You're listening to Bloomberg Law with June Grasso from Bloomberg Radio. After four days of Supreme Court hearings, Judge Amy Coney Barrett is on her way to becoming the next justice on the Supreme Court. Barrett is an originalist like her mentor conservative icon Justice antonin Scalia, and she explained what
that means. I interpret the Constitution as a law, that I interpret its texts as text, and I understand it to have the meaning that it had at the time people ratified it, so that meaning doesn't change over time, and it's not up to me to update it or infuse my own policy views into it. As has become the Norman Supreme Court nomination hearings, Barrett refused to answer questions about her views on abortion rights, voting rights, same sex marriage, gun rights, and even on some very basic
legal principles. For example, does the prows and then have the authority to deny a person the right to vote based on their race. There was a lot of questioning about super precedents, generally meaning a case that's so well settled it can't be overruled. Judge Barrett defined several landmark Supreme Court cases as super president, such as Brown v.
Board of Education, which struck down school segregation, Marlbury versus. Madison, which established the principle of judicial review, and Loving the Virginia, which invalidated prohibitions against interracial marriage. But she said Roe v. Wade was not a super precedent. Cases that are so well settled that no political actors and no people seriously pushed for their overruling. And I'm answering a lot of questions about Row, which I think indicates that wrote hasn't
fall in that category. My guest is constitutional law professor Leah Littmann of the University of Michigan Law School. What's your general impression of her testimony. I think her testimony has been reviewing in small ways for people who know what to core. But she has studiously avoid saying anything about views or issues, and she's already expressed views. It's
become typical for Supreme Court nominees. But Barrett refused to answer questions on a host of issues, even some she's expressed personal opinions on the past, such as abortion rights.
Did she go further in avoidance than other nominees. I think she went further in the sense that unlike other nominees, she actually has expressed definitive views about whether Row is wrong and whether Row should be overruled, and so she doesn't have the ability to say I don't have views on that question, or you know, at the judge, I can't express views on them, given that her views are
already out there. And so it's this odd disconnect between her views being out there, Republicans assisting she doesn't have any views, and Democrat being unable or unwilling to question her about this she has already expressed. Let's discuss this theory of super precedents. Is there a generally legally accepted principle of what constitutes a super precedent that shouldn't be reversed by the Supreme Court. I think what people do accept is that there are certain cases that the Supreme
Court should not overrule. I think the court current legal test for what cases shouldn't be overruled involves considerations such as whether people have relied on that decision, whether they have shaped their lives around assuming that decision will continue to exist. The idea that precedents are not subject to being overruled merely because people don't disagree with them is
something new. She has used that idea to deflect question about decisions about decisions such as a burg A Fell versus Hodges on marriage equality or Griswald versus Connecticut on access to conteception. She said there's just no chance that
anyone would really frontily challenge those decisions today. But when she doesn't say the same about Row and Casey, she is making clear that in her view, on her understanding about what super precedent is, rowan Casey can be overruled, and she has explicitly called for their over ruling in earlier writings and appearances. I believe that even Justice Kavanaugh
called Rowe precedent on precedent. Yes, that's correct. So he referred to the Supreme Court decision and planned Parenthood versus Stacy. That was a decision in which the Supreme Court said they will not over rule roversus Wade. He called that decision precedent on precedent. That's the decision that described when precedents shouldn't be overruled. It is precedent on when other
precedents should be respected. She, however, has a view on precedent that does not track the Supreme Court precedent on precedent In Casey, her view seems to be that cases can be overruled as long as there are some people, or perhaps certain people, disagreeing with those decisions. I looked at her Law review article and she said there. In my view, however, super precedents do not illustrate a super
strong effect of starry decisive at all. So is that an indication that even super precedents are reversible according to her? I think that's right. In her legal writings as an academic, she indicated that court's refusal to overturn certain decisions were incorrectly decided could itself violate the Constitution. So she doesn't think the mere fact that his decision isn't currently being
questioned means that course shouldn't or couldn't overrule them. Far from this, she is instead using the concept of super precedent to deflect questions about certain areas of law. So from what she said and hasn't said about Row, can we conclude that she might vote to reverse Row. I think that that is a fair inference to draw from all of her prior writings and statements. Again, she has
signed newspaper as calling for Row to be overturned. In her academic writing, she has made clear that she thinks the decision is Row was wrongly decided and equally important. As a judge on the Court of Appeals for the Seventh Circuits, she has embraced rulings that really fly in
the face of existing Supreme Court precedents on abortion. She would have revisited a decision of the U. S. Court of Appeals that struck down an Indiana statute that required minors to obtain their parents to spent for obtaining abortions, and that statute did not contain what is called a judicial bypass provision, which allows minors to get a court determination that says you are able to make the decision about whether to have an abortion yourself and not notify
your parents. Existing Supreme Court precedent says parental notification requirements are constitutional only if they contain a judicial bypass pervision, and yet Judge Barrett was willing to say this Indiana statute might be constitutional even though it does not have a judicial bypass provision. So, based on her decisions about respect for Supreme Court president on abortion, as well as
her democt writings and advocacy, I think yes. All of the signs indicate she would overrule grow and other decisions protecting the right to an abortion. The Democrats focused on Obamacare throughout the hearings, and Barrett tried to distance herself from her past criticism of Chief Justice Robert's reasoning in the A c. A opinion. Did she succeed in explaining or showing that the case before the court now involves
severability and so her past criticism is not relevant. I think she succeeded in some respects and failed in others. One thing she said is that the current challenge to the Affordable Care Act does not actually involve the protection for pre existing conditions. That's incorrect. The current case before the Supreme Court asks the Court to invalidate the entire
Affordable Care Act, including its protection for pre existing conditions. Now, what she did say is that the legal question of sevorability, that is, whether the Court should invalidate the entire Affordable Care As if it concludes that the minimum coverage provision is unconstitutional. So that question is different from the part
of the Chief Justice's opinion she was criticizing. But what she omitted is that the very first question in this Affordable Care Act case that the Supreme Court is going to hear in November is the same question that she criticized the Chief Justice for answering back in two thousand twelve. The question is whether the minimum coverage provision in the Affordable Care Act is constitutional? The Chief Justice that it was,
and she criticized him for reaching that position. And that's the issue that the Court will take up in November. You said that if you know what to look for, you've got some hints. Are there other areas where you got some hints? About her philosophy? She called sexual orientation a sexual preference UM, even after editor Corono informed her about how that language is the meaning of LGBT couples. I think that UM and LGBT individuals. I think that
that is revealing in her approach to LGBT rights. I think her at answers on issues of law of democracy were also revealing. So she refused to say whether the Constitution or federal laws just the president the authority to unilaterally delay a presidential election. She also refused to say whether voter intimidation is illegal. She refused to answer Senator Clobuchar's question about voting rights in the pandemic, and whether it was a threat to access to voting rights to
force people to vote in person during the pandemic. And I think all of those answers, as well as some of her answers on other matters of reproductive justice, such as refusing to say whether in vitro fertilization was manslat or um, we're revealing to the kind of judge and justice that she is going to be. Barrett has embraced the judicial philosophy of a originalism and textualism of Justice Antonin Scalia, whom she clerked for. What does that tell
us about her philosophy as a judge. I think her commitment to identifying herself with Justice Scalia tells us a lot about how she will vote on matters of reproductive justice. Jice Scalia, of course, called for Roe versus Way to be overruled. He likened the decision to the Supreme Court's Information decision and dread Scott forsus Stanford that held that the Constitution did not allow Congress to do anything about
the institution of slavery um. It also brings her back to the Affordable Care Act, because, of course, Justice Scalia would have invalidated the entire Affordable Care Act in two thousand twelve, and so her identifying herself with Jfice Scalia's dresprudence calls to mind both of those key areas of law. Senator John Cornyn said, predicting how you might rule in a particular case, is that even possible? And she replied
it's not possible. Are there ways to predict how justices will rule in a particular case or are we surprised enough that there aren't those ways. I think on some cases it might be difficult to predict exactly how justices will reach the results they do, and perhaps another case
is difficult to predict how they will vote. But the reality is that in most of the high profile ideological cases that these confirmation hearings are focused on, the political party of the president who appoints a justice is extremely
predictive about how a justice will vote. In fact, the Republican Party promised in its platform to only appoint justice who would overturn ro versus Wade and who would not vote to a foldy affordable care at if the chief Justice is and who would also question of burg offal versus conjects on marriage equality and they seem to think, the Republican Party, that is, that they can so le justices who will do those things they have promised to do.
That Senator Josh Holly that he would not vote to confirm any nominee who he was not confident would not overturn Roe versus Ways, and he is confident in voting to confirm Justice Sit to the Supreme Court. So I think that Senator Cornin statement is out of death with the Republican Party understanding about how the selection of justices works and the reality about how the justices have voted
in high profile and theological cases. So, when you have a nominee like this, who is very bright and has judicial experience, she's been a law school professor for decades, she is qualified? Is she not? She is qualified for the court? Is it harder to attack her because she is seemingly qualified for the court? Well, she's qualified in the sense that her credentials make her eligible to sir on the Supreme Court. But I think it's also safe to say that she has expressed views that are out
of death with a majority of the United States. And also, and equally importantly, that her appointment itself is happening in a very unusual process, and so I think that the Democrats would be on strong ground pointing out that the appointment of a justice to the Sistreme Court as an election is underway after the Republican Party a Republican Senate has said justice should not be confirmed in an election year and blocked President Obama's not me during an election year.
Those are very valid basis for opposing a nominee whose views on the law of democracy and reproductive justice are but very well known and also out of step with where a majority of Americans are today. This question, too is how much can you get from a judge writing a dissent. She wrote a dissent in a case where the court ruled that a felon did not have the right to get a gun in she her discent was
he should have the right. So tell us about that descent and whether you can really read so much into a judge's descent. I think that descent is important for two reasons. First is it does make somewhat plain that her approach to the Second Amendment is more conservative than the majority of the Supreme Court. In the Supreme Court's
decision in District of Columbia versus Power. Portions of the opinion indicated that the federal government and state governments could restrict the possession of firearms by persons with felony convictions. They noted that those prohibitions were long standing and likely constitutional. Judge Barrett, however, disagree. Equally important is what Judge Barrett
said in that decision about voting rights. She went out of her way to note that the Second Amendment is an individual right and different from the right to vote. That is, she said the federal government couldn't prohibit all persons of felony can actions and owning firearms, but it could prevent persons of felony connections from voting. She called the right to vote not an individual right but diyok
right limited to virtuous citizens. And that is revealing not only about her views on voting rights, but also about her willingness to go and decide issues that aren't directly before the court. She didn't have to weigh in on the scope of voting rights and a decision about the constitutionality of restrictions on firearm possession. Thanks for being the
Bloomberg Lawn Show, Leah. That's Professor Leah Littman of the University of Michigan Law School, Microsoft and Wales Targo pledged to double their ranks of black leaders within five years. In response, they received letters from the US Labor Department asking how they would meet that commitment without discriminating on the basis of race. My guest is Samuel Baginstas a professor at the University of Michigan Law School. He served in the Jealics Departments Civil Rights Division. So what's the
difference between affirmative action and discrimination in hiring. The phrase affirmative action really covers a whole lot of ground and sometimes a little bit confusing and misleading to to hear the phrase affirmative action. And it's core what it is is the idea that you want to make sure if you're running a business or a school, if you're an employer or whatever, you want to make sure that you're taking actions that don't unnecessarily exclude people based on their
race or their sex, etcetera. And so you're taking steps to see the results of the actions you're taking and try to ensure that you get a sufficient representational qualified people in various positions. And so where this comes from, particularly in the employment setting UM is actually an executive order that Lyndon Johnson's side in nineteen five that explicitly
ties affirmative action to non discrimination. Says employers have to take affirmative action to ensure that applicants and employees are treated without discrimination. So it shows if firma of action doesn't mean quotas. It doesn't mean, you know, putting a
thumb on the scale for unqualified people. What it means is just making sure that you're not discriminating, and you know, consulting the results of your actions to check whether you're DISCRIMINATET So, Microsoft and Wells Fargo pledged to double the ranks of black leaders in their companies within five years. That was a target. Was there anything that you see
that was wrong with them saying that? You know, if what they were doing is saying, no matter who applies, no matter what our pool is, you know, we are going to get to a certain number or certain percentage of African American managers. You know, that would very likely be a violation of the law. But that doesn't at all look like what they're doing. UM. What they're doing instead is saying, look, this is a goal we have. We have a goal of doubling our our percentage of
African American managers UM. And those kinds of goals are really well entrenched in the law UM. And if you look at the programs that that Microsoft and Wales Fargo are adopting to make those goals real, you know, what they're doing is very very much in the realm of non discriminatory stuff. You know, they're working to expand their recruitment, to expand their pool. Uh, you know, exactly the kind of thing that we would want them to do to
avoid discrimination. I think, you know, one interesting aspect of both Wells Fargo and Microsoft is that the very agency of the Department of Labor that has just sent them letters suggesting that they might be violating the law by setting a goal of improving minority representation and management. Just a couple of months ago, that same agency found each of these companies libel um for discriminating against African Americans
in different ways. And so, you know, we have a pattern of past discrimination by each of these two companies that they're trying to overcome down. I think that's you know,
something that they should get credit for, UM. But instead the Department of Labor is, you know, is acting in a sort of maddeningly inconsistent way, first whacking them for discriminating against African Americans and then threatening to whack them for trying to do something about in that the settlements, which were recent Microsoft paid three million dollars, Wells Fargo paid seven point eight millions. They did not admit that
they had discriminated. Was it the Labor Department in the Trump administration that initiated that investigation into Microsoft and Wells Fargo? So it was it was the Trump administration that worked out the settlements. Um, but I believe the investigations were going on before the Trump administration. But you know, I think that just highlights, uh that what's going on here is as much about Trump as it is about just
kind of straightforward enforcement of the law. I mean, it's not surprising that less than a month before the election, where the Trump administration is trying to gin up culture war issues, particularly around race. You know, you see this shot across the bow at two very large corporations. At the same time roughly that you see the you see the Trump administration suing Yale for its affirmative Action program
and admissions. At the same time roughly that you see this new executive order from UH from President Trump that forbids federal contractors from doing certain kinds of diversity training that allegedly scapegoat or stereotype white people. Um, right, all of this is of a piece. It's it's all really political much more than it is about law enforcement. How odd is it that the Department of Labor sent out
this letter to these two companies. It's odd that the Department of Labor is UH is asking these companies to justify actions that are very much the kind of actions that the Department of Labor's Office of Federal Contract Compliance Programs was set up to encourage companies to do. I mean the office of the Department of Labor that sent this letter. Their job is to encourage federal contractors to adopt affirmative action programs very much like the ones that Microsoft,
often Wales, Fargo have adopted. And the idea that they're going to turn around now and say, oh, but once you've done that, that raises suspicions that you're violating the law. You know, it's just perverse and so so that's odd, and it's not odd that they send an investigated letter in general, that's how they open an investigation. But the substance of this investigation is very odd. Um, can the government just demand this information from federal contractors when there's
no formal complaint. Well, you know, there have been a lot of fights recently over the Department of Labor's authority UM with regard to investigations uh in in in this precise area, and I think there's some lack of clarity.
I think, you know, from the perspective of the Department of Labor, they've taken the position for a long time that they don't need a complaint uh to demand information, that this is part of their role in making sure that federal contractors are complying with the terms of the federal contract that require them not to discriminate and in
fact to provide affirmative action. Again, you know, I think what's what's weird here is much more the substance of what they're asking about than the process and tell us about the Trump executive Order. So, a couple of weeks ago, President Trump signed an executive order which has this very
innocuous title combating race and sex stereotyping. But what the executive order does is it forbids federal contractors from conducting workplace diversity and inclusion trainings that either promote race or sex stereotyping or promote race or sex scapegoating. And these terms race or sex stereotyping and racor sex scapegoating are defined on in the Executive Order in such a way that any training that teaches about the concept of white privilege,
for example, would violate the terms of the order. Any training that teaches that people of particular races might have more unconscious or implicit or even explicit bias um with regard to other races might be in violation of the order. So it's really designed to stop this whole apparatus of workplace diversity and inclusion trainings UM. And again it's one of these culture war issues that President Trump, I think sees as a way of kind of promoting his re
election among his base. Labor Department created telephone and email hotlines to report what you said offensive and anti American race and sex stereotyping scapegoating. Is that unusual for the for the Labor Department of hotlines like that, Well, you know, I think the Labor Department, like other federal enforcement agencies, will create hotlines when they when they're placing a very high priority on an enforcement issue, you know. And so I think it's just a sign that they are putting
a priority on this. And and look, if they were to wait for written complaints, uh, they probably wouldn't be able to issue any press releases before the election about you know, diversity trainings they've taken down or threatened to take down. And so you know, if this is significantly about the election, much more than law enforcement in general, then you would expect them to have a hotline like this. Uh.
You know. So again I think I think it's really something you have to look at in the context in which the Trump administration is acting. This is not just a technocratic law enforcement action. This is really about three weeks before the election and the Trump administration is taking a bunch of steps to try to do what it thinks will motivate its base. But what happens if Joe Biden wins the election. Can these executive orders and the
various enforcement efforts by the Labor Department be turned around quickly? Yes, they could be turned around very quickly. So, I mean the executive order could be eliminated with the stroke of a pen. It's just another executive order to rescind the Trump executive order. That's all that would be necessary. Uh, these investigations of Microsoft and Wells Fargo and any other
companies that are out there. Uh, you know, all it would take is new leadership in the Labor Department taking a look at the facts and saying, you know, on the facts, we don't really think there's a violation here. And now I think a responsible new administration that came in would look at the facts and and make a decision based on that rather than just sort of reflectively saying anything Trump did was bad. So so we're reversing
everything Trump did. But you know, from the looks of it, the facts suggest that there's not really a violation here, and what's really going on here is politics. And if that proves to be true, and the new administration finds that, they could end the investigations very quickly. Has the Labor Department in its outlook or enforcement changed under Eugene Scalia? Well, I think you know what we've seen under Eugene Scalia is uh much more centralization. Uh in the Secretary's office.
Send in people close to the Secretary's office at the Labor Department. You know, he's been a very strong Secretary of Labor, uh in the sense that he really takes
responsibility for running all of the department. Um. You know, and so I think there had been some concern under the prior secretary by folks in the Trump White House that may be the agenda of the Trump administration wasn't being effectively implemented, uh, in part because maybe Secretary Acosta wasn't as fully on board with the Trump agenda, and maybe in part because he wasn't as strong in terms
of managing from a centralized management perspective. But Eugene Scalia has shown that he's a true member of the Trump team and that he is a very effective manager to implement the Trump agenda throughout the Lated Department. Do you think it's wiser for CEOs of these big companies not to announce targets for hiring, Well, I think that's what the Trump administration is trying to suggest with these actions, UM.
And I think that would be a real shame, because, you know, it certainly looks like from the Trump administration's perspective, if you announce that you have a diversity goal at some point in the future that that it's going to create a target of a different type is to effectively paying a target on the back of the company um
in a Department of Labor administrative investigation. And what that would do then is discourage employers from taking the actions they need to take to make sure that they're not unnecessarily excluded and qualified people based on their race, you know. And that's you know, from the beginning of the Affirmative
Action Executive Order in nineteen sixty five. The whole point of this order and of this agency within the Department of Labor was to encourage employers to take a hard look at themselves and see whether what they were doing was excluding qualified people based on race. And and the goals are a core part of that. They're not quotas, They're just a way of, you know, seeing how far how far a company is from where it would be if it were acting fairly, and a spur to taking
actions to remove unnecessary barriers. And that seems to be again what Microsoft and Wells Fargo are doing here. And I think the signal of the Trump administration is sending is a scary one because what it would do is discourage efforts to integrate American workplaces and to integrate the management ranks of American workplaces, because remember that's really what
these investigations are about. We have companies who said, you know, three percent of our managers, six percent of our managers are African American, thirteen percent of Americans are African American. Looks like there's something wrong here. Let's see what we can do. What what are we doing that's stopping people from being hired and advancing and employment to get to that point. If we're committed to equal opportunity, that's something we should want employers to do. Thanks for being on
the Bloomberg Law Show. That's Samuel bag Installs, a professor at the University of Michigan Law School. And that's it for the edition of the Bloomberg Law Show. Remember you can always get the latest legal news by going to our Bloomberg Law Podcast. You can find them on iTunes, SoundCloud, or at Bloomberg dot com slash podcast Slash Law. I'm June Grosso. Thanks so much for listening, and remember to tune to The Bloomberg Law Show every weeknight at ten pm Eastern right here on Bloomberg Radio.