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Speaker 1: You're listening to Bloomberg Law with June grussol care what

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Speaker 1: you think about him. Many conservatives were seething over Justice

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Speaker 1: Neil Gorsuch's opinion in the landmark LGBT rights case this term.

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Speaker 1: Some even publicly rebuked Gorsage after his second landmark opinion

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Speaker 1: affirming Native American rights in Oklahoma. There were comparisons with

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Speaker 1: Justice David Suit, a George H. W. Bush nominee who

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Speaker 1: became a reliable member of the Court's liberal wing. But

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Speaker 1: perhaps there's another justice that course, which might be better

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Speaker 1: compared with Justice Byron White, who was not concerned with

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Speaker 1: public perception or criticism. Course, it's described White as his

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Speaker 1: legal hero during his confirmation hearings. Byron White my mentor

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Speaker 1: a product of the West, he modeled for me judicial courage.

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Speaker 1: He followed the law wherever it took him, without fear

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Speaker 1: or favor to anyone joining me. As Kimberly Strawbridge Robinson

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Speaker 1: Bloomberg Law Supreme Court reporter Kimberly tell us about Gorsuches

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Speaker 1: connections to Justice White. So Justice Byron White was from

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Speaker 1: the West, as is Justice Corsage. Both takes a lot

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Speaker 1: of pride in being Western Justice White was actually the

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Speaker 1: only other justice from Colorado, along with Justice Corset and

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Speaker 1: Justice Corsage clerked for Justice White, and he actually served

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Speaker 1: in the Byron White Courthouse for over a decade as

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Speaker 1: an appellate justice on the Tenth Circuit. So the connections

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Speaker 1: between the two justices are pretty extraordinary and pretty strong.

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Speaker 1: And Justice Corsis has said that Justice White was a

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Speaker 1: personal hero upset and he has a bust of him

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Speaker 1: in his office at the Supreme Court. That's right, apparently

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Speaker 1: from what he found the bus and asked Justice Corstch

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Speaker 1: if he wanted to um presented in his chambers, and

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Speaker 1: he took them up on it. So it's sitting there

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Speaker 1: and he sees it every day that he's in his office.

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Speaker 1: Corsetch is a textualist, but White wasn't. How are their

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Speaker 1: approaches to law similar? If they are, well, they're not. Really.

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Speaker 1: Their reproaches to the law are really worlds away. But

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Speaker 1: what stands out is some of the ways that they

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Speaker 1: view the justice's jobs. And so both White and Justice

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Speaker 1: Courses are big proponents of separation of powers and believers

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Speaker 1: in you know, elected officials, and that courts should generally

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Speaker 1: stay as Justice Course, which has put it in their

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Speaker 1: lanes and leave a lot of the disputes that courts

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Speaker 1: are asked to weigh in on to the political branches.

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Speaker 1: So that's one way in which they're like. And another way,

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Speaker 1: which is become pretty important for this term, was that

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Speaker 1: neither really cared about their public image. Justice Course has

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Speaker 1: famously wrote in his recent book that Justice Ways didn't

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Speaker 1: quote give a fig about what other people thought. And

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Speaker 1: you know, we see that really playing out in Justice

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Speaker 1: Courses his opinions about LGBTQ workers and also the tribal

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Speaker 1: jurisdiction case that you mentioned, those really have some very

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Speaker 1: big implications, and Justice Course it didn't seem to care.

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Speaker 1: Did he respond at all to any of the criticisms

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Speaker 1: in any way. No, So I was talking. I'm with

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Speaker 1: some of his clerks for the story that I wrote,

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Speaker 1: and many of them said, he just doesn't care. You know,

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Speaker 1: he's gonna move on with his life. He's going to

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Speaker 1: write the opinion, put a lot into it, but then

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Speaker 1: after that he's not going to read what commenters are saying.

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Speaker 1: That's just not how he chooses to spend his time. Instead,

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Speaker 1: he'd rather spend time with his family and worrying about

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Speaker 1: being outdoors, not worrying about what the public is saying

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Speaker 1: about him. He wrote after Justice White's death, and he

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Speaker 1: said his tenure on the bench was characterized by an

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Speaker 1: utter indifference to partisan agendas. So you think that Corset

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Speaker 1: as well has an indifference to partisan agendas. Well, that

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Speaker 1: certainly seems to be the case we see. Justice course,

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Speaker 1: that's just the only time since he's been on the

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Speaker 1: court where he's crossed over and joined his more liberal

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Speaker 1: colleagues and closely divided cases. And although a lot of

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Speaker 1: his rulings will tend to lean conservative based on how

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Speaker 1: he approaches the law, you know, I get the sense

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Speaker 1: from talking to his clerks and people who know him

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Speaker 1: well that he's not motivated by getting to conservative outcomes.

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Speaker 1: But that's just kind of naturally where his jury prudence

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Speaker 1: will often lead him. Many conservatives criticized him when he

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Speaker 1: joined the liberals and Justice robertson protecting LGBT workers from

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Speaker 1: job discrimination, but they also criticized the fact that he

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Speaker 1: used textualism to get to that decision. Right, So both

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Speaker 1: the majority and the Descent claimed that they're reading of

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Speaker 1: the statute was true to textualism and we really saw

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Speaker 1: quite a robustivate between Justice Corsage and Justice Alito in

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Speaker 1: dissent about which Justice was actually following textualism. And we

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Speaker 1: saw there that another one of Justice Corsage his mentors

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Speaker 1: Justice Scalia as being invoked he was really the leader

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Speaker 1: of the textualist movement. And you know, Justice Slido said

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Speaker 1: that Justice Scalia would not have come to the same

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Speaker 1: conclusion that Corsets did well. When Corsage was nominated and

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Speaker 1: confirmed to the bench to fill Justice Scalia's seat, many

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Speaker 1: thought that because he was a textualist and a conservative,

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Speaker 1: that he would follow Justice Scalia as jurisprudence. Has he

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Speaker 1: done that well, I guess it depends on who you ask.

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Speaker 1: We did see Justice Scalia a few times in his

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Speaker 1: career across over and joined his more liberal colleagues, just

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Speaker 1: like Justice Corsage is doing, particularly in criminal law cases.

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Speaker 1: I get the sense that Justice Course it's maybe doing

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Speaker 1: it more often, but there are some differences in their

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Speaker 1: jurisprudency even though they both follow textualism, and we'll just

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Speaker 1: have to see really where that leads Justice Corsage in

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Speaker 1: the future. I will say that one thing that is

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Speaker 1: similar about Justice Scalia and Justice Course is that they

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Speaker 1: both seem very self assured and confident in their place

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Speaker 1: as a justice. Justice Scalia was a conservative icon and

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Speaker 1: very gregarious, and he showed that on the bench. And

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Speaker 1: you're right that gors which is more like Scalia than

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Speaker 1: White in how he displays his self confidence and assurance,

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Speaker 1: tell us about Gorsas interrupting the Chief Justice early in

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Speaker 1: his time on this court. Right, So this is one

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Speaker 1: kind of example that has always stuck with me about

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Speaker 1: you know how Justice Course, it does really feel pretty

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Speaker 1: assured and competent in his position. I think it was

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Speaker 1: just his third argument on the bench. The justices were

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Speaker 1: considering a jurisdictional dispute and Chief Justice Robert made an

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Speaker 1: off hand comment about you know which highway ran through Montana,

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Speaker 1: and Justice Course, it's interrupted him in the middle of

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Speaker 1: our argument to say, you know, he had gotten it incorrect,

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Speaker 1: and the Chief Justice made a little quip. But actually

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Speaker 1: later in the arguments, Justice Corsi had to interrupt again

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Speaker 1: to say that he's actually gotten it wrong and that

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Speaker 1: the Chief Justice was right. And it just stuck with me,

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Speaker 1: as you know, somebody who's a newvie on the bench.

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Speaker 1: We tend to expect them to kind of lay low

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Speaker 1: and get the lay of the land. And that was

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Speaker 1: not Justice Gorset his approached to it at all. I

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Speaker 1: remember that specifically and thinking he corrected the Chief Justice

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Speaker 1: so soon, So it was really a moment to remember.

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Speaker 1: And I think you're right it does show his confidence.

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Speaker 1: He wrote a book and he went on a national

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Speaker 1: book tour, did a television interview. Justice White, you know,

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Speaker 1: was a famous football player and had all this you know,

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Speaker 1: fame and media attention before he got on the bench.

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Speaker 1: How are Justice White and gorseuch similar or dissimilar that way? Right,

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Speaker 1: So you're right that, Um, you know, Justice Waite uh

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Speaker 1: was famous before he got on the bench. Um, he's

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Speaker 1: actually the few justices who are probably known either more

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Speaker 1: for what they did before they got in the bench

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Speaker 1: or at least as much. Um. But Justice White came

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Speaker 1: to really hate the public attention and really shied away

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Speaker 1: from it as a justice. And that's something that we

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Speaker 1: don't really see some Justice Corset. So you mentioned he

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Speaker 1: did go on this this book tour. And while other

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Speaker 1: justices have done that, particularly you know, Justices Brier and

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Speaker 1: so to Mayor, they waited a long time in their

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Speaker 1: tenure UM to do so. And and that has not

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Speaker 1: been the case for Justice Course, that he was just

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Speaker 1: getting ready for his third term whenever he went on

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Speaker 1: his book tour, and UM has not shied away really

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Speaker 1: from UM public attention in the way that we saw

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Speaker 1: White doing. Kimberly, did you notice during his bookstore he

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Speaker 1: didn't seem to do as many television interviews as the

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Speaker 1: other justices did when promoting their books. Justice Course, that

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Speaker 1: actually did do a number of UM television interviews, but

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Speaker 1: then any of them were actually with Fox News UM,

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Speaker 1: and so that was something that UM. You know, as

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Speaker 1: as a journalist, I noted a lot UM, and so

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Speaker 1: it may have seemed like he didn't do a lot

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Speaker 1: of television interviews, but he actually gets it down for

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Speaker 1: a fair number of them. UM. Mostly he stuck pretty

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Speaker 1: close to the message in his book, and UM, I

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Speaker 1: know from experience, did not really go into any other

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Speaker 1: kind of details that journalists were trying to trying to

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Speaker 1: get out of him. You interviewed him for the book,

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Speaker 1: what was his demeanor like, what was he like answering questions? Well,

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Speaker 1: you know, Disfer's course, that's really stuck to the text

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Speaker 1: of his book, Um. There are many UM interviews before hours.

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Speaker 1: I was with our colleague over at Bloomberg News, Gregg

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Speaker 1: store Um, and so we were trying to get him

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Speaker 1: to him say something a little different from what he

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Speaker 1: said in the other UM interviews, but he resisted that

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Speaker 1: very strongly, UM, and really stuck to the message of

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Speaker 1: his book, which was that Doudgess should stay in their

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Speaker 1: lanes and shouldn't you know, get involved with UM partisans

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Speaker 1: disagreements that should really be left to the other branches

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Speaker 1: of government. In his book, he talked about his mother,

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Speaker 1: who was the first woman to have the e p

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Speaker 1: A and has quite a remarkable story herself. No, he didn't,

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Speaker 1: but you know, I when I was speaking to people

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Speaker 1: for this story, many of them mentioned that that probably

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Speaker 1: has a lot to do UM with his total abandonment

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Speaker 1: of what the public thinks of him. Um. She did

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Speaker 1: have a very contentious UM tenure as the first female

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Speaker 1: head of the e p A, and she ended up

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Speaker 1: being the first cabinet level member actually held in contempt

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Speaker 1: of Congress. And so, you know, people told me that

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Speaker 1: this experience UM, which happened while he was a teenager

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Speaker 1: in Washington, d C. You don't really um kind of

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Speaker 1: got him used to, you know, the bitterness of being

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Speaker 1: in public service. What is your takeaway? What is the

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Speaker 1: most important thing to him? Is it judicial independence, textualism,

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Speaker 1: keeping the separation of powers for something else. I really

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Speaker 1: do think that, you know, what's going to be important

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Speaker 1: going forward is his trust in elected officials and his

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Speaker 1: belief that courts really should be staying out of these

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Speaker 1: disputes and leave it to elected officials, and that the

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Speaker 1: way to correct any problems um that people have with

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Speaker 1: the laws or policy are to go out and vote

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Speaker 1: and to hold public officials responsible. I think that's gonna

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Speaker 1: be a theme that we see a lot um in

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Speaker 1: his in the cases that he addresses in the future,

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Speaker 1: and I think it's gonna sometimes meet them to surprising results.

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Speaker 1: Thanks for being in the Bloomberg Glass Show. Kimberly. That's

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Speaker 1: Kimberly Strawbridge, Robinson, Bloomberg Laws, Supreme Court Reporter. New research

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Speaker 1: suggests that the pandemic has worsened gender dynamics between working parents.

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Speaker 1: Many working mothers now balancing homeschooling and childcare with work,

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Speaker 1: carry a heavier childcare burden than fathers. During the coronavirus pandemic,

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Speaker 1: leaving them increasingly vulnerable to layoffs and terminations that would

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Speaker 1: be difficult to challenge in court. Joining me is Aaron Mulveney,

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Speaker 1: senior legal reporter at Bloomberg Law. So, Aaron tell us

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Speaker 1: more about this new research. Sure, a recent study from

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Speaker 1: Washington University in St. Louis um is suggesting that the

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Speaker 1: pandemic has worsened gender dynamics between working parents. And what

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Speaker 1: it found was that working mom's hours spell four or

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Speaker 1: five times more than fathers between March and April, which was,

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Speaker 1: you know, basically at that time when the pandemic was hitting,

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Speaker 1: schools were closing and parents were kind of faced with

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Speaker 1: balancing their work and childcare duties at the same time.

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Speaker 1: And um for this drop in hours you know, happened

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Speaker 1: for mothers, but father's work hours remains largely stable and

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Speaker 1: so and that the impact was greatest among mothers of

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Speaker 1: primary school age children are younger. Does that mean that

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Speaker 1: working mothers are cutting their time by themselves or that

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Speaker 1: their employers are cutting their time? So that's a good

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Speaker 1: question that they don't know the exact reason for the

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Speaker 1: reduced hours, but it suggests that mothers are taking up

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Speaker 1: a disproportionate um amount of childcare duties regardless, so often

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Speaker 1: it might be the case a mother. We know anecdotally

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Speaker 1: from some legal experts and the researchers themselves that a

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Speaker 1: mother may just ask for a few more you know,

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Speaker 1: hours off in the morning to be homeschooling um or

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Speaker 1: just having to balance childcare as those those options kind

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Speaker 1: of dried up for younger children or things like that.

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Speaker 1: And you know, of course there are equal households as well,

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Speaker 1: but the numbers suggest that by and large women were

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Speaker 1: the ones picking up picking up the slack in these

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Speaker 1: relationships where there's a mother and a father and they're

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Speaker 1: both working. That's not surprising. It seems like every survey

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Speaker 1: shows the same thing, that working moms are picking up

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Speaker 1: the slack, and it's probably going to get worse because

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Speaker 1: as the school year starts and so many kids are

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Speaker 1: going to be learning online and there are fewer childcare options,

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Speaker 1: it may become more obvious to employers. That's exactly right,

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Speaker 1: and it's important to note too that this is a

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Speaker 1: a dynamic that existed before the pandemic that could be

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Speaker 1: exacerbated by the pandemic UM and that could lead to

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Speaker 1: probably maybe a sticky situation where there's a stereotype involved

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Speaker 1: that a mother is more unreliable and a father is reliable,

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Speaker 1: even if that's not fair or based on you know,

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Speaker 1: the actual outcome of the mother's work, or even if

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Speaker 1: that's not based on the actual productivity that the mother

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Speaker 1: puts into her job or the company, even if she

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Speaker 1: is kind of in this difficult situation. And I'll also

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Speaker 1: add that, you know a lot of employers were very

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Speaker 1: flexible at the beginning, not knowing how long this is last,

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Speaker 1: and maybe had an expectation that and when the follow

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Speaker 1: rolled around, school would be back. And so I think

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Speaker 1: a lot of worker advocates here, you know there's gonna

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Speaker 1: be another reckoning coming at this beginning of school while

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Speaker 1: you know, these parents have just really difficult balancing situations.

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Speaker 1: Maybe for a while now, we don't really know when

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Speaker 1: it's gonna end. So it's kind of a you know,

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Speaker 1: it's a difficult situation to navigate Aaron. Are there any

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Speaker 1: states where employers are required to make accommodations for caregiver responsibilities?

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Speaker 1: Yes and no. So there are five states um as

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Speaker 1: well as the District Columbia, New York city that have

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Speaker 1: explicit protections again caregiver discrimination. But that's not exactly what

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Speaker 1: you're asking, but that those states you if you were

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Speaker 1: discriminated against for being a mother, for example, or even

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Speaker 1: a father, Um, you could actually file a discrimination claim

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Speaker 1: and skate court. Um. Outside of that context, there's not

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Speaker 1: such a protection under federal law. Um. But what you're

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Speaker 1: asking about accommodations for caregivers, an employer doesn't outside of

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Speaker 1: you know, the paid leaves they offer, or there's there's

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Speaker 1: an emergency Act that congresses into place during the pandemic

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Speaker 1: that that does provide a national pay leave option for

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Speaker 1: for mothers. But outside of that, an employer doesn't have

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Speaker 1: to say, yes, you can have that time to care

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Speaker 1: for your child. That's not something that's baked into our

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Speaker 1: system normally, and it's kind of an unfair situation on

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Speaker 1: the face of it. But um, that is the case

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Speaker 1: for for most parents. They kind of face they do

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Speaker 1: have to do their job, you know, unless they take

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Speaker 1: if that the company offers. The lawyers that you spoke to,

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Speaker 1: did they say that they're getting calls from working mothers

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Speaker 1: about problems at work. Yes, I there are already anecdotes

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Speaker 1: coming out about women calling and talking about their legal

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Speaker 1: options and kind of talking to these things that we're

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Speaker 1: talking about right now. Some of the lawyers have told

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Speaker 1: me that on the company side, I don't think they

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Speaker 1: think in those terms, but from the individual worker point

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Speaker 1: of view, both advocacy groups and plane of lawyers said

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Speaker 1: that they're getting calls about this type of discrimination, which

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Speaker 1: they said happened again before the pandemic, that they're continuing

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Speaker 1: to see these kind of trends come up more frequently.

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Speaker 1: Did the people that you talked to, the sociologists, the lawyers,

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Speaker 1: et cetera, see implications when employers are looking to cut

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Speaker 1: their payroll that they're going to start cutting the caregivers.

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Speaker 1: There is definitely a fear that a company that's facing

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Speaker 1: legitimate economic insecurity because of the pandemic and because of

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Speaker 1: the crisis that we're in, and they might be in

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Speaker 1: um looking at their staff and making cuts, whether it's

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Speaker 1: individual or in a math layout situation, and maybe subconsciously

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Speaker 1: or you know, based on a bias or based on

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Speaker 1: actual reduced hours that the employees take. Working mothers may

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Speaker 1: be adversely affected by by some of those decisions. That

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Speaker 1: that's absolutely a fear and the study that we we

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Speaker 1: noted in the research um, the researchers actually noted that

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Speaker 1: that they feared that this reduced work hours would would

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Speaker 1: lead to some adverse actions against working mothers, and even

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Speaker 1: in even in the way of being passed over for promotion,

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Speaker 1: and a single guy might get over a working mother,

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Speaker 1: you know, but not based on work based on an

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Speaker 1: assumption of a mother's being unreliable. Essentially, if mothers are

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Speaker 1: cutting their hours, it's sort of logical that an employer

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Speaker 1: will consider that, oh, they're not doing their job as

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Speaker 1: well or as thoroughly. That's absolutely an argument that some

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Speaker 1: employers may make. And um, there's there's another point of

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Speaker 1: view on the subject um that I'll share from some

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Speaker 1: like workers advocates that the reduced hours may not necessarily

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Speaker 1: mean that the mother is doing a bad job either,

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Speaker 1: you know. And some workplaces actually encourage more workplace flexibility

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Speaker 1: that can provide kind of more flexible options for people

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Speaker 1: who are balancing more work. And in this context, of course,

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Speaker 1: that could be a caregiver, be it a mother or father.

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Speaker 1: And if if the workplace provides that, which you know,

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Speaker 1: I think a lot of workplaces, especially during the pandemic

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Speaker 1: we're very understanding. Um, but but to your to the

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Speaker 1: broader point, Uh, yes, reduced hours could be there's not

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Speaker 1: you know, saying I've worked us. They don't, they're not.

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Speaker 1: The employer is not required to make that allowance and

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Speaker 1: say okay, you're protected something fired. Then that is not

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Speaker 1: the case in our current legal system. Let's say that

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Speaker 1: some of these working parents decided to take their case

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Speaker 1: to court if they're fired, what would they need to prove.

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Speaker 1: I'll take it into different scenarios because there are different

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Speaker 1: claims that as this this mother who's you know, had

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Speaker 1: some kind of action taken against her, whether she's fired,

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Speaker 1: or say there's a situation where mostly mothers are laid

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Speaker 1: off or something kind of extreme like that, and they're

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Speaker 1: ready to say, okay, this sounds like I can bring

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Speaker 1: a claim to court and say that you discriminated against me.

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Speaker 1: You know, we already mentioned there are some special situations

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Speaker 1: in five states, in BC, in in New York City. Um.

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Speaker 1: Outside of that, there's an individual mother who's making this claim,

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Speaker 1: would the burden would be on her to to show

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Speaker 1: that there was a reason this is based on a stereotype,

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Speaker 1: among other factors. Um, And the reason that she was

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Speaker 1: laid off or fired or laid off was because she

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Speaker 1: was a mother and it was based on an a

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Speaker 1: sex stereotype. Because that's not legal. You can't base a

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Speaker 1: decision based on that. A business can come back and say, well,

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Speaker 1: I've lost you know, my revenue, I had to lay

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Speaker 1: people off. There's a good reason to lay this person off.

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Speaker 1: She'd cut her hours by half and absent a smoking

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Speaker 1: gun that proved that there was stereotype involved, whether it's

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Speaker 1: an email thing I don't want mother's looking here, or

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Speaker 1: you're unreliable, they would be pretty tough UM. The In

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Speaker 1: the other situation where maybe it's a policy that the

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Speaker 1: the company has in place that could potentially hurt a

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Speaker 1: protected class such as a working mother or or father

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Speaker 1: or you know, any kind of person. That's called a

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Speaker 1: disparate impact claim, and the planiff would say, okay, you

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Speaker 1: have this policy and this this adverse, this affects me

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Speaker 1: UM in a negative way, and then the employer would

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Speaker 1: have to descend that again with like an economics business

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Speaker 1: necessity reason for having the policy, and that would have

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Speaker 1: to override whatever bias it inflicts UM. An example, way back,

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Speaker 1: there was a Supreme Court case where a company required

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Speaker 1: a diploma to work there, and some some black employees

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Speaker 1: at suits and said that that had a despared impact

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Speaker 1: on them. So I talked to some lawyers. She said,

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Speaker 1: they haven't seen any big cases like this yet for

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Speaker 1: working mothers, but what it would look like is something

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Speaker 1: kind of like that you made us increase our hours

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Speaker 1: by because of the economic conditions, and that policy disproportionately

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Speaker 1: affected women and leg to stereotypes. That could be a

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Speaker 1: claim that you bring in court. And again, they're just hard.

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Speaker 1: They're just hard cases because you have to prove there's

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Speaker 1: animals involved, and you have to prove and the company

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Speaker 1: will always argue that they have a business necessity um

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Speaker 1: in some way. I noticed that one of the professors

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Speaker 1: you talked to said, you're walking into a case with

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Speaker 1: facts stacked against you. So so most of the lawyers

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Speaker 1: you spoke to said that these kinds of cases are

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Speaker 1: uphill battles for the working parent. Most of them did.

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Speaker 1: I the advocate they spoke to, They would say that

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Speaker 1: litigation is not the best way to have justice in

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Speaker 1: the workplace. You know, they're kind of focused on policy

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Speaker 1: solutions or you know, better corporate cultures that support all

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Speaker 1: kinds of workers. And you know, the diffense attorneys I

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Speaker 1: talked to who represent companies, you know, they said, I

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Speaker 1: mean there's any numb or of narratives a company can

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Speaker 1: explain to say why they fired somebody, or why they

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Speaker 1: let somebody go, or why they had to lay up

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Speaker 1: in the pandemic. Really, it provides quite a large, you know,

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Speaker 1: blanket for a lot of these things. They really they

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Speaker 1: might not be able to keep people on staff. And

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Speaker 1: so there's a there's gonna be like a based in

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Speaker 1: economic reason pretty in our faces every single day. And

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Speaker 1: so with that said, you know that the burden is

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Speaker 1: going to be pretty high to reach that to prove

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Speaker 1: that the company did something against you, even if you

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Speaker 1: know a lot like we talked about the beginning of

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Speaker 1: this conversation, it seems like it's a pretty apparent dynamic

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Speaker 1: that this is happening and it's unfair. But it's gonna

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Speaker 1: be really hard. It's gonna be a tough style in court.

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Speaker 1: But there are definitely big planets farms to bring these

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Speaker 1: types of cases all the time. So I don't want

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Speaker 1: to say they there's no way they can win either.

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Speaker 1: Thanks Aaron. That's Aaron Mulvanny Bloomberg Law senior legal reporter.

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Speaker 1: I'm John GLASSO, and this is Bloomberg