This is Bloomberg Law with June Brusso from Bloomberg Radio.
Let me be get by saying, I know there are millions of Americans, millions of Americans this country who feel disappointed and discouraged or even a little bit angry about the Court decision today on student debt, and I must admit I do too.
For the second time in one week, President Joe Biden criticized a decision of the Supreme Court on Friday, saying the Court misinterpreted the Constitution when it tossed out his plan to forgive the student debt of more than forty million Americans.
I believe the course decision to strike down my student debt relief program as a mistake was wrong.
The Justices, again voting six to three along ideological lines, sided with six Republican led states that sued to challenge the roughly forty billion dollar program. Writing for the Court's conservatives, Chief Justice John Roberts said the administration was seizing the power of the legislature, echoing what he said at the oral arguments.
I think most casual observers would say, if you're going to give up that much amount of money, if you're going to affect the obligations of that many Americans on a subject that's of great controversy, they would think that's something for Congress to act on.
Justice Elena Kagan wrote for the three liberal justices in dissent and said, it was the Court that was making national policy in place of Congress and the executive branch.
Congress used its voice in enacting this piece of legislation. Oh, this business about executive power, I mean, we worry about executive power when Congress hasn't authorized the use of executive power. Here, Congress has authorized the use of executive power in an emergency situation.
My guest is constitutional law expert Harold Krant, a professor at the Chicago Kent College of Law. The key here was whether any of the challengers had or a stake in the case. Did the Chief Justice use a sort of attenuated theory to find standing here?
The Chief Justice decided that the Loan Processing Agency from Missouri was the only entity amongst many that had standing to contest the student loan forgiveness of the Biden administration, and the Court reason that the loan Processing Agency stood to lose forty million dollars that the processing agency was part of Missouri, and that traditionally any kind of profits that the agency acquired were used to fund education programs
in Missouri. And in part I'm sympathetic to the theory, and I think under federal law that the equivalents of the Loan Processing Agency and Missouri for purposes of a
lawsuit would have been upheld. But I think that the dissent made a very strong argument that though that quite counts this way, that under Missouri law that the loan Processing Agent she was distinct from the state, and the Descent noticed that the Loan Processing Agency did not file suit, the Loan Processing Agency was incorporated separately, and that given those indisha for the purposes of Missouri law, that you could treat the Loan Processing Agency as being a separate entity,
and because it didn't suit, the court should not have taken this case. So I don't think this was a clear cut case. The court did not say that any other entity had standing, and it made at least a colorable claim for the fact that this agency was sufficiently connected to Missouri in order to bring forward the case. Though I think the Descent could have even been on stronger ground by analyzing Missouri law in greater depths, which the majority failed to do.
Once again, we're hearing about the major questions doctrine. That's a new legal concept that the Court has used to limit the power of the executive branch. How did Roberts use it in this case?
He used to hear it by saying, there are two words in the statute that were key. And the statute that was enacted in the wake of nine to eleven gave the power to the Secretary of Education to waive or modify student debt obligations in an emergency. The emergency is COVID, and so the question is whether canceling up to twenty thousand a debt per individual, does that constitute either a waiver or a modification. I think the Court was clearly right in saying it wasn't a modification. And
then the question is what about waiver? And here I think you can look at it in two different ways. To the majority, the idea of a waiver is sort of more of a modest effort to look at a procedural requirement, look at a timing issue, maybe include forbearance for a while. But the idea of waiver is simply
cancelation and to back it up. The majority says, look, if Congress wanted to allow the agency to create a new rule, namely the loan cancelation that would affect forty million people and for four hundred billion dollars, it would have said so clearly. But that is how the Court employed the so called major questions doctrine to say that, you know, Congress needs to make these kinds of decisions if it wants to have the Ministry of Rule of
such vast importance. And the Descent retorted and I think, well, it's like, look, this is emergency legislation. In an emergency, when the Secretary of Education has to face it, they have to take steps that are going to make radical changes. And indeed, what I felt was very well put by the Descent is that the power to even forbear alone, in other words, to say don't pay it back for a long time, already cost the government one hundred billion dollars.
So even forbearance, which I think everybody would agree had been used by both the Top administration and the Biden administration, would have been consistent with the statutory scheme. So is
cancelation that much more? But the majority it was one step too far, they were okay with forbearance, but they drew the line the idea that by waving a requirement, Congress did not intend that the Department of Education could actually canceled debt for so many people with such a large impact on the economy.
During the COVID pandemic, the Court thwarted Biden's agenda several times on the rent moratorium, on trying to get people vaccinated at large employers. I mean, this was expected, wasn't it, no matter what the price tag of the program was.
If you think about the billions and trillions of dollars that Congress passed for relief in the COVID era, this idea of being able to cancel four hundred billion dollars a debt doesn't seem as extravagant as the majority would make it, but it is significant. I think we have to recognize that that's a huge impact upon our economy. And I think the answer in this case boils down
to one's view of administrative power. If one thinks that Congress traditionally has given administrative agencies the power to change for the times, to evolve and respond to emergencies as in this case, then the idea of the congressional delegation of authority to modify and waive prior requirements in the emergency empowers the agency to make that judgment subject to a congressional override, and that would be the position that
the dissent took. On the other hand, if you're suspicious of administrative power and don't think that administrators should make decisions that has such a wide impact on the economy, then you'll read delegations more narrowly and say Congress could not have conceived that the agency could have wielded such vast authority to the extent of a four hundred billion dollar impact on the economy. So what's the stake here is just your view of the wisdom of administrative agencies.
As you mentioned, Robert said, the administration was seizing the power of the legislation by trying to cancel so much student debt. But isn't the court seizing the power of the executive branch and the legislature by throwing out the plan?
Well, that's precisely what the Ascent charged, and indeed they were pretesting in this case, and they've been civil in some cases. But Jessic Kagan and Chief Justice Roberts exchanged pointed barbs in this case, which doesn't bode well for their ability to get along in the court in the future. Maybe it is good that they're taking a break right now. But yeah, I mean to the dissent. Congress made the call.
We want the agency to have the discretion in emergencies to take steps that are important in order to help preserve individuals who were settled with student debt. And so the Congress had made the call, and the agency, which is acting consistent with that delegation of authority.
Okay, hell, you're going to stay with me. Coming up next on the Bloomberg Law Show, I'll continue this conversation with Professor Harold Krant of the Chicago Kent College of Law, and we'll talk about a third decision down ideological lines that dealt us setback to LGBTQ rights. I'm June Grosso and you're listening to Bloomberg. On the last day of Pride Month, the Supreme Court's conservative majority delta setback to LGBTQ rights in this country. In another six to three
vote down ideological lines. The court rule that a Christian website designer doesn't have to create wedding pages for same sex couples, carving out a free speech exception to Colorado's anti discrimination law, a distinction brought out by Justice Brett Kavanaugh during the oral arguments.
How do you characterize website designers? Are they more like the restaurants and the jewelers and the tailors, or are they more like, you know, the publishing houses and the other free speech analogs.
Swords Three liberals blasted the ruling, with josh As Sonya Sotomayor saying in her dissent that this is a first for the Court.
This would be the first time in the Court's history correct that it would say that a business open to the public that it could refuse to serve a customer based on race, sex, religion, or sexual orientation.
I've been talking to Professor Harold Krant of the Chicago Kent College of Law. Hell, how much of a blow is this to LGBTQ rights.
First of all, it's a symbolic blow. There's no question that the fact that the Supreme Court is putting its stamped in some ways on discrimination, just a couple of years after Overfell recognized the constitutionality of gay marriage is definitely a body blow. In terms of making a practical difference, that's a little bit unclear. I mean, why I think this case reveals is the lack of wisdom of taking a case pre enforcement that the court didn't need to take.
In this case, the web designer has never designed a website yet for a marriage, has never been asked to do a website for a gay couple, and we don't know if that she ever would be asked to do a website or gay couple. The court simply didn't need to get involved in this case, and in general, these kind of pre enforcement cases where there are murky issues lingering, courts stayed their hands. So the fact that the court took this case, I think it is lamentable and it
may end up with very unfortunate law. The difficulty in my mind in this case is where is the expressive conduct. The court has assumed that creating a website has a lot of First Amendment content to it, and indeed it relied upon a stipulation, kind of an admission by the State of Colorado that there was expressive conduct at play here. I don't see it. Maybe there would be in some context, you'd have some kind of First Amendment interests involved here
in which case of first Amendment might arise. Generally, I think the presumption strongly should be that when you are incorporated, you must act to give goods and services to the public, just as you would if you're a restaurant or a hotel or a gas station. And so the court waded into very tumultuous waters really for no reason.
At all in my view, what's the line What other establishments can find a way to refuse service to gay people by saying it's expression right and.
We don't know? And that's the point that I think is really frightening about this case. What if you're a caterer, what if you're a photographer for the wedding set designer? Right to what extent then you can say, I have my gifts here, I have my creative energies. I don't want to use those to help a message to which I just agree. And that is the tricky line that
the court has set up. And it didn't give any kind of guidance really to lower courts to figure out when that kind of expressive conduct should be protected and when it shouldn't. And I'm concerned because again creativity that was intrinsic to web design is prefin in my view.
I mean, the Court has opened a can of worms in trying to reconcile public accommodation laws with the expressive viewpoint of those who are required to engage in business and not discriminate on the basis of sexual orientation, race, religion, and sex.
This is supposed to be about speech rights. The Court took it and said we're going to consider speech rights, not religious rights. But it seems like it's just another in a long line of decisions where the Roberts Court puts the rights of religious groups and individuals ahead of every other right.
I mean, again, the Court explicitly did not address the religious aspects of this, but I do agree with you that the court probably would say now as opposed to in the decide of the Masterpiece cake case. You know five or six years ago that if the website designer had ref use to work with the gay couple for religious reasons, they might have even had a stronger case. But what is troubling here is it's not just limited to religion, right. I mean, we can have First Amendment
disagreements with Zionists, with Muslim organizations. We could have First Amendment disagreements with direct to life movement. Who knows where this could end up. And the idea of a public accommodation law is take your First Amendment views elsewhere, and if you engage in business in the public, for lodging and for dining, in construction or whatever, put your own thoughts to the back, because here we are engaging in public commerce, and that's what Colorado had decided.
Some say that this ruling could undercut protections for racial minorities and women as well as LGBTQ people. Could it lead there?
I mean theoretically it could. I mean if someone says, I have this view that interracial marriage is wrong, or I have this view that of the day at ventice are evil and so I don't want to work with seven day eventics, that's possible. It would come within the scope of the court ruling. The court simply did not delimit carefully the scope of its decision by saying there
has to be exceptions to these public accommodations law. And I think that we can all imagine how friending would be if from builders to restauranteurs to caterers could simply refuse to cater the particular clients because of a perceived disagreement with their philosophies or religions.
And there was another decision last week involving religion that didn't get as much attention because of the week that it was. So this involved a part time fill in postal worker who doesn't want to work on Sundays for religious reasons. And in this latest religious confrontation case, the Supreme Court has solidified protections for workers who ask for religious accommodations. Gerald Groff quit when the Post Office would not accommodate his request to be on on Sundays for
religious reasons, and then he sued the post Office. Groff told ABC News it was important to him. I told my supervisor, it's the Lord's day, it's not the Lord's morning.
It's not supposed to be like the other six days of the week.
Why not just pick a different job that allows you to work on different hours in different days.
I didn't really think I should have to quit. I really expected the Post Office to find a way to accommodate me. Hell tell us about his case.
So the postal worker became a Sabbathae server on a Sunday and told the post office his employer that he wanted to have Sundays off for religious observance, and they tried to accommodate him in various ways by agreeing to swap shifts and occasionally the postmaster himself would deliver the mail, and it worked out until Amazon made an agreement with the postal service to serve parcels on Sunday so that their work picked up a great deal, and these shift
swaps were no longer sufficient, so the employee complained and refused to go to work on Sunday is As superiors did not make any further accommodations, he was subject to discipline. Eventually, then he resigned, and he claimed he was forced to resign basically because they wouldn't accommodate his religious Sabbath observance.
And this case requires an assessment of what is the extent of an employer's duty to accommodate a sincere religious observance, And the court unanimously held that the standard used by at least some courts of appeals had been too employer friendly. Some of the courts of appeals, including the Third Circuit in this case, had looked to language in a prior Supreme court case called Twa versus Tartisan, which said that any kind of cost above deminimus would be considered to
be an undue burden upon the employer. And not all courts used the standard, but some did. Other courts looked to a different language and the same twa versus Hardest in case to have a more demanding standard on the employer that the employer couldn't just refuse to accommodate based upon some kind of minimal expenses in terms of overtime pay or not agreeing to give swapshifts or something along those lines.
And tell us about the Court's decision.
So the Supreme Court unanimously decided that an undue burden means more than just deminimous expense, rather that it must result in the words of the Supreme Court in the substantial increased costs. Now, it's low vague. The Court hasn't clarified exactly what our substantially increased costs. But the Court did give a couple of different guidelines. The Court said that the employer can respect a bargain for seniority rights. It doesn't have to infringe upon seniority rights that would
be an under burden or substantial costs. The court also said that it's not enough for the employer to show that other employees don't like it. The Court made a very fine distinction here. What they said is that just because another employee doesn't like the fact that someone's religion is being accommodated, doesn't like the fact that somebody gets Sundays off to go to church while they want to
stay home with family, that's not sufficient. Rather, the fine line drawn by the court is when the impact on other employees becomes so great as to burden the ability of the employer to actually conduct the business, then that would be an undue burden under Title seven, and the employer doesn't have to go beyond that. The other thing that the court clarified is that having to pay over time to other employees to pick up the shift, that's
not an under burden in itself. Maybe at some point it would be, but just by having to pay some kind of overtime that wouldn't be demanding. And indeed, in this case, it's not clear that any kind of overtime would have been that significant in the long run. The court remanded it back to the Third Circuit to decide under this slightly more stringent standard than the court had used below. Unclear in my mind how the third Circuit will resolve on Remand this is a.
Case where there was tension in the postal office where Groff worked because of what was happening, and they did have to pay overtime. Is the court clear on what else you would need to create and undo hardship? I mean that sounds like the business is really being affected by this.
Yeah, the court was not clear. And the part that I, as a past employer, sort of wonder is how do you draw a line between a disgruntled employee staff and the staff that's not being productive because they're upset with these distractions? And when is that an impact on a business as opposed to just having an impact upon employees.
The two seem to me to be on the same continuum, and I think maybe it's just a matter of particulation that the postal service in this case would have to say, you know, not only did our employees not like the fact that we're giving this benefit to one of their own, but rather that they started having fights, they started losing focus on their responsibilities, they didn't come to work in protests, and we are unable to continue our operations as smoothly
as possible. That's the line I think that the court is demanding that the employers say not just that employees didn't like it, like a Heckler's veto, but rather that it's so affected the employee's cohesiveness and work that they were not able to function as a good post office should.
Just as Alito said, the employer must show the burden of granting an accommodation would result in substantial increased costs in relation to the conduct of its particular business. Well, how do you define substantial?
That's going to be fleshed out in the Courts of Appeals below. And this is not that different of a standard than what some courts of appeals had used, but some courts again it just latched on to that deminimous language in the prior Supreme Court case to give employers a relatively easy pass in terms of the duty to make an accommodation. So clearly this is a more stringent standard.
Employers will have to give slightly broader accommodations than they have in the past, But the extent of the difference is really difficult to gauge. At this point.
Is it surprising that this was a unanimous decision.
I don't think it was surprising. I think that it was left so vague that the new standard could grab everyone one's approval. And I think there was a consensus that the more than the minimus standard that some courts had used to Luke's was to pro employer. So the court was able to agree unanimously that the standard would
have to be toughened to a little extent. But the question is how much of an extent, And we just don't know because the language of substantial impact on an employer substantial costs is very difficult in the abstract to identify.
During the arguments, the Postal Workers lawyer said, under the government's test, a diabetic employee could receive snack breaks under the ADA Americans with Disabilities Act, but not prayer breaks under Title seven. Does this equate snack breaks for a diabetic employee with prayer breaks for a religious employee.
Well, the court was clear that it would not adopt standards under the American Disabilities Act in this opinion, but I think it does suggest that an employer would have to think twice before they said no prayer breaks, because In some workplaces you could take short prayer breaks without having it really affect the smooth operation of a plant. But in some a short prayer break would actually cause
the entire assembly process to break down. So it again, it would be a context specific determination of what the impact of the prayer break would have on the operations of the employer. And it'll give lawyers for employers more reason to collect evidence and assess how an employer needs
to join the business more than they did before. So the duty will be or the burden will be on employers that come up with reasons why they can't allow someone to take a prayer break or can't allow someone to stay at home on a Sunday.
So last term we have had the high school football coach who insisted on praying right after a game on the fifty yard line and the Supreme Court okay that I can't remember the last time a case with religious implications was denied by this court.
Now, this court clearly is far more in favor of having a large space for religious observance than prior courts were. And we're going to see a school funding case next term which will manifest this to even a greater extent, because the extent that we have now charter schools that can be religious, we are having direct funding of religious schools in a way that we only permitted indirect funding before.
But that's for a future court this term. I don't think this case came out as a surprise because, as you mentioned, the trend has been towards greater need to accommodate and respect religious observances of all in society has been a feature of this court and it sort of unites both the left and the right to some extent.
Do you think that we're seeing the crumbling of the line between church and state in.
Many people's mind. We are seeing that the clarity between the two certainly has has water down, and this idea of an establishment clause has been changed somewhat remarkably in they'll past couple of terms, because the Court is not so weary of government mixing with religion, and I think that usually means, unfortunately, that the dominant religion gets most of the breaks.
In the last week of the term, the Supreme Court's conservative majority ended affirmative action, struck down President Joe Biden's student loan relief plan, and delta setback to LGBTQ rights. And this is at a time when the Court has its lowest approval ratings and many Americans are questioning the Court and its authority. And there are the ethical concerns that have been raised lately about Justices Clarence Thomas and Samuel Alito, and the justices, of course are not held
to account. So are the conservatives sort of fearless now in pursuing their agenda.
Well, particularly the decisions in the last week of the term, I think have shivers up the spine of many individuals who are concerned about the drift of the Court. I will note that there have been some glimmerings in prior cases where the majority and dissent was not simply based
upon a conservative liberal divide. The court came together with respect to religious accommodations for the postal worker, the court came together with respect to the Biden administrations needed discretion in enforcement of the immigration laws, and of course the voting rights. The Court came together for that as well.
So there have been some cases where we think that the strong conservative liberal divide isn't despositive, But certainly in the last three big cases, firmative action, the gay rights case as well as student loans. That six ' three fracture appears way too deeply.
And it's usually in the cases involving culture war issues that we see that strong six to three conservative liberal divide.
No, I think that's right, though again you know there are indeed there was just about a United Court in terms of the Clean Water Act how to understand what is waters of the United States. And again there's a unanimity in terms of the religious employees need to get accommodated under Title seven. But when you talk about affirmative action, when you talk about LGBTQ, and we talk about this Major Questions doctrine, that's where the conservative liberal divide seems all too enscont some concrete.
And I'm wondering if there are cracks in the relationships between the justices, because justices, when they feel strongly about their descents, read from the bench, and this week Justice Sonya Sotomayor, two days in a row, read her descent from the bench, and in her descents this week she
didn't say I respectfully dissent, just I dissent. And you also saw the sort of dueling concurring and descents by the newest justice Katanji Brown Jackson and the oldest justice or the longest on the court, Clarence Thomas over affirmative action. Are we starting to see, you know, the disagreements that they've maybe been able to keep under wraps come to the surface.
I think there's a great deal of frustration amongst the justices. And again I was somewhat shocked see the animassi spillover between Chief Justice Roberts and Justice Kay in the student loans case, because they had had a somewhat better relationship than some of the other justices. So it's going to be a challenge to get this court to work together and to be convivial. And I guess there's a reason for mild optimism, but also a reason for a real continued pessimism that that's going to happen.
I suppose they have the summer to sort of cool down. Thanks so much for your analysis. How that's Professor Harold Krent of the Chicago Kent College of Law. 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, 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