May 2, 2025 • 37 mins
June Grasso talks to legal experts, Professor Caroline Mala Corbin of the University of Miami Law School, Professor Pat Parenteau of the Vermont Law & Graduate School, and Bloomberg Law Supreme Court Reporter Kimberly Strawbridge Robinson, about the top legal stories of the week.
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Speaker 1 (00:02):
This is Bloomberg Law with June Grossel from Bloomberg Radio.
Speaker 2 (00:08):
It's a case that could lift longstanding constitutional limits on
government support for religion and further erode the separation of
church and state. And the sharp ideological divide on the
Supreme Court was apparent in the oral arguments over whether
to allow the first publicly funded religious charter school in
(00:29):
the nation. Four of the conservative justices seemed to be
firmly on the side of the charter school, Saint Isidore
of Seville Catholic Virtual School, suggesting that Oklahoma is unconstitutionally
disfavoring religion by requiring its public charter schools to be secular.
Justice Brett Kavanaugh called it rank discrimination against religion.
Speaker 3 (00:53):
And then you come in and you say, oh, oral
religious school. It's like, oh, no, can't do that too much.
That's scary. We're not going to do that. And our
cases have made very clear, and I think those are
some of the most important cases we've had of saying
you can't treat religious people and religious institutions and religious
(01:14):
speech as second class in the United States.
Speaker 2 (01:18):
But the three liberal justices emphasized that taxpayer funded religious
schools would entangle church and state in violation of the
Establishment clause of the First Amendment. Here's Justice Sonya Sotomayor.
Speaker 4 (01:32):
Because the essence of the Establishment clause was we're not
going to pay religious leaders to teach their religion. That
is and has always been the essence. And here we're
paying Catholic leaders Catholic teachers. You could only be a
(01:53):
teacher in this school if you're willing to accept the
teachings of the Catholic Church.
Speaker 2 (01:59):
The case threatens to up end charter school systems in
forty six states, as well as the federal charter school program,
all of which requires schools to be non sectarian. Joining
me is First Amendment law expert Caroline Mala Corbin, a
professor at the University of Miami Law School. Caroline tell
us about the background of this case.
Speaker 5 (02:21):
Basically, Oklahoma has a charter school program, as do most states.
As a matter of fact, it's supposed to be another
alternative to regular public schools, and the school bar charged
with approving charter schools approved a Catholic charter school. A
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Catholic charter school would violate the Oklahoma Constitution, and so
the Attorney General challenged that on the grounds that violated
two separate provisions of the Oklahoma Constitution as well as
the US Constitution. Because the Oklahoma Constitution make it's very
clear that taxpayer money cannot be used to fund religious
(03:06):
proselytization and indoctrination, and there is a separate provision of
the Oklahoma Constitution that says public education must be non sectarian.
In other words, public education must be secular. There is, also,
of course, the US Constitution's Establishment clause, which has long
(03:28):
been understood to ban direct fundings using taxpayer money to
fund religious education, religious proselytization, religious indoctrination. And the Oklahoma
Supreme Court said, you know what, it does violate the
Oklahoma Constitution. It does violate US constitutions for Oklahoma to
(03:50):
have a religious charter school. And then the charter school
and the board that approved it appealed to the Supreme
Court and they claim that Oklahoma's refusal the Holy fund
a Catholic charter school violated the free exercise clause of
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the US Constitution.
Speaker 2 (04:12):
Explain why. A key issue is whether the religious charter
school is public or private.
Speaker 5 (04:18):
So that's the million dollar question. There was a dispute
on whether to characterize charter schools as public schools or
private schools, and that category makes a huge difference under
the doctrines, because under existing precedent, if charter schools are
in fact public schools, then Oklahoma is absolutely free to
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insist that they remain secular. On the other hand, if
they are considered private school there is a trio of
Supreme Court cases that have held that if the government
makes taxpayer money available to private secular schools, it has
to make that money equally available to private religious school
(05:07):
So it really really matters whether the charter schools are
public schools, in which case Oklahoma can keep them secular,
or whether they're private schools, in which case the Supreme
Court will hold that denying them equal access to government
money amounts to discrimination against religion and that would violate
(05:32):
the free exercise costs.
Speaker 2 (05:34):
How did the conservatives answer the liberal justices questions about
the establishment clause and how a taxpayer funded school would
entangle church and state.
Speaker 5 (05:46):
In the justice's mind, what's going on here is that
the state has created a program and made a benefit available,
and consequently it has to be made available equally to
religious setsular schools, otherwise violates the free exercise clause. That
it might be intention with the Establishment Clause doesn't matter
(06:09):
to these Supreme Court justices who always privilege the free
exercise clause over the Establishment Clause. So in their mind,
if it.
Speaker 6 (06:18):
Is required to give.
Speaker 5 (06:20):
The schools money by the free exercise clause, then by
definition it can't violate the Establishment clause, and so they
might simply not reach the Establishment clause problem that it
is very firmly established in Establishment clause jurisprudence that the
government cannot directly give money to religious organizations for the
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purpose of religious indoctrination and religious education. The state cannot
give directly money if the money ends up at a school. Indirectly,
that is okay. But for the government to take money
from its coffers and put it into the coffers of
a private religious school that then uses the money for
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religious education and doctrination prosbimization. Even under current Establishment clause law,
which is highly weakened even today, that's still unconstitutional.
Speaker 2 (07:19):
Did it appear to you that four conservative justices were
clearly on the side of the school, the three liberal
justices were clearly against, and Chief Justice John Roberts is
the pivotal vote.
Speaker 5 (07:31):
He is because Justice Barrett recused herself because of her
close connection with someone involved in the litigation, and so
the Conservatives don't have a cushion as they normally do.
They need Justice Roberts in this case in order to
prevail because if it is a four to four time
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the lower court decision stands, which is the Oklahoma Supreme
Court's decision that it would violate the state and federal
constitutions to create a religious charter school wholly funded by
the state.
Speaker 2 (08:10):
The Chief didn't tip his hand, but he did write
the majority opinions in all three of those cases since
twenty seventeen where the Court allowed public funds to go
to religious schools. And I thought it was remarkable that
Justice Kavanaugh acknowledged that there has been what he called
a different constitutional understanding since Congress established the federal charter
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school program in nineteen ninety four.
Speaker 3 (08:37):
At that point, it was considered constitutional to discriminate against
religious entities, and that that's some of our case. Law
has changed that and said no, it's not constitutional.
Speaker 5 (08:49):
And this different constitutional understanding is a constitution without the
establishment clause. Because it's very important to realize that religious
organizations are treated to under the Constitution. They get certain
benefits under the free exercise Clause. So, for example, religious
schools are entitled to a ministerial exemption, which means that
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their teachers can't bring discrimination claims. It means that they
often get extra tax breaks that others do not. There
are definitely benefits to being a religious school, but it
had long been any understanding that being religious brought not
only special benefits but also certain restrictions, and one of
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those restrictions was a, for example, limit on the kind
of funding you could get from the government. And so
there was long this balance from the benefits from the
Free Exercise Clause the restrictions imposed by the Establishment Clause.
Speaker 6 (09:51):
But what the Roberts.
Speaker 5 (09:53):
Court has done in reconfiguring the religious liberty clauses, it
has and did the privileges of religious organizations while eliminating.
Speaker 1 (10:06):
The prior limits.
Speaker 5 (10:07):
And one way they've been doing that is with a
sleight of hand. What were previously understood as Establishment Clause
limits on for example, government funding now has become religious discriminations.
So again one of the basic premises of the Establishment
Clause is that the government does not fund religions in
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various ways the Supreme Court generally pretends to the establishment
clause does not exist and insists that any time the
government does not fund religion, it is discriminating against religion
because it's funding secular organizations. So, in their minds, the
reason that Oklahoma doesn't want to fund a religious charter
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school is not because the constitution limits it, which it
does both the state and credal, but because there has
to religious So that's the switch.
Speaker 2 (11:01):
And if it turns out the Conservatives do have five votes,
what do you think is the most likely way they'll
frame their decision.
Speaker 5 (11:09):
They conclude that these are private schools, and accordingly, under
existing precedent, the state has to give them the same
opportunities of state funding as they give private secular charter schools.
And there they would insist that this is no change
in the law whatsoever. It's just a continuation of their
(11:29):
previous rulings that hold that if the government makes a
benefit available, it has to make it equally available to
private religious schools and private secular schools.
Speaker 2 (11:42):
And if that's the decision, I'm sure they'll be at
least one blistering dissent. Thanks so much, Caroline. That's Professor
Caroline Malcorbin of the University of Miami Law School. Coming
up next, endangered species may become even more endangered. I'm
June Grosso. When you're listening to Bloomberg.
Speaker 5 (12:00):
We've lost about one out of every five butterflies from
twenty to twenty twenty.
Speaker 2 (12:05):
Scientists released a new study two months ago showing that
in the last twenty years, nearly one quarter of all
butterflies have been wiped out. US Wildlife officials put the
monarch butterfly on the endangered Species list last December after
years of warnings from scientists that their numbers were shrinking.
(12:26):
It's really quite troubling to see that monarch populations are declining.
Speaker 7 (12:29):
And if there aren't enough flowers to feed monarchs, imagine
all the lesser known pollinators that aren't getting the things
that they need.
Speaker 2 (12:35):
The destruction of their habitats is the main reason that
species become extinct, and now a new move by the
Trump administration will eliminate the habitat protections for endangered species
that are so crucial to their survival. Joining me is
environmental law expert Pat Parento, a professor at the Vermont
Law and Graduate School, So that the Trump administration wants
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to how the government defines harm in the Endangered Species Act.
Tell us how it's been defined since basically the Reagan administration.
Speaker 8 (13:09):
So the Act prohibits was called take of protected species,
and take is further defined by a whole string of
verbs including keel, wound, trap, but also harm or harassed.
And it's those two words harm and harassed. In the
Endangered Species Act of nineteen seventy three that were new concepts,
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and it took some time to define what those concepts meant.
But in regards to harm, there was a very critical
decision issued way back in the early nineteen eighties actually
by the Ninth Circuit Court of Appeals in a case
out of Hawaii involving the Palila bird, an endangered bird,
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which ruled that destruction of habitat constitutes harm. And as
a result of that decision, the Department of Interior promulgated
this rule defining harm to me actions including habitat modification
that actually kills or injures listed species by interfering with
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essential behavioral conditions like breeding, feeding, and sheltering. So it's
a long definition, but its bottom line is the court's
rules that habitat loss is a take is prohibited under
the Endangered Species Act. Congress, after the Poalila case, enacted
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an amendment to the Endangered Species Act in nineteen eighty two.
I was there, I testified on this, which said, Okay,
to protect landowners from finding themselves in violation of the Act,
we're going to create a special permit process, and we're
going to require that landowners, if they want one of
these permits, come up with a habitat conservation plan to
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mitigate an offset the loss of habitat for the activity logging, mining, grazing,
all kinds of activity that would result in loss of habitat.
So the point is this harm rule has a very
long history, and it's one that Congress deliberately codified in
the Endangered Species Act. That's why they created the permit program.
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So the idea now that you would eliminate the definition
of harm just rescind it, wipe it off the book,
and not replace it, which is what is being proposed
by Secretary Bergham. It's crazy, I mean, it flies in
the faith of this whole history of how the courts
and Congress have dealt with this critical idea of protecting
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habitat When you think about it, habitat loss is the
major driver of extinction in the United States and globally,
So to just eliminate it from the one law that's
designed to prevent extinction, it's really nuts.
Speaker 2 (16:08):
Is the administration tying this proposed change to the Supreme
Court's decision in the Loper Bright case that eliminated Chevron deference,
which is the deference to an agency's interpretation when there's
an ambiguous statute, Well they are.
Speaker 8 (16:25):
The irony, of course, is the United States Supreme Court,
in a very famous case called sweet Home versus Babbott,
in which the US Supreme Court upheld by a six
to three vote the harm rule that I just described.
So now you have the Trump administration saying, yeah, but
the Supreme Court has overruled Chevron, which means that the
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Supreme Court's decision in Sweet Home is no longer controlling.
But wait a minute. When you read Chief Justice Roberts'
opinion in Loper Bright, he specifically says that visions that
have upheld rules based on Chevron are still in effect.
So now you have the Trump administration saying, well, but
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we're going to change the rule by eliminating it. For
harm and therefore we don't have to give the prior
interpretation any significance, any difference at all. But that's not
what Robert said. He said that prior decisions based on
Chevron difference are entitled to what are called statutory starry decisives,
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in other words, precedent. And he made it clear that
it wasn't just a matter of saying, oh well, never
mind that a rule was formally upheld. He said, you
have to justify, you know, new decisions to change your
rule under the usual requirements of reversing prior rules, which
means you have to justify repealing a rule based on
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change of circumstances, new facts, something has happened that justify
rethinking why the original rule should be completely reversed. But
all of the evidence suggests there's no basis for eliminating
habitat protection from the Protections of the Endangered Species Act.
(18:17):
If anything, what we're seeing is that habitat loss is
now affecting all species. You know. The famous ornithological lab
at Cornell University issued an incredible decision this last year
saying three billion birds three billion birds have disappeared from
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the United States since nineteen seventy and that's primarily related
to habitat loss. Pesticides and other things come into play.
Habitat loss is the reason that we're losing our incredible
array of bird species. So this idea that the local
Bright decision somehow justified eliminating protection for habitat is once
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again crazy.
Speaker 2 (19:05):
I'm not sure how many Americans are aware of the
ins and outs of the Endangered Species Act, but they
do know. Most of the ten endangered species that the
Center for Biological Diversity says are under direct threat from
this Trump administration elimination of habitat protections. They include monarch butterflies, manatees,
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northern spotted owls, green sea turtles, whooping cranes, and Florida panthers.
Speaker 8 (19:35):
At one time, you could measure the abundance of monarch
butterflies in the billions, and the western population of monarch
butterflies has been reduced by I think something like eighty
percent maybe more and is really in danger of extinction.
It's incredible to think that butterflies that used to light
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up the landscape all across the United States. I mean,
it's like the passenger kitch flocks of passenger pisions history says,
used to darken the sky throughout much of the central
part of the United States, and then just we're gone
and we're seeing the same thing with species like monarch butterflies,
and we've got an administration you know, that wants to
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eliminate or to substantially weaken the one law that's designed
to prevent that. It's really quite remarkable.
Speaker 2 (20:24):
So then do you think that when this is challenged
in the courts that the administration will lose?
Speaker 8 (20:31):
Yes, they should, and they will. Now when it finally
goes back to the Supreme Court, we'll actually see whether
Justice Roberts you know, sort of caution in the look
for Bright case stands up. In other words, is he
going to look at this question of can you just
simply wave your hand, you know, and eliminate this harm
rule without any justification at all other than to say
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we don't think it's the single best reading of the statue.
That's the rationale that the Trump administration is using to
repeal the harm rules. And by the way, you know,
the Trump administration is not going to get any difference
for that interpretation either. That is the central message of
lower Bright. Nobody, no agency gets difference anymore under low
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for Bright, including Trump, is.
Speaker 2 (21:18):
This elimination of habitat protections about making it easier to build,
log and drill for oil.
Speaker 8 (21:27):
Yeah, I mean it's property rights, it's landowner rights in part.
Although what we've seen with the Harm rule in place
is that there have been millions, more than twenty million
acres of land private lands that have been conserved under
this incidental take permit program I mentioned, and allowed logging
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and mining and other activities to occur, just with offsetting mitigation.
So it's not true that the Harm rule has vented
anything anything. There's no evidence that any landowner has suffered
what's called a taking, a constitutional taking of property as
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a result of the Endangered Species Act. Never never, So
the whole idea that you have to eliminate this one
mechanism of protection is simply wrong. There's no fact, no evidence.
If you look at the proposed rule to resind the
Harm rule in the Federal Register, and by the way,
the comment period is still open until May nineteenth, for
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those who are interested in that, you can go look
at it. It's a very short statement. We're simply repealing
the Harm rule. We're not replacing it. We're just pretending
like we're going to erase the word from the statute,
which of course violate canon number one of statutory interpretation,
which is every word of a statute must be given effect.
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You don't just erase it because you find it difficult
or whatever. You have to do something with it. And
the proposal is to do nothing with it, to just
erase it as if it never existed.
Speaker 2 (23:07):
Pat, a finger sized fish has been caught in the
net of politics and the debate over California's water resources.
On Thursday, House Republicans, in a vote that went down
party lines, passed a bill to take the long fin
smelt off the Endangered Species list, even though its population
has declined by ninety nine percent. That sounds endangered to me.
Speaker 8 (23:31):
So this is the long fin smelt, a cousin of
the even more controversial delta smelt, and these are two
of actually six species of fish protected under the Endangered
Species Act. So you know, this is just the latest
evidence that this ecosystem in the San Joaquin Delta of
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California is collapsing. It's literally unraveling before our very eyes.
And it's all related to water used for agriculture, but
for cities and others as well. So this is at
the center of what has been a multi decade battle
over how to manage water in California, the long fin
smelt has been reduced by ninety nine percent. It used
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to be a major source of prey for other larger
fish like salmon and trout, but it's been absolutely decimated. So,
you know, taking it off the endangered species list is
essentially a death morant.
Speaker 2 (24:26):
It may follow its cousin to virtual extinction. We'll see
if that bill passes the Senate. Thanks so much, Pat.
As always, that's Professor Pat Parento of the Vermont Law
and Graduate School coming up next. Tensions get unusually heated
during a Supreme Court oral argument. I'm June Grosso and
you're listening to Bloomberg.
Speaker 9 (24:47):
We will hear a argument first this morning in case
twenty four two forty nine Ajat versus a Coeo Area Schools.
Speaker 2 (24:55):
Supreme Court oral arguments take place in a rarefied atmosphere
where the vility is prized and your opponents are not
adversaries but rather friends on the other side. But not
so during Monday's oral arguments. In a case where the
parents of a student with a rare form of epilepsy.
We're suing a Minnesota school district over its refusal to
(25:17):
provide her with at home instruction. In the Evenings, Justice
Neil Gorsuch took Lisa Blatt, the attorney for the school district,
to task when she accused the parents' attorney and the
government's attorney of lying about her stance in the case
by accusing her of flip flopping on her argument.
Speaker 1 (25:35):
What is a lie in and accurate is that we
ever said, in any context that this court should take
the same language and define it differently depending on context.
That is not true. There is no statement they adding
words to our mouth. We never said you should have
a double regime what the school district has said, which
is what Monahan said.
Speaker 7 (25:52):
He believed that mister Martinez and the Solicitor General are.
Speaker 1 (25:55):
Lying in oral argument. Yes, absolutely, it is not.
Speaker 7 (26:00):
True that we should be more careful with your work.
Speaker 1 (26:02):
Okay, well, they should be more careful in mischaracterizing a
position by an experienced advocate of the Supreme Court with all.
Speaker 2 (26:08):
Due respect and blood is certainly an experienced Supreme Court litigator,
one of a small number of lawyers who have argued
more than fifty cases before the High Court, but most
of the other justice has made clear. They also thought
that Blad had changed her position from arguing for a
unique rule in the school context to arguing for a
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broader rule. Here's the Chief Justice.
Speaker 9 (26:31):
You said that the secondary education was a quote unique context,
quote giving rise to a unique subset. Quote calling for
a quote different standard seems to.
Speaker 1 (26:41):
Make I'm sorry, Now, where does it say that quoting
for a different standard? That part we never said. Are
they quoting?
Speaker 9 (26:47):
Well, they've got quote marks around it.
Speaker 1 (26:50):
Where's the page.
Speaker 9 (26:51):
It's page four of their yellow brief.
Speaker 2 (26:54):
But Justice cour Such wasn't letting Blatt off the hook.
Fifteen minutes after their first exchange, he interrupted her again.
Speaker 7 (27:03):
Miss, Yeah, I confess I'm still troubled by your suggestion
that your friends on the other side have lied.
Speaker 1 (27:10):
Okay, let's help pull up.
Speaker 7 (27:11):
Yeah. I think we're gonna have to here, and i'd
ask you to reconsider that phrase argument. If I might
it was incorrect. If I incorrect is fine. People make mistakes.
You can accuse people being incorrecting, Miss Blatt, if I
might finish sure, lying is another matter. Page one of
(27:32):
your brief and.
Speaker 2 (27:32):
Opposition Gorsuch then proceeded to read long quotations from her
brief in the case, raising his voice when Blatt tried
to interrupt him, and ending with this conclusion.
Speaker 7 (27:44):
One could interpret those perhaps different ways, but surely one
could interpret those perhaps different ways, but surely a reasonable
person could interpret them as arguing for a special rule
in the educational context.
Speaker 1 (27:58):
Correct, No, only because of miss Blatt.
Speaker 8 (28:02):
Okay, well, you know.
Speaker 7 (28:04):
I mean a reasonable person. All of those emphasized the
unique context of primary and secondary education and the need
for a special rule.
Speaker 1 (28:11):
Don't they fine?
Speaker 7 (28:12):
But what I'm fine? Too fine? Then would you withdraw
your accusation? I withdraw it, thank you.
Speaker 2 (28:18):
That's it, and that's where it ended. Joining me is
Bloomberg Law. Supreme Court reporter Kimberly Strawbridge Robinson who heard
it all. Kimberly, the oral arguments are usually very civil,
even when questioning gets aggressive. You rarely even hear raised voices.
Speaker 6 (28:37):
That's right. I mean, there's a level of decorum that's
expected within the Supreme Court even while debating, you know,
really hotly contested issues. And I think one of the
things that really sort of demonstrates this is that the
advocates are encouraged by the justices to refer to opposing
counsel as my friend on the other side. You'll even
(28:57):
hear attorneys correct themselves if they say, you know, my
opposing counsel, though quickly correct themselves and say, you know,
as my friend on the other side said. So, it
really is a place that's defined by civility.
Speaker 2 (29:09):
Tell us about the case at the Court on Monday
involving a Minnesota school system generally, what it was about.
Speaker 6 (29:16):
I mean, I think the broadest level of this case
is about disability discrimination in public schools. It's a very
technical case on the interaction of several federal statutes, but
at a part it's about when schools can be held
liable for disability discrimination.
Speaker 2 (29:32):
And Lisa Blott is certainly an experienced Supreme Court advocate.
She's argued something like fifty four cases before the Supreme Court.
Speaker 6 (29:42):
Yeah, I mean, she's one of a handful of individuals
who can claim that sort of milestone, and she's the
only female to do so. She has a really distinctive style.
It's very casual and very straight to the point. But
you know, the justices do really seem to enjoy her
oral advocacy, and she has sparred with some of the
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justices in the past, but you know, often they'll laugh
at some of her comments that she makes. You know,
I think people tend to think that she gets away
with things that you know, other even experienced advocates cannot,
And you know that's really shown through her record of
the court. She has an unusually high success rate at
the US Supreme Court.
Speaker 2 (30:22):
Yeah, I found her tone with the justices a lot
less reverent, let's say, than other advocates. But explain what
led to this confrontation with Justice Gorsuch.
Speaker 6 (30:33):
Well, you know, this is a case by parents of
a disabled student who is suing a Minnesota school district.
And as they sort of understood the cases it came
to the Supreme Court, you know, they thought it was
a very narrow case, and during oral arguments, the parents' advocate,
who himself is a seasoned Supreme Court veteran, you know,
said that this school district had sort of pulled the
(30:56):
rug out from under the justices and had changed course
in the Supreme Court and advocated for a much broader,
much drastic sort of request than what they thought that
the case was about. And then when Lisa Black got
us to argue for the school district, she said that
wasn't a correct characterization of their stance, and she actually
(31:16):
accused the parents' attorney as well as the federal government's
attorneys who was on the side of the parents in
this case. She accused them of lying. And it's really
that accusation that really got under the skin of several
the justices.
Speaker 2 (31:30):
So was Justice Gore such seemingly the most upset. He
raised his voice and said, be more careful with your words,
and then it got more heated later on.
Speaker 6 (31:42):
Yeah, I mean, he was definitely the one who was
most upset. But I will say that several of the
justices seemed to indicate that they sort of agreed with
the parents' attorneys and with the federal government here in
the categorization of the school district's stance, and so that
made it all the more worse when Black said that,
you know, those who are holding that view were lying.
(32:03):
But Justice Corses was the most verbal and most clearly upset.
You know, he did tell her that comment is set
to watch her words, and then later in the argument
he came back to the issue, saying he was still
troubled by it and really urging Lisa Blatt to withdraw
her statement, which she did. But as the parents' attorney
(32:24):
said on rebuttal, really it was done under duress.
Speaker 2 (32:27):
It certainly was. And Justice Sodo Mayor even suggested that
Black might have violated the court rules.
Speaker 6 (32:35):
Yeah, I mean along the way, you know, Justice Switchewayer
pointed out that the Supreme Court rules really admonished counsel
to bring it to the attention of the justices if
they think that there's you know, some issue with the
you know, the kinds of questions that the justices are hearing.
You know, obviously that way, the advocates and the justices
(32:57):
are not surprised. And she suggested that, you know, it
was Black who was the one who was acting inappropriately here,
and that if she really thought that the argument was
supposed to be much broader, she should have made that
more clear in her breathing.
Speaker 2 (33:12):
So was the dispute basically about whether there's a heightened
standard in the educational context, and then Blat said it
should be in every context.
Speaker 6 (33:22):
That's right, I mean, so you know the question. I
think that the parents thought that they were answering that
the federal government thought that they were answering, and it
was obvious from arguments that the justices thought they were answering, was,
you know, insuing for disability discrimination, parents of school children
have to make a heightened showing in order to hold
schools liable. And it's a showing that doesn't apply outside
(33:46):
the educational context, and that is actually the law in
many circuits. Some circuit took on the other way. It's
created sort of, you know, this circuit split that is
quintessential of the cases that the Supreme Court just sides
to hear. But we heard on Monday that the school
district agrees there's no special standard for schools, but at least,
(34:08):
as Blatt argued that heightened standards should apply across the
board to all disability discrimination cases, even though for example,
with employment. And the justices were really surprised by that argument.
That has not been the law in any circuit, and
they were really resisting Lat's requests to say that for
the first time in the Supreme Court in this case.
Speaker 2 (34:30):
So then did it seem like a majority of the
justices were siding with the parents, you know?
Speaker 9 (34:35):
It did?
Speaker 6 (34:35):
There are a couple of paths that the Supreme Court
can take. They sort of picked it a lot of them,
particularly before this Force's blat interaction, there was a lot
of talk about the different methods or ways that the
justices could side with the parents. I'm not quite sure
what they'll do, but I don't think that they're going
to be, at least not yet taking on lass broader
(34:57):
requests to apply a heightened and.
Speaker 1 (35:00):
Across the board and so.
Speaker 2 (35:03):
And Veteran court watchers were also surprised by the hostility
displayed in this exchange.
Speaker 6 (35:11):
They were I mean, as I mentioned before, Lisa Black
does have a very distinctive advocacy style at the Court.
But still people were surprised with sort of the hostility
between the exchange between her and Justice Gorsch. You mentioned
that he raises voice several times. That doesn't usually happen
in the Supreme Court. Many were surprised that she sort
(35:33):
of didn't take the hint in withdraw her comment before.
You know, a lot of pressure from Justice Gorsach. You know,
we have some people who said they've never seen Justice
Gorsus be that angry on the Benchtan I certainly listening
to it, quite surprised that it was an interaction that
was happening at the Supreme Court.
Speaker 2 (35:52):
It just shows you how different the Supreme Court is,
because in a trial court, one lawyer accusing another of
lying might not even cause a ripple.
Speaker 6 (36:02):
Yeah, the Supreme Court, it's just different. You know again,
there really is this expectation of decorum, and you know, again,
I can't emphasize enough how important it is, you know,
for advocates to speak to each other with respect, and
particularly to speak with the justices. And I think, you know,
one of the things that got Justice Corsage so upset
(36:24):
was that Lisa Blatt seemed to keep trying to interrupt him,
and at several points he admonished to let him finish,
even raising his voice one time saying I'm not finished.
So I think it was just a combinations of a
couple of things that sort of made it rise to
the level that it did.
Speaker 2 (36:39):
We'll have to see what happens next time Blatt appears
before the Supreme Court. Thanks so much, Kimberly. That's Bloomberg
Law Supreme Court reporter Kimberly Strawbridge Robinson And that's it
for this edition of The Bloomberg Law Show. Remember you
can always get the latest legal news on our Bloomberg
Law Podcast. You can find them on Apple Podcasts, Spotify,
(37:00):
in at www dot bloomberg dot com, slash podcast slash Law,
and remember to tune into The Bloomberg Law Show every
weeknight at ten pm Wall Street Time. I'm June Grosso
and you're listening to Bloomberg
This is Bloomberg Law with June Grossel from Bloomberg Radio.
Speaker 2 (00:08):
It's a case that could lift longstanding constitutional limits on
government support for religion and further erode the separation of
church and state. And the sharp ideological divide on the
Supreme Court was apparent in the oral arguments over whether
to allow the first publicly funded religious charter school in
(00:29):
the nation. Four of the conservative justices seemed to be
firmly on the side of the charter school, Saint Isidore
of Seville Catholic Virtual School, suggesting that Oklahoma is unconstitutionally
disfavoring religion by requiring its public charter schools to be secular.
Justice Brett Kavanaugh called it rank discrimination against religion.
Speaker 3 (00:53):
And then you come in and you say, oh, oral
religious school. It's like, oh, no, can't do that too much.
That's scary. We're not going to do that. And our
cases have made very clear, and I think those are
some of the most important cases we've had of saying
you can't treat religious people and religious institutions and religious
(01:14):
speech as second class in the United States.
Speaker 2 (01:18):
But the three liberal justices emphasized that taxpayer funded religious
schools would entangle church and state in violation of the
Establishment clause of the First Amendment. Here's Justice Sonya Sotomayor.
Speaker 4 (01:32):
Because the essence of the Establishment clause was we're not
going to pay religious leaders to teach their religion. That
is and has always been the essence. And here we're
paying Catholic leaders Catholic teachers. You could only be a
(01:53):
teacher in this school if you're willing to accept the
teachings of the Catholic Church.
Speaker 2 (01:59):
The case threatens to up end charter school systems in
forty six states, as well as the federal charter school program,
all of which requires schools to be non sectarian. Joining
me is First Amendment law expert Caroline Mala Corbin, a
professor at the University of Miami Law School. Caroline tell
us about the background of this case.
Speaker 5 (02:21):
Basically, Oklahoma has a charter school program, as do most states.
As a matter of fact, it's supposed to be another
alternative to regular public schools, and the school bar charged
with approving charter schools approved a Catholic charter school. A
(02:42):
Catholic charter school would violate the Oklahoma Constitution, and so
the Attorney General challenged that on the grounds that violated
two separate provisions of the Oklahoma Constitution as well as
the US Constitution. Because the Oklahoma Constitution make it's very
clear that taxpayer money cannot be used to fund religious
(03:06):
proselytization and indoctrination, and there is a separate provision of
the Oklahoma Constitution that says public education must be non sectarian.
In other words, public education must be secular. There is, also,
of course, the US Constitution's Establishment clause, which has long
(03:28):
been understood to ban direct fundings using taxpayer money to
fund religious education, religious proselytization, religious indoctrination. And the Oklahoma
Supreme Court said, you know what, it does violate the
Oklahoma Constitution. It does violate US constitutions for Oklahoma to
(03:50):
have a religious charter school. And then the charter school
and the board that approved it appealed to the Supreme
Court and they claim that Oklahoma's refusal the Holy fund
a Catholic charter school violated the free exercise clause of
(04:11):
the US Constitution.
Speaker 2 (04:12):
Explain why. A key issue is whether the religious charter
school is public or private.
Speaker 5 (04:18):
So that's the million dollar question. There was a dispute
on whether to characterize charter schools as public schools or
private schools, and that category makes a huge difference under
the doctrines, because under existing precedent, if charter schools are
in fact public schools, then Oklahoma is absolutely free to
(04:43):
insist that they remain secular. On the other hand, if
they are considered private school there is a trio of
Supreme Court cases that have held that if the government
makes taxpayer money available to private secular schools, it has
to make that money equally available to private religious school
(05:07):
So it really really matters whether the charter schools are
public schools, in which case Oklahoma can keep them secular,
or whether they're private schools, in which case the Supreme
Court will hold that denying them equal access to government
money amounts to discrimination against religion and that would violate
(05:32):
the free exercise costs.
Speaker 2 (05:34):
How did the conservatives answer the liberal justices questions about
the establishment clause and how a taxpayer funded school would
entangle church and state.
Speaker 5 (05:46):
In the justice's mind, what's going on here is that
the state has created a program and made a benefit available,
and consequently it has to be made available equally to
religious setsular schools, otherwise violates the free exercise clause. That
it might be intention with the Establishment Clause doesn't matter
(06:09):
to these Supreme Court justices who always privilege the free
exercise clause over the Establishment Clause. So in their mind,
if it.
Speaker 6 (06:18):
Is required to give.
Speaker 5 (06:20):
The schools money by the free exercise clause, then by
definition it can't violate the Establishment clause, and so they
might simply not reach the Establishment clause problem that it
is very firmly established in Establishment clause jurisprudence that the
government cannot directly give money to religious organizations for the
(06:45):
purpose of religious indoctrination and religious education. The state cannot
give directly money if the money ends up at a school. Indirectly,
that is okay. But for the government to take money
from its coffers and put it into the coffers of
a private religious school that then uses the money for
(07:06):
religious education and doctrination prosbimization. Even under current Establishment clause law,
which is highly weakened even today, that's still unconstitutional.
Speaker 2 (07:19):
Did it appear to you that four conservative justices were
clearly on the side of the school, the three liberal
justices were clearly against, and Chief Justice John Roberts is
the pivotal vote.
Speaker 5 (07:31):
He is because Justice Barrett recused herself because of her
close connection with someone involved in the litigation, and so
the Conservatives don't have a cushion as they normally do.
They need Justice Roberts in this case in order to
prevail because if it is a four to four time
(07:53):
the lower court decision stands, which is the Oklahoma Supreme
Court's decision that it would violate the state and federal
constitutions to create a religious charter school wholly funded by
the state.
Speaker 2 (08:10):
The Chief didn't tip his hand, but he did write
the majority opinions in all three of those cases since
twenty seventeen where the Court allowed public funds to go
to religious schools. And I thought it was remarkable that
Justice Kavanaugh acknowledged that there has been what he called
a different constitutional understanding since Congress established the federal charter
(08:34):
school program in nineteen ninety four.
Speaker 3 (08:37):
At that point, it was considered constitutional to discriminate against
religious entities, and that that's some of our case. Law
has changed that and said no, it's not constitutional.
Speaker 5 (08:49):
And this different constitutional understanding is a constitution without the
establishment clause. Because it's very important to realize that religious
organizations are treated to under the Constitution. They get certain
benefits under the free exercise Clause. So, for example, religious
schools are entitled to a ministerial exemption, which means that
(09:11):
their teachers can't bring discrimination claims. It means that they
often get extra tax breaks that others do not. There
are definitely benefits to being a religious school, but it
had long been any understanding that being religious brought not
only special benefits but also certain restrictions, and one of
(09:35):
those restrictions was a, for example, limit on the kind
of funding you could get from the government. And so
there was long this balance from the benefits from the
Free Exercise Clause the restrictions imposed by the Establishment Clause.
Speaker 6 (09:51):
But what the Roberts.
Speaker 5 (09:53):
Court has done in reconfiguring the religious liberty clauses, it
has and did the privileges of religious organizations while eliminating.
Speaker 1 (10:06):
The prior limits.
Speaker 5 (10:07):
And one way they've been doing that is with a
sleight of hand. What were previously understood as Establishment Clause
limits on for example, government funding now has become religious discriminations.
So again one of the basic premises of the Establishment
Clause is that the government does not fund religions in
(10:30):
various ways the Supreme Court generally pretends to the establishment
clause does not exist and insists that any time the
government does not fund religion, it is discriminating against religion
because it's funding secular organizations. So, in their minds, the
reason that Oklahoma doesn't want to fund a religious charter
(10:53):
school is not because the constitution limits it, which it
does both the state and credal, but because there has
to religious So that's the switch.
Speaker 2 (11:01):
And if it turns out the Conservatives do have five votes,
what do you think is the most likely way they'll
frame their decision.
Speaker 5 (11:09):
They conclude that these are private schools, and accordingly, under
existing precedent, the state has to give them the same
opportunities of state funding as they give private secular charter schools.
And there they would insist that this is no change
in the law whatsoever. It's just a continuation of their
(11:29):
previous rulings that hold that if the government makes a
benefit available, it has to make it equally available to
private religious schools and private secular schools.
Speaker 2 (11:42):
And if that's the decision, I'm sure they'll be at
least one blistering dissent. Thanks so much, Caroline. That's Professor
Caroline Malcorbin of the University of Miami Law School. Coming
up next, endangered species may become even more endangered. I'm
June Grosso. When you're listening to Bloomberg.
Speaker 5 (12:00):
We've lost about one out of every five butterflies from
twenty to twenty twenty.
Speaker 2 (12:05):
Scientists released a new study two months ago showing that
in the last twenty years, nearly one quarter of all
butterflies have been wiped out. US Wildlife officials put the
monarch butterfly on the endangered Species list last December after
years of warnings from scientists that their numbers were shrinking.
(12:26):
It's really quite troubling to see that monarch populations are declining.
Speaker 7 (12:29):
And if there aren't enough flowers to feed monarchs, imagine
all the lesser known pollinators that aren't getting the things
that they need.
Speaker 2 (12:35):
The destruction of their habitats is the main reason that
species become extinct, and now a new move by the
Trump administration will eliminate the habitat protections for endangered species
that are so crucial to their survival. Joining me is
environmental law expert Pat Parento, a professor at the Vermont
Law and Graduate School, So that the Trump administration wants
(12:59):
to how the government defines harm in the Endangered Species Act.
Tell us how it's been defined since basically the Reagan administration.
Speaker 8 (13:09):
So the Act prohibits was called take of protected species,
and take is further defined by a whole string of
verbs including keel, wound, trap, but also harm or harassed.
And it's those two words harm and harassed. In the
Endangered Species Act of nineteen seventy three that were new concepts,
(13:33):
and it took some time to define what those concepts meant.
But in regards to harm, there was a very critical
decision issued way back in the early nineteen eighties actually
by the Ninth Circuit Court of Appeals in a case
out of Hawaii involving the Palila bird, an endangered bird,
(13:53):
which ruled that destruction of habitat constitutes harm. And as
a result of that decision, the Department of Interior promulgated
this rule defining harm to me actions including habitat modification
that actually kills or injures listed species by interfering with
(14:17):
essential behavioral conditions like breeding, feeding, and sheltering. So it's
a long definition, but its bottom line is the court's
rules that habitat loss is a take is prohibited under
the Endangered Species Act. Congress, after the Poalila case, enacted
(14:39):
an amendment to the Endangered Species Act in nineteen eighty two.
I was there, I testified on this, which said, Okay,
to protect landowners from finding themselves in violation of the Act,
we're going to create a special permit process, and we're
going to require that landowners, if they want one of
these permits, come up with a habitat conservation plan to
(15:03):
mitigate an offset the loss of habitat for the activity logging, mining, grazing,
all kinds of activity that would result in loss of habitat.
So the point is this harm rule has a very
long history, and it's one that Congress deliberately codified in
the Endangered Species Act. That's why they created the permit program.
(15:27):
So the idea now that you would eliminate the definition
of harm just rescind it, wipe it off the book,
and not replace it, which is what is being proposed
by Secretary Bergham. It's crazy, I mean, it flies in
the faith of this whole history of how the courts
and Congress have dealt with this critical idea of protecting
(15:51):
habitat When you think about it, habitat loss is the
major driver of extinction in the United States and globally,
So to just eliminate it from the one law that's
designed to prevent extinction, it's really nuts.
Speaker 2 (16:08):
Is the administration tying this proposed change to the Supreme
Court's decision in the Loper Bright case that eliminated Chevron deference,
which is the deference to an agency's interpretation when there's
an ambiguous statute, Well they are.
Speaker 8 (16:25):
The irony, of course, is the United States Supreme Court,
in a very famous case called sweet Home versus Babbott,
in which the US Supreme Court upheld by a six
to three vote the harm rule that I just described.
So now you have the Trump administration saying, yeah, but
the Supreme Court has overruled Chevron, which means that the
(16:49):
Supreme Court's decision in Sweet Home is no longer controlling.
But wait a minute. When you read Chief Justice Roberts'
opinion in Loper Bright, he specifically says that visions that
have upheld rules based on Chevron are still in effect.
So now you have the Trump administration saying, well, but
(17:09):
we're going to change the rule by eliminating it. For
harm and therefore we don't have to give the prior
interpretation any significance, any difference at all. But that's not
what Robert said. He said that prior decisions based on
Chevron difference are entitled to what are called statutory starry decisives,
(17:33):
in other words, precedent. And he made it clear that
it wasn't just a matter of saying, oh well, never
mind that a rule was formally upheld. He said, you
have to justify, you know, new decisions to change your
rule under the usual requirements of reversing prior rules, which
means you have to justify repealing a rule based on
(17:56):
change of circumstances, new facts, something has happened that justify
rethinking why the original rule should be completely reversed. But
all of the evidence suggests there's no basis for eliminating
habitat protection from the Protections of the Endangered Species Act.
(18:17):
If anything, what we're seeing is that habitat loss is
now affecting all species. You know. The famous ornithological lab
at Cornell University issued an incredible decision this last year
saying three billion birds three billion birds have disappeared from
(18:38):
the United States since nineteen seventy and that's primarily related
to habitat loss. Pesticides and other things come into play.
Habitat loss is the reason that we're losing our incredible
array of bird species. So this idea that the local
Bright decision somehow justified eliminating protection for habitat is once
(19:03):
again crazy.
Speaker 2 (19:05):
I'm not sure how many Americans are aware of the
ins and outs of the Endangered Species Act, but they
do know. Most of the ten endangered species that the
Center for Biological Diversity says are under direct threat from
this Trump administration elimination of habitat protections. They include monarch butterflies, manatees,
(19:28):
northern spotted owls, green sea turtles, whooping cranes, and Florida panthers.
Speaker 8 (19:35):
At one time, you could measure the abundance of monarch
butterflies in the billions, and the western population of monarch
butterflies has been reduced by I think something like eighty
percent maybe more and is really in danger of extinction.
It's incredible to think that butterflies that used to light
(19:55):
up the landscape all across the United States. I mean,
it's like the passenger kitch flocks of passenger pisions history says,
used to darken the sky throughout much of the central
part of the United States, and then just we're gone
and we're seeing the same thing with species like monarch butterflies,
and we've got an administration you know, that wants to
(20:16):
eliminate or to substantially weaken the one law that's designed
to prevent that. It's really quite remarkable.
Speaker 2 (20:24):
So then do you think that when this is challenged
in the courts that the administration will lose?
Speaker 8 (20:31):
Yes, they should, and they will. Now when it finally
goes back to the Supreme Court, we'll actually see whether
Justice Roberts you know, sort of caution in the look
for Bright case stands up. In other words, is he
going to look at this question of can you just
simply wave your hand, you know, and eliminate this harm
rule without any justification at all other than to say
(20:55):
we don't think it's the single best reading of the statue.
That's the rationale that the Trump administration is using to
repeal the harm rules. And by the way, you know,
the Trump administration is not going to get any difference
for that interpretation either. That is the central message of
lower Bright. Nobody, no agency gets difference anymore under low
(21:16):
for Bright, including Trump, is.
Speaker 2 (21:18):
This elimination of habitat protections about making it easier to build,
log and drill for oil.
Speaker 8 (21:27):
Yeah, I mean it's property rights, it's landowner rights in part.
Although what we've seen with the Harm rule in place
is that there have been millions, more than twenty million
acres of land private lands that have been conserved under
this incidental take permit program I mentioned, and allowed logging
(21:48):
and mining and other activities to occur, just with offsetting mitigation.
So it's not true that the Harm rule has vented
anything anything. There's no evidence that any landowner has suffered
what's called a taking, a constitutional taking of property as
(22:10):
a result of the Endangered Species Act. Never never, So
the whole idea that you have to eliminate this one
mechanism of protection is simply wrong. There's no fact, no evidence.
If you look at the proposed rule to resind the
Harm rule in the Federal Register, and by the way,
the comment period is still open until May nineteenth, for
(22:32):
those who are interested in that, you can go look
at it. It's a very short statement. We're simply repealing
the Harm rule. We're not replacing it. We're just pretending
like we're going to erase the word from the statute,
which of course violate canon number one of statutory interpretation,
which is every word of a statute must be given effect.
(22:55):
You don't just erase it because you find it difficult
or whatever. You have to do something with it. And
the proposal is to do nothing with it, to just
erase it as if it never existed.
Speaker 2 (23:07):
Pat, a finger sized fish has been caught in the
net of politics and the debate over California's water resources.
On Thursday, House Republicans, in a vote that went down
party lines, passed a bill to take the long fin
smelt off the Endangered Species list, even though its population
has declined by ninety nine percent. That sounds endangered to me.
Speaker 8 (23:31):
So this is the long fin smelt, a cousin of
the even more controversial delta smelt, and these are two
of actually six species of fish protected under the Endangered
Species Act. So you know, this is just the latest
evidence that this ecosystem in the San Joaquin Delta of
(23:52):
California is collapsing. It's literally unraveling before our very eyes.
And it's all related to water used for agriculture, but
for cities and others as well. So this is at
the center of what has been a multi decade battle
over how to manage water in California, the long fin
smelt has been reduced by ninety nine percent. It used
(24:13):
to be a major source of prey for other larger
fish like salmon and trout, but it's been absolutely decimated. So,
you know, taking it off the endangered species list is
essentially a death morant.
Speaker 2 (24:26):
It may follow its cousin to virtual extinction. We'll see
if that bill passes the Senate. Thanks so much, Pat.
As always, that's Professor Pat Parento of the Vermont Law
and Graduate School coming up next. Tensions get unusually heated
during a Supreme Court oral argument. I'm June Grosso and
you're listening to Bloomberg.
Speaker 9 (24:47):
We will hear a argument first this morning in case
twenty four two forty nine Ajat versus a Coeo Area Schools.
Speaker 2 (24:55):
Supreme Court oral arguments take place in a rarefied atmosphere
where the vility is prized and your opponents are not
adversaries but rather friends on the other side. But not
so during Monday's oral arguments. In a case where the
parents of a student with a rare form of epilepsy.
We're suing a Minnesota school district over its refusal to
(25:17):
provide her with at home instruction. In the Evenings, Justice
Neil Gorsuch took Lisa Blatt, the attorney for the school district,
to task when she accused the parents' attorney and the
government's attorney of lying about her stance in the case
by accusing her of flip flopping on her argument.
Speaker 1 (25:35):
What is a lie in and accurate is that we
ever said, in any context that this court should take
the same language and define it differently depending on context.
That is not true. There is no statement they adding
words to our mouth. We never said you should have
a double regime what the school district has said, which
is what Monahan said.
Speaker 7 (25:52):
He believed that mister Martinez and the Solicitor General are.
Speaker 1 (25:55):
Lying in oral argument. Yes, absolutely, it is not.
Speaker 7 (26:00):
True that we should be more careful with your work.
Speaker 1 (26:02):
Okay, well, they should be more careful in mischaracterizing a
position by an experienced advocate of the Supreme Court with all.
Speaker 2 (26:08):
Due respect and blood is certainly an experienced Supreme Court litigator,
one of a small number of lawyers who have argued
more than fifty cases before the High Court, but most
of the other justice has made clear. They also thought
that Blad had changed her position from arguing for a
unique rule in the school context to arguing for a
(26:28):
broader rule. Here's the Chief Justice.
Speaker 9 (26:31):
You said that the secondary education was a quote unique context,
quote giving rise to a unique subset. Quote calling for
a quote different standard seems to.
Speaker 1 (26:41):
Make I'm sorry, Now, where does it say that quoting
for a different standard? That part we never said. Are
they quoting?
Speaker 9 (26:47):
Well, they've got quote marks around it.
Speaker 1 (26:50):
Where's the page.
Speaker 9 (26:51):
It's page four of their yellow brief.
Speaker 2 (26:54):
But Justice cour Such wasn't letting Blatt off the hook.
Fifteen minutes after their first exchange, he interrupted her again.
Speaker 7 (27:03):
Miss, Yeah, I confess I'm still troubled by your suggestion
that your friends on the other side have lied.
Speaker 1 (27:10):
Okay, let's help pull up.
Speaker 7 (27:11):
Yeah. I think we're gonna have to here, and i'd
ask you to reconsider that phrase argument. If I might
it was incorrect. If I incorrect is fine. People make mistakes.
You can accuse people being incorrecting, Miss Blatt, if I
might finish sure, lying is another matter. Page one of
(27:32):
your brief and.
Speaker 2 (27:32):
Opposition Gorsuch then proceeded to read long quotations from her
brief in the case, raising his voice when Blatt tried
to interrupt him, and ending with this conclusion.
Speaker 7 (27:44):
One could interpret those perhaps different ways, but surely one
could interpret those perhaps different ways, but surely a reasonable
person could interpret them as arguing for a special rule
in the educational context.
Speaker 1 (27:58):
Correct, No, only because of miss Blatt.
Speaker 8 (28:02):
Okay, well, you know.
Speaker 7 (28:04):
I mean a reasonable person. All of those emphasized the
unique context of primary and secondary education and the need
for a special rule.
Speaker 1 (28:11):
Don't they fine?
Speaker 7 (28:12):
But what I'm fine? Too fine? Then would you withdraw
your accusation? I withdraw it, thank you.
Speaker 2 (28:18):
That's it, and that's where it ended. Joining me is
Bloomberg Law. Supreme Court reporter Kimberly Strawbridge Robinson who heard
it all. Kimberly, the oral arguments are usually very civil,
even when questioning gets aggressive. You rarely even hear raised voices.
Speaker 6 (28:37):
That's right. I mean, there's a level of decorum that's
expected within the Supreme Court even while debating, you know,
really hotly contested issues. And I think one of the
things that really sort of demonstrates this is that the
advocates are encouraged by the justices to refer to opposing
counsel as my friend on the other side. You'll even
(28:57):
hear attorneys correct themselves if they say, you know, my
opposing counsel, though quickly correct themselves and say, you know,
as my friend on the other side said. So, it
really is a place that's defined by civility.
Speaker 2 (29:09):
Tell us about the case at the Court on Monday
involving a Minnesota school system generally, what it was about.
Speaker 6 (29:16):
I mean, I think the broadest level of this case
is about disability discrimination in public schools. It's a very
technical case on the interaction of several federal statutes, but
at a part it's about when schools can be held
liable for disability discrimination.
Speaker 2 (29:32):
And Lisa Blott is certainly an experienced Supreme Court advocate.
She's argued something like fifty four cases before the Supreme Court.
Speaker 6 (29:42):
Yeah, I mean, she's one of a handful of individuals
who can claim that sort of milestone, and she's the
only female to do so. She has a really distinctive style.
It's very casual and very straight to the point. But
you know, the justices do really seem to enjoy her
oral advocacy, and she has sparred with some of the
(30:03):
justices in the past, but you know, often they'll laugh
at some of her comments that she makes. You know,
I think people tend to think that she gets away
with things that you know, other even experienced advocates cannot,
And you know that's really shown through her record of
the court. She has an unusually high success rate at
the US Supreme Court.
Speaker 2 (30:22):
Yeah, I found her tone with the justices a lot
less reverent, let's say, than other advocates. But explain what
led to this confrontation with Justice Gorsuch.
Speaker 6 (30:33):
Well, you know, this is a case by parents of
a disabled student who is suing a Minnesota school district.
And as they sort of understood the cases it came
to the Supreme Court, you know, they thought it was
a very narrow case, and during oral arguments, the parents' advocate,
who himself is a seasoned Supreme Court veteran, you know,
said that this school district had sort of pulled the
(30:56):
rug out from under the justices and had changed course
in the Supreme Court and advocated for a much broader,
much drastic sort of request than what they thought that
the case was about. And then when Lisa Black got
us to argue for the school district, she said that
wasn't a correct characterization of their stance, and she actually
(31:16):
accused the parents' attorney as well as the federal government's
attorneys who was on the side of the parents in
this case. She accused them of lying. And it's really
that accusation that really got under the skin of several
the justices.
Speaker 2 (31:30):
So was Justice Gore such seemingly the most upset. He
raised his voice and said, be more careful with your words,
and then it got more heated later on.
Speaker 6 (31:42):
Yeah, I mean, he was definitely the one who was
most upset. But I will say that several of the
justices seemed to indicate that they sort of agreed with
the parents' attorneys and with the federal government here in
the categorization of the school district's stance, and so that
made it all the more worse when Black said that,
you know, those who are holding that view were lying.
(32:03):
But Justice Corses was the most verbal and most clearly upset.
You know, he did tell her that comment is set
to watch her words, and then later in the argument
he came back to the issue, saying he was still
troubled by it and really urging Lisa Blatt to withdraw
her statement, which she did. But as the parents' attorney
(32:24):
said on rebuttal, really it was done under duress.
Speaker 2 (32:27):
It certainly was. And Justice Sodo Mayor even suggested that
Black might have violated the court rules.
Speaker 6 (32:35):
Yeah, I mean along the way, you know, Justice Switchewayer
pointed out that the Supreme Court rules really admonished counsel
to bring it to the attention of the justices if
they think that there's you know, some issue with the
you know, the kinds of questions that the justices are hearing.
You know, obviously that way, the advocates and the justices
(32:57):
are not surprised. And she suggested that, you know, it
was Black who was the one who was acting inappropriately here,
and that if she really thought that the argument was
supposed to be much broader, she should have made that
more clear in her breathing.
Speaker 2 (33:12):
So was the dispute basically about whether there's a heightened
standard in the educational context, and then Blat said it
should be in every context.
Speaker 6 (33:22):
That's right, I mean, so you know the question. I
think that the parents thought that they were answering that
the federal government thought that they were answering, and it
was obvious from arguments that the justices thought they were answering, was,
you know, insuing for disability discrimination, parents of school children
have to make a heightened showing in order to hold
schools liable. And it's a showing that doesn't apply outside
(33:46):
the educational context, and that is actually the law in
many circuits. Some circuit took on the other way. It's
created sort of, you know, this circuit split that is
quintessential of the cases that the Supreme Court just sides
to hear. But we heard on Monday that the school
district agrees there's no special standard for schools, but at least,
(34:08):
as Blatt argued that heightened standards should apply across the
board to all disability discrimination cases, even though for example,
with employment. And the justices were really surprised by that argument.
That has not been the law in any circuit, and
they were really resisting Lat's requests to say that for
the first time in the Supreme Court in this case.
Speaker 2 (34:30):
So then did it seem like a majority of the
justices were siding with the parents, you know?
Speaker 9 (34:35):
It did?
Speaker 6 (34:35):
There are a couple of paths that the Supreme Court
can take. They sort of picked it a lot of them,
particularly before this Force's blat interaction, there was a lot
of talk about the different methods or ways that the
justices could side with the parents. I'm not quite sure
what they'll do, but I don't think that they're going
to be, at least not yet taking on lass broader
(34:57):
requests to apply a heightened and.
Speaker 1 (35:00):
Across the board and so.
Speaker 2 (35:03):
And Veteran court watchers were also surprised by the hostility
displayed in this exchange.
Speaker 6 (35:11):
They were I mean, as I mentioned before, Lisa Black
does have a very distinctive advocacy style at the Court.
But still people were surprised with sort of the hostility
between the exchange between her and Justice Gorsch. You mentioned
that he raises voice several times. That doesn't usually happen
in the Supreme Court. Many were surprised that she sort
(35:33):
of didn't take the hint in withdraw her comment before.
You know, a lot of pressure from Justice Gorsach. You know,
we have some people who said they've never seen Justice
Gorsus be that angry on the Benchtan I certainly listening
to it, quite surprised that it was an interaction that
was happening at the Supreme Court.
Speaker 2 (35:52):
It just shows you how different the Supreme Court is,
because in a trial court, one lawyer accusing another of
lying might not even cause a ripple.
Speaker 6 (36:02):
Yeah, the Supreme Court, it's just different. You know again,
there really is this expectation of decorum, and you know, again,
I can't emphasize enough how important it is, you know,
for advocates to speak to each other with respect, and
particularly to speak with the justices. And I think, you know,
one of the things that got Justice Corsage so upset
(36:24):
was that Lisa Blatt seemed to keep trying to interrupt him,
and at several points he admonished to let him finish,
even raising his voice one time saying I'm not finished.
So I think it was just a combinations of a
couple of things that sort of made it rise to
the level that it did.
Speaker 2 (36:39):
We'll have to see what happens next time Blatt appears
before the Supreme Court. Thanks so much, Kimberly. That's Bloomberg
Law Supreme Court reporter Kimberly Strawbridge Robinson And that's it
for this edition of The Bloomberg Law Show. Remember you
can always get the latest legal news on our Bloomberg
Law Podcast. You can find them on Apple Podcasts, Spotify,
(37:00):
in at www dot bloomberg dot com, slash podcast slash Law,
and remember to tune into The Bloomberg Law Show every
weeknight at ten pm Wall Street Time. I'm June Grosso
and you're listening to Bloomberg
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