Breyer Retires and Race in College Admissions

bear to make government run more efficiently and effectively. It includes his stature as a beacon of wisdom on our constitution and what it means. And through it all, Justice Priors worked tirelessly to give faith to the notion that the law exists to help the people. Joining me as judiciary expert, Carl Tobias, a professor at the University of Richmond Law School, tell us about the timing of Justice Briar's announcement even before the end of the term. When

justices normally retire, well, it is unusual. Usually it comes at the last sitting or very close to the end of the term. But it's happened in all different periods, so It's not unprecedented, but it's nice in the sense that it provides plenty of time to replace him, and so the White House and the Senate can move carefully to find the finest person to replace him. There was a real push by liberals to get Justice Prior to retire before the midterms might put Republicans in charge of

the Senate. Do you think all the political considerations played a part in Justice Briar's decision. If it were a different world, he might have stayed on the bench. That could be. There was substantial pressure, and some of it seemed too much, the advertisements and that type of thing. But people for very strongly about this, and they remember, unfortunately, what happened with Justice Ginsburg, and so there was pretty intense pressure. How would you describe Justice Prior's jurisprudence over

the years. Well, I think he was a real student of the branches of government. You know, he was an administrative law professor when he was at Harvard before he went on the First Circuit and then on to the Supreme Court. And I think he really cared about issues like separation of powers and the branches of government and how the branches worked together or an opposition, and I think he really relished working on those kinds of issues.

He also wrote some books that were very interesting in terms of things like deregulation and other areas that interested him so at a real roving intellect and a real command of the history of the federal government and how it worked. Would you say that he always voted with the liberals. I think it depended on the issue. There were some cases where he did not always vote in a way that was as progressive as some people might have wanted, uh and some of his colleagues might have wanted.

But I think he took each case as it came, and on the law and of facts, tried to do his best in terms of what he thought was the appropriate resolution of particular cases. Would you say that he was a consensus builder on the court. I think so.

He certainly had a reputation for being extremely collegial, and I think if you were to see the way he treated lawyers arguing before him and his colleagues and questioning, he had incredible temperament and was very patient and always tried to work toward what he thought would be the best resolution of any particular case. So I think in that way as a model old jurist. But he wasn't afraid to dissent when he disagreed with the majority of the court, and in ways that we're respectful of the

majority's opinion even as he criticized it. He also sometimes introduced some wacky hypotheticals during oral arguments. Yes, I guess the law professor and him couldn't resist, But it is true that he often did ask difficult hypotheticals, and sometimes that would frustrate lawyers. I assume even the best who go before the Supreme Court. One of the leading candidates mentioned is a possible nominee to replace Justice Pryor is

Judge Katangi Brown Jackson. She was confirmed just last year to the d C Circuit Court of Appeals, and three Republican Senators voted for her confirmation. Might that make the confirmation process smoother? Absolutely? I also would expect those centators to withhold how they might vote until they see how she does in the process. If she is the nominee, I could see them saying, and often senators do well.

I thought she was just fine for the d C Circuit, but the Supreme Court is the highest court in the land. And because I voted one way doesn't necessarily mean that I will vote that way again. But don't forget the Democrats have not lost any votes, and none of their members have voted no on any of the lower Federal Court nominees to date, and so if they hold together, there shouldn't be a problem. They don't even need any Republican votes because if they're tied fifty fifty, the Vice

President can break that tie. And so we'll see how it plays out. But I do think that Democrats are likely to hold together, just as Republicans have very much held together, with some exceptions like Senator Graham and sometimes Senators Murkowski and Collins have voted for lower court nominees, but any Republicans have voted Noah on almost every one of Biden's lower court nominees, even people who were not controversial. Finally,

how would you describe Justice Briar's legacy? Well, I think he brought an incredible understanding of how the federal government works in the United States to the Supreme Court and applied his collegiality. He's intelligence is independence to every case that came before the Court in a way that informed the way many cases were resolved, and I think he was always willing to dissent or to concur if need be. And I think he leaves a really strong legacy in

the public law area. Thanks Carl, that professor called to Bias of the University of Richmond Law School. The consideration of race and college admissions has always been controversial and often misunderstood, as in a scene from the movie Dear White People. Hey, look, you guys still got affirmative action. I'm sorry, what exactly are you doing here? All right? Obama right, leader of the free world. He gets into

Harvard based on you too late affirmative action. You know he's not president right now, No, the guy who didn't get in. Now, more than forty years after first considering affirmative action, the Supreme Court has agreed to hear two cases that could mean the end of race conscious admissions. The case is challenging the admissions policies at Harvard College and the University of North Carolina seek to overturn decades of Supreme Court precedent that allow universities to consider race

in helping to create a diverse student body. Joining me is Audrey Anderson, who heads the Higher Education practice at Bassbarian sims. First, what was your reaction to the Court taking up affirmative action where you surprised, concerned, unfazed. Well, you know, I wasn't surprised that they granted review of the cases because some of the steps they've taken along

the way. They asked for the views of the Solicitor General, wanted to know the United States governments used in the case, which is one clue that they're interested in the issue. And then they had actually looked at the petition at more than one of their conferences, so for two weeks in a row they had considered the petitions. So when

they granted it, I was not at all surprised. I am concerned for the longevity of affirmative action in college admissions, given that they have now granted review of the case. But we will see what happens. So the first circuit affirmed the decision for Harvard's admissions process, and the fourth Circuit hasn't decided the University of North Carolina case yet, so there was no split in the circuits, which often leads the Supreme Court to step in. Is the Supreme

Court sort of jumping the gun? This is an unusual circumstance for them to be granting review of the case. Usually, the Court would not grant review where there was no split in authority, And that's one of the reasons why I'm concerned about the longevity of affirmative action. There really is no good reason to grant review here unless at least four members and likely five members of the Court I think that the decisions below are incorrect and they

want to overturn them. That's the only reason that they would grant review of these cases. The Supreme Court has weighed in several times on affirmative action. Where does the

Supreme Court doctrine stand now? Well, right now, it is legal constitutional for university these too consider race in their admissions programs, as long as they are doing so for the purposes of diversity in their programs, to get the educational benefits of a diverse student body, and as long as they do it in a way that is narrowly tailored to furthering that interest. So right now, that is

legal and constitutional. The problem is that there's been a change in the Supreme Court since the Court last looked at that question in and the changes in the justices on the Court lead many of us to believe that the Court today might come to a different conclusion than it did in so in the two thousand three decision, Justice Sandra Day O'Connor predicted that racial preferences would no longer be necessary in twenty five years. Was affirmative action

always seen as a temporary measure, a stop gap. I think that many of us have an aspiration that there will be a day that race is not an important factor about people in our society, that there will be a day when we don't need to consider race in

order to uh level the playing field. But many of us the day that Justice O'Connor wrote that I thought that twenty five years was a little bit optimistic, And I think that many of us today think that it really was overly optimistic to think that six years from now or five years from now, race will not be an important factor that still needs to be considered. Let's talk about the arguments in the case. What's the argument being made for race neutral admissions and what are the

school's arguments against it. Well, the main argument that the people challenging a firm of action are making in their petitions to the Supreme Court is that this law that I just told you about that's been governing college admissions since ninety eight, actually in the Backy decision, which came

before the two thousand three Michigan decisions. But that law is wrong, That the Constitution requires schools to admit students in a color blind fashion, that the Constitution requires governmental actors and those receiving federal funds to make decisions in a color blind way, and to do anything else really violates the Constitution. That that is their number one argument, and it is an argument that is very persuasive to a number of members of the current Supreme Court from

a legal perspective. On the other side, Uh, there are many who believe that the Fourteenth Amendment, when you look at its history and the context of what was happening at that time, was very much men too protect the rights and further the rights of black people in America who had just left the institution of slavery. And so a color blind constitution was never, uh, the idea of the Framers, It was never the idea of the members of Congress who passed the Fourteenth Amendment at that time.

And so there is room for a limited consideration of race in this aspect of society and the schools here want a diverse student body. Is that what's behind the missions process here? Yeah, So what the schools want to want to have is a student body that is widely diverse and diverse with all kinds of characteristics in mind. But one of those characteristics they want to have diversity

on is race. And in order to meet the current legal standard, they have to show that they are unable to attain a racially diverse student body without considering race.

That they have considered and used race neutral means of trying to get racial diversity by doing recruiting effort, by considering socioeconomic circumstances, by other means, and that still doesn't get them the racial diversity that they want to have in their student bodies to give their students the educational benefits of learning and living in a racially diverse environment. Let's talk about the plaintiffs in the case for a moment.

Students for Fair Admissions was formed to challenge racial preferences. What's their strategy been to get affirmative action before this more conservative court. Yeah, Well, they have been very very very successful um with their strategy, and their strategy has been to bring cases against different universities in different circumstances

and in different parts of the country. So they brought a case against the University of Texas in Austin, they brought a case against Harvard, They brought a case against the University of North Carolina and Chapel Hill. And their strategy was to get decisions from courts um in those different areas in order to ideally get a split in authority from those courts they have those courts come out different ways, so they could say to the Supreme Court, hey, look,

the courts are in disagreement on this. You need to decide. You need to make a decision. It actually turns out that they didn't even need to do that. The Supreme Court is so int a sit in this issue that the court decisions so far we're all in line. They all found that the school that issue here had met the constitutional standard. But Harvard. They took Harvard, and then they took the really unusual step, as you noted June. In the North Carolina case, all we have is a

decision from the trial court um. But students refer admission said, hey, we have this Harvard case pending before you. We want you to grant Sir Serrari before the appellate court even has a chance to consider the trial court's opinion in the North Carolina case, so that you can consider the UNC case and the Harvard case at the same time.

That's really um appealing, I think to the justices because they get to look at a p I'm at school and a public school at the same time, and it gives them two different back patterns to consider as they are determining whether they're going to overturn um Affirmative Act, the Affirmative Action laws, and what's your feeling looking at the court and the various justices track records and viewpoints any theory about how the Court is likely to rule here.

I know we're far away from that, but I think going in as I said, I go in with with the assumption that there are five justices who as of today, would vote to overrule the president, because otherwise they would not have taken these cases. They would not have granted Sir Sharari, even though it only takes four votes to

grant Sir Sharrai. In this kind of a circumstance, the justices are stavvy enough to say, well, we don't we're not in a grant, sir ferrari, if we're only going to lose in terms of overturning this precedent that we want to overturn. So they talk amongst each other and

figure out, Okay, we really have five to overturn. But there is a long road, as you're um hinting at, between now and when the decisions are rendered, and there's going to be a lot of work done by the universities involved here and those that are supporting them in order to convince ah the justices that they should maintain

affirmative action. You know, when these cases were up before the Supreme Court um with the University of Missigon, Michigan cases in two thousand three, really most people expected that affirmative action would go away. At that point in time, people were very uncertain that they would be able to get five votes from the Supreme Court then to uphold affirmative action. And the they only did by one vote.

It was a five four vote. So I think that there is some hope that again by doing some very good lawyer lawyering and making a very fact specific argument, that you might be able to convince some of the justices that they should keep affirm of action in place. It's either going to if they're able to do that right now. My guess is you'll either do it by some very careful, careful factual lawyering or else by getting

them to agree that they shouldn't overrule the precedent. So I'm gonna be looking very carefully whatever they say in the Mississippi abortion case this year about how they treat precedent, because that's going to give us some good guide posts for how they are going to treat the precedent in this affirmative action case, and it will um let us know how they think they have to look at it. So it's going to be very interesting, but that I think that it's going to be a difficult road to

get there. This term, the Court is considering toppling as you refer to the landmark Roe v. Wade abortion rights decision. It's likely to expand Second Amendment gun rights and restrict what the e p A can do against climate change. So this case is not going to be heard until next term. As we've discussed before, the Court might not want to have too many at least Justice Roberts might not want to have too many controversial decisions in one term.

So might the justices have been considering that when they took this case not for this term but for next term. I believe that they absolutely did that June, because they have their meetings on Fridays, their conferences on Fridays, where they make decisions about what they're gonna do with petitions

for Sir Frarri. Well as Friday, they announced that they had granted sert in a different case, and they set that case with an expedited briefing schedule and said that argument in that case would occur in April of this year, this term. And then on Monday they announced that they had granted Sir Serrari in the Affirmative Action case and

several others that they will hear um next fall. So they made a conscious decision that hey of these cases were granting certain we definitely don't want to hear the affirmative action case this spring. Now you could there are other there are other um reasons you could say they didn't want to hear the affirmative action case this spring.

They didn't want to put it on an expedited briefing schedule because there's going to be a ton of um amikus briefs that are going to be filed, and they don't want to put that kind of pressure on all the amiki. But I think that the more likely reason is they know that they're going to be um on doing un precedent this term, and they don't want to undo too much precedent at one time. I just want to ask you, eight states, including California, have banned the

consideration of race in college admissions. Isn't that contrary to Supreme Court doctrine? Well, what the Supreme Court doctrine says is just that universities may consider rate. Doesn't say they must consider rate. It just allows you to do it under the constitution. So those states where it's disallowed, there has been a state law that says, well, in our state, you may not do that. So it's it's not really contrary. All the time, states disallow things that would otherwise be

allowed under the federal Constitution. And what's interesting is that in those states, June, we see what happens when institutions are not allowed to consider race and admissions, and what we see is that the person images of black students go down. That some of the universities are able to keep their overall percentage of minority students maybe the same, but the percentage of black students goes down. Thanks Audrey.

That's Audrey Anderson of Basparian SIMS. Some New York school districts abandoned mask mandates after a Long Island judge declared them unconstitutional on Monday, but by the end of Tuesday, the school districts were told to put the requirement back in place, as New York Governor Kathy Hokel appealed the ruling and an appellate court judge temporarily stayed the Long Island judges ruling. This is the latest whipsaw for parents

trying to navigate the pandemic with school aged children. State Education Commissioner Betty Rosa acknowledged the burden and thanks school communities for their patients during this process. Joining me is Bloomberg Legal reporter Bob van Voris tell us about the ruling of the Long Island judge about the governor's mask

mandate sue judan. On Monday, judge in Nassau County on Long Island, New York named Thomas Radamaker ruled that the States requirement for people statewide to wear masks indoors in settings where it's impossible to socially distanced. He ruled that that that regulation issued by the state Health Department was basically akin to passing a law, and that's the Health Department doesn't have the authority to pass laws that the state legislature. So he ruled that the regulation was void.

And this came as news on late Monday, kind of throwing school districts and and other people into a little bit of chaos to kind of figure out what they were going to do the next day with students reported to school. Was this because the state legislature had had

given Governor Cuomo special authority and then took it back. Well, that was one of the reasons the state legislature gave Governor Cuomo emergency powers, and of course Cuomo had to leave office and his lieutenant Governor Kathy Hocol is now the governor. In December, her administration, through the Health Department,

issued these regulations. But as you say, the legislature had kind of scaled back the powers that it had given Cuomo to deal with an emergency, and you know, also for Hoco to use when she became governor, for her to deal with an emergency. So the judge, Judge Radmaker said the you know that HOCO didn't have authority to issue these regulations, and that certainly the Health Department on its own, without authority from the legislature, didn't have the

ability to institute this requirement. Redmaker told HOCAL and the Health Department, Look, if you want to put this into place, you've got to go to the legislature. You've got to ask for law, and you know, sign it into law, and then you cut your requirement. Do you know how it's been handled in other states? Because health regulations are usually handled at the state and local level, and with vaccines, the Supreme Court seem to indicate that's where they should

be handled. Yeah, that's exactly right. I mean, regulation of health is a state and local uh sort of responsibility. So we've got a real patchwork of different requirements throughout the states. The states like New York often run by Democrats that are imposing mass mandates vaccine mandates. There are states like Florida and Virginia where the governors are barrowing local governments from imposing those kind of man people. Also in New York State, you've got localities including New York.

New York City, which is the biggest of the mall and has the biggest school district in New York City, has its own mass mandate already, so you know, whatever happens at the state level is not going to displaced that, but it is going to make a difference for the for people in the rest of the state. Was New

York City's mask mandate challenged. New York City's mask mandate and vaccine mandate and various requirements for for people generally and for public servants has been challenged, and there've been a variety of rulings. Most of the mandates remain in place um and have been upheld by courts. But you know, it's, as I say, it's a patchwork. You've got on the mask mandate that the Long Island judge struck down. There's an Almany judge that you know, view the same thing,

the same requirement and approved of that. So it may be that it's going to you know, we're gonna have to wait for New York's highest court, the Court of Appeals, to rule on some of these questions before we have clarity. So where does it stand now? The state took an appeal where are they taken appeal to the state took an appeal to the second Department Repellate Division, which is accorded in Brooklyn that reviews cases from Long Island and

Brooklyn that surrounding areas. That court importantly issued a stay blocking Judge Rata Makers ruling, so the mass mandate remains in effect at least until Friday, when they're going to hold a full hearing on whether to grant the longer stay for the time it takes them to hear the case, to read the grief and to come to a decision.

It's a decent bet since they granted the emergency stay until Friday, that the court is going to want to keep the status quo in place and to allow the mass mandate to remain rather than throwing things at the chaos. But we'll have to see how the full panel rules on Friday. It's a decent bed and because Long Island is generally more conservative with more conservative judges than the

Appellate Division in Brooklyn. That's right. And Judge Rumaker is someone who has been in office on the bench on the New York Truck Court bench for a couple of years. He ran as a conservative, although he also ran, as many judges do, Democrat and Republican lines as well, but certainly Nassau County, which is on the western end of Long Island, is known to be a Republican stronghold locally, Bob, do you know what school districts are doing? Are they

complying with the mandate? Still? At least initially, there was some confusion. Was unclear whether there was going to be a stay or whether Judd Radmaker's ruling basically through the requirement out. So they were a handful of school districts that were inclined anyway to want to get rid of the mandate, who told parents that their kids were allowed to come in with or without match, that it was optional. Um. There were other districts that we're fully behind the mandate

that said, hey, look we're going to keep this in place. Um. And and indeed, even if the state with scraw as the bask mandate, localities that want to impose impose it can continue to do that. Thanks for being on the Bloomberg Law Show, Bob. That's Bloomberg Legal reporter Bob Van Voris, 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, and at www dot bloomberg dot com podcast slash Law, And remember to tune into The Bloomberg Law Show every week night at ten BM Wall Street Time. I'm June Grosso and you're listening to Bloomberg