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Speaker 1: This is Bloombird Law with June Brussel from Bloomberg Radio.

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Speaker 1: Obamacare is safe from a legal challenge at the Supreme

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Speaker 1: Court once again. By a vote of seven to two,

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Speaker 1: the Justice has rejected the third Republican attack on the

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Speaker 1: landmark law that provides health insurance to twenty million people.

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Speaker 1: The opinion did not deal with the merits of the case,

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Speaker 1: but rather ruled the challengers didn't have the right to

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Speaker 1: sue because they weren't injured by the now toothless individual mandate.

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Speaker 1: This lack of standing was an issue Chief Justice John

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Speaker 1: Roberts and Justice Clarence Thomas brought up in the oral

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Speaker 1: arguments by posing several hypotheticals. Let's say Congress passes a

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Speaker 1: law saying everybody has to mow their lawn once a week,

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Speaker 1: and they even make a lot of findings about why

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Speaker 1: that's a good thing. You know, it makes the country

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Speaker 1: look neater, you get fresh air if you have to

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Speaker 1: do that, supports the lawnmower business. Um. And but the

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Speaker 1: fine for violating it is zero zero dollars. Um. Do

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Speaker 1: they have standing? I assume that in most places there

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Speaker 1: is no penalty for wearing a face mask or a

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Speaker 1: mask during covid um, but there is some degree of

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Speaker 1: opprobrium if one does not wear it in certain settings.

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Speaker 1: Joining me is Neil Kincaff, a professor of constitutional law

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Speaker 1: at the Georgia State University College of Law. Why is

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Speaker 1: seven month wait to hand down this decision which is

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Speaker 1: seven to two and just sixteen pages long. That's a

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Speaker 1: great question. I wish I knew the answer. Maybe someday

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Speaker 1: the conference notes will tell us what was really going on,

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Speaker 1: because you're right, it's seven to two decisions and it's

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Speaker 1: on a technicality, really on standing, and so why did

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Speaker 1: it take so long? And you can only imagine the

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Speaker 1: justices were actually going back and forth about the merits

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Speaker 1: and then decided to instead resolve it on this jurisdictional ground. Yeah,

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Speaker 1: so tell us why the court decided as it did.

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Speaker 1: So it ruled that the parties who brought the case

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Speaker 1: didn't have the authority the jurisdiction to bring the case.

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Speaker 1: So in order to bring a case, you have to

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Speaker 1: be an actually injured party. So it can't be that

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Speaker 1: you just think Obamacare is unconstitutional or you think the

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Speaker 1: government is doing something that violates the law that doesn't

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Speaker 1: allow you to bring a lawsuit, you have to be

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Speaker 1: actually personally harmed by the government's action, and then if

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Speaker 1: you are, you can say I'm harmed and the government

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Speaker 1: is acting on constitutionally, Court, please order a remedy. And

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Speaker 1: so what the court set in this case is that

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Speaker 1: the plaintiffs there were two individuals and a set of

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Speaker 1: twelve states. So the Supreme Court set, you haven't been

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Speaker 1: directly harmed by anything the federal government has done. And

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Speaker 1: if you pay attention to what the substance of the

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Speaker 1: case was about, it's easy to see how that was

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Speaker 1: the case. What they were complaining about is that Congress

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Speaker 1: in seventeen amended Obamacare to move the provision imposing a

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Speaker 1: penalty on anyone who didn't buy the required insurance. And

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Speaker 1: so what you had was this odd situation of two

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Speaker 1: individuals who are complaining that there's a requirement that they

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Speaker 1: buy insurance, but there's no actual penalty or anything that

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Speaker 1: happens to them if they don't go ahead and do it.

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Speaker 1: So the court said, you're not actually harmed. And then

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Speaker 1: the states made an even otter argument, saying that their

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Speaker 1: costs of running their state would go up because they

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Speaker 1: have to run these insurance programs that cover people under Obamacare.

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Speaker 1: The problem is, once you eliminate the penalty for not

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Speaker 1: signing up for it, it's hard to see how the

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Speaker 1: state is being harmed. In fact, if that's their concern,

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Speaker 1: you would think removing the penalty helps them because now

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Speaker 1: people who don't want it aren't going to sign up

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Speaker 1: for it to avoid a penalty. So, if anything, it

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Speaker 1: would reduce the state's costs. So the Supreme Court said,

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Speaker 1: as to both of these parties, you're not personally injured.

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Speaker 1: You're like anybody else who's just out there complaining that

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Speaker 1: they don't like Obamacare. Because you don't have a direct

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Speaker 1: personal stake in this, you are not allowed to bring

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Speaker 1: this lawsuit. The Chief wrote the opinions of the Court

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Speaker 1: in the other Obamacare decisions and got a lot of

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Speaker 1: criticism from conservatives. Is it surprising that he had it

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Speaker 1: off this decision to Justice prior to write. So it

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Speaker 1: may be that the Chief has decided that he's gotten

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Speaker 1: enough blowback from Obamacare that may have something to do

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Speaker 1: with it. The Chief, because he's in the majority, would

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Speaker 1: be the one who assigned the writing of this opinion.

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Speaker 1: I suspect that because the opinion has to do with

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Speaker 1: standing and not with any of the merits. And it's

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Speaker 1: an issue that even among the justices is considered kind

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Speaker 1: of a boring technicality. So I don't think anyone was

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Speaker 1: really lobbying hard to get to write this opinion. What

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Speaker 1: did you think about Justice Alito's descent? He called it

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Speaker 1: the third installment in our epic Affordable Care Act trilogy.

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Speaker 1: So I just think it shows how contentious the issue

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Speaker 1: is on the Court. I mean, I think it also

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Speaker 1: sort of betrays that Justice Alito isn't really viewing this

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Speaker 1: as a law issue, That this is for some of

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Speaker 1: the justices, the kind of policy issue that you might

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Speaker 1: hear debated and argued about on the cable news shows,

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Speaker 1: and that it plays on that level with the justices.

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Speaker 1: And I certainly think Justice Alito's dissenting opinion reads that way.

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Speaker 1: It reads like it's written for that kind of an

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Speaker 1: audience rather than your standard Supreme Court opinion audience. Is

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Speaker 1: the cloud over Obamacare gone? Now? Are the legal challenges

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Speaker 1: behind us? Well, it's hard for me to say their

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Speaker 1: entirely behind us, just because there is so much interest

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Speaker 1: in it, and therefore there is so much money available

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Speaker 1: for lawyers and groups that want to challenge it, so

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Speaker 1: it's possible we'll hear more of it. I would say

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Speaker 1: that I think this is the Supreme Court telling people,

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Speaker 1: we've really don't want to hear about this anymore. Go away.

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Speaker 1: We'll see if they take that advice. Neil. That's Neil

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Speaker 1: Kinkoff of the Georgia State University College of Law. Cases

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Speaker 1: on abortion and gun rights are already on the Supreme

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Speaker 1: Court's docket for next term, and now the Jostices are

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Speaker 1: considering adding a third blockbuster case over whether to ban

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Speaker 1: colleges from considering race and admissions. The case over whether

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Speaker 1: Harvard College intentionally discriminated against Asian American applicants has been

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Speaker 1: the most high profile affirmative action case in years, drawing

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Speaker 1: protests from both sides. It's an important time to be

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Speaker 1: critical of Harvard and to look at how affirmative action

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Speaker 1: policies have impacted or discriminated against Asian American communities. Chinese

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Speaker 1: Americans support affirmative action. We see how important it is

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Speaker 1: to recognize adversity. The Jostices are asking the Biden administration

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Speaker 1: to weigh in on the Court of Appeals decision that

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Speaker 1: upheld Harvard's policy of using race as a factor in

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Speaker 1: admission as a legitimate way to diversify its student body.

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Speaker 1: Joining me is Susan Sturm, a professor at Columbia Law School.

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Speaker 1: Let's start with the big question, what do you read

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Speaker 1: into the Supreme Court asking for the Biden administration's view

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Speaker 1: on the Harvard case. You can't fully predict what the

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Speaker 1: justices are about. My sense use that number one, they're

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Speaker 1: trying to really be thorough about the consideration. So this

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Speaker 1: is a step of considering the perspectives of the United States.

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Speaker 1: When the administration has changed, they get the opportunity have

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Speaker 1: the administration way in that has both the appearance of

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Speaker 1: full consideration at every step. And also some justices may

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Speaker 1: be really interested in learning something. This could be a formality,

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Speaker 1: It could indicate more of a willingness to actually accept

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Speaker 1: the case. It could be that there are some justices

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Speaker 1: who feel they would get some information that would help

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Speaker 1: in their informal deliberation. So let's go back. Tell us

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Speaker 1: about the First Circuit's decision. First Circuits decision upheld the

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Speaker 1: Harvard admissions approach, which considers diversity as part of a

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Speaker 1: compelling interest, and the First Circuit found that Harvard did

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Speaker 1: not take race into account in a way that ran

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Speaker 1: a foul of the Equal Protection Clause, and that considering

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Speaker 1: race as part of holistic review is consistent with the Constitution.

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Speaker 1: That was rejecting the arguments of Stutes for Fair Admission,

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Speaker 1: suggesting that as they are doing before the Supreme Court,

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Speaker 1: number one, suggesting that any consideration of race would violate

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Speaker 1: Equal Protection Clause, and number two that Harvard in this

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Speaker 1: case considered the race of Asian American applicants in ways

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Speaker 1: that demonstrated animal The Circuit rejected those arguments and really,

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Speaker 1: in a heavily factual analysis found that had additions approach

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Speaker 1: past constitutional muster. So the plaintiffs here, the students for

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Speaker 1: Fair Admissions, are outright asking the Supreme Court to overturn

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Speaker 1: the landmark two thousand three Grutter case. Yes, they are.

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Speaker 1: And part of the reason that there's there's a concern

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Speaker 1: about the decision to accept sort is that this is

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Speaker 1: a case that relatively soon after that endorsement of Bruder,

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Speaker 1: and the facts are fairly strong in this case and

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Speaker 1: Harvards we happen and have been so found both by

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Speaker 1: the Trial Court and by the First Circuit. So there

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Speaker 1: is a concern that with the change in the composition

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Speaker 1: of the Court that if the Court were to accept

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Speaker 1: sort if, that might signal a willingness to either cut

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Speaker 1: back dramatically the circumstances under which colleges and universities can

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Speaker 1: explicitly consider race, or to eliminate that consideration completely. And

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Speaker 1: this would be a deeply problematic decision on the part

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Speaker 1: of the Court. Why I'm curious about the Court asking

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Speaker 1: the Biden administration for its input is that it seems

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Speaker 1: pretty clear that the Biden administration is going to disagree

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Speaker 1: with the position the Trump administration took supporting this lawsuit,

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Speaker 1: because the Biden administration has already dropped the Yale lawsuit

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Speaker 1: that the Trump administration brought. It's a good question, and

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Speaker 1: again it's difficult to know whether the request is to

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Speaker 1: really get updated views on the part of the government

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Speaker 1: that will then inform a reconsideration internally to the Court.

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Speaker 1: That could be one signal. Another signal is just the

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Speaker 1: interest of thoroughness, and I think Chief Justice Robert is

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Speaker 1: one who is interested in conveying an idea of legitimacy

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Speaker 1: on the part of the Court, even as it might

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Speaker 1: be an activist court that's really cutting back on the

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Speaker 1: court role in affording racial justice. So this could be

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Speaker 1: a process e Z. We've offered every opportunity at every

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Speaker 1: step of the way, and this is a circumstance under

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Speaker 1: which we still find it appropriate to change, to step

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Speaker 1: back on what's called starry decisive, which is upholding settled precedent.

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Speaker 1: Or it could be an effort to really seriously think

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Speaker 1: about whether this is a time kind of play to

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Speaker 1: open up these questions about the propriety under the Constitution

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Speaker 1: as the Court we said of taking race into account.

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Speaker 1: So it was just in I believe that the Court

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Speaker 1: reaffirmed the consideration of race in college admissions, but that

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Speaker 1: was by a four to three vote, and it's a

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Speaker 1: really different court. Now. Tell us what the court decide

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Speaker 1: in and how it's different now. The Court decided in that,

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Speaker 1: first of all, reaffirmed that diversity is a compelling interest,

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Speaker 1: which is what's required to take race into account under

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Speaker 1: the Equal Protection Clause. That holistic review is warranted and

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Speaker 1: permitted under the Equal Protection Clause uh, and that higher

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Speaker 1: education institutions continued to be entitled to deference given that

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Speaker 1: they are the ones who the best judges of the

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Speaker 1: academic requirements, but that courts will give a searching review

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Speaker 1: to how that judgment is exercised, and that there needs

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Speaker 1: to be an evidence based justification for taking race into account.

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Speaker 1: So all of that was upheld and reaffirmed by the

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Speaker 1: Court in twenty seen, as you said, in this four

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Speaker 1: three decisions. So on that court, the three justice who

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Speaker 1: were in dissent are still on the court, that's Chief

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Speaker 1: Justice John Roberts and just this Clarence Thomas and Samuel Alito.

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Speaker 1: But two of the justice who were in the majority

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Speaker 1: are no longer on the court. That's, of course, the

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Speaker 1: late Justice Ruth Bader Ginsburg and Justice Anthony Kennedy who retired.

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Speaker 1: So the court now is really different from what it

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Speaker 1: was then. Do we know how the three new justices

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Speaker 1: regards taking race into consideration and admissions? There are some

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Speaker 1: indications from their prior decisions that these new justices have

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Speaker 1: embraced this kind of color blindness approach, that looking at

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Speaker 1: race as uh something that cannot be taken into account

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Speaker 1: at all. Having said that, the configuration of the Court

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Speaker 1: is different, and I think there also is the possibility

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Speaker 1: that what this means for the center of the court

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Speaker 1: is that there may be a concern learn about thinking

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Speaker 1: situation in which the world has not changed except for

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Speaker 1: the composition of the Court. So even though we have

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Speaker 1: new justices, it's not a foregone conclusion that that will

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Speaker 1: really cut back on or retract from a well established precedent.

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Speaker 1: And there are examples of the Chief Justice, for example,

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Speaker 1: that is clear precedent for which there is no established

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Speaker 1: spaces for cutting back. So we do have three new justices,

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Speaker 1: at least two of whom might be very willing to

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Speaker 1: I don't think that tells us how the Court would

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Speaker 1: actually rule. I think there's some possibility that there would

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Speaker 1: be cutting back, but not an overturning of president with

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Speaker 1: this new majority. I want to talk a little bit

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Speaker 1: about Edward Blum, who leads to students for fair admissions.

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Speaker 1: He was also behind the lawsuit behind the Shelby County

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Speaker 1: decision which curtailed voting rights. Is he a one man

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Speaker 1: the activist or is this is a vast organization? We

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Speaker 1: have to give him credit. He's been very effective, um

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Speaker 1: as a small organization that has been able to in

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Speaker 1: part because of the change in the politics of the

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Speaker 1: nation and the election of Donald Trump and the shift

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Speaker 1: in the judiciary uh that has followed because of the

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Speaker 1: judges that uh that uh former president appointed. That that

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Speaker 1: he has been able to really leverage a small amount

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Speaker 1: of resources to have a big effect. And part of

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Speaker 1: what he's done is really used the court system to

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Speaker 1: compensate for the fact that he is a small organization.

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Speaker 1: Uh that Uh there isn't a sense that that this

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Speaker 1: is a h A large, you know, populous movement. There

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Speaker 1: have been very wealthy people who have financed his organizations

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Speaker 1: so that they can uh martial uh legal resources to

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Speaker 1: fight this battle. Um And UH, so he's been he

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Speaker 1: has been able to be quite effective marshaling the resources

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Speaker 1: biggal resources heavily financed by wealthy uh contributors uh and

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Speaker 1: then using the the shift in the in the composition

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Speaker 1: of the court to have really outsized impact. So if

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Speaker 1: you consider that there's no split in the circuits that

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Speaker 1: the Supreme Court has to resolve, and the Court is

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Speaker 1: already going to be considering next term the controversial issues

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Speaker 1: of abortion and gun rights, what would be your guests

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Speaker 1: as to whether or not the justices will take this case.

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Speaker 1: I think it's really anybody's guests as to whether the

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Speaker 1: Court will take this I think that this depends in

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Speaker 1: part on the appetite of the four justices. Two, as

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Speaker 1: you've indicated, placed the Court smack in the middle of

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Speaker 1: the most polarizing and controversial issues of our time. And

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Speaker 1: to do that in a situation when there would be

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Speaker 1: no question that were the Court to dramatically cut back

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Speaker 1: on or overturn the consideration of race in admissions, that

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Speaker 1: the Court would be taking a radical activist stance that

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Speaker 1: is contrary to start decisive. So the question is does

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Speaker 1: the Court have an appetite for that with new justices

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Speaker 1: on the bench and with these other issues that the

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Speaker 1: Court will also be faced. And it's hard to say

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Speaker 1: because we have this new composition of the court and

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Speaker 1: that question about how the Court is going to construct

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Speaker 1: its role and its legitimacy with the populace is up

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Speaker 1: for grips. The law in this area is going to

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Speaker 1: really get made on the ground. And the biggest concern

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Speaker 1: that I have is that whatever the Supreme Court decides,

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Speaker 1: that high right institutions and others will addicate responsibility for

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Speaker 1: dealing with issues of race in a way that outside

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Speaker 1: of the judiciary have really engulfed the nation. There's a

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Speaker 1: risk of the court system becoming even more out of

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Speaker 1: touch with the realities of our time and the demands

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Speaker 1: of the national legional reckoning that we're basing. Uh. And

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Speaker 1: so I really hope the Court does not take this

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Speaker 1: case for all the reasons we discussed, and I really

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Speaker 1: would urge higher education leaders and the lawyers counseling them

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Speaker 1: to recognize that business an area where law will be

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Speaker 1: made in the day to day decision of higher education

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Speaker 1: institutions as much as posits the Frame Court. Thanks for

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Speaker 1: being on the show, Susan. That's Susan Sturm, a professor

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Speaker 1: at Columbia Law School. And that's it for this edition

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

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

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

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Speaker 1: dot bloomberg dot com, slash podcast, slash Law. I'm jud

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Speaker 1: Brasso and you're listening to Bloomberg