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

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Speaker 2: It's a case that could lift longstanding constitutional limits on

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Speaker 2: government support for religion, and the sharp ideological divide on

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Speaker 2: the Court was apparent in the oral arguments over whether

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Speaker 2: to allow the country's first publicly funded religious charter school

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Speaker 2: in Oklahoma. Four of the conservative justices seemed to be

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Speaker 2: firmly on the side of the Catholic charter school, suggesting

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Speaker 2: that the state is unconstitutionally disfavoring religion by requiring public

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Speaker 2: charter schools to be secular. Justice Brett Kavanaugh called it

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Speaker 2: rank discrimination against religion.

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Speaker 3: And then you come in and you say, oh, we're

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Speaker 3: a religious school. It's like, oh, no, can't do that.

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Speaker 3: That's too much, that's scary. We're not going to do that.

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Speaker 3: And our cases have made very and I think those

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Speaker 3: are some of the most important cases we've had of

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Speaker 3: saying you can't treat religious people and religious institutions and

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Speaker 3: religious speech as second class in the United States.

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Speaker 2: But the three liberal justices emphasized that taxpayer funded religious

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Speaker 2: schools would entangle church and state in violation of the

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Speaker 2: establishment clause of the First Amendment. Here's Justice Sonya Sotomayor.

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Speaker 4: Because the essence of the establishment clause was we're not

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Speaker 4: going to pay religious leaders to teach their religion. That

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Speaker 4: is and has always been the essence. And here we're

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Speaker 4: paying Catholic leaders Catholic teachers. You can only be a

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Speaker 4: teacher in this school if you're willing to accept the

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Speaker 4: teachings of the Catholic Church.

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Speaker 2: My guest is First Amendment law expert Caroline Malik KORbin,

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Speaker 2: a professor at the University of Miami Law School. Caroline,

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Speaker 2: what's at stake in this case?

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Speaker 5: So the ultimate question is whether the Supreme Court will

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Speaker 5: require the state of Oklahoma to directly fund a religious

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Speaker 5: charter school. That's the big picture. Basically, Oklahoma has a

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Speaker 5: charter school program, as do most states. As a matter

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Speaker 5: of fact, it's supposed to be another alternative to regular

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Speaker 5: public schools, and the school bar charged with approving charter

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Speaker 5: schools approved a Catholic charter school. A Catholic charter school

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Speaker 5: would violate the Oklahoma Constitution, and so the Attorney General

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Speaker 5: challenged that on the grounds it violated two separate provisions

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Speaker 5: of the Oklahoma Constitution as well as the US Constitution.

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Speaker 5: Because the Oklahoma Constitution makes it very clear that taxpayer

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Speaker 5: money cannot be used who is, to fund religious proselytization

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Speaker 5: and indoctrination. And there is a separate provision of the

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Speaker 5: Oklahoma Constitution that says public education must be non sectarian.

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Speaker 5: In other words, public education must be secular. That's the

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Speaker 5: Oklahoma Constitution. There is also, of course, the US Constitution's

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Speaker 5: Establishment Clause, which has long been understood to ban direct

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Speaker 5: fundings using taxpayer money to fund religious education, religious proselytization,

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Speaker 5: religious doctrination. And that went all the way up to

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Speaker 5: the Oklahoma court until the Oklahoma Supreme Court said, you

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Speaker 5: know what, it does violate the Oklahoma Constitution does violate

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Speaker 5: US constitutions for Oklahoma to have a religious charter school.

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Speaker 5: And then the charter school and the board that approved

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Speaker 5: it appeal to the Supreme Court and they claim that

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Speaker 5: Oklahoma's refusal the Holy fund that Catholic charter school violated

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Speaker 5: the free exercise clause of the US Constitution. And that

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Speaker 5: was what the case was before the Supreme.

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Speaker 2: Court explain why. A key issue is whether the religious

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Speaker 2: charter school is public or private.

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Speaker 5: So that's the million dollar question. There was a dispute

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Speaker 5: on whether to characterize charter schools as public schools or

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Speaker 5: private schools, and that category makes a huge difference under

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Speaker 5: the doctrines, because under existing precedent, if charter schools are

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Speaker 5: in fact public schools, then Oklahoma is absolutely free to

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Speaker 5: insist that they remained secular. On the other hand, if

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Speaker 5: they are considered private school there is a trio of

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Speaker 5: Supreme Court cases that have held that if the government

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Speaker 5: makes taxpayer money available to private secular schools, it has

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Speaker 5: to make that money equally available to private religious schools.

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Speaker 5: So it really really matters whether the charter schools are

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Speaker 5: public schools, in which case Oklahoma can keep them secular,

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Speaker 5: or whether they're private schools, in which case the Supreme

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Speaker 5: Court will hold that denying them equal access to government

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Speaker 5: money amounts to discrimination against religion and that would violate

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Speaker 5: the free exercise costs.

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Speaker 2: The liberal justices went through pains to try to point

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Speaker 2: out that the charter school is public, and then the

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Speaker 2: conservatives went to pains to try to prove that it

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Speaker 2: was private.

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Speaker 5: Which do you think exactly? I think that the weight

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Speaker 5: of evidence is that these schools are public. For various reasons.

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Speaker 5: The state creates them, and the state can end them.

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Speaker 6: They really have all the.

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Speaker 5: Hallmarks of a public school. They are free, they're open

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Speaker 5: to everyone, they're completely funded by the states, and the

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Speaker 5: curriculum is subject to detailed oversight by the state. The

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Speaker 5: teachers or subject to all the same benefits and regulations

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Speaker 5: as public school teachers. Congress. When Congress enacted the law

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Speaker 5: that allowed for charter schools, they characterized them as public schools.

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Speaker 5: But especially important is that the Supreme Court of Oklahoma,

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Speaker 5: in interpreting Oklahoma law, said this law creates public schools.

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Speaker 5: The reason why that is so significant is that traditionally

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Speaker 5: the state supreme court is the final arbiter of what

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Speaker 5: a state law does. And if the state Supreme Court

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Speaker 5: of Oklahoma says this Oklahoma law creates public schools, that

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Speaker 5: is supposed to be entitled to deference by the Supreme Court.

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Speaker 5: That's sort of a basic principle of federalism. The state

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Speaker 5: courts are the ones who interpret what state law means.

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Speaker 5: So there really is a lot of reasons to conclude

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Speaker 5: that these schools are ultimately public schools, not private.

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Speaker 2: How did the conservatives answer the liberal justices questions about

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Speaker 2: the establishment clause and how a taxpayer funded school would

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Speaker 2: entangle church and state.

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Speaker 5: So that's the first thing to note is in the

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Speaker 5: justice's mind, what's going on here is that the state

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Speaker 5: has created a program and made a benefit available, and

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Speaker 5: consequently it has to be made available equally to religious

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Speaker 5: and secular schools, otherwise violates the free exercise clause. That

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Speaker 5: it might be intention with the Establishment clause doesn't matter

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Speaker 5: to these Supreme Court justices who always privilege the free

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Speaker 5: exercise clause over the Establishment clause. So in their mind,

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Speaker 5: if it is required to give the schools money by

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Speaker 5: the free exercise clause, then by definition it can't violate

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Speaker 5: the Establishment clause, and so they might simply not reach

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Speaker 5: the establishment clause problem that it is very firmly established

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Speaker 5: in establishment clause jurisprudence that the government cannot directly give

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Speaker 5: money to religious organizations for the purpose of religious indoctrination

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Speaker 5: and religious education. The state cannot give directly money if

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Speaker 5: the money ends up at a school indirectly, that is

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Speaker 5: okay under another case. But for the government to take

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Speaker 5: money from its coffers and put it into the coffers

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Speaker 5: of a private religious school that then uses the money

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Speaker 5: for religious education and doctrination prostimization. Even under current Establishment

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Speaker 5: Clause law, which is highly weakened even today, that's still unconstitutional.

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Speaker 2: Did you see the three liberals on one side, four

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Speaker 2: of the conservatives on the other. And then is Chief

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Speaker 2: Justice John Roberts the pivotal vote.

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Speaker 5: He is because Justice Barrett recused herself because of her

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Speaker 5: close connection with someone involved in the litigation, and so

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Speaker 5: the Conservatives don't have a cushion as they normally do.

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Speaker 5: They need Justice Roberts in this case in order to prevail,

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Speaker 5: because if it is a four to four tie in

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Speaker 5: that situation, the lower court decision stands, which is the

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Speaker 5: Oklahoma Supreme Court's decision that it would violate the state

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Speaker 5: and federal constitutions to create a religious charter school wholly

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Speaker 5: funded by the state.

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Speaker 2: And Roberts didn't tip his hand as to which way

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Speaker 2: he was leaning. But if the Conservatives do have the votes,

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Speaker 2: what might the decision look like.

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Speaker 5: Well, there are two ways they can rule in favor

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Speaker 5: of the charter schools, and I think one is significantly

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Speaker 5: more likely than the other. The first way is the

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Speaker 5: one I've suggested already, is that they conclude that these

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Speaker 5: are private schools and accordingly, under existing precedent, the state

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Speaker 5: has to give them the same opportunities of state funding

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Speaker 5: as they give private secular charter schools. And there they

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Speaker 5: would insist that this is no change in the law whatsoever.

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Speaker 5: It's just a continuation of their previous rulings that hold

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Speaker 5: that if the government makes a benefit available, it has

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Speaker 5: to make it equally available to private religious schools and

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Speaker 5: private secular schools. It could say that these are public schools,

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Speaker 5: but still in terms of the charter school program, it

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Speaker 5: has to offer the opportunity to create both secular charter

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Speaker 5: schools and religious charter schools. But there's no reason for

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Speaker 5: them to rule in that way if they can take

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Speaker 5: the much simpler path of simply claiming, contrary to the

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Speaker 5: evidence and Congress and the Oklahoma Supreme Court, that these

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Speaker 5: are private schools. And this is just another case of

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Speaker 5: the state discriminating against religion by denying its funding that

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Speaker 5: it makes available to their specular counterpart.

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Speaker 2: Coming up the court string of decisions allowing public funds

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Speaker 2: to be used by religious institutions. This is bloomberg. The

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Speaker 2: Supreme Court's conservative majority has repeatedly sided with religious interests

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Speaker 2: in recent years. In three cases since twenty seventeen, the

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Speaker 2: Court has allowed public funds to go to religious entities,

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Speaker 2: and in a case over whether to allow the country's

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Speaker 2: first publicly funded religious charter school in Oklahoma, four of

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Speaker 2: the conservative justices seemed to be firmly on the side

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Speaker 2: of the Catholic charter school, suggesting that the state is

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Speaker 2: unconstitutionally disfavoring religion by requiring public charter schools to be secular.

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Speaker 2: Justice Brett Kavanaugh seemed to acknowledge that the Court has

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Speaker 2: been rewriting the interpretation of the Constitution's religion clauses when

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Speaker 2: he told Oklahoma's attorney former Solicitor General Gregory Garr that

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Speaker 2: the Court now has a different constitutional understanding than it

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Speaker 2: did since the beginning of the charter school program in

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Speaker 2: nineteen ninety four.

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Speaker 7: But this is going to have a dramatic fact on

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Speaker 7: charter schools across the country. And just think of the

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Speaker 7: federal charter school program on its own. I don't think

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Speaker 7: you can't just say, like, oh, well, just you know, Grant, well.

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Speaker 3: It's not good that the premise of that was that

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Speaker 3: at that point it was considered constitutional to discriminate against

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Speaker 3: religious entities and that you know, that's some of our

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Speaker 3: case law has changed that and said no, it's not

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Speaker 3: constitutional discriminate against private and that's.

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Speaker 2: I've been talking to Professor Caroline malt Corbin of the

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Speaker 2: University of Miami Law School. Caroline. Later in that interchange,

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Speaker 2: Kavanaugh said, there was a different constitutional understanding, yes.

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Speaker 5: And this different constitutional understanding is a constitution without the

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Speaker 5: establishment clause. Because it's very important to realize that religious

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Speaker 5: organizations are treated differently under the Constitution. They get certain

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Speaker 5: benefits under the free exercise clause. So for example, religious

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Speaker 5: schools or an titled to a ministerial exemption, which means

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Speaker 5: that their teachers can't bring discrimination claims. It means that

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Speaker 5: they often get extra tax breaks that others do not.

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Speaker 5: There are definitely benefits to being a religious school, but

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Speaker 5: it had long been any understanding that being religious brought

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Speaker 5: not only special benefits but also certain restrictions. And one

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Speaker 5: of those restrictions was a, for example, limit on the

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Speaker 5: kind of funding you could get from the government.

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Speaker 2: And so there was.

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Speaker 5: Long this balance where in some ways religious schools got

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Speaker 5: certain benefits, but in some ways they had certain restrictions

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Speaker 5: from the benefits from the free exercise clause, the restrictions

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Speaker 5: imposed by the Establishment Clause. But what the Roberts Court

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Speaker 5: has done and reconfiguring the religious liberty clauses, it has

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Speaker 5: expanded the privileges of religious organizations while eliminating the prior limits.

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Speaker 5: And one way they've been doing that is with this

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Speaker 5: flate of hand. The slate of hand is what were

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Speaker 5: previously understood as Establishment Clause limits on for example, government

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Speaker 5: funding now has become religious discrimination right. So again, one

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Speaker 5: of the basic premises of the Establishment clause is that

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Speaker 5: the government does not fund religions. In various ways, the

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Speaker 5: Supreme Court generally pretends to the Establishment clause does not

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Speaker 5: exist and insists that any time the government does not

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Speaker 5: fund religion, it is discriminating against religion because it's funding

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Speaker 5: secular organizations. So basically, what they've done is they've taken

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Speaker 5: this balanced approach towards religion, where sometimes it gets special

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Speaker 5: benefits and sometimes it's subject to special limits, and it's

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Speaker 5: eliminated the limits by re characterizing a constitutional requirement as

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Speaker 5: just hostility to religion. So in their minds, the reason

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Speaker 5: that Oklahoma doesn't want to fund a religious school a

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Speaker 5: religious charter school is not because the Constitution limits it,

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Speaker 5: which it does both the state and credal but because

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Speaker 5: they're hostile religious. So that's the switch. Right, limits that

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Speaker 5: were constitutionally required, limits that were understood to be required

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Speaker 5: by the Constitution's Establishment Clause, don't exist. Instead, those limits

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Speaker 5: only reflect hostility to religion, not an attempt to honor

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Speaker 5: the Establishment Clause. And I'm just going to say one

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Speaker 5: more thing. This is my pitch for the establishment clause.

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Speaker 5: The Establishment Clause is a protecting religion. One of the

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Speaker 5: main things the Establishment Clause does is by insisting on

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Speaker 5: some degree of separation between church and state. It's protecting religion.

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Speaker 5: It's protecting the favored religion, because anytime church and state

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Speaker 5: gets entangled, it tends to degrade the religion, it tends

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Speaker 5: to demean it in some way. And also, anytime the

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Speaker 5: government gets involved with religion, it usually ends up favoring

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Speaker 5: one religion to the detriment of others. And so insisting

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Speaker 5: on the separation from church and state is so important

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Speaker 5: to protecting minority religion. So I just want to emphasize

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Speaker 5: that the Robberts Court is often characterized as being very

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Speaker 5: pro religion, but that's not quite accurate if it's eliminating

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Speaker 5: the establishment clause, because one of the things the establishment

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Speaker 5: clause does is protect minority Rely, let's.

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Speaker 2: Talk about this string of decisions since twenty seventeen, the

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Speaker 2: Court said that Missouri violated the free exercise right of

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Speaker 2: a Christian learning center when it denied grant funding to

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Speaker 2: resurface its playground. Twenty twenty, Montana couldn't exclude religious schools

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Speaker 2: from a program providing tax credits, and twenty twenty two,

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Speaker 2: main can't limit a tuition assistance program. This seems like

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Speaker 2: just the next step.

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Speaker 5: This is the next step. That's the precedent that the

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Speaker 5: Supreme Court will recite when they says this is a

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Speaker 5: very straightforward case. If they do rule in favor of

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Speaker 5: the Catholic charter school, they're going to say it's private,

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Speaker 5: and as we have established in our three prior cases,

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Speaker 5: the government cannot discriminate against private religion schools. See all

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Speaker 5: those three cases you just mentioned.

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Speaker 2: What will a ruling like that mean for the forty

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Speaker 2: five states that require charter schools to be both public

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Speaker 2: and non sectarian, as well as the federal charter school program.

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Speaker 5: It's a bit of a disaster because every state just

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Speaker 5: about has a charter program, and every state is assuming

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Speaker 5: those charter programs amount of public schools, and so maybe

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Speaker 5: not every state. I think they mentioned California quite So.

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Speaker 5: What it means is it throws into question the constitutionality

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Speaker 5: of every charter program because they all currently exclude religious

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Speaker 5: schools on the assumption that these are public schools, and

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Speaker 5: you can't use government money to fund a religious public school.

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Speaker 5: So there's going to be a lot of legal uncertainty

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Speaker 5: about the exact status of the charter schools in every

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Speaker 5: state because each of them has slightly different rules, and

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Speaker 5: so there will be litigation in fifty states about whether

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Speaker 5: their particular charter school program creates private schools public schools.

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Speaker 5: It also throws into question some federal funding. I think

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Speaker 5: one that the council recommended was the Special Federal Funding

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Speaker 5: for Student with Disabilities, the Idea Act, the Individuals with

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Speaker 5: Disability and Education Act, where charter schools get federal funding

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Speaker 5: for their disabled students on the assumption that their public

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Speaker 5: school I think that's what it was. I'm not one

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Speaker 5: hundred percent on that. And then there are some other

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Speaker 5: states that make it very clear that no money at

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Speaker 5: all can go to any private school, and so they

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Speaker 5: will have to rethink their charter school programs. So that's

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Speaker 5: just the confusion that he emphasized. But in terms of

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Speaker 5: church state, it means that once again money will be

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Speaker 5: siphoned from the public school educational system into religious schools. Now,

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Speaker 5: if the new rule is you have to be open

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Speaker 5: to religious charter schools, it's going to be any religion

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Speaker 5: can have a charter school. In theory, that's the theory, right,

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Speaker 5: because otherwise you'd be discriminating against some religion over the others.

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Speaker 5: But the reality is that the vast majority of these

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Speaker 5: charter schools are going to be Christian schools, just as

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Speaker 5: we saw in voucher programs that the vast majority of

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Speaker 5: private schools getting vouchers are christ In private schools. And

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Speaker 5: so this will be a significant channeling of your money

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Speaker 5: and my money to religious schools who are going to

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Speaker 5: be indoctrinating their students in beliefs that might be antithetical

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Speaker 5: to our own religious beliefs.

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Speaker 2: States would be able to rewrite their charter rules, right,

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Speaker 2: I don't eliminately.

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Speaker 1: But.

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Speaker 5: I don't know how easy that will be. I don't

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Speaker 5: know how long.

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Speaker 4: That will take.

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Speaker 5: We don't know what the impact will be in the

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Speaker 5: next school year. So yes, it is entirely possible to

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Speaker 5: completely revamp your charter school system to make it one

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Speaker 5: hundred percent clear that these are public schools, although you know,

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Speaker 5: they kind of already made it clear that they were

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Speaker 5: public schools. I don't know if any state could be

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Speaker 5: confident that the Supreme Court wouldn't come back and say, well, actually,

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Speaker 5: you thought you were complying with the factors that we

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Speaker 5: listed as defining what's a public school as opposed to

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Speaker 5: a private school. But we're moving the goalposts again as.

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Speaker 2: They've been moving it in these religion cases. Always a pleasure, Caroline,

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Speaker 2: Thanks so much. That's Professor Caroline Malcorbin of the University

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Speaker 2: of Miami Law School. Coming up next on The Bloomberg

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Speaker 2: Law Show. Supreme Court oral arguments where civility is usually

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Speaker 2: prized turned unusually hostile in a case involving a Minnesota

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Speaker 2: school district and a disabled student. Supreme Court oral arguments

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Speaker 2: take place in a rarefied atmosphere where civility is prized

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Speaker 2: and your opponents are not adversaries, and your opponents are

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Speaker 2: not called adversaries but rather friends. On the other side,

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Speaker 2: but not so. During Monday's oral arguments involving a Minnesota

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Speaker 2: school district and a disabled student, just Is Neil Gorsich

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Speaker 2: took Lisa Blott, the attorney for the school district, to task.

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Speaker 3: You believe that.

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Speaker 1: Mister Martinez and the Solicitor General are.

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Speaker 3: Lying in or argument? Yes?

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Speaker 4: Absolutely, it is not.

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Speaker 1: True that we should be more careful with your works.

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Speaker 4: Okay, well, they should be more careful in character mischaracterizing

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Speaker 4: a position by an experienced advocate of the Supreme.

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Speaker 2: Court, and Blott is certainly an experienced advocate. But Justice

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Speaker 2: Gorsic apparently couldn't let it go and returned to it

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Speaker 2: later in the argument not to set the law.

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Speaker 1: Miss, Yeah, I confess I'm still troubled by your suggestion

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Speaker 1: that your friends on the other side have lied.

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Speaker 5: Okay, let's help pull up.

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Speaker 1: Yeah, I think we're going to have to here, and

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Speaker 1: i'd ask you to reconsider that phrase argument if I

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Speaker 1: might it was incorrect. If incorrect is fine. People make mistakes.

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Speaker 1: You can accuse people being incorrect lying, Miss Blatt, if

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Speaker 1: I might finish sure, lying is another matter.

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Speaker 2: Blatt eventually withdrew her comment, joining me is Bloomberg Law

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Speaker 2: Supreme Court reporter Kimberly Strawbridge Robinson who heard it all. Kimberly,

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Speaker 2: the oral arguments are usually very civil. Even when questioning

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Speaker 2: gets aggressive, you rarely even hear raised voices.

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Speaker 6: That's right. I mean, there's a level of decorum that's

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Speaker 6: expected within the Supreme Court even while debating you know,

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Speaker 6: really hotly contested issues. And I think one of the

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Speaker 6: things that really sort of demonstrates this is that the

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Speaker 6: advocates are encouraged by the justices to refer to opposing

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Speaker 6: counsel as my friend on the other side. You'll even

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Speaker 6: hear attorneys correct themselves if they say, you know, my

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Speaker 6: opposing council though quickly correct them of selves and say,

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Speaker 6: you know, as my friend on the other side said. So,

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Speaker 6: it really is a place that's defined by civility.

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Speaker 2: So now tell us about the case at the Court

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Speaker 2: on Monday involving a Minnesota school system. Generally what it

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Speaker 2: was A yeah, I mean.

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Speaker 6: I think the broadest level of this case is about

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Speaker 6: disability discrimination in public schools. It's a very technical case

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Speaker 6: on the interaction of several federal statutes, but at a

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Speaker 6: part it's about when schools can be held liable for

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Speaker 6: disability discrimination.

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Speaker 2: And Lisa Blatt is an experienced Supreme Court advocate. She's

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Speaker 2: argued more than fifty cases before the court.

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Speaker 6: Yeah, I mean, she's one of a handful of individuals

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Speaker 6: who can claim that sort of milestone, and she's the

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Speaker 6: only female to do so. She has a really distinctive style.

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Speaker 6: It's very casual and very straight to the point. But

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Speaker 6: you know, the justices do really seem to enjoy her

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Speaker 6: oral advocacy, and she has sparred with some of the

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Speaker 6: justices in the past, but you know, often they'll laugh

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Speaker 6: at some of her comments that she makes. You know,

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Speaker 6: I think people tend to think that she gets away

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Speaker 6: with things that you know, others, even experienced advocates, cannot,

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Speaker 6: And you know that's really shown through her record of

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Speaker 6: the court. She has an unusually high success rate at

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Speaker 6: the U. S. Supreme Court.

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Speaker 2: So what happened during these oral arguments that led to

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Speaker 2: this confrontation with Gorsu.

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Speaker 6: Well, you know, this is a casepot by parents of

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Speaker 6: a disabled student who's suing a Minnesota school district. And

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Speaker 6: as they sort of understood the case as it came

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Speaker 6: to the Supreme Court, you know, they thought it was

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Speaker 6: a very narrow case, and during oral arguments, the parents' advocate,

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Speaker 6: who himself is a seasoned Supreme Court veteran, you know,

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Speaker 6: said that this school district had sort of pulled the

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Speaker 6: rug out from under the justices and had changed course

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Speaker 6: in the Supreme Court and advocated for a much broader,

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Speaker 6: much drastic sort of request than what they thought that

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Speaker 6: the case was about. And then when Lisa Platt got

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Speaker 6: up to argue for the school district, she said that

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Speaker 6: wasn't a correct character of their stance, and she actually

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Speaker 6: accused the parents' attorney as well as the federal government's attorneys,

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Speaker 6: who was on the side of the parents in this case.

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Speaker 6: She accused them of lying. And it's really that accusation

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Speaker 6: that really got under the skin of several of the justices.

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Speaker 2: So was Justice Gorsuch seemingly the most upset. He raised

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Speaker 2: his voice and said, be more careful with your words.

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Speaker 6: Yeah, I mean, he was definitely the one who was

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Speaker 6: most upset. But I will say that several of the

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Speaker 6: justices seem to indicate that they sort of agreed with

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Speaker 6: the parents' attorneys and with the federal government here in

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Speaker 6: the categorization of the school district's stance, and so that

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Speaker 6: made it all the more worse when Blatt said that,

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Speaker 6: you know, those who were holding that you were lying.

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Speaker 6: But Justice Gorsuch was the most verbal and most clearly upset.

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Speaker 6: You know, he did tell her that comments set to

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Speaker 6: watch her words, and then later in the argument he

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Speaker 6: came back back to the issues, saying he was still

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Speaker 6: troubled by it and really urging Lisa Blatt to withdraw

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Speaker 6: her statement, which which she did. But as the parents'

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Speaker 6: attorney said on rebuttal, really it was done under duress.

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Speaker 2: So even just as Soto Mayor suggested that Black might

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Speaker 2: have violated the court rules.

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Speaker 6: Yeah, I mean along the way, you know, Justice Slittemwayer

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Speaker 6: pointed out that the Supreme Court rules really admonish counsel

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Speaker 6: to bring it to the attention of the justices if

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Speaker 6: they think that there's you know, some issue with the

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Speaker 6: you know, the kinds of questions that the justices are hearing.

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Speaker 6: You know, obviously that way, the advocates and the justices

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Speaker 6: are not surprised. And she suggested that you know, it

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Speaker 6: was Black who was the one who was acting inappropriately here,

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Speaker 6: and that if she really thought that the argument was

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Speaker 6: supposed to be much broader. She should have that more

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Speaker 6: clear in her briefing.

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Speaker 2: So basically I mean is whether there was a heightened

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Speaker 2: standard in the educational context, and then Black said it

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Speaker 2: should be in every context.

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Speaker 6: That's right, I mean, so you know the question. I

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Speaker 6: think that the parents thought that they were answering, that

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Speaker 6: the federal government thought that they were answering, and it

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Speaker 6: was obvious from arguments that the justices thought they were answering.

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Speaker 6: Was you know, insuing for disability discrimination, parents of school

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Speaker 6: children have to make a heightened showing in order to

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Speaker 6: hold schools liable, and it's a showing that doesn't apply

440
00:30:38,840 --> 00:30:42,520
Speaker 6: outside the educational context. And that is actually the law

441
00:30:42,800 --> 00:30:45,440
Speaker 6: in many circuits. Some circuit took on the other way.

442
00:30:45,800 --> 00:30:49,080
Speaker 6: It's created sort of, you know, this circuit split that

443
00:30:49,440 --> 00:30:53,120
Speaker 6: is quintessential of the cases that the Supreme Court decides

444
00:30:53,200 --> 00:30:56,920
Speaker 6: to hear. But we heard on Monday that the school

445
00:30:56,960 --> 00:31:01,560
Speaker 6: district agrees there's no special standard for schools. But at

446
00:31:01,640 --> 00:31:05,400
Speaker 6: least as Latt argued that heightened standards should apply across

447
00:31:05,440 --> 00:31:09,760
Speaker 6: the board to all disability discrimination cases, even those, for example,

448
00:31:10,040 --> 00:31:13,480
Speaker 6: with employment. And the justices were really surprised by that

449
00:31:13,600 --> 00:31:16,320
Speaker 6: argument that has not been the law in any circuit,

450
00:31:17,200 --> 00:31:21,240
Speaker 6: and they were really resisting Lat's requests to say that

451
00:31:21,320 --> 00:31:23,680
Speaker 6: for the first time in the Supreme Court in this case.

452
00:31:24,600 --> 00:31:26,680
Speaker 2: So then did it seem like a majority of the

453
00:31:26,880 --> 00:31:28,840
Speaker 2: justices were siding with the parents?

454
00:31:29,600 --> 00:31:32,040
Speaker 6: You know? It did? There there are a couple of

455
00:31:32,160 --> 00:31:35,280
Speaker 6: paths that the Supreme Court can take. They sort of

456
00:31:35,600 --> 00:31:39,800
Speaker 6: picked it a lot of them, particularly before this Force's

457
00:31:39,880 --> 00:31:42,800
Speaker 6: blat interaction. There was a lot of talk about the

458
00:31:42,800 --> 00:31:46,360
Speaker 6: different methods or ways that the justices could side with

459
00:31:46,440 --> 00:31:49,160
Speaker 6: the parents. I'm not quite sure what they'll do, but

460
00:31:49,240 --> 00:31:51,600
Speaker 6: I don't think that they're going to be, at least

461
00:31:51,600 --> 00:31:55,240
Speaker 6: not yet taking on this blast broader request to apply

462
00:31:55,440 --> 00:31:57,200
Speaker 6: a heightened standard across the board.

463
00:31:58,120 --> 00:32:03,000
Speaker 2: Veteran court watchers were also surprised by the nature of

464
00:32:03,040 --> 00:32:04,200
Speaker 2: this exchange.

465
00:32:05,200 --> 00:32:08,440
Speaker 6: They were I mean, as I mentioned before, Lisa Black

466
00:32:08,520 --> 00:32:12,640
Speaker 6: does have a very distinctive advocacy style at the Court.

467
00:32:13,400 --> 00:32:18,000
Speaker 6: But still people were surprised with sort of the hostility

468
00:32:18,640 --> 00:32:22,080
Speaker 6: between the exchange between her and Justice Gorsage. That you

469
00:32:22,200 --> 00:32:25,800
Speaker 6: mentioned that he raises voice several times. That doesn't usually

470
00:32:25,800 --> 00:32:28,760
Speaker 6: happen in the Supreme Court. Many were surprised that she

471
00:32:28,920 --> 00:32:33,160
Speaker 6: sort of didn't take the hint and withdraw her comment before.

472
00:32:33,520 --> 00:32:36,440
Speaker 6: You know, a lot of pressure from Justice Gorsag. You know,

473
00:32:36,440 --> 00:32:39,440
Speaker 6: we have some people who said they've never seen Justice

474
00:32:39,480 --> 00:32:42,600
Speaker 6: Corsage be that angry on the bench. Tan I certainly

475
00:32:42,640 --> 00:32:45,080
Speaker 6: listening to it, was quite surprised that it was an

476
00:32:45,120 --> 00:32:47,840
Speaker 6: interaction that was happening at the Supreme Court.

477
00:32:48,040 --> 00:32:49,920
Speaker 2: She just shows you the Supreme Court is so different

478
00:32:49,920 --> 00:32:53,320
Speaker 2: because in a trial court, one lawyer accusing the other

479
00:32:53,360 --> 00:32:55,840
Speaker 2: of lying might not even cause a ripple.

480
00:32:56,360 --> 00:32:59,760
Speaker 6: Yeah, at the Supreme Court, it's just different. You know. Again,

481
00:33:00,360 --> 00:33:05,200
Speaker 6: you know, there really is this expectation of decorum, and

482
00:33:05,440 --> 00:33:09,520
Speaker 6: again I can't emphasize enough how important it is, you know,

483
00:33:09,640 --> 00:33:13,000
Speaker 6: for advocates to speak to each other with respect, and

484
00:33:13,120 --> 00:33:15,880
Speaker 6: particularly to speak with the justices. And I think, you know,

485
00:33:15,960 --> 00:33:18,920
Speaker 6: one of the things that got Justice Corsage so upset

486
00:33:19,360 --> 00:33:22,360
Speaker 6: was that Lisa Blatt seemed to keep trying to interrupt him,

487
00:33:22,560 --> 00:33:25,840
Speaker 6: and at several points he admonished to let him finish,

488
00:33:25,880 --> 00:33:28,720
Speaker 6: even raising his voice one time saying I'm not finished.

489
00:33:29,160 --> 00:33:31,680
Speaker 6: And so I think it was just combinations of a

490
00:33:31,760 --> 00:33:34,160
Speaker 6: couple of things that sort of made it rise to

491
00:33:34,240 --> 00:33:35,120
Speaker 6: the level that it did.

492
00:33:35,640 --> 00:33:38,040
Speaker 2: We'll have to see what happens next time she appears

493
00:33:38,080 --> 00:33:41,560
Speaker 2: before the court. Thanks so much, Kimberly, an interesting story.

494
00:33:42,040 --> 00:33:47,120
Speaker 2: That's Bloomberg Law Supreme Court Reporter Kimberly Strawbridge Robinson and

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00:33:47,160 --> 00:33:49,320
Speaker 2: that's it for this edition of The Bloomberg Law Show.

496
00:33:49,640 --> 00:33:52,000
Speaker 2: Remember you can always get the latest legal news on

497
00:33:52,040 --> 00:33:56,320
Speaker 2: our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify,

498
00:33:56,520 --> 00:34:01,560
Speaker 2: and at www dot Bloomberg dot com slash podcast Slash Law,

499
00:34:01,960 --> 00:34:04,560
Speaker 2: And remember to tune into The Bloomberg Law Show every

500
00:34:04,600 --> 00:34:08,520
Speaker 2: weeknight at ten pm Wall Street Time. I'm June Grosso

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00:34:08,640 --> 00:34:10,239
Speaker 2: and you're listening to Bloomberg