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Speaker 1: The Supreme Court ended its term with a bang. Today,

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Speaker 1: the Court will allow most of President Donald Trump's travel

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Speaker 1: band to go into effect immediately, and we'll hear oral

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Speaker 1: arguments on the case in the fall. The ban on

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Speaker 1: people entering the US from six mostly Muslim countries will

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Speaker 1: apply to everyone except for foreigners with ties or relationships

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Speaker 1: to the US. Conservative justices Clarence Thomas, Samuel Alito, and

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Speaker 1: Neil Gorsich said they would have let the entire band

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Speaker 1: take effect immediately. Joining us is Josh Blackman, professor at

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Speaker 1: South Texas College of Law. Josh, how big a win

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Speaker 1: is this for the president after appellate losses all the

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Speaker 1: way up to the Supreme Court? Well, I think the

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Speaker 1: most significant aspect of the Court's ruling is that all

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Speaker 1: of the justices seem to agree that the lower courts

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Speaker 1: messed up, and that they will agree that the lower

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Speaker 1: court injunction must be modified, at least in part and significantly.

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Speaker 1: None of the justices in this joint opinion um delved

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Speaker 1: into the president's Twitter account or looked to his campaign statements.

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Speaker 1: It was a fairly mechanical, routine decision, the sort of

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Speaker 1: decision we're used to seeing when the President's implicated, Um,

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Speaker 1: much unlike how the lower courts were doing these things

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Speaker 1: that frankly had never been done before. And in fairness,

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Speaker 1: we've never quite had the president like Trump before. So

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Speaker 1: I suppose it's it's part of the game. But the Court,

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Speaker 1: I think, signaled and put the brakes a bit on

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Speaker 1: how the lower courts were addressing these matters. Josh, the

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Speaker 1: band though, does uh still it was over? At least

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Speaker 1: the stay on the band was kept in place for

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Speaker 1: those with substantial contacts to the United States. Does that

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Speaker 1: imply that the the grounds that the lower courts had

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Speaker 1: found the band to be problematic might still be a

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Speaker 1: problem when the case gets hurt in followed by the

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Speaker 1: Supreme Court. Um. I think you can look at this

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Speaker 1: a couple of different ways. Um. On the one hand,

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Speaker 1: the lower courts held that because of President Trump's campaign statements,

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Speaker 1: his animus affected every single aspect of the Court's decision. Right,

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Speaker 1: every aspect of the executive Order was tainted. Where the

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Speaker 1: Court held is well, not every aspect of the order

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Speaker 1: was tainted, perhaps some aspects were it So in that sense,

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Speaker 1: I do think there's a scaling back of the ruling. Um.

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Speaker 1: It's entirely consistent with the Court's ruling this morning that

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Speaker 1: ultimately the decision is I'm sorry the executive Order is

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Speaker 1: invalidated by the Court, but at the minimum, this idea

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Speaker 1: that everything Trump touches with respect to Muslims must be unconstitutional,

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Speaker 1: that part was I think repudiated and joining us now

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Speaker 1: is Jonathan Adler, Professor at Case Western University. So, Jonathan,

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Speaker 1: let's get your reaction to the Court's decision on the

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Speaker 1: travel ban. Well. I think it certainly is a partial

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Speaker 1: victory for the Trump administration in that Uh, the Court

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Speaker 1: clearly concluded that the lower courts had adopted overbroad injunctions.

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Speaker 1: I'm not sure it will be much of a long

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Speaker 1: term victory because I'm not sure the Court will ultimately

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Speaker 1: rule on the merits of the executive Order. By the

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Speaker 1: time the Court here's the case in October, the period

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Speaker 1: will have run. Um, the analysis that the administration has

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Speaker 1: said it wants to conduct will have been conducted. Uh,

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Speaker 1: and it's not clear that there will be much left

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Speaker 1: to review, And so I would not be at all

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Speaker 1: surprised if the Court ultimately concludes that these challenges are moot. Well,

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Speaker 1: the Court did say and it's ordered that the party

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Speaker 1: should brief that question. I think and uh, Jonathan, let

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Speaker 1: me follow up on that. Do you expect then, let's

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Speaker 1: say that the administration does in fact get an analysis

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Speaker 1: done and put some new rules into effect. Can we

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Speaker 1: expect a lot of litigation on whatever new rules the

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Speaker 1: Trump administration puts in place. Certainly, I mean there are

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Speaker 1: some groups that will file lawsuits against anything the administration does.

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Speaker 1: And then certainly, if the administration were to try and

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Speaker 1: make the sorts of restrictions that were in this executive

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Speaker 1: order permanent, we would certainly expect many of the same

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Speaker 1: states and interest groups to file suit challenging those sorts

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Speaker 1: of restrictions. Josh, if this does end up going to

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Speaker 1: the Supreme Court in the fall, if this argument is made,

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Speaker 1: would it be a major decision on the scope of

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Speaker 1: presidential power or could it be narrowed? I agree with Jonathan.

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Speaker 1: I don't think the court ever touches this order again.

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Speaker 1: I expect what actually happens is the cases argued in October,

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Speaker 1: the Justice is realized it's mood and what that does

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Speaker 1: it has the effect of vacating that is, getting rid

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Speaker 1: of the lower court decisions. Um I see today's order

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Speaker 1: as something of a compromise. Right, it's not giving Trump

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Speaker 1: a full victory. It allows the President implement some of

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Speaker 1: the order, suggesting that he does have his power. And finally,

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Speaker 1: it prevents the Court from having to get their hands

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Speaker 1: dirty on this fairly difficult question. So this may be

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Speaker 1: the last opinion that we see written about this case. Ever,

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Speaker 1: that isn't less. President Trump doesn't issue another travel ban

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Speaker 1: in September, and once this one runs, the runs its course.

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Speaker 1: So I see this is a victory of some sort.

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Speaker 1: All right, Let's turn to another case where the Court

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Speaker 1: agreed today to hear a case that pitt's gay rights

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Speaker 1: against religious freedoms and could reignite the national debate over

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Speaker 1: gay marriage. The justices are going to hear the challenge

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Speaker 1: of a Colorado baker who says he shouldn't have to

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Speaker 1: make cakes for same sex weddings because of his religious beliefs.

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Speaker 1: What do you make out of the court taking this

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Speaker 1: case when they repeatedly deferred action on it, Jonathan, Well,

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Speaker 1: it's hard to know. I mean, most people assumed when

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Speaker 1: the Court continued to defer action on the case that

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Speaker 1: the Court was going to deny her Fruary, and that

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Speaker 1: one or more of the justices was going to write

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Speaker 1: a descent from denial of herrary. Often when a certain

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Speaker 1: petition is hell lo over as often as this one was,

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Speaker 1: that's what happens. H Given that the Court eventually took

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Speaker 1: it there, there are several possibilities. One is that the

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Speaker 1: Court was waiting to see what just Discourse Wus thought

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Speaker 1: of it, since the petition had originally been filed before

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Speaker 1: he joined the court. Um. But what this ultimately means

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Speaker 1: is the Court is going to deal with this important

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Speaker 1: conflict between the religious exercise claims of people that have

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Speaker 1: religious objections the same sex marriage and to those that

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Speaker 1: support same sex marriage, and whether or how we are

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Speaker 1: going to reconcile those competing values. Josh forgot about thirty

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Speaker 1: seconds here. But do you think that there's any the

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Speaker 1: Court's gonna have a hard time with this sort of

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Speaker 1: avoiding racial discrimination if it allows religious discrimination, isn't it Well?

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Speaker 1: I think that there's a fairly long standing constitution prohibition

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Speaker 1: and statutory prohibition against racial discrimination that simply doesn't exist

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Speaker 1: with respect to sexual orientation or gender identity discrimination. So

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Speaker 1: think the cases are different. But what's worth stressing here

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Speaker 1: is that I also thought the court was going to

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Speaker 1: my review. Maybe it's possible to descend shifted someone else,

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Speaker 1: and there could possibly now votes to reverse the lower

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Speaker 1: court on this one. Today was the final day of

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Speaker 1: the Supreme Court's term, and one of the decisions the

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Speaker 1: Court issued today was a highly anticipated church state case

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Speaker 1: from Missouri. Missouri for provides granted schools for resurfacing their playgrounds,

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Speaker 1: but wouldn't allow churches to participate in the program. The

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Speaker 1: court just held that the that prohibition was unconstitutional. Our

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Speaker 1: guests today talking about the end of the Supreme Court's

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Speaker 1: term are Jonathan Adler of Case Case Western University, and

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Speaker 1: Josh Blackman of the South Texas College of Law. Josh,

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Speaker 1: what exactly did the court say today in this church

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Speaker 1: state case? Well, an issue in this situation was that

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Speaker 1: a a church owned a daycare and attached to the

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Speaker 1: daycare was a playground, and the playground applied to the

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Speaker 1: state for grant to get these um uh chopped up

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Speaker 1: attire chips which are used to resurface the floor. That way,

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Speaker 1: if the kid falls off the slide, he doesn't crack

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Speaker 1: his skull open, which seems like a fairly sensible idea.

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Speaker 1: What the court said in this case was that the

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Speaker 1: um state could not deny the funding for this playground

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Speaker 1: simply because it was affiliated with the church. And there

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Speaker 1: is some precedent going back to the fifties which suggests

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Speaker 1: that even though the government can't directly fund religion, if

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Speaker 1: the funding concerns things like fire or police or general

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Speaker 1: things which all people need, this state can do it.

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Speaker 1: I mean, imagine if a church called nine one one

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Speaker 1: and the operator said, I'm sorry, we can't bring an

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Speaker 1: ambulance to your church, because that would be establishing a religion.

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Speaker 1: And the court said no, no, no, no go. And

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Speaker 1: this was actually seven to two decisions, was not five four, Jonathan.

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Speaker 1: Let's talk about the two, which were Justice Sonia Soto

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Speaker 1: Mayor and Justice Ruth Bader Ginsburg. And the dissent was

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Speaker 1: written by Justice so to Mayor, she felt so impassioned

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Speaker 1: by it that she, in a rare move, read it

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Speaker 1: from the bench. Tell us about the dissent, Yes, so

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Speaker 1: for Justice or the The important fact about this particular

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Speaker 1: situation is that the church in question would actually get

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Speaker 1: money from the state, albeit money that it was required

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Speaker 1: to be used for a particular purpose. In this case,

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Speaker 1: UH participating in the program to get the use that

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Speaker 1: the tread tires for use as playground surfacing, and her

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Speaker 1: view it was an unnecessary extension of the courts precedents

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Speaker 1: to allow the transfer of money directly to a church entity.

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Speaker 1: UH And in her view, this was an an unnecessary

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Speaker 1: extension of the Court's first amendateurist prudence. I know that

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Speaker 1: I think it's hard to characterize this as much of

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Speaker 1: an extension of the Court's jurisprudence, and I think that's

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Speaker 1: why the case was ultimately seven to two UM. But

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Speaker 1: her opinion did articulate a view of the Establishment Clause,

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Speaker 1: which seeks to ensure a greater separation between activities of

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Speaker 1: the government and the activities of religious institutions. Josh, it

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Speaker 1: certainly seems like the Court is very different than say,

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Speaker 1: the Court was in the sixties and seventies on questions

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Speaker 1: of the Establishment Clause and the free exercise Clause and

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Speaker 1: keeping church and state separate even when it comes to funding.

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Speaker 1: Is this a sign that the courts the courts uh

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Speaker 1: consideration of religious rights and the strength of those claims

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Speaker 1: that the Court is now seeing is continuing here. The

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Speaker 1: wild card is just as Brier, who is generally quite liberal,

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Speaker 1: but he has this odd affinity for religion. So some

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Speaker 1: years ago there was a case involving in Ten Commandments

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Speaker 1: which were displayed outside the Texas Capital, and Justice Brier

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Speaker 1: held that that was constitutional, and he wrote an opinion saying,

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Speaker 1: I think it'll be a bad idea if we start

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Speaker 1: ripping up this monument, the Stone Monument, to to to

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Speaker 1: offend religious groups. And even in the Little Sisters of

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Speaker 1: the Pork case it was RV last year, I think

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Speaker 1: Justice Brier showed us a concern for the people of

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Speaker 1: the faith who would be impacted by this ruling. And

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Speaker 1: today Justice Brier wrote a brief concurring opinion where he

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Speaker 1: basically said, I can't distinguish this case from the fire

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Speaker 1: truck or the ambulance that shows up at a church.

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Speaker 1: How are we to say they can't get basic public services? Um.

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Speaker 1: So Brier has a strange affinity for religion. And also

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Speaker 1: the newbie Justice Kagan didn't even write separately. She joined

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Speaker 1: the majority opinion in full. She's like the new newbie.

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Speaker 1: Now she's she's she's one of the of the people

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Speaker 1: who have been there a while. The newbie's corsage right. So, Jonathan,

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Speaker 1: more than thirty states have prohibitions against public going to

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Speaker 1: religious institutions. Does this case have implications for those states? Potentially?

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Speaker 1: In Justice raised that concern. I think what will really

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Speaker 1: matter in these states is how those how those programs

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Speaker 1: are implemented. Um Here, the state of Missouri actually, after

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Speaker 1: the case has been accepted by the court, the state

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Speaker 1: of Missouri actually changed its interpretation of its own legal

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Speaker 1: requirements to say that in the future, church like this

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Speaker 1: would be eligible. I think what happens in other states

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Speaker 1: will really depend on how stringently states seek to um

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Speaker 1: enforce their own state laws on this question. One thing

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Speaker 1: the court noted is that uh state laws that, for example,

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Speaker 1: don't extend to educational benefits to religious courses of study

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Speaker 1: like studying to be a priest at a state institution,

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Speaker 1: for example, those sorts of limitations would would still be valid,

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Speaker 1: and the Court uh reaffirmed a decision in a case

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Speaker 1: called Lock versus Davy, which based in the distinction not

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Speaker 1: on the character of the recearch Jonathan, I'm afraid we're

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Speaker 1: gonna we're out a time. We're gonna have to leave

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Speaker 1: it there are Thanks to Jonathan Adler of Case Western

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Speaker 1: University and Josh Blackman of the South Texas College of

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Speaker 1: Law for being with us on Bloomberg Law