know, it's
Speaker 5: not really clear sort of who has the authority within
Speaker 5: the states to make that determination. So as long as
Speaker 5: you know there's sort of this loocal for partisanship, I
Speaker 5: think it's going to be hard for mostly Democrats to
Speaker 5: be making these claims of racial German. But that said,
Speaker 5: I think, you know, we all we have to do
Speaker 5: is to that Alabama case where it was pretty surprising
Speaker 5: ruling out of the court, but they decide with the
Speaker 5: Democrats in that case.
Speaker 1: So, Kimberly, last term there were some blockbuster cases on
Speaker 1: affirmative action, voting rights, President Biden's student loan forgiveness plan,
Speaker 1: gay rights versus religious rights. Do you see any blockbusters
Speaker 1: coming up next term?
Speaker 5: Well, two that are on the court docket right now
Speaker 5: really stand out to me. One of them is similar
Speaker 5: to the CFAD case we talked about. It has to
Speaker 5: deal with administrative law and sort of the balance of
Speaker 5: power between administrative agencies and courts. And this is really
Speaker 5: taking aim as a foundational principle an administrative law called
Speaker 5: the Chevron doctrine. The Court is considering just mixing that
Speaker 5: all together. So that's going to be a really big one.
Speaker 5: I'm not exaggerating when I say that it has implications
Speaker 5: that could potentially reach to every aspect of American lives.
Speaker 5: You just think about how big the administrative state is
Speaker 5: and how much agencies do in this country. You know,
Speaker 5: the impact is really hard to state. And then the
Speaker 5: other one that has already been granted by the Justices
Speaker 5: is another gun case from the court. I'm not entirely
Speaker 5: sure that the justices were super excited to take a
Speaker 5: second amendment so quickly on the heels of, you know,
Speaker 5: their big decisions a couple of terms ago. But this one,
Speaker 5: the lower court had ruled on constitution a federal law
Speaker 5: that prohibited individuals with a domestic violence restraining order against
Speaker 5: them from having guns. And it sort of really feels
Speaker 5: like that's the case that the justices have to decide
Speaker 5: since it's striking down a federal law.
Speaker 1: Thanks so much for being on the Bloomberg Law Show. Kimberly,
Speaker 1: that's Bloomberg Law, Supreme Court Reporter Kimberly, Strawbridge Robinson and
Speaker 1: that's it for this edition of The Bloomberg Law Show.
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