Navy Can Reassign Unvaccinated SEALs

against COVID nineteen. A lower court judge had ordered the Navy to assign and deploy the sailors without regard to their unvaccinated status, but the Biden administration said that would jeopardize safety and mission success, given that seals often operate in tight quarters, including on submarines. My guest is Dorrit Reece, a professor at the University of California Hastings College of Law. What was the issue in this case before the court?

The question before the court towards there's a challenge to the Navy denial of religious exemptions to the maybe decided to refuse maddic to the claim TIFFs and lower court decided to stay the application of the method and order. The Navy not achieved them differently in any way. The Navy didn't want to deploy unvaccinated people, and the lower court refused to modify. The state refused to allow the

Navy not to deploy unvaccimate people. The Supreme Court was to decide whether the Navy may refuse to deploy unvaccinated people. There was no opinion for the court. Does the concurring oppinion of Justice Brett Kavanaugh tell us anything? Yes, it does so two things. First of all, it's very usual not to have a fully reasoned opinion on this kind

of emergency stake cases. As a reminder, the case hasn't been fully briefed or decided, and the question is should we uphold or overturn an emergency stake The Court usually issues this precordium, though sometimes it does add the short opinion. The concurrence tells us that for at least some of the justices, the main issue was how much difference to

give to the Navy decision who to deploy. The Court has a long tradition of deferring to the Navy's judgment and the military's judgment, as the Justice Cavano highlighted, and at least for some of it this is that was probably the issue here as well. A Secretary of Defense, Lloyd Austin, had urged the Court to remedy what he called an extraordinary and unprecedented intrusion into core military affairs that has no precedent in American history? Is he right?

Is there any precedent for a court stepping in and telling the military what to do? No? Well, let me qualify that there is a history of the court telling the military is sometimes to what to do, but there is no case in which the court told the military to deploy people that the military thought were not deployment appropriate. The Secretary is completely right that that's a very unprecedented intrusion into the militaries of her So is this basically

about the principle of separation of powers? Yes? I will add that there are some things in the descent that do raise questions. So the military acknowledges that there are subject to the Religious Free of Restoration Act requirements of only not respecting religious interests when it's a compelling interest in the list restrictive means, they still to have made it practically impossible to get a religious exemption and justice

a little is right. Within any other context, that would be seen as a problem as bad space application of religious exemption. And here too, by doing it so aggressively, the military created an appearance of not really taking seriously the religious exemptions. There are two parts to this. First of all, it might be worth a phonomakers to consider whether the Religious Feed the Restoration Act should in fact

applight of the military. This case was not under the first Amendment, which was under the Religious Preads Restoration Act, even for the descent, so there's a question should the Religious Feed the Reistration Act applied as a military. Second, if the Religious Freeministration Act does applies to the military, the military should at least assess religious exemption in good space. Considering whether deploying these people is appropriate is military discretion.

But not even considering religious exemption is tricky. If the military soldiers have to obey orders. If you allow soldiers to start questioning orders, what happens. So when it comes to soldiers, soldiers right are limited and they do have to obey orders. However, there are limits to that. Soldiers rights are limited while the stirs, but they're not completely out of the window, and there are some protection. In

this case. It would have have been a very different situation if the military is said the Religious with the Restoration Act does not apply to us and does not give soldiers this right. But the military didn't the military acknowledge that there's a right religious exemption, just didn't take it very seriously. The other part of this is also the question is what exactly do are we talking about.

So the main question is deployment decision in theory the military, what they say, we're going to fire these people for religious exemption or punish them. They were saying, we don't want to deploy people who are unvaccinated. At this point, there's a difference between sayings to the military you have to seriously consider religious exemption and say to the military you have to deploy people you think are unsafe. You could say you have to seriously consider religious exemption, but

you still have the discretion to decide would deploy. And it's not up to the court in any way, shape and form to tell you that people with religious exemption can do other things in the military stake take that. So, do you think that this was wrongly decided? Then I think this was rightly decided. I think the court was right to say the military gets decided who to deploy. However,

I also think that two things should be changed. First, we should consider whether it's appropriate for the Religious Freedom Restoration Act to also apply to the military. If we want to allow the military discretion, the Act probably shouldn't apply to them. And second, well, deployment decision should be military discretion. If the military says that it's giving religious exemptions,

it should probably take them seriously. Either make a case that you're you're don't have to give religious exemption at all, or take them seriously. I saw a head on it says the Supreme Court splits on whether Joe Biden is commander in chief. I don't think that's a fair description

of the case. A better description would be to say, the Supreme Court splits on whether the military has to a limited deployment decision according to religious freedom, or the Supreme Court splits on whether the military has to respect religious freedom into deployment decision. And this doesn't end the case, does it. No, So there's a number of things that need to happen next. This is a decision about a

temporary stay or not to stay. The case is still going forward, and this was about what happened while the case is being litigate. The Lorwer courts will have to decide whether the military violated either a law or the constitutional rights of the plaintiff, and then it will probably be appealed higher and it will probably get back to the Supreme Court on that question. Also, the judge below, Judge Rid O'Connor, is well known for his very conservative

opinions and for ruling against Obamacare. So the United States judiciary has always been politically appointed, and especially in question where the law is at least some much vague, politics naturally come in. However, we expect our judges, whatever the political opinions, to follow the law, and if judge reads doesn't, I expect the higher court to pull him back in.

In other words, politics come in. It's almost inevitable. We appoint judges politically more than most developed countries, but there's a limit to that, and judges first job is still to follow them up thanks to it. That's professor Dort Reese of the University of California Hastings College of Law. The confirmation hearings for Supreme Court nominee Judge Katangi Brown Jackson are over, but the voting is not. Jackson is continuing to meet with Senators on Capitol Hill this week

in a push for bipartisan support of her nomination. Three Republicans senators voted in favor of Jackson's nomination to the US Court of Appeals for the d C Circuit, but there were sharp attacks on the judge by Republican senators at her hearings. Joining me is Gloria Brown Marshall, a professor of constitutional law at John j College of Criminal Justice. How do you think Judge Jackson handled herself and the hearings?

I think Judge Jackson has shown grace under pressure, and she has handled herself with spectacular patients given the type of political gabbings that are going on between the parties using this platform to get back at each other for failed nominees in the past, such as Robert Borke, and the treatment has been alleged by the Republicans as being fraught with all types of political intrigue with Kavanov and

even Clarence Thomas. So I think they're taking out past grudges on each other and using this platform and using her. So I think most of us would not be able to take this kind of abuse of the record and personal attacks about her and coddling criminals and people who possessed Chile pornography and keep a level head. But she's been showing herself through this entire time. She sailed through three confirmation hearings before this committee. She's replacing another liberal

on the court. Did you expect such attacks by Republicans a lot on culture war issues. Yes, And I especially felt that given the mid term elections coming up, that these politicians are speaking more to their base. They're creating commercials for themselves as they go into mid term elections, and they're trying to gain some momentum with their voters and supporters, and a lot of this is grandstanding and

hyperbole to the highest degree. That they're using this platform as a means to do this as shameful, but it's very political as well. So I expected the Republicans to behave this way, and I really expect them not to vote for her overall. And they had no intention of voting for her in the first place, because it was going to be so divisive around party lines that there

was little expectation that their vote was needed. And I think they want to paint her so that when she does ascend to the bench still have some paint like that of Kavanov's confirmation hearing, with so many things came out about him, and of course Clarence Thomas and the

Agnita Heal testimony about his behavior with sexual harassment. So Republican Senator Ted Cruz questioned her on critical race theory, read from books in the curriculum of a school that she's on the board of, and asked her, do you agree that babies are racist? Was that appropriate? And would that have been asked of a white nominee. I don't think it would have been asked of a white nominee. But I think also that critical race theory is a dog whistle right now for a lot of people who

don't want to deal with actual American history. American history is racist, and for those people who have done well in this country, that's fine. But to turn a blind eye to the nation's documented history and then to say we're not supposed to teach it to children or try to teach how we can undo some of this damage are prevented from happening in the first place. So it's really an issue that many people on the conservative are right, who want to gain points on the political spectrum, have

been using and so they're using it now. These are politicians. There's been a concerted effort by Republicans to paint the judge as soft on crime. I think that she's ritten as a district court judge and as the Pilate Court judge, I believe nearly six hundred opinions, maybe more. And so the job of people who want to oppose her domination or tank her before she ascends to the bench is to find the most scandalous, controversial things in her record

and just keep saying it over and over again. It was successful for Donald Trump, and so they're trying to make it successful for them as Conservatives and once again playing to their base to try to get those conservative voters to vote for them in the midterm elections. I think it's the political ploy and I think it's scandalous. But these are politicians, and these are the highest ranked

politicians in our country. So they know how to play dirty, they know how to throw mud, and they want to get back at the Democrat because of what happened with Frett Kevin Off, you know, and what was certainly something that should have happened with Clarence Thomas. But they believe that trying to use critical race theory is throwing meat

to Alliance. Critical race theory is, to me, is nothing more than teaching about um the history of America that involves race and racial oppressions, but to turn it into something that is hurting children and therefore should not be taught. Case who twelve is what they're using. And she's on the board, and I'm on boards and other people who believe in public service or on boards of nonprofit organizations. We don't know everything that goes on within that organization.

And she didn't know the books that the children were reading. But she's been held account for it. You know, a politician will use any type of ammunition to throw mud when mud is necessary in their in their minds. Fine, you mentioned a dog whistle, and soft on crime is is another dog whistle. The Times wrote that Third Good Marshal the nation's first black Supreme Court justice. As you know, Fay similarly coded language during his confirmation hearing fifty five

years ago. So we haven't progressed very much. And that's why we need things like Black History to talk about lack of movement. We need we need to talk about these issues and so that we can better understand why we're not moving. Why is this such a trigger for a conservative? Why is it at some point we stopped believing in Santa Clause and we have to understand that there are parts of this country's history that are painful, not just painful to the people who are hearing it now,

but painful to the people who went through it. Then I think it's difficult as well, um for us to actually believe that she would be considered soft on crime just because she's not rabbit about it as some many

people want a person to be. And she's supposed to be someone with a judicial temperament who's supposed to look at both sides and the scales of justice and then the side which side is supposed to win based on the evidence, or which side is one that should be sentenced because of the evidence, And she's been doing that and the sentences may not be what they want since this to beat but if not, as though she told the people that they were going free, he did sentence

them to confinement. So I think that the fact that her brother's in the military as well as a police officer, that he has uncles who were police officers, that her uncle was the former police chief of Miami, and yet this doesn't seem to be enough to appease them. So I think this goes beyond what her record is what her family is, what she's done. I think this goes beyond that. I think it's just a political ploy to

try to undermine her as a nominee. The Republicans said that it wasn't going to be a circus like Kavanaugh, there weren't gonna be personal attacks. But some of the attacks have been very personal. I mean Tom Cotton said, you twisted the law and you rewrote it so you could cut the sentence of a drug kingpin. That's what you did, Judge. I mean, it got really personal and intense.

It was really personal intense. You know, it should be embarrassing because at this point what we're looking at is not just um senators behaving badly, but wanting to make a public servant look as though they are not, you know, a person who cares about children, even though they have children. She has two girls. And also the fact that this is a way in which politicians can use their platform, this confirmation hearing, to throw shame onto the other political party.

So this has I think little to do with her and more to do with revenge, and that's what it's It's just very vengeful and they're using anything to wreak revenge on the process because they feel that their candidates, even though their nominees, even though they were made Um Supreme Court justices, it's not enough that they should have just had been able to float through and not have any hard questions about their past, about their beliefs and ideologies.

And at this point, Um, they're just gonna keep throwing mud, even though they know the Democrats have the votes. They're gonna keep throwing mud until the end of this process to really feel their their rancor and and to make sure that everybody knows that they've gotten their revenge against the past nominees that they put forward and had to go through a very serious testing. So tell us what she'll bring to the Supreme Court bench. I think she

will bring persuasiveness. I think she would bring a level of insight because she has been a public defender. I think he'll also be someone who will bring um a sense of coming together of the different sizes Justice Brier did. I think it will also be a matter of bringing to the court her great insight as someone who was a trial court judge, and they are very few trial court judges who know what it's like to be on

these time in place of the actual conflict. The color Court judges the issues on appeal, they don't see the actual defendants, they don't see the witnesses, they don't see the life of the case. And so see bringing that to the court. And I think that's a very important measure. I would say over the last two decades, most of these justices have not had Thanks for joining me on the show. That's Gloria Brown Marshall, Professor of Constitutional Law

at the John Jay College of Criminal Justice. Welcome back, Judge Jackson. Yesterday you and I discussed the Court's increasing reliance on issuing unsigned orders on its shadow docket, and less than an hour ago, um the Court once again use the shadow docket to throw out Wisconsin's redistricting maps.

On Wednesday, during Judge Katangi Brown Jackson Supreme Court confirmation hearings, Democratic Senator any Klobisher brought up a Supreme Court decision that for the first time this redistricting cycle overturned voting maps drawn by a state in an unsigned order. A divided court throughout maps for Wisconsin's Assembly and Senate maps that were selected by the Wisconsin Supreme Court and drawn by the Democratic governor and that added an additional assembly

district with a majority of black voters. Joining me. As elections law expert Richard Rafalt, a professor at Columbia Law School, These voting maps in question were drawn by the governor. How did that come about? The strows out of a Wisconsin redistricting process for the state legislature. The Wisconsin legislature passed its own maps for the governor veto them. There was then an impass and the voters who are suffering from al apportionment as there's the government legislature basically asked

the Wisconsin Supreme Court to draw new maps. The Wisconsin Supreme Court said, no, we're not good at joining maps. You governor and you legislatures submit to us your best efforts and we will pick. Our major criterion is which map the parts least from the pre existing maps. Obviously some departures necessary to be with population changes, but we're going to favor the map that otherwise has least change

from the pre existing maps. The was constant been courted by a voter for to three pick the governor's map. It was not quite a partisan split. There were three Democrats and one Republican of the majority and three Republicans of the descent. The thing that became controversial is that although the Wisconsin Court said the governor's map did depart less from the pre existing maps and the legislatures, the governor's map proposed seven black majority stemily districts in the

Milwaukee area. This is the legislature. There are currently six. The legislature's map had proposed basically five. The governor's position was that due to the increased black share of the area population, you needed an additional map in order for the black voters to receive their proportional share of representation, and that failure to do so would probably be a violation of a voting rights Act, and that intentionally doing so would not be a violation of the Fourteenth Amendment.

And in that you basically see the governor trying to sort of navigate this narrow space that says that voting maps that dilute minority voting strength violate the Voting Rights Act, but that a state cannot give excessive attention to race in drawing maps, even when they're trying to enhance an

already representation. So the governor's position, which the Wisconsin Supreme Court by a fourd to three vote accepted was that this additional district was necessary to avoid a voting rights set violation and therefore did not violate the Fourteenth Amendment, so which the U. S. Supreme Court left the congressional

maps in place but tossed the legislative maps right. And for both the congressional and the legislative maps, the State Supreme Court standard was give us one that's the closest to the map that was adopted ten years ago, with appropriate adjustments for population change. In both cases, the State Supreme Court concluded that the governor's map did a better

job of that. Various parties challenged both of those. What the U. S. Supreme Court said was that the governor's decision, which the State Supreme Court accepted, that the Voting Rights Act required an additional black majority district in the Milwaukee area and that doing that wouldn't violate the Fourteenth Amendment. The U. S. Supreme Court said the governor and the State Supreme Court neither of them did enough to show

that that was correct. They failed to show that the Voting Rights Act required this, and therefore they failed to show that it didn't violate the Fourteenth Amendment, and therefore they reversed the decision to pick the assembly in the Senate maps and sent it back to the state Supreme Court for further analysis, which could include keeping the governor's maps if there was additional evidence that showed that there was a strong Voting Rights Act requirement for the additional district.

But where the Supreme Court was the governor seemed to rely exclusively or almost exclusively on the need for proportionality given the black share of the area population, and that that's not enough to satisfy a Voting Rights Act argument, and therefore there was not a good Voting Rights Act defense to the challenge that this was excessively attentive to

raise in violation of the Fourteenth Amendment. The Court said, the question that our Voting Rights Act precedents asked and the Court failed to answer, is whether a race neutral alternative that did not add a seventh majority black district would deny black voters equal political opportunity. Is that what Supreme Court precedents call for? Because in dissent, Justice Sonia Sotomayor, joined by Justice Elina Kagan, called the decision unprecedented and extraordinary. Yes,

it's unprecedent extraordinary in several ways. For one, Normally, the burden is on the challenger to prove that race was the predominant motivating factor, whereas here the burden seem to be being put on the governor or state supreme court.

So one thing is that totally shifted the burden. Normally, a map gets adopted, the challenger says this violates equal protection clause, and then the plaintiff has to make that case by showing that it was predominantly motivated by race, and then the status to come back and defend that there was a strong basis and evidence for a Voting

Rights Act violation. They've never had a case before where a similar challenge was brought to a map adopted by a state supreme court as opposed to one adopted by a legislature. And then there was also the argument is that race was the predominant factor. It looks like one argument is the predominant factor here was re change from the prior map. And beyond that, there's a sense that the interplay between the Voting Rights Act and the fourteen

Amendment is difficult. And indeed, the Supreme Court about a month ago agreed to stay a map adopted by a court in Alabama that held it over for full argument because of the murkiness of the relationship that in the the

Voting Rights Act and the Fourteenth Amendment. But here the supporting court actually made a ruling on the merits that the language that you quoted about the burden being on the state, whether it's the governor of the state Supreme court to show that there was not on alternative means of doing it, I don't think they'd ever ruled that before.

And here they're doing it in a so called shadow docket case, without oral argument, without full briefing, and really pretty close to the time where these maps have to be finalized so that the state can do the redistricting to allow the elections for the legislature to begin. So the procedural posture was very unusual. It was a challenge to a map really adopted by a state Supreme court.

I came up on a request for a state. They turned it into a meritage proceeding, and they basically treated the interplay the Voting Rights Act and the Fourteenth Amendment, which not even six weeks ago in the opinion by Justice Kavanal, they said was very murky and needs full argument today. Say it's clear and it requires that. Would you just simply explain the interplay of the Voting Rights Act and the Equal Protection Clause? Okay, and I'm not

sure simply can do it, but here's my best effort. Um. In a case called Chardi Reno, which was decided now close to thirty years ago, the Supreme Court said that if the primary mode of the predominant reason for a line drawing is race, then it violates the Fourteenth Amendment, even if the purpose is to provide racial proportional representation. In other words, that was the case coming out of North Carolina, where the state sort of drew the lines on the map with a clear intent of creating a

new black majority district. The Court said that raises a serious fourteen Amendment problem. Strict scrutiny applies to a map in which raises the predominant reason for the line drawing. It can be justified, though, if it's necessary to remedy a Voting Rights Act violation, and the Voting Rights Act

violation has itself several criteria. But the essence of that is is a racial block voting in the community and the political process is not equally open to minority voters, so that you need to have a plan which give the minority voters a fair opportunity to win a fair number of districts. If it's excessively attentive to raise that's the Fourteenth Amendment problem. The Voting Rights Act can provide a defense for that, but you need to show that you need to attend to race and to remedy the

Voting Rights Act problem. And the question that comes up at this stage, which is, given that no one has brought a lawsuit saying that any plan violated the Voting Rights Act, how far in advance can of state go, whether it's the governor or the state Supreme Court and saying we think that if we don't do this, there could be a serious Voting Rights Act problem. So this is what we're gonna do. I mean, that's really the challenge here, an attack on the willingness of state decision makers.

Are governor or state Supreme Court to take steps to avoid a Voting Rights Act challenge if they think there's a serious possibility that a serious Voting Rights Act challenge could be brought, And with the Supreme Court is saying here is no you really have to do all the homework to show that there probably was going to be a Voting Rights Act not a serious possibility, but you really have to show that if you didn't do it,

there would be a Voting Rights Act violation. That's a really serious burden on state decision makers and effect to show that they would be guilty if they didn't do the thing that they were going to do. So the Wisconsin Governor Tony Ever said, if we have to go back to the Wisconsin Supreme Court, who have already called our maps superior to every other proposal, to demonstrate again that these maps are better and fairer than the maps

we have now, then that's exactly what we'll do. So what happens now they go back to the Wisconsin Supreme Court and they make a better argument or what they would have to do now. It's interesting because the Voting Rights Act argumenting other has several prongs to it, several things that under prior Supreme Court precedent, somebody has to show in order to just so there was a voting

rightside a violation. Part of the problem was that both parties below agreed on a number of those prongs, so that there was not much litigation about it, and they actually the Supreme Court said it was done a very conclusively fashion. But actually that's where Justice sodom Or makes that point. The reason some of this was conclusivey is actually wasn't much debate. The Supreme Court did not make it very clear what a better argument or what better

proof would require. But they will have to make more of an argument and then they have to persuade the Wisconsin Supreme Court again. And that was a four to three decision with the key decision maker is the Republican justice who voted with the Democrats to say it's a close case. But on balance, I think the governor's map is better. The one question is whether the U. S. Supreme Court decision will shake the view of the Justice Hagadorn of the Wisconsin Supreme Court that the governor's map

is better. I mean, I think the governor can come back and make a case, and maybe there's more lawyering that needs to be done, maybe they have to submit some more affidavits, maybe they need to put some more empirical evidence in. But in the end, I think much is going to turn on that central justice in the in the Wisconsin Supreme Court, whether he sticks with his prior opinion or whether from U. S. Supreme Court has

sufficially shaken him, did he change his sides? Do Republicans or Democrats get an advantage with either of these maps, because it seems like Republicans from what I've read, Republicans would still remain, you know, the majority. I So that's that's sort of two questions and one. I think, under all the circumstances, either map in Wisconsin, Republicans certain majority. One thought, as the governor's map makes it a slightly

smaller majority. Uh. In the legislature, I think it's not clear that the effects them the congressional delegation at all, which is currently five three Republican. I believe maybe well maybe maybe the Republicans are open for six too. I think one thing that could be the case in the legislature UM is um less likely Republics have to get a supermajority because right now there is a Republican legislature with large majorities in both houses UM and democratic governor.

Democratic governor will can vet them anythings that the legislature does, but if they have two thirds Republicans, they can override as Vetos. It seems to be that in almost any scenario of the legislature in Wisconsin will remain Republican. The question is how large was the margin thing, and that could matter for things like dealing with Vetos. Up until this point, the Supreme Court has basically left maps in place. You know, at this point in time, these pre election

maps to be changed after. Is that true or not? Well, there was one that the one that I think that connects more to this one is the one from Alabama. The Supreme Court has left alone. Uh. The challenges that seem to go on partisanship and the role of independent districting commissions, because there's a new Republican talking point that the use of independent districting commissions is unconstitutional and that I think came up in or the use of state

constitutional anti partisan gerrymandering norms. I think that came up in Pennsylvania. In Michigan maybe uh, and the Spood Court hasn't been Ohio might have been buying that, But in Alabama and in Wisconsin, the thing that they did buy was the argument that there was um uh, that there was excessive attention to race, or that um they they bought challengers arguments that that the justification for a map under the Voting Rights Act was itself excessively attempted to raise.

And so they stayed a decision by a federal court in Alabama which would have which blocked a map in Alabama. The map the Federal court in Alabama, so that felt that that map underrepresented black voters, and uh, he stayed that map. Supreme Court undid that stay and staid, no, this map can go forward. Um uh. And then until there's a full trial on the merits. And then you get the Wisconsin one where the Supreme Court nomal we didn't just stay the decision of lower crecision, but actually

returned it and said you've got to go back. And again, I think in both of them, what we're seeing is a majority of the Supreme Court UM uncomfortable with the argument that the Voting Rights Act requires additional attention to minority representation. And I think we're seeing this, along with the Burnish decision of last year, UH, increasing pushback on the Voting Rights Act as a means of enhancing UM minority representation outside the most open and shut areas of

clear cut discrimination. I guess we'll see what happens when this goes back to the Wisconsin Supreme Court. Thanks so much for being on the show. Rich that's Professor Richard Brafalt of Columbia Law School. 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 pod Cast.

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 week night at ten pm Wall Street Time. I'm June Grossow, and you're listening to Bloomberg