1 00:00:02,759 --> 00:00:07,000 Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio. 2 00:00:08,760 --> 00:00:13,080 Speaker 2: It's a case that could lift longstanding constitutional limits on 3 00:00:13,200 --> 00:00:17,239 Speaker 2: government support for religion and further erode the separation of 4 00:00:17,360 --> 00:00:21,040 Speaker 2: church and state. And the sharp ideological divide on the 5 00:00:21,079 --> 00:00:25,279 Speaker 2: Supreme Court was apparent in the oral arguments over whether 6 00:00:25,360 --> 00:00:29,319 Speaker 2: to allow the first publicly funded religious charter school in 7 00:00:29,400 --> 00:00:32,760 Speaker 2: the nation. Four of the conservative justices seemed to be 8 00:00:33,000 --> 00:00:36,360 Speaker 2: firmly on the side of the charter school, Saint Isidore 9 00:00:36,440 --> 00:00:42,720 Speaker 2: of Seville Catholic Virtual School, suggesting that Oklahoma is unconstitutionally 10 00:00:42,760 --> 00:00:47,800 Speaker 2: disfavoring religion by requiring its public charter schools to be secular. 11 00:00:48,280 --> 00:00:52,320 Speaker 2: Justice Brett Kavanaugh called it rank discrimination against religion. 12 00:00:53,159 --> 00:00:56,080 Speaker 3: And then you come in and you say, oh, oral 13 00:00:56,160 --> 00:01:00,520 Speaker 3: religious school. It's like, oh, no, can't do that too much. 14 00:01:01,280 --> 00:01:04,600 Speaker 3: That's scary. We're not going to do that. And our 15 00:01:04,720 --> 00:01:07,000 Speaker 3: cases have made very clear, and I think those are 16 00:01:07,000 --> 00:01:09,959 Speaker 3: some of the most important cases we've had of saying 17 00:01:10,160 --> 00:01:14,920 Speaker 3: you can't treat religious people and religious institutions and religious 18 00:01:14,920 --> 00:01:17,840 Speaker 3: speech as second class in the United States. 19 00:01:18,440 --> 00:01:23,160 Speaker 2: But the three liberal justices emphasized that taxpayer funded religious 20 00:01:23,160 --> 00:01:27,360 Speaker 2: schools would entangle church and state in violation of the 21 00:01:27,480 --> 00:01:32,720 Speaker 2: Establishment clause of the First Amendment. Here's Justice Sonya Sotomayor. 22 00:01:32,800 --> 00:01:36,560 Speaker 4: Because the essence of the Establishment clause was we're not 23 00:01:36,800 --> 00:01:43,920 Speaker 4: going to pay religious leaders to teach their religion. That 24 00:01:44,480 --> 00:01:47,800 Speaker 4: is and has always been the essence. And here we're 25 00:01:47,880 --> 00:01:53,720 Speaker 4: paying Catholic leaders Catholic teachers. You could only be a 26 00:01:53,760 --> 00:01:57,280 Speaker 4: teacher in this school if you're willing to accept the 27 00:01:57,360 --> 00:01:58,920 Speaker 4: teachings of the Catholic Church. 28 00:01:59,440 --> 00:02:02,760 Speaker 2: The case threatens to up end charter school systems in 29 00:02:02,880 --> 00:02:06,960 Speaker 2: forty six states, as well as the federal charter school program, 30 00:02:07,120 --> 00:02:11,359 Speaker 2: all of which requires schools to be non sectarian. Joining 31 00:02:11,360 --> 00:02:14,800 Speaker 2: me is First Amendment law expert Caroline Mala Corbin, a 32 00:02:14,880 --> 00:02:18,560 Speaker 2: professor at the University of Miami Law School. Caroline tell 33 00:02:18,639 --> 00:02:20,320 Speaker 2: us about the background of this case. 34 00:02:21,040 --> 00:02:26,400 Speaker 5: Basically, Oklahoma has a charter school program, as do most states. 35 00:02:26,400 --> 00:02:29,240 Speaker 5: As a matter of fact, it's supposed to be another 36 00:02:29,720 --> 00:02:35,079 Speaker 5: alternative to regular public schools, and the school bar charged 37 00:02:35,160 --> 00:02:41,880 Speaker 5: with approving charter schools approved a Catholic charter school. A 38 00:02:42,080 --> 00:02:47,400 Speaker 5: Catholic charter school would violate the Oklahoma Constitution, and so 39 00:02:47,760 --> 00:02:52,639 Speaker 5: the Attorney General challenged that on the grounds that violated 40 00:02:52,760 --> 00:02:56,320 Speaker 5: two separate provisions of the Oklahoma Constitution as well as 41 00:02:56,360 --> 00:03:00,800 Speaker 5: the US Constitution. Because the Oklahoma Constitution make it's very 42 00:03:00,800 --> 00:03:06,119 Speaker 5: clear that taxpayer money cannot be used to fund religious 43 00:03:06,160 --> 00:03:10,720 Speaker 5: proselytization and indoctrination, and there is a separate provision of 44 00:03:10,760 --> 00:03:17,840 Speaker 5: the Oklahoma Constitution that says public education must be non sectarian. 45 00:03:18,080 --> 00:03:23,520 Speaker 5: In other words, public education must be secular. There is, also, 46 00:03:23,720 --> 00:03:28,200 Speaker 5: of course, the US Constitution's Establishment clause, which has long 47 00:03:28,280 --> 00:03:34,680 Speaker 5: been understood to ban direct fundings using taxpayer money to 48 00:03:34,920 --> 00:03:41,600 Speaker 5: fund religious education, religious proselytization, religious indoctrination. And the Oklahoma 49 00:03:41,640 --> 00:03:44,960 Speaker 5: Supreme Court said, you know what, it does violate the 50 00:03:44,960 --> 00:03:50,360 Speaker 5: Oklahoma Constitution. It does violate US constitutions for Oklahoma to 51 00:03:50,440 --> 00:03:56,160 Speaker 5: have a religious charter school. And then the charter school 52 00:03:56,520 --> 00:03:59,640 Speaker 5: and the board that approved it appealed to the Supreme 53 00:03:59,680 --> 00:04:05,520 Speaker 5: Court and they claim that Oklahoma's refusal the Holy fund 54 00:04:06,160 --> 00:04:10,960 Speaker 5: a Catholic charter school violated the free exercise clause of 55 00:04:11,000 --> 00:04:12,000 Speaker 5: the US Constitution. 56 00:04:12,680 --> 00:04:15,800 Speaker 2: Explain why. A key issue is whether the religious charter 57 00:04:15,960 --> 00:04:17,960 Speaker 2: school is public or private. 58 00:04:18,400 --> 00:04:21,719 Speaker 5: So that's the million dollar question. There was a dispute 59 00:04:22,279 --> 00:04:27,440 Speaker 5: on whether to characterize charter schools as public schools or 60 00:04:27,520 --> 00:04:32,680 Speaker 5: private schools, and that category makes a huge difference under 61 00:04:32,720 --> 00:04:38,080 Speaker 5: the doctrines, because under existing precedent, if charter schools are 62 00:04:38,279 --> 00:04:43,680 Speaker 5: in fact public schools, then Oklahoma is absolutely free to 63 00:04:43,880 --> 00:04:47,599 Speaker 5: insist that they remain secular. On the other hand, if 64 00:04:47,640 --> 00:04:51,680 Speaker 5: they are considered private school there is a trio of 65 00:04:51,760 --> 00:04:55,760 Speaker 5: Supreme Court cases that have held that if the government 66 00:04:56,120 --> 00:05:02,680 Speaker 5: makes taxpayer money available to private secular schools, it has 67 00:05:02,760 --> 00:05:07,400 Speaker 5: to make that money equally available to private religious school 68 00:05:07,839 --> 00:05:13,080 Speaker 5: So it really really matters whether the charter schools are 69 00:05:13,279 --> 00:05:18,040 Speaker 5: public schools, in which case Oklahoma can keep them secular, 70 00:05:18,680 --> 00:05:22,200 Speaker 5: or whether they're private schools, in which case the Supreme 71 00:05:22,240 --> 00:05:27,640 Speaker 5: Court will hold that denying them equal access to government 72 00:05:27,760 --> 00:05:32,680 Speaker 5: money amounts to discrimination against religion and that would violate 73 00:05:32,720 --> 00:05:33,960 Speaker 5: the free exercise costs. 74 00:05:34,480 --> 00:05:39,440 Speaker 2: How did the conservatives answer the liberal justices questions about 75 00:05:39,480 --> 00:05:43,560 Speaker 2: the establishment clause and how a taxpayer funded school would 76 00:05:43,720 --> 00:05:45,480 Speaker 2: entangle church and state. 77 00:05:46,120 --> 00:05:49,880 Speaker 5: In the justice's mind, what's going on here is that 78 00:05:49,960 --> 00:05:54,480 Speaker 5: the state has created a program and made a benefit available, 79 00:05:54,720 --> 00:05:59,120 Speaker 5: and consequently it has to be made available equally to 80 00:05:59,200 --> 00:06:04,320 Speaker 5: religious setsular schools, otherwise violates the free exercise clause. That 81 00:06:04,400 --> 00:06:09,560 Speaker 5: it might be intention with the Establishment Clause doesn't matter 82 00:06:09,720 --> 00:06:13,880 Speaker 5: to these Supreme Court justices who always privilege the free 83 00:06:13,920 --> 00:06:18,479 Speaker 5: exercise clause over the Establishment Clause. So in their mind, 84 00:06:18,560 --> 00:06:18,920 Speaker 5: if it. 85 00:06:18,920 --> 00:06:20,799 Speaker 6: Is required to give. 86 00:06:20,640 --> 00:06:23,680 Speaker 5: The schools money by the free exercise clause, then by 87 00:06:23,800 --> 00:06:27,760 Speaker 5: definition it can't violate the Establishment clause, and so they 88 00:06:27,839 --> 00:06:33,360 Speaker 5: might simply not reach the Establishment clause problem that it 89 00:06:33,560 --> 00:06:38,520 Speaker 5: is very firmly established in Establishment clause jurisprudence that the 90 00:06:38,560 --> 00:06:45,400 Speaker 5: government cannot directly give money to religious organizations for the 91 00:06:45,440 --> 00:06:50,040 Speaker 5: purpose of religious indoctrination and religious education. The state cannot 92 00:06:50,279 --> 00:06:55,360 Speaker 5: give directly money if the money ends up at a school. Indirectly, 93 00:06:55,720 --> 00:06:58,799 Speaker 5: that is okay. But for the government to take money 94 00:06:58,800 --> 00:07:01,919 Speaker 5: from its coffers and put it into the coffers of 95 00:07:02,000 --> 00:07:06,159 Speaker 5: a private religious school that then uses the money for 96 00:07:06,279 --> 00:07:13,560 Speaker 5: religious education and doctrination prosbimization. Even under current Establishment clause law, 97 00:07:13,840 --> 00:07:18,640 Speaker 5: which is highly weakened even today, that's still unconstitutional. 98 00:07:19,280 --> 00:07:22,400 Speaker 2: Did it appear to you that four conservative justices were 99 00:07:22,600 --> 00:07:25,640 Speaker 2: clearly on the side of the school, the three liberal 100 00:07:25,840 --> 00:07:30,560 Speaker 2: justices were clearly against, and Chief Justice John Roberts is 101 00:07:30,600 --> 00:07:31,600 Speaker 2: the pivotal vote. 102 00:07:31,760 --> 00:07:36,680 Speaker 5: He is because Justice Barrett recused herself because of her 103 00:07:37,040 --> 00:07:41,040 Speaker 5: close connection with someone involved in the litigation, and so 104 00:07:41,200 --> 00:07:45,160 Speaker 5: the Conservatives don't have a cushion as they normally do. 105 00:07:45,560 --> 00:07:49,200 Speaker 5: They need Justice Roberts in this case in order to 106 00:07:49,240 --> 00:07:52,920 Speaker 5: prevail because if it is a four to four time 107 00:07:53,600 --> 00:07:58,920 Speaker 5: the lower court decision stands, which is the Oklahoma Supreme 108 00:07:58,960 --> 00:08:03,280 Speaker 5: Court's decision that it would violate the state and federal 109 00:08:03,320 --> 00:08:08,960 Speaker 5: constitutions to create a religious charter school wholly funded by 110 00:08:09,040 --> 00:08:09,400 Speaker 5: the state. 111 00:08:10,120 --> 00:08:12,840 Speaker 2: The Chief didn't tip his hand, but he did write 112 00:08:12,840 --> 00:08:17,120 Speaker 2: the majority opinions in all three of those cases since 113 00:08:17,160 --> 00:08:21,200 Speaker 2: twenty seventeen where the Court allowed public funds to go 114 00:08:21,280 --> 00:08:24,440 Speaker 2: to religious schools. And I thought it was remarkable that 115 00:08:24,720 --> 00:08:28,800 Speaker 2: Justice Kavanaugh acknowledged that there has been what he called 116 00:08:29,000 --> 00:08:34,800 Speaker 2: a different constitutional understanding since Congress established the federal charter 117 00:08:34,880 --> 00:08:37,080 Speaker 2: school program in nineteen ninety four. 118 00:08:37,920 --> 00:08:42,240 Speaker 3: At that point, it was considered constitutional to discriminate against 119 00:08:42,320 --> 00:08:46,400 Speaker 3: religious entities, and that that's some of our case. Law 120 00:08:46,440 --> 00:08:49,000 Speaker 3: has changed that and said no, it's not constitutional. 121 00:08:49,400 --> 00:08:54,160 Speaker 5: And this different constitutional understanding is a constitution without the 122 00:08:54,280 --> 00:08:58,560 Speaker 5: establishment clause. Because it's very important to realize that religious 123 00:08:58,640 --> 00:09:03,280 Speaker 5: organizations are treated to under the Constitution. They get certain 124 00:09:03,360 --> 00:09:07,800 Speaker 5: benefits under the free exercise Clause. So, for example, religious 125 00:09:07,800 --> 00:09:11,760 Speaker 5: schools are entitled to a ministerial exemption, which means that 126 00:09:11,840 --> 00:09:16,960 Speaker 5: their teachers can't bring discrimination claims. It means that they 127 00:09:17,040 --> 00:09:21,120 Speaker 5: often get extra tax breaks that others do not. There 128 00:09:21,120 --> 00:09:25,440 Speaker 5: are definitely benefits to being a religious school, but it 129 00:09:25,520 --> 00:09:28,880 Speaker 5: had long been any understanding that being religious brought not 130 00:09:29,080 --> 00:09:35,000 Speaker 5: only special benefits but also certain restrictions, and one of 131 00:09:35,000 --> 00:09:40,400 Speaker 5: those restrictions was a, for example, limit on the kind 132 00:09:40,480 --> 00:09:43,240 Speaker 5: of funding you could get from the government. And so 133 00:09:44,000 --> 00:09:47,400 Speaker 5: there was long this balance from the benefits from the 134 00:09:47,440 --> 00:09:51,680 Speaker 5: Free Exercise Clause the restrictions imposed by the Establishment Clause. 135 00:09:51,800 --> 00:09:53,520 Speaker 6: But what the Roberts. 136 00:09:53,040 --> 00:09:58,640 Speaker 5: Court has done in reconfiguring the religious liberty clauses, it 137 00:09:58,760 --> 00:10:06,480 Speaker 5: has and did the privileges of religious organizations while eliminating. 138 00:10:06,120 --> 00:10:07,359 Speaker 1: The prior limits. 139 00:10:07,440 --> 00:10:09,880 Speaker 5: And one way they've been doing that is with a 140 00:10:10,160 --> 00:10:16,200 Speaker 5: sleight of hand. What were previously understood as Establishment Clause 141 00:10:16,280 --> 00:10:21,840 Speaker 5: limits on for example, government funding now has become religious discriminations. 142 00:10:22,200 --> 00:10:26,319 Speaker 5: So again one of the basic premises of the Establishment 143 00:10:26,360 --> 00:10:29,920 Speaker 5: Clause is that the government does not fund religions in 144 00:10:30,040 --> 00:10:35,640 Speaker 5: various ways the Supreme Court generally pretends to the establishment 145 00:10:35,640 --> 00:10:39,480 Speaker 5: clause does not exist and insists that any time the 146 00:10:39,520 --> 00:10:43,880 Speaker 5: government does not fund religion, it is discriminating against religion 147 00:10:44,200 --> 00:10:48,400 Speaker 5: because it's funding secular organizations. So, in their minds, the 148 00:10:48,559 --> 00:10:52,920 Speaker 5: reason that Oklahoma doesn't want to fund a religious charter 149 00:10:53,040 --> 00:10:57,360 Speaker 5: school is not because the constitution limits it, which it 150 00:10:57,400 --> 00:10:59,800 Speaker 5: does both the state and credal, but because there has 151 00:10:59,880 --> 00:11:01,480 Speaker 5: to religious So that's the switch. 152 00:11:01,960 --> 00:11:05,160 Speaker 2: And if it turns out the Conservatives do have five votes, 153 00:11:05,520 --> 00:11:07,520 Speaker 2: what do you think is the most likely way they'll 154 00:11:07,520 --> 00:11:08,480 Speaker 2: frame their decision. 155 00:11:09,040 --> 00:11:13,439 Speaker 5: They conclude that these are private schools, and accordingly, under 156 00:11:13,520 --> 00:11:17,080 Speaker 5: existing precedent, the state has to give them the same 157 00:11:17,280 --> 00:11:22,880 Speaker 5: opportunities of state funding as they give private secular charter schools. 158 00:11:23,040 --> 00:11:26,240 Speaker 5: And there they would insist that this is no change 159 00:11:26,240 --> 00:11:29,640 Speaker 5: in the law whatsoever. It's just a continuation of their 160 00:11:29,720 --> 00:11:34,320 Speaker 5: previous rulings that hold that if the government makes a 161 00:11:34,440 --> 00:11:38,440 Speaker 5: benefit available, it has to make it equally available to 162 00:11:38,600 --> 00:11:42,040 Speaker 5: private religious schools and private secular schools. 163 00:11:42,240 --> 00:11:44,760 Speaker 2: And if that's the decision, I'm sure they'll be at 164 00:11:44,840 --> 00:11:49,160 Speaker 2: least one blistering dissent. Thanks so much, Caroline. That's Professor 165 00:11:49,200 --> 00:11:53,240 Speaker 2: Caroline Malcorbin of the University of Miami Law School. Coming 166 00:11:53,320 --> 00:11:57,839 Speaker 2: up next, endangered species may become even more endangered. I'm 167 00:11:57,920 --> 00:12:00,319 Speaker 2: June Grosso. When you're listening to Bloomberg. 168 00:12:00,840 --> 00:12:03,800 Speaker 5: We've lost about one out of every five butterflies from 169 00:12:03,800 --> 00:12:05,280 Speaker 5: twenty to twenty twenty. 170 00:12:05,640 --> 00:12:09,160 Speaker 2: Scientists released a new study two months ago showing that 171 00:12:09,240 --> 00:12:12,600 Speaker 2: in the last twenty years, nearly one quarter of all 172 00:12:12,640 --> 00:12:16,920 Speaker 2: butterflies have been wiped out. US Wildlife officials put the 173 00:12:17,000 --> 00:12:21,640 Speaker 2: monarch butterfly on the endangered Species list last December after 174 00:12:21,800 --> 00:12:25,640 Speaker 2: years of warnings from scientists that their numbers were shrinking. 175 00:12:26,080 --> 00:12:29,200 Speaker 2: It's really quite troubling to see that monarch populations are declining. 176 00:12:29,720 --> 00:12:32,360 Speaker 7: And if there aren't enough flowers to feed monarchs, imagine 177 00:12:32,400 --> 00:12:34,959 Speaker 7: all the lesser known pollinators that aren't getting the things 178 00:12:34,960 --> 00:12:35,480 Speaker 7: that they need. 179 00:12:35,760 --> 00:12:38,960 Speaker 2: The destruction of their habitats is the main reason that 180 00:12:39,080 --> 00:12:42,680 Speaker 2: species become extinct, and now a new move by the 181 00:12:42,760 --> 00:12:48,200 Speaker 2: Trump administration will eliminate the habitat protections for endangered species 182 00:12:48,520 --> 00:12:51,719 Speaker 2: that are so crucial to their survival. Joining me is 183 00:12:51,840 --> 00:12:55,680 Speaker 2: environmental law expert Pat Parento, a professor at the Vermont 184 00:12:55,760 --> 00:12:59,559 Speaker 2: Law and Graduate School, So that the Trump administration wants 185 00:12:59,600 --> 00:13:04,880 Speaker 2: to how the government defines harm in the Endangered Species Act. 186 00:13:04,960 --> 00:13:09,240 Speaker 2: Tell us how it's been defined since basically the Reagan administration. 187 00:13:09,720 --> 00:13:14,720 Speaker 8: So the Act prohibits was called take of protected species, 188 00:13:14,760 --> 00:13:18,120 Speaker 8: and take is further defined by a whole string of 189 00:13:18,240 --> 00:13:25,040 Speaker 8: verbs including keel, wound, trap, but also harm or harassed. 190 00:13:25,440 --> 00:13:29,000 Speaker 8: And it's those two words harm and harassed. In the 191 00:13:29,080 --> 00:13:33,480 Speaker 8: Endangered Species Act of nineteen seventy three that were new concepts, 192 00:13:33,520 --> 00:13:37,480 Speaker 8: and it took some time to define what those concepts meant. 193 00:13:38,120 --> 00:13:42,160 Speaker 8: But in regards to harm, there was a very critical 194 00:13:42,200 --> 00:13:46,319 Speaker 8: decision issued way back in the early nineteen eighties actually 195 00:13:46,720 --> 00:13:49,400 Speaker 8: by the Ninth Circuit Court of Appeals in a case 196 00:13:49,440 --> 00:13:53,680 Speaker 8: out of Hawaii involving the Palila bird, an endangered bird, 197 00:13:53,800 --> 00:13:59,520 Speaker 8: which ruled that destruction of habitat constitutes harm. And as 198 00:13:59,600 --> 00:14:04,040 Speaker 8: a result of that decision, the Department of Interior promulgated 199 00:14:04,200 --> 00:14:10,520 Speaker 8: this rule defining harm to me actions including habitat modification 200 00:14:11,080 --> 00:14:17,520 Speaker 8: that actually kills or injures listed species by interfering with 201 00:14:17,800 --> 00:14:23,560 Speaker 8: essential behavioral conditions like breeding, feeding, and sheltering. So it's 202 00:14:23,600 --> 00:14:28,400 Speaker 8: a long definition, but its bottom line is the court's 203 00:14:28,520 --> 00:14:34,000 Speaker 8: rules that habitat loss is a take is prohibited under 204 00:14:34,000 --> 00:14:39,120 Speaker 8: the Endangered Species Act. Congress, after the Poalila case, enacted 205 00:14:39,160 --> 00:14:42,840 Speaker 8: an amendment to the Endangered Species Act in nineteen eighty two. 206 00:14:42,920 --> 00:14:46,800 Speaker 8: I was there, I testified on this, which said, Okay, 207 00:14:47,320 --> 00:14:52,080 Speaker 8: to protect landowners from finding themselves in violation of the Act, 208 00:14:52,200 --> 00:14:55,680 Speaker 8: we're going to create a special permit process, and we're 209 00:14:55,680 --> 00:14:58,440 Speaker 8: going to require that landowners, if they want one of 210 00:14:58,480 --> 00:15:03,400 Speaker 8: these permits, come up with a habitat conservation plan to 211 00:15:03,600 --> 00:15:09,440 Speaker 8: mitigate an offset the loss of habitat for the activity logging, mining, grazing, 212 00:15:09,720 --> 00:15:13,680 Speaker 8: all kinds of activity that would result in loss of habitat. 213 00:15:14,080 --> 00:15:18,200 Speaker 8: So the point is this harm rule has a very 214 00:15:18,280 --> 00:15:23,160 Speaker 8: long history, and it's one that Congress deliberately codified in 215 00:15:23,280 --> 00:15:26,920 Speaker 8: the Endangered Species Act. That's why they created the permit program. 216 00:15:27,320 --> 00:15:31,680 Speaker 8: So the idea now that you would eliminate the definition 217 00:15:31,760 --> 00:15:34,200 Speaker 8: of harm just rescind it, wipe it off the book, 218 00:15:34,480 --> 00:15:37,520 Speaker 8: and not replace it, which is what is being proposed 219 00:15:37,600 --> 00:15:41,720 Speaker 8: by Secretary Bergham. It's crazy, I mean, it flies in 220 00:15:41,800 --> 00:15:46,680 Speaker 8: the faith of this whole history of how the courts 221 00:15:46,800 --> 00:15:51,880 Speaker 8: and Congress have dealt with this critical idea of protecting 222 00:15:51,960 --> 00:15:55,960 Speaker 8: habitat When you think about it, habitat loss is the 223 00:15:56,080 --> 00:16:01,200 Speaker 8: major driver of extinction in the United States and globally, 224 00:16:01,400 --> 00:16:04,280 Speaker 8: So to just eliminate it from the one law that's 225 00:16:04,320 --> 00:16:08,000 Speaker 8: designed to prevent extinction, it's really nuts. 226 00:16:08,400 --> 00:16:13,560 Speaker 2: Is the administration tying this proposed change to the Supreme 227 00:16:13,600 --> 00:16:19,040 Speaker 2: Court's decision in the Loper Bright case that eliminated Chevron deference, 228 00:16:19,400 --> 00:16:23,120 Speaker 2: which is the deference to an agency's interpretation when there's 229 00:16:23,160 --> 00:16:25,560 Speaker 2: an ambiguous statute, Well they are. 230 00:16:25,880 --> 00:16:29,680 Speaker 8: The irony, of course, is the United States Supreme Court, 231 00:16:29,840 --> 00:16:33,080 Speaker 8: in a very famous case called sweet Home versus Babbott, 232 00:16:33,440 --> 00:16:36,240 Speaker 8: in which the US Supreme Court upheld by a six 233 00:16:36,320 --> 00:16:39,040 Speaker 8: to three vote the harm rule that I just described. 234 00:16:39,240 --> 00:16:44,800 Speaker 8: So now you have the Trump administration saying, yeah, but 235 00:16:45,240 --> 00:16:48,960 Speaker 8: the Supreme Court has overruled Chevron, which means that the 236 00:16:49,000 --> 00:16:52,600 Speaker 8: Supreme Court's decision in Sweet Home is no longer controlling. 237 00:16:52,680 --> 00:16:55,480 Speaker 8: But wait a minute. When you read Chief Justice Roberts' 238 00:16:55,560 --> 00:17:00,640 Speaker 8: opinion in Loper Bright, he specifically says that visions that 239 00:17:00,760 --> 00:17:05,240 Speaker 8: have upheld rules based on Chevron are still in effect. 240 00:17:05,440 --> 00:17:09,560 Speaker 8: So now you have the Trump administration saying, well, but 241 00:17:09,640 --> 00:17:12,800 Speaker 8: we're going to change the rule by eliminating it. For 242 00:17:12,960 --> 00:17:17,960 Speaker 8: harm and therefore we don't have to give the prior 243 00:17:18,160 --> 00:17:22,840 Speaker 8: interpretation any significance, any difference at all. But that's not 244 00:17:22,880 --> 00:17:27,040 Speaker 8: what Robert said. He said that prior decisions based on 245 00:17:27,240 --> 00:17:33,160 Speaker 8: Chevron difference are entitled to what are called statutory starry decisives, 246 00:17:33,200 --> 00:17:36,280 Speaker 8: in other words, precedent. And he made it clear that 247 00:17:36,400 --> 00:17:39,160 Speaker 8: it wasn't just a matter of saying, oh well, never 248 00:17:39,280 --> 00:17:43,080 Speaker 8: mind that a rule was formally upheld. He said, you 249 00:17:43,240 --> 00:17:46,639 Speaker 8: have to justify, you know, new decisions to change your 250 00:17:46,720 --> 00:17:51,720 Speaker 8: rule under the usual requirements of reversing prior rules, which 251 00:17:51,800 --> 00:17:56,159 Speaker 8: means you have to justify repealing a rule based on 252 00:17:56,400 --> 00:18:02,400 Speaker 8: change of circumstances, new facts, something has happened that justify 253 00:18:03,119 --> 00:18:08,159 Speaker 8: rethinking why the original rule should be completely reversed. But 254 00:18:08,480 --> 00:18:12,040 Speaker 8: all of the evidence suggests there's no basis for eliminating 255 00:18:12,359 --> 00:18:16,960 Speaker 8: habitat protection from the Protections of the Endangered Species Act. 256 00:18:17,160 --> 00:18:20,720 Speaker 8: If anything, what we're seeing is that habitat loss is 257 00:18:20,880 --> 00:18:26,399 Speaker 8: now affecting all species. You know. The famous ornithological lab 258 00:18:26,520 --> 00:18:31,600 Speaker 8: at Cornell University issued an incredible decision this last year 259 00:18:31,720 --> 00:18:38,280 Speaker 8: saying three billion birds three billion birds have disappeared from 260 00:18:38,280 --> 00:18:43,920 Speaker 8: the United States since nineteen seventy and that's primarily related 261 00:18:43,920 --> 00:18:47,560 Speaker 8: to habitat loss. Pesticides and other things come into play. 262 00:18:47,920 --> 00:18:52,400 Speaker 8: Habitat loss is the reason that we're losing our incredible 263 00:18:52,760 --> 00:18:57,399 Speaker 8: array of bird species. So this idea that the local 264 00:18:57,480 --> 00:19:03,320 Speaker 8: Bright decision somehow justified eliminating protection for habitat is once 265 00:19:03,359 --> 00:19:04,560 Speaker 8: again crazy. 266 00:19:05,320 --> 00:19:07,520 Speaker 2: I'm not sure how many Americans are aware of the 267 00:19:07,560 --> 00:19:11,200 Speaker 2: ins and outs of the Endangered Species Act, but they 268 00:19:11,240 --> 00:19:15,239 Speaker 2: do know. Most of the ten endangered species that the 269 00:19:15,280 --> 00:19:20,760 Speaker 2: Center for Biological Diversity says are under direct threat from 270 00:19:20,760 --> 00:19:28,280 Speaker 2: this Trump administration elimination of habitat protections. They include monarch butterflies, manatees, 271 00:19:28,720 --> 00:19:34,600 Speaker 2: northern spotted owls, green sea turtles, whooping cranes, and Florida panthers. 272 00:19:35,040 --> 00:19:39,280 Speaker 8: At one time, you could measure the abundance of monarch 273 00:19:39,320 --> 00:19:43,680 Speaker 8: butterflies in the billions, and the western population of monarch 274 00:19:43,720 --> 00:19:47,879 Speaker 8: butterflies has been reduced by I think something like eighty 275 00:19:48,080 --> 00:19:51,720 Speaker 8: percent maybe more and is really in danger of extinction. 276 00:19:52,040 --> 00:19:55,600 Speaker 8: It's incredible to think that butterflies that used to light 277 00:19:55,720 --> 00:19:58,600 Speaker 8: up the landscape all across the United States. I mean, 278 00:19:58,720 --> 00:20:02,600 Speaker 8: it's like the passenger kitch flocks of passenger pisions history says, 279 00:20:02,680 --> 00:20:06,080 Speaker 8: used to darken the sky throughout much of the central 280 00:20:06,080 --> 00:20:08,720 Speaker 8: part of the United States, and then just we're gone 281 00:20:09,320 --> 00:20:13,120 Speaker 8: and we're seeing the same thing with species like monarch butterflies, 282 00:20:13,480 --> 00:20:16,320 Speaker 8: and we've got an administration you know, that wants to 283 00:20:16,400 --> 00:20:20,960 Speaker 8: eliminate or to substantially weaken the one law that's designed 284 00:20:20,960 --> 00:20:23,679 Speaker 8: to prevent that. It's really quite remarkable. 285 00:20:24,240 --> 00:20:27,400 Speaker 2: So then do you think that when this is challenged 286 00:20:27,400 --> 00:20:31,200 Speaker 2: in the courts that the administration will lose? 287 00:20:31,800 --> 00:20:35,320 Speaker 8: Yes, they should, and they will. Now when it finally 288 00:20:35,400 --> 00:20:38,399 Speaker 8: goes back to the Supreme Court, we'll actually see whether 289 00:20:38,720 --> 00:20:42,240 Speaker 8: Justice Roberts you know, sort of caution in the look 290 00:20:42,320 --> 00:20:44,480 Speaker 8: for Bright case stands up. In other words, is he 291 00:20:44,560 --> 00:20:47,359 Speaker 8: going to look at this question of can you just 292 00:20:47,440 --> 00:20:51,400 Speaker 8: simply wave your hand, you know, and eliminate this harm 293 00:20:51,480 --> 00:20:55,400 Speaker 8: rule without any justification at all other than to say 294 00:20:55,440 --> 00:20:58,400 Speaker 8: we don't think it's the single best reading of the statue. 295 00:20:58,720 --> 00:21:02,159 Speaker 8: That's the rationale that the Trump administration is using to 296 00:21:02,200 --> 00:21:05,240 Speaker 8: repeal the harm rules. And by the way, you know, 297 00:21:05,280 --> 00:21:07,560 Speaker 8: the Trump administration is not going to get any difference 298 00:21:07,560 --> 00:21:11,480 Speaker 8: for that interpretation either. That is the central message of 299 00:21:11,520 --> 00:21:16,400 Speaker 8: lower Bright. Nobody, no agency gets difference anymore under low 300 00:21:16,440 --> 00:21:18,800 Speaker 8: for Bright, including Trump, is. 301 00:21:18,760 --> 00:21:24,400 Speaker 2: This elimination of habitat protections about making it easier to build, 302 00:21:24,760 --> 00:21:26,359 Speaker 2: log and drill for oil. 303 00:21:27,800 --> 00:21:32,200 Speaker 8: Yeah, I mean it's property rights, it's landowner rights in part. 304 00:21:32,760 --> 00:21:35,679 Speaker 8: Although what we've seen with the Harm rule in place 305 00:21:36,200 --> 00:21:39,600 Speaker 8: is that there have been millions, more than twenty million 306 00:21:39,640 --> 00:21:44,000 Speaker 8: acres of land private lands that have been conserved under 307 00:21:44,040 --> 00:21:48,760 Speaker 8: this incidental take permit program I mentioned, and allowed logging 308 00:21:48,840 --> 00:21:54,879 Speaker 8: and mining and other activities to occur, just with offsetting mitigation. 309 00:21:55,320 --> 00:22:00,560 Speaker 8: So it's not true that the Harm rule has vented 310 00:22:01,040 --> 00:22:05,960 Speaker 8: anything anything. There's no evidence that any landowner has suffered 311 00:22:05,960 --> 00:22:10,640 Speaker 8: what's called a taking, a constitutional taking of property as 312 00:22:10,680 --> 00:22:14,159 Speaker 8: a result of the Endangered Species Act. Never never, So 313 00:22:14,560 --> 00:22:18,560 Speaker 8: the whole idea that you have to eliminate this one 314 00:22:18,640 --> 00:22:23,760 Speaker 8: mechanism of protection is simply wrong. There's no fact, no evidence. 315 00:22:24,040 --> 00:22:27,119 Speaker 8: If you look at the proposed rule to resind the 316 00:22:27,200 --> 00:22:29,440 Speaker 8: Harm rule in the Federal Register, and by the way, 317 00:22:29,720 --> 00:22:32,480 Speaker 8: the comment period is still open until May nineteenth, for 318 00:22:32,560 --> 00:22:35,120 Speaker 8: those who are interested in that, you can go look 319 00:22:35,160 --> 00:22:38,760 Speaker 8: at it. It's a very short statement. We're simply repealing 320 00:22:39,000 --> 00:22:41,760 Speaker 8: the Harm rule. We're not replacing it. We're just pretending 321 00:22:41,800 --> 00:22:44,720 Speaker 8: like we're going to erase the word from the statute, 322 00:22:44,960 --> 00:22:49,760 Speaker 8: which of course violate canon number one of statutory interpretation, 323 00:22:49,960 --> 00:22:55,120 Speaker 8: which is every word of a statute must be given effect. 324 00:22:55,600 --> 00:22:58,760 Speaker 8: You don't just erase it because you find it difficult 325 00:22:58,840 --> 00:23:01,920 Speaker 8: or whatever. You have to do something with it. And 326 00:23:02,200 --> 00:23:04,600 Speaker 8: the proposal is to do nothing with it, to just 327 00:23:04,720 --> 00:23:06,800 Speaker 8: erase it as if it never existed. 328 00:23:07,359 --> 00:23:10,639 Speaker 2: Pat, a finger sized fish has been caught in the 329 00:23:10,680 --> 00:23:15,120 Speaker 2: net of politics and the debate over California's water resources. 330 00:23:15,400 --> 00:23:18,480 Speaker 2: On Thursday, House Republicans, in a vote that went down 331 00:23:18,520 --> 00:23:21,720 Speaker 2: party lines, passed a bill to take the long fin 332 00:23:21,920 --> 00:23:26,159 Speaker 2: smelt off the Endangered Species list, even though its population 333 00:23:26,359 --> 00:23:30,399 Speaker 2: has declined by ninety nine percent. That sounds endangered to me. 334 00:23:31,119 --> 00:23:35,000 Speaker 8: So this is the long fin smelt, a cousin of 335 00:23:35,119 --> 00:23:39,560 Speaker 8: the even more controversial delta smelt, and these are two 336 00:23:39,880 --> 00:23:44,760 Speaker 8: of actually six species of fish protected under the Endangered 337 00:23:44,760 --> 00:23:48,000 Speaker 8: Species Act. So you know, this is just the latest 338 00:23:48,280 --> 00:23:52,199 Speaker 8: evidence that this ecosystem in the San Joaquin Delta of 339 00:23:52,280 --> 00:23:57,399 Speaker 8: California is collapsing. It's literally unraveling before our very eyes. 340 00:23:57,440 --> 00:24:01,080 Speaker 8: And it's all related to water used for agriculture, but 341 00:24:01,160 --> 00:24:03,479 Speaker 8: for cities and others as well. So this is at 342 00:24:03,520 --> 00:24:06,680 Speaker 8: the center of what has been a multi decade battle 343 00:24:06,800 --> 00:24:10,080 Speaker 8: over how to manage water in California, the long fin 344 00:24:10,359 --> 00:24:13,800 Speaker 8: smelt has been reduced by ninety nine percent. It used 345 00:24:13,840 --> 00:24:17,560 Speaker 8: to be a major source of prey for other larger 346 00:24:17,600 --> 00:24:22,040 Speaker 8: fish like salmon and trout, but it's been absolutely decimated. So, 347 00:24:22,520 --> 00:24:25,399 Speaker 8: you know, taking it off the endangered species list is 348 00:24:25,520 --> 00:24:26,800 Speaker 8: essentially a death morant. 349 00:24:26,960 --> 00:24:30,560 Speaker 2: It may follow its cousin to virtual extinction. We'll see 350 00:24:30,560 --> 00:24:33,560 Speaker 2: if that bill passes the Senate. Thanks so much, Pat. 351 00:24:33,600 --> 00:24:37,000 Speaker 2: As always, that's Professor Pat Parento of the Vermont Law 352 00:24:37,080 --> 00:24:41,640 Speaker 2: and Graduate School coming up next. Tensions get unusually heated 353 00:24:41,720 --> 00:24:44,960 Speaker 2: during a Supreme Court oral argument. I'm June Grosso and 354 00:24:45,000 --> 00:24:46,160 Speaker 2: you're listening to Bloomberg. 355 00:24:47,800 --> 00:24:49,879 Speaker 9: We will hear a argument first this morning in case 356 00:24:49,920 --> 00:24:54,680 Speaker 9: twenty four two forty nine Ajat versus a Coeo Area Schools. 357 00:24:55,000 --> 00:24:59,480 Speaker 2: Supreme Court oral arguments take place in a rarefied atmosphere 358 00:24:59,600 --> 00:25:03,000 Speaker 2: where the vility is prized and your opponents are not 359 00:25:03,200 --> 00:25:07,520 Speaker 2: adversaries but rather friends on the other side. But not 360 00:25:07,760 --> 00:25:11,040 Speaker 2: so during Monday's oral arguments. In a case where the 361 00:25:11,080 --> 00:25:13,840 Speaker 2: parents of a student with a rare form of epilepsy. 362 00:25:14,040 --> 00:25:17,520 Speaker 2: We're suing a Minnesota school district over its refusal to 363 00:25:17,600 --> 00:25:21,639 Speaker 2: provide her with at home instruction. In the Evenings, Justice 364 00:25:21,680 --> 00:25:25,400 Speaker 2: Neil Gorsuch took Lisa Blatt, the attorney for the school district, 365 00:25:25,440 --> 00:25:28,800 Speaker 2: to task when she accused the parents' attorney and the 366 00:25:28,840 --> 00:25:32,280 Speaker 2: government's attorney of lying about her stance in the case 367 00:25:32,480 --> 00:25:35,200 Speaker 2: by accusing her of flip flopping on her argument. 368 00:25:35,480 --> 00:25:37,320 Speaker 1: What is a lie in and accurate is that we 369 00:25:37,400 --> 00:25:39,960 Speaker 1: ever said, in any context that this court should take 370 00:25:39,960 --> 00:25:42,800 Speaker 1: the same language and define it differently depending on context. 371 00:25:43,040 --> 00:25:46,119 Speaker 1: That is not true. There is no statement they adding 372 00:25:46,160 --> 00:25:48,119 Speaker 1: words to our mouth. We never said you should have 373 00:25:48,200 --> 00:25:51,240 Speaker 1: a double regime what the school district has said, which 374 00:25:51,240 --> 00:25:52,359 Speaker 1: is what Monahan said. 375 00:25:52,600 --> 00:25:55,960 Speaker 7: He believed that mister Martinez and the Solicitor General are. 376 00:25:55,920 --> 00:26:00,040 Speaker 1: Lying in oral argument. Yes, absolutely, it is not. 377 00:26:00,119 --> 00:26:02,120 Speaker 7: True that we should be more careful with your work. 378 00:26:02,200 --> 00:26:04,960 Speaker 1: Okay, well, they should be more careful in mischaracterizing a 379 00:26:05,040 --> 00:26:08,440 Speaker 1: position by an experienced advocate of the Supreme Court with all. 380 00:26:08,480 --> 00:26:12,840 Speaker 2: Due respect and blood is certainly an experienced Supreme Court litigator, 381 00:26:13,240 --> 00:26:15,600 Speaker 2: one of a small number of lawyers who have argued 382 00:26:15,640 --> 00:26:18,879 Speaker 2: more than fifty cases before the High Court, but most 383 00:26:18,880 --> 00:26:21,879 Speaker 2: of the other justice has made clear. They also thought 384 00:26:21,920 --> 00:26:25,159 Speaker 2: that Blad had changed her position from arguing for a 385 00:26:25,280 --> 00:26:28,600 Speaker 2: unique rule in the school context to arguing for a 386 00:26:28,640 --> 00:26:31,119 Speaker 2: broader rule. Here's the Chief Justice. 387 00:26:31,440 --> 00:26:35,480 Speaker 9: You said that the secondary education was a quote unique context, 388 00:26:35,600 --> 00:26:39,240 Speaker 9: quote giving rise to a unique subset. Quote calling for 389 00:26:39,320 --> 00:26:41,880 Speaker 9: a quote different standard seems to. 390 00:26:41,840 --> 00:26:43,919 Speaker 1: Make I'm sorry, Now, where does it say that quoting 391 00:26:43,920 --> 00:26:46,240 Speaker 1: for a different standard? That part we never said. Are 392 00:26:46,240 --> 00:26:46,800 Speaker 1: they quoting? 393 00:26:47,800 --> 00:26:49,400 Speaker 9: Well, they've got quote marks around it. 394 00:26:50,280 --> 00:26:51,200 Speaker 1: Where's the page. 395 00:26:51,640 --> 00:26:54,439 Speaker 9: It's page four of their yellow brief. 396 00:26:54,760 --> 00:26:58,359 Speaker 2: But Justice cour Such wasn't letting Blatt off the hook. 397 00:26:58,720 --> 00:27:02,720 Speaker 2: Fifteen minutes after their first exchange, he interrupted her again. 398 00:27:03,280 --> 00:27:08,040 Speaker 7: Miss, Yeah, I confess I'm still troubled by your suggestion 399 00:27:08,240 --> 00:27:10,480 Speaker 7: that your friends on the other side have lied. 400 00:27:10,640 --> 00:27:11,840 Speaker 1: Okay, let's help pull up. 401 00:27:11,920 --> 00:27:15,640 Speaker 7: Yeah. I think we're gonna have to here, and i'd 402 00:27:15,680 --> 00:27:19,280 Speaker 7: ask you to reconsider that phrase argument. If I might 403 00:27:19,320 --> 00:27:23,919 Speaker 7: it was incorrect. If I incorrect is fine. People make mistakes. 404 00:27:24,760 --> 00:27:28,240 Speaker 7: You can accuse people being incorrecting, Miss Blatt, if I 405 00:27:28,320 --> 00:27:32,359 Speaker 7: might finish sure, lying is another matter. Page one of 406 00:27:32,359 --> 00:27:32,879 Speaker 7: your brief and. 407 00:27:32,920 --> 00:27:37,800 Speaker 2: Opposition Gorsuch then proceeded to read long quotations from her 408 00:27:37,840 --> 00:27:40,800 Speaker 2: brief in the case, raising his voice when Blatt tried 409 00:27:40,800 --> 00:27:43,720 Speaker 2: to interrupt him, and ending with this conclusion. 410 00:27:44,160 --> 00:27:49,280 Speaker 7: One could interpret those perhaps different ways, but surely one 411 00:27:50,080 --> 00:27:53,880 Speaker 7: could interpret those perhaps different ways, but surely a reasonable 412 00:27:53,920 --> 00:27:57,120 Speaker 7: person could interpret them as arguing for a special rule 413 00:27:57,160 --> 00:27:58,720 Speaker 7: in the educational context. 414 00:27:58,840 --> 00:28:02,560 Speaker 1: Correct, No, only because of miss Blatt. 415 00:28:02,840 --> 00:28:03,919 Speaker 8: Okay, well, you know. 416 00:28:04,080 --> 00:28:07,159 Speaker 7: I mean a reasonable person. All of those emphasized the 417 00:28:07,240 --> 00:28:10,800 Speaker 7: unique context of primary and secondary education and the need 418 00:28:10,840 --> 00:28:11,680 Speaker 7: for a special rule. 419 00:28:11,720 --> 00:28:12,639 Speaker 1: Don't they fine? 420 00:28:12,640 --> 00:28:16,480 Speaker 7: But what I'm fine? Too fine? Then would you withdraw 421 00:28:16,640 --> 00:28:18,280 Speaker 7: your accusation? I withdraw it, thank you. 422 00:28:18,560 --> 00:28:20,960 Speaker 2: That's it, and that's where it ended. Joining me is 423 00:28:20,960 --> 00:28:25,840 Speaker 2: Bloomberg Law. Supreme Court reporter Kimberly Strawbridge Robinson who heard 424 00:28:25,880 --> 00:28:30,439 Speaker 2: it all. Kimberly, the oral arguments are usually very civil, 425 00:28:31,119 --> 00:28:36,400 Speaker 2: even when questioning gets aggressive. You rarely even hear raised voices. 426 00:28:37,280 --> 00:28:39,960 Speaker 6: That's right. I mean, there's a level of decorum that's 427 00:28:40,040 --> 00:28:43,600 Speaker 6: expected within the Supreme Court even while debating, you know, 428 00:28:43,720 --> 00:28:46,200 Speaker 6: really hotly contested issues. And I think one of the 429 00:28:46,240 --> 00:28:49,320 Speaker 6: things that really sort of demonstrates this is that the 430 00:28:49,400 --> 00:28:53,760 Speaker 6: advocates are encouraged by the justices to refer to opposing 431 00:28:53,800 --> 00:28:57,280 Speaker 6: counsel as my friend on the other side. You'll even 432 00:28:57,320 --> 00:28:59,880 Speaker 6: hear attorneys correct themselves if they say, you know, my 433 00:29:00,000 --> 00:29:03,320 Speaker 6: opposing counsel, though quickly correct themselves and say, you know, 434 00:29:03,480 --> 00:29:05,800 Speaker 6: as my friend on the other side said. So, it 435 00:29:05,840 --> 00:29:08,520 Speaker 6: really is a place that's defined by civility. 436 00:29:09,040 --> 00:29:12,080 Speaker 2: Tell us about the case at the Court on Monday 437 00:29:12,120 --> 00:29:15,960 Speaker 2: involving a Minnesota school system generally, what it was about. 438 00:29:16,240 --> 00:29:18,520 Speaker 6: I mean, I think the broadest level of this case 439 00:29:18,760 --> 00:29:22,800 Speaker 6: is about disability discrimination in public schools. It's a very 440 00:29:22,880 --> 00:29:27,360 Speaker 6: technical case on the interaction of several federal statutes, but 441 00:29:27,440 --> 00:29:30,280 Speaker 6: at a part it's about when schools can be held 442 00:29:30,320 --> 00:29:32,360 Speaker 6: liable for disability discrimination. 443 00:29:32,960 --> 00:29:37,400 Speaker 2: And Lisa Blott is certainly an experienced Supreme Court advocate. 444 00:29:37,720 --> 00:29:41,920 Speaker 2: She's argued something like fifty four cases before the Supreme Court. 445 00:29:42,240 --> 00:29:45,480 Speaker 6: Yeah, I mean, she's one of a handful of individuals 446 00:29:45,480 --> 00:29:48,920 Speaker 6: who can claim that sort of milestone, and she's the 447 00:29:48,920 --> 00:29:53,400 Speaker 6: only female to do so. She has a really distinctive style. 448 00:29:54,000 --> 00:29:57,040 Speaker 6: It's very casual and very straight to the point. But 449 00:29:57,280 --> 00:29:59,880 Speaker 6: you know, the justices do really seem to enjoy her 450 00:30:00,120 --> 00:30:03,000 Speaker 6: oral advocacy, and she has sparred with some of the 451 00:30:03,120 --> 00:30:05,960 Speaker 6: justices in the past, but you know, often they'll laugh 452 00:30:06,080 --> 00:30:08,000 Speaker 6: at some of her comments that she makes. You know, 453 00:30:08,040 --> 00:30:10,000 Speaker 6: I think people tend to think that she gets away 454 00:30:10,040 --> 00:30:14,240 Speaker 6: with things that you know, other even experienced advocates cannot, 455 00:30:14,600 --> 00:30:16,880 Speaker 6: And you know that's really shown through her record of 456 00:30:16,920 --> 00:30:20,440 Speaker 6: the court. She has an unusually high success rate at 457 00:30:20,440 --> 00:30:21,480 Speaker 6: the US Supreme Court. 458 00:30:22,080 --> 00:30:24,880 Speaker 2: Yeah, I found her tone with the justices a lot 459 00:30:25,000 --> 00:30:29,200 Speaker 2: less reverent, let's say, than other advocates. But explain what 460 00:30:29,280 --> 00:30:32,560 Speaker 2: led to this confrontation with Justice Gorsuch. 461 00:30:33,440 --> 00:30:35,720 Speaker 6: Well, you know, this is a case by parents of 462 00:30:35,760 --> 00:30:39,280 Speaker 6: a disabled student who is suing a Minnesota school district. 463 00:30:39,320 --> 00:30:42,520 Speaker 6: And as they sort of understood the cases it came 464 00:30:42,520 --> 00:30:44,440 Speaker 6: to the Supreme Court, you know, they thought it was 465 00:30:44,480 --> 00:30:48,960 Speaker 6: a very narrow case, and during oral arguments, the parents' advocate, 466 00:30:48,960 --> 00:30:52,320 Speaker 6: who himself is a seasoned Supreme Court veteran, you know, 467 00:30:52,480 --> 00:30:56,120 Speaker 6: said that this school district had sort of pulled the 468 00:30:56,200 --> 00:30:59,280 Speaker 6: rug out from under the justices and had changed course 469 00:30:59,560 --> 00:31:02,800 Speaker 6: in the Supreme Court and advocated for a much broader, 470 00:31:03,200 --> 00:31:07,160 Speaker 6: much drastic sort of request than what they thought that 471 00:31:07,240 --> 00:31:10,080 Speaker 6: the case was about. And then when Lisa Black got 472 00:31:10,160 --> 00:31:12,480 Speaker 6: us to argue for the school district, she said that 473 00:31:12,640 --> 00:31:16,360 Speaker 6: wasn't a correct characterization of their stance, and she actually 474 00:31:16,480 --> 00:31:20,640 Speaker 6: accused the parents' attorney as well as the federal government's 475 00:31:20,640 --> 00:31:22,720 Speaker 6: attorneys who was on the side of the parents in 476 00:31:22,720 --> 00:31:25,960 Speaker 6: this case. She accused them of lying. And it's really 477 00:31:26,200 --> 00:31:29,520 Speaker 6: that accusation that really got under the skin of several 478 00:31:29,760 --> 00:31:30,440 Speaker 6: the justices. 479 00:31:30,920 --> 00:31:35,160 Speaker 2: So was Justice Gore such seemingly the most upset. He 480 00:31:35,400 --> 00:31:39,360 Speaker 2: raised his voice and said, be more careful with your words, 481 00:31:39,800 --> 00:31:42,040 Speaker 2: and then it got more heated later on. 482 00:31:42,720 --> 00:31:44,600 Speaker 6: Yeah, I mean, he was definitely the one who was 483 00:31:44,720 --> 00:31:47,800 Speaker 6: most upset. But I will say that several of the 484 00:31:47,960 --> 00:31:51,400 Speaker 6: justices seemed to indicate that they sort of agreed with 485 00:31:51,480 --> 00:31:54,200 Speaker 6: the parents' attorneys and with the federal government here in 486 00:31:54,240 --> 00:31:58,200 Speaker 6: the categorization of the school district's stance, and so that 487 00:31:58,320 --> 00:32:00,920 Speaker 6: made it all the more worse when Black said that, 488 00:32:01,040 --> 00:32:03,040 Speaker 6: you know, those who are holding that view were lying. 489 00:32:03,440 --> 00:32:08,080 Speaker 6: But Justice Corses was the most verbal and most clearly upset. 490 00:32:08,360 --> 00:32:10,160 Speaker 6: You know, he did tell her that comment is set 491 00:32:10,240 --> 00:32:12,840 Speaker 6: to watch her words, and then later in the argument 492 00:32:12,960 --> 00:32:15,960 Speaker 6: he came back to the issue, saying he was still 493 00:32:16,000 --> 00:32:19,760 Speaker 6: troubled by it and really urging Lisa Blatt to withdraw 494 00:32:19,920 --> 00:32:23,680 Speaker 6: her statement, which she did. But as the parents' attorney 495 00:32:24,000 --> 00:32:27,560 Speaker 6: said on rebuttal, really it was done under duress. 496 00:32:27,840 --> 00:32:32,320 Speaker 2: It certainly was. And Justice Sodo Mayor even suggested that 497 00:32:32,360 --> 00:32:35,040 Speaker 2: Black might have violated the court rules. 498 00:32:35,880 --> 00:32:39,240 Speaker 6: Yeah, I mean along the way, you know, Justice Switchewayer 499 00:32:39,320 --> 00:32:44,200 Speaker 6: pointed out that the Supreme Court rules really admonished counsel 500 00:32:44,400 --> 00:32:46,760 Speaker 6: to bring it to the attention of the justices if 501 00:32:46,760 --> 00:32:50,040 Speaker 6: they think that there's you know, some issue with the 502 00:32:50,600 --> 00:32:54,160 Speaker 6: you know, the kinds of questions that the justices are hearing. 503 00:32:54,520 --> 00:32:57,640 Speaker 6: You know, obviously that way, the advocates and the justices 504 00:32:57,680 --> 00:33:01,560 Speaker 6: are not surprised. And she suggested that, you know, it 505 00:33:01,640 --> 00:33:04,760 Speaker 6: was Black who was the one who was acting inappropriately here, 506 00:33:04,920 --> 00:33:08,080 Speaker 6: and that if she really thought that the argument was 507 00:33:08,120 --> 00:33:10,600 Speaker 6: supposed to be much broader, she should have made that 508 00:33:10,720 --> 00:33:12,280 Speaker 6: more clear in her breathing. 509 00:33:12,680 --> 00:33:15,600 Speaker 2: So was the dispute basically about whether there's a heightened 510 00:33:15,680 --> 00:33:20,120 Speaker 2: standard in the educational context, and then Blat said it 511 00:33:20,200 --> 00:33:22,240 Speaker 2: should be in every context. 512 00:33:22,600 --> 00:33:24,960 Speaker 6: That's right, I mean, so you know the question. I 513 00:33:25,000 --> 00:33:27,160 Speaker 6: think that the parents thought that they were answering that 514 00:33:27,160 --> 00:33:29,280 Speaker 6: the federal government thought that they were answering, and it 515 00:33:29,400 --> 00:33:32,560 Speaker 6: was obvious from arguments that the justices thought they were answering, was, 516 00:33:33,040 --> 00:33:38,040 Speaker 6: you know, insuing for disability discrimination, parents of school children 517 00:33:38,440 --> 00:33:42,120 Speaker 6: have to make a heightened showing in order to hold 518 00:33:42,240 --> 00:33:46,640 Speaker 6: schools liable. And it's a showing that doesn't apply outside 519 00:33:46,680 --> 00:33:50,200 Speaker 6: the educational context, and that is actually the law in 520 00:33:50,400 --> 00:33:53,240 Speaker 6: many circuits. Some circuit took on the other way. It's 521 00:33:53,320 --> 00:33:56,959 Speaker 6: created sort of, you know, this circuit split that is 522 00:33:57,280 --> 00:34:00,280 Speaker 6: quintessential of the cases that the Supreme Court just sides 523 00:34:00,360 --> 00:34:03,360 Speaker 6: to hear. But we heard on Monday that the school 524 00:34:03,440 --> 00:34:08,279 Speaker 6: district agrees there's no special standard for schools, but at least, 525 00:34:08,320 --> 00:34:12,000 Speaker 6: as Blatt argued that heightened standards should apply across the 526 00:34:12,000 --> 00:34:16,240 Speaker 6: board to all disability discrimination cases, even though for example, 527 00:34:16,520 --> 00:34:20,440 Speaker 6: with employment. And the justices were really surprised by that argument. 528 00:34:20,480 --> 00:34:23,200 Speaker 6: That has not been the law in any circuit, and 529 00:34:23,280 --> 00:34:27,239 Speaker 6: they were really resisting Lat's requests to say that for 530 00:34:27,280 --> 00:34:29,520 Speaker 6: the first time in the Supreme Court in this case. 531 00:34:30,040 --> 00:34:32,080 Speaker 2: So then did it seem like a majority of the 532 00:34:32,280 --> 00:34:35,200 Speaker 2: justices were siding with the parents, you know? 533 00:34:35,320 --> 00:34:35,719 Speaker 9: It did? 534 00:34:35,800 --> 00:34:39,080 Speaker 6: There are a couple of paths that the Supreme Court 535 00:34:39,200 --> 00:34:41,919 Speaker 6: can take. They sort of picked it a lot of them, 536 00:34:42,120 --> 00:34:46,600 Speaker 6: particularly before this Force's blat interaction, there was a lot 537 00:34:46,600 --> 00:34:49,840 Speaker 6: of talk about the different methods or ways that the 538 00:34:50,000 --> 00:34:52,919 Speaker 6: justices could side with the parents. I'm not quite sure 539 00:34:53,040 --> 00:34:55,120 Speaker 6: what they'll do, but I don't think that they're going 540 00:34:55,200 --> 00:34:57,880 Speaker 6: to be, at least not yet taking on lass broader 541 00:34:57,920 --> 00:35:00,080 Speaker 6: requests to apply a heightened and. 542 00:35:00,360 --> 00:35:02,359 Speaker 1: Across the board and so. 543 00:35:03,560 --> 00:35:09,239 Speaker 2: And Veteran court watchers were also surprised by the hostility 544 00:35:09,280 --> 00:35:11,080 Speaker 2: displayed in this exchange. 545 00:35:11,640 --> 00:35:14,560 Speaker 6: They were I mean, as I mentioned before, Lisa Black 546 00:35:14,600 --> 00:35:18,759 Speaker 6: does have a very distinctive advocacy style at the Court. 547 00:35:18,840 --> 00:35:23,120 Speaker 6: But still people were surprised with sort of the hostility 548 00:35:23,760 --> 00:35:27,320 Speaker 6: between the exchange between her and Justice Gorsch. You mentioned 549 00:35:27,360 --> 00:35:30,840 Speaker 6: that he raises voice several times. That doesn't usually happen 550 00:35:30,880 --> 00:35:33,879 Speaker 6: in the Supreme Court. Many were surprised that she sort 551 00:35:33,920 --> 00:35:37,480 Speaker 6: of didn't take the hint in withdraw her comment before. 552 00:35:37,840 --> 00:35:40,759 Speaker 6: You know, a lot of pressure from Justice Gorsach. You know, 553 00:35:40,800 --> 00:35:43,479 Speaker 6: we have some people who said they've never seen Justice 554 00:35:43,520 --> 00:35:47,080 Speaker 6: Gorsus be that angry on the Benchtan I certainly listening 555 00:35:47,120 --> 00:35:50,080 Speaker 6: to it, quite surprised that it was an interaction that 556 00:35:50,239 --> 00:35:51,880 Speaker 6: was happening at the Supreme Court. 557 00:35:52,160 --> 00:35:54,759 Speaker 2: It just shows you how different the Supreme Court is, 558 00:35:54,800 --> 00:35:59,400 Speaker 2: because in a trial court, one lawyer accusing another of 559 00:35:59,520 --> 00:36:01,760 Speaker 2: lying might not even cause a ripple. 560 00:36:02,400 --> 00:36:05,560 Speaker 6: Yeah, the Supreme Court, it's just different. You know again, 561 00:36:05,760 --> 00:36:11,200 Speaker 6: there really is this expectation of decorum, and you know, again, 562 00:36:11,440 --> 00:36:14,279 Speaker 6: I can't emphasize enough how important it is, you know, 563 00:36:14,400 --> 00:36:17,759 Speaker 6: for advocates to speak to each other with respect, and 564 00:36:17,880 --> 00:36:20,640 Speaker 6: particularly to speak with the justices. And I think, you know, 565 00:36:20,719 --> 00:36:23,720 Speaker 6: one of the things that got Justice Corsage so upset 566 00:36:24,080 --> 00:36:27,120 Speaker 6: was that Lisa Blatt seemed to keep trying to interrupt him, 567 00:36:27,320 --> 00:36:30,600 Speaker 6: and at several points he admonished to let him finish, 568 00:36:30,640 --> 00:36:33,480 Speaker 6: even raising his voice one time saying I'm not finished. 569 00:36:33,600 --> 00:36:35,920 Speaker 6: So I think it was just a combinations of a 570 00:36:36,000 --> 00:36:38,480 Speaker 6: couple of things that sort of made it rise to 571 00:36:38,520 --> 00:36:39,399 Speaker 6: the level that it did. 572 00:36:39,560 --> 00:36:42,920 Speaker 2: We'll have to see what happens next time Blatt appears 573 00:36:42,920 --> 00:36:46,920 Speaker 2: before the Supreme Court. Thanks so much, Kimberly. That's Bloomberg 574 00:36:47,000 --> 00:36:51,040 Speaker 2: Law Supreme Court reporter Kimberly Strawbridge Robinson And that's it 575 00:36:51,080 --> 00:36:53,680 Speaker 2: for this edition of The Bloomberg Law Show. Remember you 576 00:36:53,680 --> 00:36:56,160 Speaker 2: can always get the latest legal news on our Bloomberg 577 00:36:56,239 --> 00:36:59,839 Speaker 2: Law Podcast. You can find them on Apple Podcasts, Spotify, 578 00:37:00,080 --> 00:37:05,080 Speaker 2: in at www dot bloomberg dot com, slash podcast slash Law, 579 00:37:05,480 --> 00:37:08,080 Speaker 2: and remember to tune into The Bloomberg Law Show every 580 00:37:08,120 --> 00:37:12,040 Speaker 2: weeknight at ten pm Wall Street Time. I'm June Grosso 581 00:37:12,160 --> 00:37:13,759 Speaker 2: and you're listening to Bloomberg