WEBVTT - Breyer Retires and Race in College Admissions 0:00:03.200 --> 0:00:07.960 This is Bloomberg Law with June Brussel from Bloomberg Radio. 0:00:09.360 --> 0:00:12.760 Justice Stephen Brier, the leader of the Court's liberal justices, 0:00:13.039 --> 0:00:16.079 will retire after more than twenty five years on the 0:00:16.120 --> 0:00:20.040 bench today. Justice Priory Houns is his intention to step 0:00:20.079 --> 0:00:23.840 down from active service after four decades. Four decades on 0:00:23.880 --> 0:00:26.639 the federal Branson twenty eight years on the United States 0:00:26.680 --> 0:00:30.120 Supreme Court. His legacy includes his work as a leading 0:00:30.200 --> 0:00:33.760 scholar and jurist and administrative law, bringing his brilliance to 0:00:33.880 --> 0:00:37.680 bear to make government run more efficiently and effectively. It 0:00:37.720 --> 0:00:41.360 includes his stature as a beacon of wisdom on our 0:00:41.400 --> 0:00:45.200 constitution and what it means. And through it all, Justice 0:00:45.200 --> 0:00:49.080 Priors worked tirelessly to give faith to the notion that 0:00:49.200 --> 0:00:52.000 the law exists to help the people. Joining me as 0:00:52.080 --> 0:00:55.880 judiciary expert, Carl Tobias, a professor at the University of 0:00:55.960 --> 0:01:00.480 Richmond Law School, tell us about the timing of Justice 0:01:00.520 --> 0:01:04.120 Briar's announcement even before the end of the term. When 0:01:04.400 --> 0:01:09.839 justices normally retire, well, it is unusual. Usually it comes 0:01:10.160 --> 0:01:12.600 at the last sitting or very close to the end 0:01:12.640 --> 0:01:15.759 of the term. But it's happened in all different periods, 0:01:15.800 --> 0:01:19.759 so It's not unprecedented, but it's nice in the sense 0:01:19.800 --> 0:01:24.479 that it provides plenty of time to replace him, and 0:01:24.600 --> 0:01:27.800 so the White House and the Senate can move carefully 0:01:28.080 --> 0:01:31.360 to find the finest person to replace him. There was 0:01:31.400 --> 0:01:35.679 a real push by liberals to get Justice Prior to 0:01:35.800 --> 0:01:40.360 retire before the midterms might put Republicans in charge of 0:01:40.400 --> 0:01:44.360 the Senate. Do you think all the political considerations played 0:01:44.400 --> 0:01:47.200 a part in Justice Briar's decision. If it were a 0:01:47.200 --> 0:01:49.880 different world, he might have stayed on the bench. That 0:01:49.960 --> 0:01:54.080 could be. There was substantial pressure, and some of it 0:01:54.520 --> 0:01:58.840 seemed too much, the advertisements and that type of thing. 0:01:59.040 --> 0:02:04.320 But people for very strongly about this, and they remember, unfortunately, 0:02:04.320 --> 0:02:08.799 what happened with Justice Ginsburg, and so there was pretty 0:02:08.800 --> 0:02:13.720 intense pressure. How would you describe Justice Prior's jurisprudence over 0:02:13.760 --> 0:02:17.440 the years. Well, I think he was a real student 0:02:17.800 --> 0:02:21.080 of the branches of government. You know, he was an 0:02:21.120 --> 0:02:26.400 administrative law professor when he was at Harvard before he 0:02:26.480 --> 0:02:28.440 went on the First Circuit and then on to the 0:02:28.440 --> 0:02:31.639 Supreme Court. And I think he really cared about issues 0:02:31.760 --> 0:02:36.040 like separation of powers and the branches of government and 0:02:36.080 --> 0:02:41.000 how the branches worked together or an opposition, and I 0:02:41.000 --> 0:02:44.920 think he really relished working on those kinds of issues. 0:02:44.960 --> 0:02:47.560 He also wrote some books that were very interesting in 0:02:47.680 --> 0:02:52.440 terms of things like deregulation and other areas that interested 0:02:52.560 --> 0:02:56.240 him so at a real roving intellect and a real 0:02:56.320 --> 0:03:00.440 command of the history of the federal government and how 0:03:00.480 --> 0:03:03.640 it worked. Would you say that he always voted with 0:03:03.680 --> 0:03:06.440 the liberals. I think it depended on the issue. There 0:03:06.440 --> 0:03:11.720 were some cases where he did not always vote in 0:03:11.720 --> 0:03:14.639 a way that was as progressive as some people might 0:03:14.720 --> 0:03:17.959 have wanted, uh and some of his colleagues might have wanted. 0:03:18.280 --> 0:03:20.600 But I think he took each case as it came, 0:03:21.160 --> 0:03:23.359 and on the law and of facts, tried to do 0:03:23.480 --> 0:03:26.480 his best in terms of what he thought was the 0:03:26.560 --> 0:03:31.359 appropriate resolution of particular cases. Would you say that he 0:03:31.440 --> 0:03:34.880 was a consensus builder on the court. I think so. 0:03:35.400 --> 0:03:40.200 He certainly had a reputation for being extremely collegial, and 0:03:40.640 --> 0:03:43.120 I think if you were to see the way he 0:03:43.200 --> 0:03:47.800 treated lawyers arguing before him and his colleagues and questioning, 0:03:48.240 --> 0:03:52.840 he had incredible temperament and was very patient and always 0:03:52.840 --> 0:03:55.600 tried to work toward what he thought would be the 0:03:55.640 --> 0:03:59.040 best resolution of any particular case. So I think in 0:03:59.080 --> 0:04:01.640 that way as a model old jurist. But he wasn't 0:04:01.640 --> 0:04:04.680 afraid to dissent when he disagreed with the majority of 0:04:04.720 --> 0:04:07.760 the court, and in ways that we're respectful of the 0:04:07.800 --> 0:04:12.640 majority's opinion even as he criticized it. He also sometimes 0:04:13.160 --> 0:04:19.960 introduced some wacky hypotheticals during oral arguments. Yes, I guess 0:04:20.000 --> 0:04:22.640 the law professor and him couldn't resist, But it is 0:04:22.680 --> 0:04:28.160 true that he often did ask difficult hypotheticals, and sometimes 0:04:28.160 --> 0:04:31.720 that would frustrate lawyers. I assume even the best who 0:04:31.720 --> 0:04:35.120 go before the Supreme Court. One of the leading candidates 0:04:35.120 --> 0:04:39.000 mentioned is a possible nominee to replace Justice Pryor is 0:04:39.080 --> 0:04:44.240 Judge Katangi Brown Jackson. She was confirmed just last year 0:04:44.279 --> 0:04:46.960 to the d C Circuit Court of Appeals, and three 0:04:47.040 --> 0:04:51.640 Republican Senators voted for her confirmation. Might that make the 0:04:51.680 --> 0:04:57.279 confirmation process smoother? Absolutely? I also would expect those centators 0:04:57.279 --> 0:05:00.360 to withhold how they might vote until they see how 0:05:00.440 --> 0:05:02.920 she does in the process. If she is the nominee, 0:05:03.560 --> 0:05:06.279 I could see them saying, and often senators do well. 0:05:06.320 --> 0:05:09.599 I thought she was just fine for the d C Circuit, 0:05:09.720 --> 0:05:12.960 but the Supreme Court is the highest court in the land. 0:05:13.279 --> 0:05:16.880 And because I voted one way doesn't necessarily mean that 0:05:16.960 --> 0:05:20.080 I will vote that way again. But don't forget the 0:05:20.120 --> 0:05:25.560 Democrats have not lost any votes, and none of their 0:05:25.600 --> 0:05:27.960 members have voted no on any of the lower Federal 0:05:28.000 --> 0:05:31.680 Court nominees to date, and so if they hold together, 0:05:32.160 --> 0:05:35.839 there shouldn't be a problem. They don't even need any 0:05:35.960 --> 0:05:39.240 Republican votes because if they're tied fifty fifty, the Vice 0:05:39.240 --> 0:05:43.839 President can break that tie. And so we'll see how 0:05:43.960 --> 0:05:46.960 it plays out. But I do think that Democrats are 0:05:47.000 --> 0:05:50.120 likely to hold together, just as Republicans have very much 0:05:50.160 --> 0:05:54.200 held together, with some exceptions like Senator Graham and sometimes 0:05:54.560 --> 0:05:59.440 Senators Murkowski and Collins have voted for lower court nominees, 0:05:59.680 --> 0:06:03.039 but any Republicans have voted Noah on almost every one 0:06:03.240 --> 0:06:08.240 of Biden's lower court nominees, even people who were not controversial. Finally, 0:06:08.440 --> 0:06:13.320 how would you describe Justice Briar's legacy? Well, I think 0:06:13.400 --> 0:06:19.520 he brought an incredible understanding of how the federal government 0:06:19.800 --> 0:06:24.120 works in the United States to the Supreme Court and 0:06:24.600 --> 0:06:30.599 applied his collegiality. He's intelligence is independence to every case 0:06:30.839 --> 0:06:34.560 that came before the Court in a way that informed 0:06:35.040 --> 0:06:39.920 the way many cases were resolved, and I think he 0:06:40.200 --> 0:06:43.520 was always willing to dissent or to concur if need be. 0:06:43.960 --> 0:06:47.599 And I think he leaves a really strong legacy in 0:06:47.640 --> 0:06:51.160 the public law area. Thanks Carl, that professor called to 0:06:51.240 --> 0:06:56.240 Bias of the University of Richmond Law School. The consideration 0:06:56.320 --> 0:07:00.599 of race and college admissions has always been controversial and 0:07:00.720 --> 0:07:04.160 often misunderstood, as in a scene from the movie Dear 0:07:04.200 --> 0:07:07.560 White People. Hey, look, you guys still got affirmative action. 0:07:09.400 --> 0:07:12.400 I'm sorry, what exactly are you doing here? All right? 0:07:13.600 --> 0:07:18.520 Obama right, leader of the free world. He gets into 0:07:18.680 --> 0:07:23.920 Harvard based on you too late affirmative action. You know 0:07:23.960 --> 0:07:27.600 he's not president right now, No, the guy who didn't 0:07:27.640 --> 0:07:32.080 get in. Now, more than forty years after first considering 0:07:32.120 --> 0:07:35.520 affirmative action, the Supreme Court has agreed to hear two 0:07:35.560 --> 0:07:38.960 cases that could mean the end of race conscious admissions. 0:07:39.640 --> 0:07:43.200 The case is challenging the admissions policies at Harvard College 0:07:43.200 --> 0:07:46.960 and the University of North Carolina seek to overturn decades 0:07:46.960 --> 0:07:51.040 of Supreme Court precedent that allow universities to consider race 0:07:51.120 --> 0:07:54.400 in helping to create a diverse student body. Joining me 0:07:54.480 --> 0:07:57.600 is Audrey Anderson, who heads the Higher Education practice at 0:07:57.600 --> 0:08:02.360 Bassbarian sims. First, what was your reaction to the Court 0:08:02.480 --> 0:08:08.160 taking up affirmative action where you surprised, concerned, unfazed. Well, 0:08:08.240 --> 0:08:12.640 you know, I wasn't surprised that they granted review of 0:08:12.680 --> 0:08:15.160 the cases because some of the steps they've taken along 0:08:15.200 --> 0:08:18.600 the way. They asked for the views of the Solicitor General, 0:08:18.920 --> 0:08:21.560 wanted to know the United States governments used in the case, 0:08:21.680 --> 0:08:25.120 which is one clue that they're interested in the issue. 0:08:25.520 --> 0:08:28.560 And then they had actually looked at the petition at 0:08:28.600 --> 0:08:31.360 more than one of their conferences, so for two weeks 0:08:31.360 --> 0:08:34.679 in a row they had considered the petitions. So when 0:08:34.720 --> 0:08:38.680 they granted it, I was not at all surprised. I 0:08:38.720 --> 0:08:44.719 am concerned for the longevity of affirmative action in college admissions, 0:08:44.840 --> 0:08:46.920 given that they have now granted review of the case. 0:08:47.160 --> 0:08:51.240 But we will see what happens. So the first circuit 0:08:51.320 --> 0:08:55.480 affirmed the decision for Harvard's admissions process, and the fourth 0:08:55.480 --> 0:08:59.840 Circuit hasn't decided the University of North Carolina case yet, 0:09:00.600 --> 0:09:03.360 so there was no split in the circuits, which often 0:09:03.440 --> 0:09:06.720 leads the Supreme Court to step in. Is the Supreme 0:09:06.760 --> 0:09:10.239 Court sort of jumping the gun? This is an unusual 0:09:11.320 --> 0:09:16.480 circumstance for them to be granting review of the case. Usually, 0:09:16.520 --> 0:09:19.320 the Court would not grant review where there was no 0:09:19.520 --> 0:09:22.280 split in authority, And that's one of the reasons why 0:09:22.320 --> 0:09:26.000 I'm concerned about the longevity of affirmative action. There really 0:09:26.120 --> 0:09:30.800 is no good reason to grant review here unless at 0:09:30.880 --> 0:09:34.320 least four members and likely five members of the Court 0:09:34.840 --> 0:09:38.559 I think that the decisions below are incorrect and they 0:09:38.600 --> 0:09:41.840 want to overturn them. That's the only reason that they 0:09:41.880 --> 0:09:45.920 would grant review of these cases. The Supreme Court has 0:09:45.960 --> 0:09:50.320 weighed in several times on affirmative action. Where does the 0:09:50.320 --> 0:09:55.520 Supreme Court doctrine stand now? Well, right now, it is 0:09:56.600 --> 0:10:02.640 legal constitutional for university these too consider race in their 0:10:02.679 --> 0:10:06.960 admissions programs, as long as they are doing so for 0:10:07.200 --> 0:10:12.360 the purposes of diversity in their programs, to get the 0:10:12.480 --> 0:10:16.720 educational benefits of a diverse student body, and as long 0:10:16.760 --> 0:10:19.240 as they do it in a way that is narrowly 0:10:19.360 --> 0:10:23.640 tailored to furthering that interest. So right now, that is 0:10:24.000 --> 0:10:27.800 legal and constitutional. The problem is that there's been a 0:10:27.920 --> 0:10:31.920 change in the Supreme Court since the Court last looked 0:10:31.960 --> 0:10:36.439 at that question in and the changes in the justices 0:10:36.480 --> 0:10:39.000 on the Court lead many of us to believe that 0:10:39.080 --> 0:10:42.600 the Court today might come to a different conclusion than 0:10:42.640 --> 0:10:47.199 it did in so in the two thousand three decision, 0:10:47.760 --> 0:10:51.920 Justice Sandra Day O'Connor predicted that racial preferences would no 0:10:52.040 --> 0:10:56.240 longer be necessary in twenty five years. Was affirmative action 0:10:56.960 --> 0:11:01.040 always seen as a temporary measure, a stop gap. I 0:11:01.080 --> 0:11:04.720 think that many of us have an aspiration that there 0:11:04.760 --> 0:11:07.920 will be a day that race is not an important 0:11:08.240 --> 0:11:12.880 factor about people in our society, that there will be 0:11:12.920 --> 0:11:15.959 a day when we don't need to consider race in 0:11:16.120 --> 0:11:20.120 order to uh level the playing field. But many of 0:11:20.240 --> 0:11:23.160 us the day that Justice O'Connor wrote that I thought 0:11:23.160 --> 0:11:26.160 that twenty five years was a little bit optimistic, And 0:11:26.200 --> 0:11:29.000 I think that many of us today think that it 0:11:29.360 --> 0:11:33.200 really was overly optimistic to think that six years from 0:11:33.280 --> 0:11:35.400 now or five years from now, race will not be 0:11:35.440 --> 0:11:38.640 an important factor that still needs to be considered. Let's 0:11:38.640 --> 0:11:42.080 talk about the arguments in the case. What's the argument 0:11:42.600 --> 0:11:45.960 being made for race neutral admissions and what are the 0:11:46.000 --> 0:11:51.840 school's arguments against it. Well, the main argument that the 0:11:51.920 --> 0:11:55.880 people challenging a firm of action are making in their 0:11:55.920 --> 0:11:59.319 petitions to the Supreme Court is that this law that 0:11:59.400 --> 0:12:03.240 I just told you about that's been governing college admissions 0:12:03.240 --> 0:12:07.120 since ninety eight, actually in the Backy decision, which came 0:12:07.200 --> 0:12:11.320 before the two thousand three Michigan decisions. But that law 0:12:11.440 --> 0:12:17.960 is wrong, That the Constitution requires schools to admit students 0:12:18.000 --> 0:12:23.079 in a color blind fashion, that the Constitution requires governmental 0:12:23.120 --> 0:12:26.680 actors and those receiving federal funds to make decisions in 0:12:26.720 --> 0:12:30.120 a color blind way, and to do anything else really 0:12:30.240 --> 0:12:35.160 violates the Constitution. That that is their number one argument, 0:12:35.600 --> 0:12:40.120 and it is an argument that is very persuasive to 0:12:40.720 --> 0:12:44.240 a number of members of the current Supreme Court from 0:12:44.240 --> 0:12:48.640 a legal perspective. On the other side, Uh, there are 0:12:48.679 --> 0:12:52.560 many who believe that the Fourteenth Amendment, when you look 0:12:52.600 --> 0:12:57.040 at its history and the context of what was happening 0:12:57.080 --> 0:13:02.720 at that time, was very much men too protect the 0:13:02.920 --> 0:13:08.160 rights and further the rights of black people in America 0:13:08.240 --> 0:13:12.720 who had just left the institution of slavery. And so 0:13:12.960 --> 0:13:17.800 a color blind constitution was never, uh, the idea of 0:13:17.800 --> 0:13:21.200 the Framers, It was never the idea of the members 0:13:21.320 --> 0:13:24.720 of Congress who passed the Fourteenth Amendment at that time. 0:13:25.280 --> 0:13:29.840 And so there is room for a limited consideration of 0:13:30.040 --> 0:13:35.839 race in this aspect of society and the schools here 0:13:37.000 --> 0:13:40.520 want a diverse student body. Is that what's behind the 0:13:40.720 --> 0:13:43.800 missions process here? Yeah, So what the schools want to 0:13:44.040 --> 0:13:48.199 want to have is a student body that is widely 0:13:48.280 --> 0:13:52.920 diverse and diverse with all kinds of characteristics in mind. 0:13:53.360 --> 0:13:55.880 But one of those characteristics they want to have diversity 0:13:55.920 --> 0:13:59.880 on is race. And in order to meet the current 0:14:00.200 --> 0:14:04.599 legal standard, they have to show that they are unable 0:14:04.679 --> 0:14:09.800 to attain a racially diverse student body without considering race. 0:14:10.160 --> 0:14:15.080 That they have considered and used race neutral means of 0:14:15.160 --> 0:14:21.520 trying to get racial diversity by doing recruiting effort, by 0:14:21.560 --> 0:14:28.440 considering socioeconomic circumstances, by other means, and that still doesn't 0:14:28.520 --> 0:14:32.360 get them the racial diversity that they want to have 0:14:32.560 --> 0:14:37.080 in their student bodies to give their students the educational 0:14:37.160 --> 0:14:43.360 benefits of learning and living in a racially diverse environment. 0:14:44.280 --> 0:14:46.840 Let's talk about the plaintiffs in the case for a moment. 0:14:46.960 --> 0:14:51.560 Students for Fair Admissions was formed to challenge racial preferences. 0:14:51.600 --> 0:14:55.200 What's their strategy been to get affirmative action before this 0:14:55.400 --> 0:15:00.000 more conservative court. Yeah, Well, they have been very very 0:15:00.040 --> 0:15:04.600 very successful um with their strategy, and their strategy has 0:15:04.640 --> 0:15:12.320 been to bring cases against different universities in different circumstances 0:15:12.360 --> 0:15:16.880 and in different parts of the country. So they brought 0:15:16.880 --> 0:15:20.560 a case against the University of Texas in Austin, they 0:15:20.560 --> 0:15:24.560 brought a case against Harvard, They brought a case against 0:15:24.560 --> 0:15:28.080 the University of North Carolina and Chapel Hill. And their 0:15:28.200 --> 0:15:33.760 strategy was to get decisions from courts um in those 0:15:33.800 --> 0:15:38.880 different areas in order to ideally get a split in 0:15:39.000 --> 0:15:41.680 authority from those courts they have those courts come out 0:15:41.880 --> 0:15:46.320 different ways, so they could say to the Supreme Court, hey, look, 0:15:46.400 --> 0:15:51.600 the courts are in disagreement on this. You need to decide. 0:15:51.720 --> 0:15:55.880 You need to make a decision. It actually turns out 0:15:55.880 --> 0:15:58.720 that they didn't even need to do that. The Supreme 0:15:58.760 --> 0:16:03.040 Court is so int a sit in this issue that 0:16:03.720 --> 0:16:08.040 the court decisions so far we're all in line. They 0:16:08.080 --> 0:16:12.600 all found that the school that issue here had met 0:16:12.640 --> 0:16:18.400 the constitutional standard. But Harvard. They took Harvard, and then 0:16:18.440 --> 0:16:21.640 they took the really unusual step, as you noted June. 0:16:21.680 --> 0:16:24.520 In the North Carolina case, all we have is a 0:16:24.720 --> 0:16:31.560 decision from the trial court um. But students refer admission said, hey, 0:16:31.680 --> 0:16:35.920 we have this Harvard case pending before you. We want 0:16:35.960 --> 0:16:41.920 you to grant Sir Serrari before the appellate court even 0:16:42.040 --> 0:16:45.840 has a chance to consider the trial court's opinion in 0:16:45.880 --> 0:16:48.880 the North Carolina case, so that you can consider the 0:16:49.000 --> 0:16:51.800 UNC case and the Harvard case at the same time. 0:16:53.200 --> 0:16:58.240 That's really um appealing, I think to the justices because 0:16:58.280 --> 0:17:00.760 they get to look at a p I'm at school 0:17:00.920 --> 0:17:05.159 and a public school at the same time, and it 0:17:05.240 --> 0:17:09.840 gives them two different back patterns to consider as they 0:17:09.840 --> 0:17:15.520 are determining whether they're going to overturn um Affirmative Act, 0:17:15.600 --> 0:17:21.520 the Affirmative Action laws, and what's your feeling looking at 0:17:21.600 --> 0:17:26.959 the court and the various justices track records and viewpoints 0:17:27.000 --> 0:17:30.120 any theory about how the Court is likely to rule here. 0:17:30.560 --> 0:17:33.480 I know we're far away from that, but I think 0:17:33.480 --> 0:17:36.080 going in as I said, I go in with with 0:17:36.160 --> 0:17:41.440 the assumption that there are five justices who as of today, 0:17:41.600 --> 0:17:46.480 would vote to overrule the president, because otherwise they would 0:17:46.560 --> 0:17:49.200 not have taken these cases. They would not have granted 0:17:49.440 --> 0:17:52.119 Sir Sharari, even though it only takes four votes to 0:17:52.200 --> 0:17:56.359 grant Sir Sharrai. In this kind of a circumstance, the 0:17:56.480 --> 0:17:59.760 justices are stavvy enough to say, well, we don't we're 0:17:59.800 --> 0:18:01.960 not in a grant, sir ferrari, if we're only going 0:18:02.000 --> 0:18:06.080 to lose in terms of overturning this precedent that we 0:18:06.160 --> 0:18:08.800 want to overturn. So they talk amongst each other and 0:18:08.880 --> 0:18:12.600 figure out, Okay, we really have five to overturn. But 0:18:13.680 --> 0:18:18.560 there is a long road, as you're um hinting at, 0:18:18.960 --> 0:18:22.160 between now and when the decisions are rendered, and there's 0:18:22.160 --> 0:18:24.320 going to be a lot of work done by the 0:18:24.440 --> 0:18:28.240 universities involved here and those that are supporting them in 0:18:28.359 --> 0:18:35.040 order to convince ah the justices that they should maintain 0:18:36.040 --> 0:18:39.320 affirmative action. You know, when these cases were up before 0:18:39.320 --> 0:18:42.760 the Supreme Court um with the University of Missigon, Michigan 0:18:42.800 --> 0:18:49.000 cases in two thousand three, really most people expected that 0:18:49.040 --> 0:18:51.480 affirmative action would go away. At that point in time, 0:18:51.920 --> 0:18:54.639 people were very uncertain that they would be able to 0:18:54.680 --> 0:18:58.800 get five votes from the Supreme Court then to uphold 0:18:58.840 --> 0:19:02.320 affirmative action. And the they only did by one vote. 0:19:02.320 --> 0:19:06.160 It was a five four vote. So I think that 0:19:06.880 --> 0:19:11.280 there is some hope that again by doing some very 0:19:11.320 --> 0:19:17.480 good lawyer lawyering and making a very fact specific argument, 0:19:17.600 --> 0:19:21.440 that you might be able to convince some of the 0:19:21.560 --> 0:19:25.600 justices that they should keep affirm of action in place. 0:19:25.640 --> 0:19:28.320 It's either going to if they're able to do that 0:19:28.600 --> 0:19:30.560 right now. My guess is you'll either do it by 0:19:30.600 --> 0:19:35.399 some very careful, careful factual lawyering or else by getting 0:19:35.400 --> 0:19:39.920 them to agree that they shouldn't overrule the precedent. So 0:19:39.960 --> 0:19:43.040 I'm gonna be looking very carefully whatever they say in 0:19:43.119 --> 0:19:47.879 the Mississippi abortion case this year about how they treat precedent, 0:19:48.640 --> 0:19:51.160 because that's going to give us some good guide posts 0:19:51.160 --> 0:19:54.560 for how they are going to treat the precedent in 0:19:54.600 --> 0:19:59.440 this affirmative action case, and it will um let us 0:19:59.480 --> 0:20:02.480 know how they think they have to look at it. 0:20:03.240 --> 0:20:05.480 So it's going to be very interesting, but that I 0:20:05.520 --> 0:20:08.600 think that it's going to be a difficult road to 0:20:09.600 --> 0:20:14.560 get there. This term, the Court is considering toppling as 0:20:14.600 --> 0:20:18.560 you refer to the landmark Roe v. Wade abortion rights decision. 0:20:18.880 --> 0:20:22.480 It's likely to expand Second Amendment gun rights and restrict 0:20:22.560 --> 0:20:25.120 what the e p A can do against climate change. 0:20:25.640 --> 0:20:28.159 So this case is not going to be heard until 0:20:28.240 --> 0:20:32.000 next term. As we've discussed before, the Court might not 0:20:32.160 --> 0:20:34.480 want to have too many at least Justice Roberts might 0:20:34.480 --> 0:20:37.880 not want to have too many controversial decisions in one term. 0:20:37.920 --> 0:20:41.879 So might the justices have been considering that when they 0:20:41.920 --> 0:20:44.840 took this case not for this term but for next term. 0:20:44.880 --> 0:20:48.359 I believe that they absolutely did that June, because they 0:20:48.400 --> 0:20:51.960 have their meetings on Fridays, their conferences on Fridays, where 0:20:52.000 --> 0:20:54.720 they make decisions about what they're gonna do with petitions 0:20:54.760 --> 0:20:59.560 for Sir Frarri. Well as Friday, they announced that they 0:20:59.600 --> 0:21:04.080 had granted sert in a different case, and they set 0:21:04.160 --> 0:21:07.199 that case with an expedited briefing schedule and said that 0:21:07.320 --> 0:21:10.040 argument in that case would occur in April of this year, 0:21:10.160 --> 0:21:14.359 this term. And then on Monday they announced that they 0:21:14.359 --> 0:21:17.119 had granted Sir Serrari in the Affirmative Action case and 0:21:17.160 --> 0:21:21.199 several others that they will hear um next fall. So 0:21:21.240 --> 0:21:25.240 they made a conscious decision that hey of these cases 0:21:25.280 --> 0:21:29.679 were granting certain we definitely don't want to hear the 0:21:29.720 --> 0:21:34.040 affirmative action case this spring. Now you could there are 0:21:34.040 --> 0:21:37.280 other there are other um reasons you could say they 0:21:37.320 --> 0:21:40.439 didn't want to hear the affirmative action case this spring. 0:21:40.480 --> 0:21:43.040 They didn't want to put it on an expedited briefing 0:21:43.119 --> 0:21:46.359 schedule because there's going to be a ton of um 0:21:46.600 --> 0:21:48.720 amikus briefs that are going to be filed, and they 0:21:48.760 --> 0:21:51.720 don't want to put that kind of pressure on all 0:21:51.800 --> 0:21:54.479 the amiki. But I think that the more likely reason 0:21:54.720 --> 0:21:59.359 is they know that they're going to be um on 0:21:59.520 --> 0:22:02.920 doing un precedent this term, and they don't want to 0:22:03.000 --> 0:22:07.120 undo too much precedent at one time. I just want 0:22:07.119 --> 0:22:11.040 to ask you, eight states, including California, have banned the 0:22:11.040 --> 0:22:15.760 consideration of race in college admissions. Isn't that contrary to 0:22:16.720 --> 0:22:22.480 Supreme Court doctrine? Well, what the Supreme Court doctrine says 0:22:22.680 --> 0:22:26.000 is just that universities may consider rate. Doesn't say they 0:22:26.080 --> 0:22:29.800 must consider rate. It just allows you to do it 0:22:29.880 --> 0:22:34.480 under the constitution. So those states where it's disallowed, there 0:22:34.520 --> 0:22:37.320 has been a state law that says, well, in our state, 0:22:37.600 --> 0:22:41.840 you may not do that. So it's it's not really contrary. 0:22:42.200 --> 0:22:45.639 All the time, states disallow things that would otherwise be 0:22:45.680 --> 0:22:49.199 allowed under the federal Constitution. And what's interesting is that 0:22:49.240 --> 0:22:53.960 in those states, June, we see what happens when institutions 0:22:54.000 --> 0:22:57.840 are not allowed to consider race and admissions, and what 0:22:57.880 --> 0:23:02.040 we see is that the person images of black students 0:23:02.280 --> 0:23:05.720 go down. That some of the universities are able to 0:23:05.800 --> 0:23:10.159 keep their overall percentage of minority students maybe the same, 0:23:10.480 --> 0:23:14.680 but the percentage of black students goes down. Thanks Audrey. 0:23:14.720 --> 0:23:20.719 That's Audrey Anderson of Basparian SIMS. Some New York school 0:23:20.800 --> 0:23:24.920 districts abandoned mask mandates after a Long Island judge declared 0:23:24.960 --> 0:23:28.639 them unconstitutional on Monday, but by the end of Tuesday, 0:23:28.880 --> 0:23:31.920 the school districts were told to put the requirement back 0:23:31.960 --> 0:23:35.480 in place, as New York Governor Kathy Hokel appealed the 0:23:35.600 --> 0:23:39.920 ruling and an appellate court judge temporarily stayed the Long 0:23:39.960 --> 0:23:43.960 Island judges ruling. This is the latest whipsaw for parents 0:23:44.000 --> 0:23:48.080 trying to navigate the pandemic with school aged children. State 0:23:48.160 --> 0:23:52.280 Education Commissioner Betty Rosa acknowledged the burden and thanks school 0:23:52.359 --> 0:23:56.240 communities for their patients during this process. Joining me is 0:23:56.280 --> 0:24:00.760 Bloomberg Legal reporter Bob van Voris tell us about the 0:24:00.840 --> 0:24:05.080 ruling of the Long Island judge about the governor's mask 0:24:05.200 --> 0:24:10.399 mandate sue judan. On Monday, judge in Nassau County on 0:24:10.440 --> 0:24:14.760 Long Island, New York named Thomas Radamaker ruled that the 0:24:15.119 --> 0:24:21.080 States requirement for people statewide to wear masks indoors in 0:24:21.200 --> 0:24:25.720 settings where it's impossible to socially distanced. He ruled that 0:24:25.720 --> 0:24:30.680 that that regulation issued by the state Health Department was 0:24:30.920 --> 0:24:33.680 basically akin to passing a law, and that's the Health 0:24:33.680 --> 0:24:37.159 Department doesn't have the authority to pass laws that the 0:24:37.240 --> 0:24:43.080 state legislature. So he ruled that the regulation was void. 0:24:43.760 --> 0:24:47.399 And this came as news on late Monday, kind of 0:24:47.400 --> 0:24:51.359 throwing school districts and and other people into a little 0:24:51.359 --> 0:24:53.280 bit of chaos to kind of figure out what they 0:24:53.280 --> 0:24:55.560 were going to do the next day with students reported 0:24:55.560 --> 0:25:00.200 to school. Was this because the state legislature had had 0:25:00.680 --> 0:25:07.280 given Governor Cuomo special authority and then took it back. Well, 0:25:07.280 --> 0:25:11.399 that was one of the reasons the state legislature gave 0:25:11.720 --> 0:25:16.000 Governor Cuomo emergency powers, and of course Cuomo had to 0:25:16.080 --> 0:25:20.360 leave office and his lieutenant Governor Kathy Hocol is now 0:25:20.400 --> 0:25:26.240 the governor. In December, her administration, through the Health Department, 0:25:26.359 --> 0:25:32.040 issued these regulations. But as you say, the legislature had 0:25:32.080 --> 0:25:35.520 kind of scaled back the powers that it had given 0:25:35.560 --> 0:25:38.560 Cuomo to deal with an emergency, and you know, also 0:25:38.760 --> 0:25:41.960 for Hoco to use when she became governor, for her 0:25:41.960 --> 0:25:45.400 to deal with an emergency. So the judge, Judge Radmaker 0:25:46.040 --> 0:25:49.720 said the you know that HOCO didn't have authority to 0:25:49.960 --> 0:25:53.600 issue these regulations, and that certainly the Health Department on 0:25:53.680 --> 0:25:58.600 its own, without authority from the legislature, didn't have the 0:25:58.640 --> 0:26:03.760 ability to institute this requirement. Redmaker told HOCAL and the 0:26:03.760 --> 0:26:08.639 Health Department, Look, if you want to put this into place, 0:26:08.680 --> 0:26:10.280 you've got to go to the legislature. You've got to 0:26:10.280 --> 0:26:13.160 ask for law, and you know, sign it into law, 0:26:13.240 --> 0:26:16.720 and then you cut your requirement. Do you know how 0:26:17.119 --> 0:26:21.600 it's been handled in other states? Because health regulations are 0:26:21.720 --> 0:26:25.679 usually handled at the state and local level, and with vaccines, 0:26:25.720 --> 0:26:28.399 the Supreme Court seem to indicate that's where they should 0:26:28.440 --> 0:26:32.600 be handled. Yeah, that's exactly right. I mean, regulation of 0:26:32.680 --> 0:26:36.680 health is a state and local uh sort of responsibility. 0:26:36.880 --> 0:26:40.600 So we've got a real patchwork of different requirements throughout 0:26:40.600 --> 0:26:45.000 the states. The states like New York often run by 0:26:45.359 --> 0:26:50.800 Democrats that are imposing mass mandates vaccine mandates. There are 0:26:50.840 --> 0:26:56.439 states like Florida and Virginia where the governors are barrowing 0:26:56.560 --> 0:27:01.919 local governments from imposing those kind of man people. Also 0:27:02.000 --> 0:27:05.640 in New York State, you've got localities including New York. 0:27:06.320 --> 0:27:08.320 New York City, which is the biggest of the mall 0:27:08.400 --> 0:27:11.520 and has the biggest school district in New York City, 0:27:11.520 --> 0:27:14.639 has its own mass mandate already, so you know, whatever 0:27:14.840 --> 0:27:18.840 happens at the state level is not going to displaced that, 0:27:19.280 --> 0:27:20.840