Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
Speaker 2: It's a case that could lift longstanding constitutional limits on
Speaker 2: government support for religion, and the sharp ideological divide on
Speaker 2: the Court was apparent in the oral arguments over whether
Speaker 2: to allow the country's first publicly funded religious charter school
Speaker 2: in Oklahoma. Four of the conservative justices seemed to be
Speaker 2: firmly on the side of the Catholic charter school, suggesting
Speaker 2: that the state is unconstitutionally disfavoring religion by requiring public
Speaker 2: charter schools to be secular. Justice Brett Kavanaugh called it
Speaker 2: rank discrimination against religion.
Speaker 3: And then you come in and you say, oh, we're
Speaker 3: a religious school. It's like, oh, no, can't do that.
Speaker 3: That's too much, that's scary. We're not going to do that.
Speaker 3: And our cases have made very and I think those
Speaker 3: are some of the most important cases we've had of
Speaker 3: saying you can't treat religious people and religious institutions and
Speaker 3: religious speech as second class in the United States.
Speaker 2: But the three liberal justices emphasized that taxpayer funded religious
Speaker 2: schools would entangle church and state in violation of the
Speaker 2: establishment clause of the First Amendment. Here's Justice Sonya Sotomayor.
Speaker 4: Because the essence of the establishment clause was we're not
Speaker 4: going to pay religious leaders to teach their religion. That
Speaker 4: is and has always been the essence. And here we're
Speaker 4: paying Catholic leaders Catholic teachers. You can only be a
Speaker 4: teacher in this school if you're willing to accept the
Speaker 4: teachings of the Catholic Church.
Speaker 2: My guest is First Amendment law expert Caroline Malik KORbin,
Speaker 2: a professor at the University of Miami Law School. Caroline,
Speaker 2: what's at stake in this case?
Speaker 5: So the ultimate question is whether the Supreme Court will
Speaker 5: require the state of Oklahoma to directly fund a religious
Speaker 5: charter school. That's the big picture. Basically, Oklahoma has a
Speaker 5: charter school program, as do most states. As a matter
Speaker 5: of fact, it's supposed to be another alternative to regular
Speaker 5: public schools, and the school bar charged with approving charter
Speaker 5: schools approved a Catholic charter school. A Catholic charter school
Speaker 5: would violate the Oklahoma Constitution, and so the Attorney General
Speaker 5: challenged that on the grounds it violated two separate provisions
Speaker 5: of the Oklahoma Constitution as well as the US Constitution.
Speaker 5: Because the Oklahoma Constitution makes it very clear that taxpayer
Speaker 5: money cannot be used who is, to fund religious proselytization
Speaker 5: and indoctrination. And there is a separate provision of the
Speaker 5: Oklahoma Constitution that says public education must be non sectarian.
Speaker 5: In other words, public education must be secular. That's the
Speaker 5: Oklahoma Constitution. There is also, of course, the US Constitution's
Speaker 5: Establishment Clause, which has long been understood to ban direct
Speaker 5: fundings using taxpayer money to fund religious education, religious proselytization,
Speaker 5: religious doctrination. And that went all the way up to
Speaker 5: the Oklahoma court until the Oklahoma Supreme Court said, you
Speaker 5: know what, it does violate the Oklahoma Constitution does violate
Speaker 5: US constitutions for Oklahoma to have a religious charter school.
Speaker 5: And then the charter school and the board that approved
Speaker 5: it appeal to the Supreme Court and they claim that
Speaker 5: Oklahoma's refusal the Holy fund that Catholic charter school violated
Speaker 5: the free exercise clause of the US Constitution. And that
Speaker 5: was what the case was before the Supreme.
Speaker 2: Court explain why. A key issue is whether the religious
Speaker 2: charter school is public or private.
Speaker 5: So that's the million dollar question. There was a dispute
Speaker 5: on whether to characterize charter schools as public schools or
Speaker 5: private schools, and that category makes a huge difference under
Speaker 5: the doctrines, because under existing precedent, if charter schools are
Speaker 5: in fact public schools, then Oklahoma is absolutely free to
Speaker 5: insist that they remained secular. On the other hand, if
Speaker 5: they are considered private school there is a trio of
Speaker 5: Supreme Court cases that have held that if the government
Speaker 5: makes taxpayer money available to private secular schools, it has
Speaker 5: to make that money equally available to private religious schools.
Speaker 5: So it really really matters whether the charter schools are
Speaker 5: public schools, in which case Oklahoma can keep them secular,
Speaker 5: or whether they're private schools, in which case the Supreme
Speaker 5: Court will hold that denying them equal access to government
Speaker 5: money amounts to discrimination against religion and that would violate
Speaker 5: the free exercise costs.
Speaker 2: The liberal justices went through pains to try to point
Speaker 2: out that the charter school is public, and then the
Speaker 2: conservatives went to pains to try to prove that it
Speaker 2: was private.
Speaker 5: Which do you think exactly? I think that the weight
Speaker 5: of evidence is that these schools are public. For various reasons.
Speaker 5: The state creates them, and the state can end them.
Speaker 6: They really have all the.
Speaker 5: Hallmarks of a public school. They are free, they're open
Speaker 5: to everyone, they're completely funded by the states, and the
Speaker 5: curriculum is subject to detailed oversight by the state. The
Speaker 5: teachers or subject to all the same benefits and regulations
Speaker 5: as public school teachers. Congress. When Congress enacted the law
Speaker 5: that allowed for charter schools, they characterized them as public schools.
Speaker 5: But especially important is that the Supreme Court of Oklahoma,
Speaker 5: in interpreting Oklahoma law, said this law creates public schools.
Speaker 5: The reason why that is so significant is that traditionally
Speaker 5: the state supreme court is the final arbiter of what
Speaker 5: a state law does. And if the state Supreme Court
Speaker 5: of Oklahoma says this Oklahoma law creates public schools, that
Speaker 5: is supposed to be entitled to deference by the Supreme Court.
Speaker 5: That's sort of a basic principle of federalism. The state
Speaker 5: courts are the ones who interpret what state law means.
Speaker 5: So there really is a lot of reasons to conclude
Speaker 5: that these schools are ultimately public schools, not private.
Speaker 2: How did the conservatives answer the liberal justices questions about
Speaker 2: the establishment clause and how a taxpayer funded school would
Speaker 2: entangle church and state.
Speaker 5: So that's the first thing to note is in the
Speaker 5: justice's mind, what's going on here is that the state
Speaker 5: has created a program and made a benefit available, and
Speaker 5: consequently it has to be made available equally to religious
Speaker 5: and secular schools, otherwise violates the free exercise clause. That
Speaker 5: it might be intention with the Establishment clause doesn't matter
Speaker 5: to these Supreme Court justices who always privilege the free
Speaker 5: exercise clause over the Establishment clause. So in their mind,
Speaker 5: if it is required to give the schools money by
Speaker 5: the free exercise clause, then by definition it can't violate
Speaker 5: the Establishment clause, and so they might simply not reach
Speaker 5: the establishment clause problem that it is very firmly established
Speaker 5: in establishment clause jurisprudence that the government cannot directly give
Speaker 5: money to religious organizations for the purpose of religious indoctrination
Speaker 5: and religious education. The state cannot give directly money if
Speaker 5: the money ends up at a school indirectly, that is
Speaker 5: okay under another case. But for the government to take
Speaker 5: money from its coffers and put it into the coffers
Speaker 5: of a private religious school that then uses the money
Speaker 5: for religious education and doctrination prostimization. Even under current Establishment
Speaker 5: Clause law, which is highly weakened even today, that's still unconstitutional.
Speaker 2: Did you see the three liberals on one side, four
Speaker 2: of the conservatives on the other. And then is Chief
Speaker 2: Justice John Roberts the pivotal vote.
Speaker 5: He is because Justice Barrett recused herself because of her
Speaker 5: close connection with someone involved in the litigation, and so
Speaker 5: the Conservatives don't have a cushion as they normally do.
Speaker 5: They need Justice Roberts in this case in order to prevail,
Speaker 5: because if it is a four to four tie in
Speaker 5: that situation, the lower court decision stands, which is the
Speaker 5: Oklahoma Supreme Court's decision that it would violate the state
Speaker 5: and federal constitutions to create a religious charter school wholly
Speaker 5: funded by the state.
Speaker 2: And Roberts didn't tip his hand as to which way
Speaker 2: he was leaning. But if the Conservatives do have the votes,
Speaker 2: what might the decision look like.
Speaker 5: Well, there are two ways they can rule in favor
Speaker 5: of the charter schools, and I think one is significantly
Speaker 5: more likely than the other. The first way is the
Speaker 5: one I've suggested already, is that they conclude that these
Speaker 5: are private schools and accordingly, under existing precedent, the state
Speaker 5: has to give them the same opportunities of state funding
Speaker 5: as they give private secular charter schools. And there they
Speaker 5: would insist that this is no change in the law whatsoever.
Speaker 5: It's just a continuation of their previous rulings that hold
Speaker 5: that if the government makes a benefit available, it has
Speaker 5: to make it equally available to private religious schools and
Speaker 5: private secular schools. It could say that these are public schools,
Speaker 5: but still in terms of the charter school program, it
Speaker 5: has to offer the opportunity to create both secular charter
Speaker 5: schools and religious charter schools. But there's no reason for
Speaker 5: them to rule in that way if they can take
Speaker 5: the much simpler path of simply claiming, contrary to the
Speaker 5: evidence and Congress and the Oklahoma Supreme Court, that these
Speaker 5: are private schools. And this is just another case of
Speaker 5: the state discriminating against religion by denying its funding that
Speaker 5: it makes available to their specular counterpart.
Speaker 2: Coming up the court string of decisions allowing public funds
Speaker 2: to be used by religious institutions. This is bloomberg. The
Speaker 2: Supreme Court's conservative majority has repeatedly sided with religious interests
Speaker 2: in recent years. In three cases since twenty seventeen, the
Speaker 2: Court has allowed public funds to go to religious entities,
Speaker 2: and in a case over whether to allow the country's
Speaker 2: first publicly funded religious charter school in Oklahoma, four of
Speaker 2: the conservative justices seemed to be firmly on the side
Speaker 2: of the Catholic charter school, suggesting that the state is
Speaker 2: unconstitutionally disfavoring religion by requiring public charter schools to be secular.
Speaker 2: Justice Brett Kavanaugh seemed to acknowledge that the Court has
Speaker 2: been rewriting the interpretation of the Constitution's religion clauses when
Speaker 2: he told Oklahoma's attorney former Solicitor General Gregory Garr that
Speaker 2: the Court now has a different constitutional understanding than it
Speaker 2: did since the beginning of the charter school program in
Speaker 2: nineteen ninety four.
Speaker 7: But this is going to have a dramatic fact on
Speaker 7: charter schools across the country. And just think of the
Speaker 7: federal charter school program on its own. I don't think
Speaker 7: you can't just say, like, oh, well, just you know, Grant, well.
Speaker 3: It's not good that the premise of that was that
Speaker 3: at that point it was considered constitutional to discriminate against
Speaker 3: religious entities and that you know, that's some of our
Speaker 3: case law has changed that and said no, it's not
Speaker 3: constitutional discriminate against private and that's.
Speaker 2: I've been talking to Professor Caroline malt Corbin of the
Speaker 2: University of Miami Law School. Caroline. Later in that interchange,
Speaker 2: Kavanaugh said, there was a different constitutional understanding, yes.
Speaker 5: And this different constitutional understanding is a constitution without the
Speaker 5: establishment clause. Because it's very important to realize that religious
Speaker 5: organizations are treated differently under the Constitution. They get certain
Speaker 5: benefits under the free exercise clause. So for example, religious
Speaker 5: schools or an titled to a ministerial exemption, which means
Speaker 5: that their teachers can't bring discrimination claims. It means that
Speaker 5: they often get extra tax breaks that others do not.
Speaker 5: There are definitely benefits to being a religious school, but
Speaker 5: it had long been any understanding that being religious brought
Speaker 5: not only special benefits but also certain restrictions. And one
Speaker 5: of those restrictions was a, for example, limit on the
Speaker 5: kind of funding you could get from the government.
Speaker 2: And so there was.
Speaker 5: Long this balance where in some ways religious schools got
Speaker 5: certain benefits, but in some ways they had certain restrictions
Speaker 5: from the benefits from the free exercise clause, the restrictions
Speaker 5: imposed by the Establishment Clause. But what the Roberts Court
Speaker 5: has done and reconfiguring the religious liberty clauses, it has
Speaker 5: expanded the privileges of religious organizations while eliminating the prior limits.
Speaker 5: And one way they've been doing that is with this
Speaker 5: flate of hand. The slate of hand is what were
Speaker 5: previously understood as Establishment Clause limits on for example, government
Speaker 5: funding now has become religious discrimination right. So again, one
Speaker 5: of the basic premises of the Establishment clause is that
Speaker 5: the government does not fund religions. In various ways, the
Speaker 5: Supreme Court generally pretends to the Establishment clause does not
Speaker 5: exist and insists that any time the government does not
Speaker 5: fund religion, it is discriminating against religion because it's funding
Speaker 5: secular organizations. So basically, what they've done is they've taken
Speaker 5: this balanced approach towards religion, where sometimes it gets special
Speaker 5: benefits and sometimes it's subject to special limits, and it's
Speaker 5: eliminated the limits by re characterizing a constitutional requirement as
Speaker 5: just hostility to religion. So in their minds, the reason
Speaker 5: that Oklahoma doesn't want to fund a religious school a
Speaker 5: religious charter school is not because the Constitution limits it,
Speaker 5: which it does both the state and credal but because
Speaker 5: they're hostile religious. So that's the switch. Right, limits that
Speaker 5: were constitutionally required, limits that were understood to be required
Speaker 5: by the Constitution's Establishment Clause, don't exist. Instead, those limits
Speaker 5: only reflect hostility to religion, not an attempt to honor
Speaker 5: the Establishment Clause. And I'm just going to say one
Speaker 5: more thing. This is my pitch for the establishment clause.
Speaker 5: The Establishment Clause is a protecting religion. One of the
Speaker 5: main things the Establishment Clause does is by insisting on
Speaker 5: some degree of separation between church and state. It's protecting religion.
Speaker 5: It's protecting the favored religion, because anytime church and state
Speaker 5: gets entangled, it tends to degrade the religion, it tends
Speaker 5: to demean it in some way. And also, anytime the
Speaker 5: government gets involved with religion, it usually ends up favoring
Speaker 5: one religion to the detriment of others. And so insisting
Speaker 5: on the separation from church and state is so important
Speaker 5: to protecting minority religion. So I just want to emphasize
Speaker 5: that the Robberts Court is often characterized as being very
Speaker 5: pro religion, but that's not quite accurate if it's eliminating
Speaker 5: the establishment clause, because one of the things the establishment
Speaker 5: clause does is protect minority Rely, let's.
Speaker 2: Talk about this string of decisions since twenty seventeen, the
Speaker 2: Court said that Missouri violated the free exercise right of
Speaker 2: a Christian learning center when it denied grant funding to
Speaker 2: resurface its playground. Twenty twenty, Montana couldn't exclude religious schools
Speaker 2: from a program providing tax credits, and twenty twenty two,
Speaker 2: main can't limit a tuition assistance program. This seems like
Speaker 2: just the next step.
Speaker 5: This is the next step. That's the precedent that the
Speaker 5: Supreme Court will recite when they says this is a
Speaker 5: very straightforward case. If they do rule in favor of
Speaker 5: the Catholic charter school, they're going to say it's private,
Speaker 5: and as we have established in our three prior cases,
Speaker 5: the government cannot discriminate against private religion schools. See all
Speaker 5: those three cases you just mentioned.
Speaker 2: What will a ruling like that mean for the forty
Speaker 2: five states that require charter schools to be both public
Speaker 2: and non sectarian, as well as the federal charter school program.
Speaker 5: It's a bit of a disaster because every state just
Speaker 5: about has a charter program, and every state is assuming
Speaker 5: those charter programs amount of public schools, and so maybe
Speaker 5: not every state. I think they mentioned California quite So.
Speaker 5: What it means is it throws into question the constitutionality
Speaker 5: of every charter program because they all currently exclude religious
Speaker 5: schools on the assumption that these are public schools, and
Speaker 5: you can't use government money to fund a religious public school.
Speaker 5: So there's going to be a lot of legal uncertainty
Speaker 5: about the exact status of the charter schools in every
Speaker 5: state because each of them has slightly different rules, and
Speaker 5: so there will be litigation in fifty states about whether
Speaker 5: their particular charter school program creates private schools public schools.
Speaker 5: It also throws into question some federal funding. I think
Speaker 5: one that the council recommended was the Special Federal Funding
Speaker 5: for Student with Disabilities, the Idea Act, the Individuals with
Speaker 5: Disability and Education Act, where charter schools get federal funding
Speaker 5: for their disabled students on the assumption that their public
Speaker 5: school I think that's what it was. I'm not one
Speaker 5: hundred percent on that. And then there are some other
Speaker 5: states that make it very clear that no money at
Speaker 5: all can go to any private school, and so they
Speaker 5: will have to rethink their charter school programs. So that's
Speaker 5: just the confusion that he emphasized. But in terms of
Speaker 5: church state, it means that once again money will be
Speaker 5: siphoned from the public school educational system into religious schools. Now,
Speaker 5: if the new rule is you have to be open
Speaker 5: to religious charter schools, it's going to be any religion
Speaker 5: can have a charter school. In theory, that's the theory, right,
Speaker 5: because otherwise you'd be discriminating against some religion over the others.
Speaker 5: But the reality is that the vast majority of these
Speaker 5: charter schools are going to be Christian schools, just as
Speaker 5: we saw in voucher programs that the vast majority of
Speaker 5: private schools getting vouchers are christ In private schools. And
Speaker 5: so this will be a significant channeling of your money
Speaker 5: and my money to religious schools who are going to
Speaker 5: be indoctrinating their students in beliefs that might be antithetical
Speaker 5: to our own religious beliefs.
Speaker 2: States would be able to rewrite their charter rules, right,
Speaker 2: I don't eliminately.
Speaker 1: But.
Speaker 5: I don't know how easy that will be. I don't
Speaker 5: know how long.
Speaker 4: That will take.
Speaker 5: We don't know what the impact will be in the
Speaker 5: next school year. So yes, it is entirely possible to
Speaker 5: completely revamp your charter school system to make it one
Speaker 5: hundred percent clear that these are public schools, although you know,
Speaker 5: they kind of already made it clear that they were
Speaker 5: public schools. I don't know if any state could be
Speaker 5: confident that the Supreme Court wouldn't come back and say, well, actually,
Speaker 5: you thought you were complying with the factors that we
Speaker 5: listed as defining what's a public school as opposed to
Speaker 5: a private school. But we're moving the goalposts again as.
Speaker 2: They've been moving it in these religion cases. Always a pleasure, Caroline,
Speaker 2: Thanks so much. That's Professor Caroline Malcorbin of the University
Speaker 2: of Miami Law School. Coming up next on The Bloomberg
Speaker 2: Law Show. Supreme Court oral arguments where civility is usually
Speaker 2: prized turned unusually hostile in a case involving a Minnesota
Speaker 2: school district and a disabled student. Supreme Court oral arguments
Speaker 2: take place in a rarefied atmosphere where civility is prized
Speaker 2: and your opponents are not adversaries, and your opponents are
Speaker 2: not called adversaries but rather friends. On the other side,
Speaker 2: but not so. During Monday's oral arguments involving a Minnesota
Speaker 2: school district and a disabled student, just Is Neil Gorsich
Speaker 2: took Lisa Blott, the attorney for the school district, to task.
Speaker 3: You believe that.
Speaker 1: Mister Martinez and the Solicitor General are.
Speaker 3: Lying in or argument? Yes?
Speaker 4: Absolutely, it is not.
Speaker 1: True that we should be more careful with your works.
Speaker 4: Okay, well, they should be more careful in character mischaracterizing
Speaker 4: a position by an experienced advocate of the Supreme.
Speaker 2: Court, and Blott is certainly an experienced advocate. But Justice
Speaker 2: Gorsic apparently couldn't let it go and returned to it
Speaker 2: later in the argument not to set the law.
Speaker 1: Miss, Yeah, I confess I'm still troubled by your suggestion
Speaker 1: that your friends on the other side have lied.
Speaker 5: Okay, let's help pull up.
Speaker 1: Yeah, I think we're going to have to here, and
Speaker 1: i'd ask you to reconsider that phrase argument if I
Speaker 1: might it was incorrect. If incorrect is fine. People make mistakes.
Speaker 1: You can accuse people being incorrect lying, Miss Blatt, if
Speaker 1: I might finish sure, lying is another matter.
Speaker 2: Blatt eventually withdrew her comment, joining me is Bloomberg Law
Speaker 2: Supreme Court reporter Kimberly Strawbridge Robinson who heard it all. Kimberly,
Speaker 2: the oral arguments are usually very civil. Even when questioning
Speaker 2: gets aggressive, you rarely even hear raised voices.
Speaker 6: That's right. I mean, there's a level of decorum that's
Speaker 6: expected within the Supreme Court even while debating you know,
Speaker 6: really hotly contested issues. And I think one of the
Speaker 6: things that really sort of demonstrates this is that the
Speaker 6: advocates are encouraged by the justices to refer to opposing
Speaker 6: counsel as my friend on the other side. You'll even
Speaker 6: hear attorneys correct themselves if they say, you know, my
Speaker 6: opposing council though quickly correct them of selves and say,
Speaker 6: you know, as my friend on the other side said. So,
Speaker 6: it really is a place that's defined by civility.
Speaker 2: So now tell us about the case at the Court
Speaker 2: on Monday involving a Minnesota school system. Generally what it
Speaker 2: was A yeah, I mean.
Speaker 6: I think the broadest level of this case is about
Speaker 6: disability discrimination in public schools. It's a very technical case
Speaker 6: on the interaction of several federal statutes, but at a
Speaker 6: part it's about when schools can be held liable for
Speaker 6: disability discrimination.
Speaker 2: And Lisa Blatt is an experienced Supreme Court advocate. She's
Speaker 2: argued more than fifty cases before the court.
Speaker 6: Yeah, I mean, she's one of a handful of individuals
Speaker 6: who can claim that sort of milestone, and she's the
Speaker 6: only female to do so. She has a really distinctive style.
Speaker 6: It's very casual and very straight to the point. But
Speaker 6: you know, the justices do really seem to enjoy her
Speaker 6: oral advocacy, and she has sparred with some of the
Speaker 6: justices in the past, but you know, often they'll laugh
Speaker 6: at some of her comments that she makes. You know,
Speaker 6: I think people tend to think that she gets away
Speaker 6: with things that you know, others, even experienced advocates, cannot,
Speaker 6: And you know that's really shown through her record of
Speaker 6: the court. She has an unusually high success rate at
Speaker 6: the U. S. Supreme Court.
Speaker 2: So what happened during these oral arguments that led to
Speaker 2: this confrontation with Gorsu.
Speaker 6: Well, you know, this is a casepot by parents of
Speaker 6: a disabled student who's suing a Minnesota school district. And
Speaker 6: as they sort of understood the case as it came
Speaker 6: to the Supreme Court, you know, they thought it was
Speaker 6: a very narrow case, and during oral arguments, the parents' advocate,
Speaker 6: who himself is a seasoned Supreme Court veteran, you know,
Speaker 6: said that this school district had sort of pulled the
Speaker 6: rug out from under the justices and had changed course
Speaker 6: in the Supreme Court and advocated for a much broader,
Speaker 6: much drastic sort of request than what they thought that
Speaker 6: the case was about. And then when Lisa Platt got
Speaker 6: up to argue for the school district, she said that
Speaker 6: wasn't a correct character of their stance, and she actually
Speaker 6: accused the parents' attorney as well as the federal government's attorneys,
Speaker 6: who was on the side of the parents in this case.
Speaker 6: She accused them of lying. And it's really that accusation
Speaker 6: that really got under the skin of several of the justices.
Speaker 2: So was Justice Gorsuch seemingly the most upset. He raised
Speaker 2: his voice and said, be more careful with your words.
Speaker 6: Yeah, I mean, he was definitely the one who was
Speaker 6: most upset. But I will say that several of the
Speaker 6: justices seem to indicate that they sort of agreed with
Speaker 6: the parents' attorneys and with the federal government here in
Speaker 6: the categorization of the school district's stance, and so that
Speaker 6: made it all the more worse when Blatt said that,
Speaker 6: you know, those who were holding that you were lying.
Speaker 6: But Justice Gorsuch was the most verbal and most clearly upset.
Speaker 6: You know, he did tell her that comments set to
Speaker 6: watch her words, and then later in the argument he
Speaker 6: came back back to the issues, saying he was still
Speaker 6: troubled by it and really urging Lisa Blatt to withdraw
Speaker 6: her statement, which which she did. But as the parents'
Speaker 6: attorney said on rebuttal, really it was done under duress.
Speaker 2: So even just as Soto Mayor suggested that Black might
Speaker 2: have violated the court rules.
Speaker 6: Yeah, I mean along the way, you know, Justice Slittemwayer
Speaker 6: pointed out that the Supreme Court rules really admonish counsel
Speaker 6: to bring it to the attention of the justices if
Speaker 6: they think that there's you know, some issue with the
Speaker 6: you know, the kinds of questions that the justices are hearing.
Speaker 6: You know, obviously that way, the advocates and the justices
Speaker 6: are not surprised. And she suggested that you know, it
Speaker 6: was Black who was the one who was acting inappropriately here,
Speaker 6: and that if she really thought that the argument was
Speaker 6: supposed to be much broader. She should have that more
Speaker 6: clear in her briefing.
Speaker 2: So basically I mean is whether there was a heightened
Speaker 2: standard in the educational context, and then Black said it
Speaker 2: should be in every context.
Speaker 6: That's right, I mean, so you know the question. I
Speaker 6: think that the parents thought that they were answering, that
Speaker 6: the federal government thought that they were answering, and it
Speaker 6: was obvious from arguments that the justices thought they were answering.
Speaker 6: Was you know, insuing for disability discrimination, parents of school
Speaker 6: children have to make a heightened showing in order to
Speaker 6: hold schools liable, and it's a showing that doesn't apply
Speaker 6: outside the educational context. And that is actually the law
Speaker 6: in many circuits. Some circuit took on the other way.
Speaker 6: It's created sort of, you know, this circuit split that
Speaker 6: is quintessential of the cases that the Supreme Court decides
Speaker 6: to hear. But we heard on Monday that the school
Speaker 6: district agrees there's no special standard for schools. But at
Speaker 6: least as Latt argued that heightened standards should apply across
Speaker 6: the board to all disability discrimination cases, even those, for example,
Speaker 6: with employment. And the justices were really surprised by that
Speaker 6: argument that has not been the law in any circuit,
Speaker 6: and they were really resisting Lat's requests to say that
Speaker 6: for the first time in the Supreme Court in this case.
Speaker 2: So then did it seem like a majority of the
Speaker 2: justices were siding with the parents?
Speaker 6: You know? It did? There there are a couple of
Speaker 6: paths that the Supreme Court can take. They sort of
Speaker 6: picked it a lot of them, particularly before this Force's
Speaker 6: blat interaction. There was a lot of talk about the
Speaker 6: different methods or ways that the justices could side with
Speaker 6: the parents. I'm not quite sure what they'll do, but
Speaker 6: I don't think that they're going to be, at least
Speaker 6: not yet taking on this blast broader request to apply
Speaker 6: a heightened standard across the board.
Speaker 2: Veteran court watchers were also surprised by the nature of
Speaker 2: this exchange.
Speaker 6: They were I mean, as I mentioned before, Lisa Black
Speaker 6: does have a very distinctive advocacy style at the Court.
Speaker 6: But still people were surprised with sort of the hostility
Speaker 6: between the exchange between her and Justice Gorsage. That you
Speaker 6: mentioned that he raises voice several times. That doesn't usually
Speaker 6: happen in the Supreme Court. Many were surprised that she
Speaker 6: sort of didn't take the hint and withdraw her comment before.
Speaker 6: You know, a lot of pressure from Justice Gorsag. You know,
Speaker 6: we have some people who said they've never seen Justice
Speaker 6: Corsage be that angry on the bench. Tan I certainly
Speaker 6: listening to it, was quite surprised that it was an
Speaker 6: interaction that was happening at the Supreme Court.
Speaker 2: She just shows you the Supreme Court is so different
Speaker 2: because in a trial court, one lawyer accusing the other
Speaker 2: of lying might not even cause a ripple.
Speaker 6: Yeah, at the Supreme Court, it's just different. You know. Again,
Speaker 6: you know, there really is this expectation of decorum, and
Speaker 6: again I can't emphasize enough how important it is, you know,
Speaker 6: for advocates to speak to each other with respect, and
Speaker 6: particularly to speak with the justices. And I think, you know,
Speaker 6: one of the things that got Justice Corsage so upset
Speaker 6: was that Lisa Blatt seemed to keep trying to interrupt him,
Speaker 6: and at several points he admonished to let him finish,
Speaker 6: even raising his voice one time saying I'm not finished.
Speaker 6: And so I think it was just combinations of a
Speaker 6: couple of things that sort of made it rise to
Speaker 6: the level that it did.
Speaker 2: We'll have to see what happens next time she appears
Speaker 2: before the court. Thanks so much, Kimberly, an interesting story.
Speaker 2: That's Bloomberg Law Supreme Court Reporter Kimberly Strawbridge Robinson and
Speaker 2: that's it for this edition of The Bloomberg Law Show.
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