Taking the Bar Exam During Pandemic

Bloomberg Law with June Grasso from Bloomberg Radio. Welcome to Bloomberg Law. I'm Greg's Store in for June Grosso. Coming up on the show. The Supreme Court rejects on the Nevada church that said the state's coronavirus capacity restrictions discriminate against religion. And we'll dive into the growing controversy over the way states are conducting bird zams during the pandemic.

But first, earlier this month, Supreme Court Justice Ruth Bader Ginsburg revealed that she was again being treated for cancer. That was about a week and a half after the Court confirmed a Washington Post report that Chief Justice John R. Birds had been hospitalized after falling and hitting his forehead with me to talk about the Supreme Court's disclosure practices when it comes to health issues. Is Duke Law School professor Marin Levy Maran, thanks very much for joining us. UM,

let's start with Justice Ginsburg. She's disclosed a lot of health information over the years, but twice in the last year a loan, she has revealed cancer only after the treatment was proved to be working. Is what she is revealing to the public enough in your mind? That's a great question, Greg, and I just want to say, thanks so much for having me on the show. Um. So, I think the Justice has been very clear and disclosing her health issues, but as you said, the issue seems

to be alone with timing. So we just learned um a week and a half ago that she found out in February that the cancer had returned. Um. She underwent one treatment, meeto therapy that was not successful, and we only now know about it because she's undergone a second round of treatment, chemotherapy that seems to be doing much better. And I would say, um, it would have been helpful to know about this sooner. And what about John Roberts, So, uh, it was revealed this month he had fallen He hit

his forehead, got stitches, the most hospitalized overnight. The Supreme Court doesn't reveal that until the Washington Post gets a tip and asked about it. Is that something that you would have liked to have seen John Roberts disclose on his own without having to be prompted. Absolutely. So there, I think we have two separate issues to one, as you mentioned, is the timing, so we don't learn about the incidents that happened in June until over two weeks

after it happened. But then second is the fact that the Court did not come out and disclose the information. It was only after the Post that he said, received the tips, that they followed up with the Court, and then we get the confirmation. This is the kind of thing I think the Court really needs to be coming out in front with. So so why is that? Why do we need to know this sort of information about

Supreme Court justices? Yeah? Absolutely, I think it's a hard question to be honest, really parsing out why the public has an interest to know. I would say a couple of things on this. The first is I think just as a general matter, the public is interested in knowing that the justices are in good health um to a given how important they are in our democracy really um,

And the Court itself seems to acknowledge this. So if you go back to the beginning of the pandemics, the reporters actually asked the Court to start providing updates on the justices health just to make sure they were doing okay, um, they weren't being impacted by the coronavirus. And the Court said yes, And as far as we know, we've been receiving those updates. UM. So kind of general acknowledgment that the public is interested in the health of the justices.

I think separately from that, we have a real interest going into an election like this, Um. The Court is on the mind of at least some voters. And if we know that some of the ss are not in good health, UM, that could impact the way people vote in the upcoming election. Does it make a difference that we're talking about physical ailments here as opposed to mental ailments? Uh, you know, to go back into history a little bit, when Justice William Douglas back in the early seventies was

was losing some of his mental capacity. Uh. Arguably, perhaps that that raised a different issue. Doesn't matter that we're as far as we know, just talking about physical ailments. So I don't think so. Um and again for a couple of reasons. So the first being, and I hate to talk about this, it reminds me something Chief Justice Rank with that you know that there is this speculation about the health of the justices that can run into the kind of foolish if you put a territory um.

But I do think, you know, it's fair to think about, um, will the next administration be appointing any justice to the court. And so part of that is we do think about their health overall, not just their mental acuity. UM. So So that's I think really the most important point. But the other is a larger point about transparency. You know, I think it's really critical for the legitimacy of the Court that the public feel that the justices are being

honest with them um. And again, that we aren't having these issues like we are now, where we're learning about things only after the fact, and in some cases at the prompting of of the media. How confident are you that we know what we need to know? Um. You know, we've talked about some health issues, some other justices have have revealed things. Justice so do Mayor of course, has been very upfront about her lifelong diabetes. Are you concerned that there are other things that we don't know about

perhaps some other justices? So I am. I think you know, the real problem is, at the end of the day, we we just don't have confidence that we know everything at this point, and in some ways, this most recent incident with Justice Ginsburg underscores that. Um. You know, I think all along we had fought we really knew everything about her health records because she had been what seemed

to be quite forthcoming. And in fact, when Justice Roberts had this recent health scare, UM, some folks I thought it was problematic that we didn't hear about it sooner and pointed to Justice Ginsberg, that's kind of a model of somebody disclosing health issues. But now that that we didn't even know some of her health history, UM, I

think raised as a whole host of questions. And it really would be better if we had a clear policy from the court um that we will know certain things to say if Justice has a serious health scare that we know within some you know, pretty quick timeframe. I want to thank our guests. That's Duke Law School professor Marin Levy talking about health issues and disclosures by Supreme Court justices. Thanks very much for joining us on Bloomberg Law.

Coming up on the show, the coronavirus outbreak is giving new life of the push for alternatives to the in person bar exam. I'm Greg Store, this is Bloomberg. This is Bloomberg Law with June Grasso from Bloomberg Radio. I'm Greg's story and for June Grasso. Summer is the traditional time for recent law school graduates to gather in courthouses and convention centers around the country to take the bar exam.

But this is the summer of COVID nineteen, which makes such large gatherings risky, and many states are scrambling to revamp their test protocols with me as Sam Skolnick, who has been covering these developments for Bloomberg Industry Group and Bloomberg Business Week. Sam, thanks for joining us. UM give us a big picture how many states are going ahead with in person bar exams over the next few weeks.

As of actually Twomorrow and Wednesday, states are scheduled. Almost half of the states are scheduled for in person exams. UM and then in September and or September October. There are another thirteen, including a couple of the same states which are offering men twice, but most of these are separate states. UM. So in the end we're talking about more than half of the states are still going ahead with in personal exams UM over the next couple of months.

And of course this is happening in many states that are now seeing COVID nineteen spikes for the first time, or they're seeing a resurgence of the disease UH in these states, and it's causing great and growing concern among the test takers who are being asked to sit in these in what are many cases huge examples UM right next to scores, if not hundreds of other test takers UM. Even if they're so, they're what the states are doing

is UH there. They are mandating social distancing requirements in many cases, if not most, if not all, of these states. I have in fact each of these states, but I would imagine that almost all, if not all, are, and so they include, for example, temperatures to be taken upon entering the test site. They include a little bit more space in between the test takers. Then is usually the case UM. And then regarding masks, most of the states are acquiring that each of the test takers wear masks,

but not all UM. I talked to, for example, a spokeswoman from the West Virginia Courts who noted that they are urging their test takers to put on masks. There are requiring them to at least bring them in. They're going to have spares on hand as needed, but they're not actually requiring it. Basically, they're giving folks in out there saying, if you think that it's going to interfere with your ability to take the exam as successfully as possible,

then it's okay not to wear it. So yeah, well, so what are the people who are taking these exams are planning to these exams? Tell in you, I know you've talked to a lot of them. Give us a thinking. So a lot of the folks that I've talked to

are greatly concerned. I mean, I saw I've been on the phone with folks UM who have who are immuno compromised for example, because for example, of their cancer survivors or one recently gave birth UM, and or others who live in multigenerational households or who have elderly parents come by regularly to help to help take care of these kids. In each of these kinds of cases, they're concerned about contracting the disease and then in another in other instances,

possibly then spreading it to family members. I mean, this is it's a it's a brutal situation to be put through when you look at it from their point of view. It's on top of these other concerns. First off, these exams are aren't necessarily easy in some states to pass. Rangers can be less than fifty although like thinking most eight it's a bit higher, but don't quote me on that. But nevertheless, they're depending we're on the radio, Sam, you're quoted, Yes, exactly.

They can be quite tough. Number one. Number two is they have financial considerations. Uh. And COVID nineteen is also impacting the legal industries, you know, Greg sort of written large and making it in some cases, it's tougher for these folks, young folks to find and secure legal jobs. And at the same time as all of this is, many of these folks don't come from wealthy backgrounds, and so they're coming in with a lot of indebtedness. While

school loans that they're anxious to payoff. So when they're extra delays on top of the normal delays to get licensed as a lawyer, it adds tremendous amounts of pressure for these folks. Um, so yeah, they're they're going to rough ones, you know. Yeah, So are there any alternatives? Have states come up with any alternatives? And how are those being received? Yeah? So, um it's money you mentioned, right, So uh, state by state it really in a broad sense.

I've had a couple of folks saving me out. It really is. It's a chaotic national scene when you look at it. The way that this is the way that lawyers are licensed in this country, it is state by state. But when you look at it nationally, many states have taken other alternatives, trying to take into account the health considerations, these public health considerations, and so some states several inns

act more than twenty are offering online exams. But that's not necessarily a panacea in as much as literally just within the last week, two of these states. Um, I believe it's that at Indiana had had to delay their online exam, which they were set to run tomorrow because of technical software glitches from one of the vendors that

they're using for the tests. So I've had some of these folks who are in states getting prepared for the exa online tests tell me that they're not even sure that ultimately these tests are going to go off as planned. Now there are a whole bunch of the states that are scheduled for their online exam that's being set by a national group in early October. But I think a lot of folks are concerned and noting that that might

not even happen. So that's one old genders. There are yet other alternatives that have to go to the fundamental way in which lawyers are licensed, which typically has been through the bar exam. But these other models, the licensing models. One is called diploma privilege, the other provisional licensing, which is kind of like the compromise solution, would mean that these would be lawyers can either delay taking the bar

or they can skip it entirely. In the case of diploma privilege, what that means is the states are basically conceding that law school is sufficient legal education that they don't need to take in best bar for them to be licensed as a lawyer. It takes not just the part sure of the students, but it takes also the pressure off of rego employers. Uh. We're talking to government agencies, private law firms and everything in between that are eager

to get these young folks on board. Um and uh some of them are actually happy with that solution as well. There are now four states that have instituted diploma privilege Oregon, Washington State, Utah, and Louisiana just as a result of

this COVID nineteen scare. There was only one state in the country that's added for more than a century at Wisconsin, and it's it's it's a smaller state, but it's run fairly well for the graduates of those two law schools in that state, according the most accounts, Sam, where you're going to have to leave it there, Uh, interesting story and interesting to watch it going forward. How states continue to to adapt trying to go forward with their bar

exams in this time of coronavirus. Thanks to Sam Skolnick, who has been covering this issue for Bloomberg Into Street Group coming up on Bloomberg Law, environmentalists asked the Supreme Court to stop progress on President Trump's border wall. Could be a pivotal moment on a divisive issue. I'm Greg's store. This is Bloomberg. This is Bloomberg Law with June Grasso from Bloomberg Radio. I'm Greg's story in for June Grasso. A pivotal moment is coming in President Donald Trump's drive

to build a wall along the Mexican border. Opponents are asking the Supreme Court to revisit a year old order that let the administration start using Pentagon funds to construct fencing. With me to talk about that is Bloomberg industry groups,

Ellen Gilmour, Ellen, thanks for joining us on the show. Um. These groups include the cr Club, They're represented by the the A C l U. What exactly are they asking the Supreme Court for the court to lift a previous order that was issue about a year ago that allowed border wall construction forward while there was some litigation going on in the lower courts that was getting at whether the funding the President was using for the border wall

was legal. And put put this in context for me, how much of the Trump's wall has has already been built? Roughly if we don't have exact numbers, using this this authority, using this other money, and and how much more is he hoping to build? Before election day or the end of the year. Yeah. So since President Trump took office, Uh, the administration has built more than two hundred miles of wall, but most of that was just replacing fencing that was

already there. UM. And as far as how much they want to get done, it's kind of a moving target. But the President has said this year that he's hoping to get five hundred miles done by the end of UM. So that's obviously quite a bit more than the two hundred that's done so far. UM. And what's the what's the argument against the wall being made by these groups? Not so much at the at the Supreme Court yet, but what's what's the argument on the ground for why

why a wall would be problematic? So the environmental groups who are involved in this case to see our club and a group of other communities that are along the border, and they are concerned about the environmental impacts um, the direct impacts UM that construction would have on the surrounding environment.

But the legal question is really whether it was appropriate for the President to use this kind of emergency funding mechanism for the border wall after Congress declined to to provide the full amount of funding the President asked for. I mean, listeners will remember the big government shutdown about a year and a half ago, and that was all about this issue of whether Congress would make this money available. Congress didn't make all the money available. The President chose

this emergency route. Question is was that legal was a constitutional So, as you said, this is really a follow up to UH in order the court issued a year ago. What did the court say then, and what, if anything, does that tell us about what the court might do

with this request to lift this day order. So a year ago, the Supreme Court UH issued a short order that essentially just allowed border wall construction to move forward, even though lower courts were going to block construction from moving forward while the litigation and the lower courts was moving forward, they were going to block it. The Supreme Court said no. But, as is often the case in these short orders from the Supreme Court, there wasn't a

lot there. You know, there wasn't a lot of of analysis there for for anybody to to glean anything from. So we don't know, you know, in depth what the court's reasonings were. But it is hard for I mean, it's rare for the Supreme Court to grant that kind of a stay. So it certainly suggests that the Supreme Court was potentially skeptical of what the lower courts had

had decided in deciding to halt construction. UH. Now the CR Club in the A c l U are asking them to reconsider now that a year has gone by and construction is rolling forward. So this is not the only border wall litigation out there. UH. Can you put this in context in terms of the other legal fights? What else should we be looking for when it comes

to litigation over the border fencing? So the CR Club and a c l U case that we're talking about that has to do with funding, UH, there are other cases that also have to do with funding, brought by state, brought by other groups, members of Congress. UM. But there's other litigation that goes beyond that that's looking at things like UH, the administration has used waivers to waive certain environmental laws and other statutes for border wall construction. That's

being litigated so far been successful. UM. And there's other litigation that deals with specific border wall sections. There's one that crosses a butterfly refuge in Texas, things like that. There's just all kinds of stuff from landowners, from environmentalists, from states, etcetera. This kind of an unusual request, isn't it that they're asking the court to lift an earlier order?

It is, I mean the Supreme Court. When the Supreme Court speaks, that's usually that's usually the final word on something. But because so much time has passed since that order, and because that is still in effect and construction can keep on going while the legal questions are kind of still out there, the cra club says it deserves second look, a lot for you to follow. That's all the time

we have. I want to thank Bloomberg Industry Groups Ellen Gilmore for talking to us about the Supreme Court request by environmental groups to stop construction on Donald Trump's border wall. Coming up on Bloomberg Law is Nevada favoring casinos over churches and trying to reopen the state during the coronavirus app arache. I'm Greg Store, this is Bloomberg. This is Bloomberg Law with June Grasso from Bloomberg Radio. I'm Gregg's

story in for June Grasso. Late Friday, the Supreme Court said it wouldn't ease Nevada's coronavirus capacity restrictions for worship services, rejecting a discrimination claim by a church near Reno. The vote was five to four, with Chief Justice John Roberts joining the liberals in the majority. With us to talk about this development to religious liberties experts Stanford law professor Michael McConnell and the University of Miami law professor Caroline

Mala Corbin. Thanks to both of you for joining us. UM, But Mike, let me start with you. UM. Can you just lay out the basics for us? What was the church arguing here and what was it seeking from the Supreme Court. I think it's important to stress that what they were asking for was a temporary injunction pen appeal, uh, and there's a very high standard for those, So I don't think we should interpret the Supreme Court's decision as the final word on the merits of their argument, And

the merits the argument are really very powerful. The church argues that it under the Nevada Order, the activities like the for profit activities like the casinos and gym's and bowling alleys and a number of other activities of that sort are allowed to meet with more than fifty fifty persons. President back Casinos it can be thousands and under circumstances where people are together for extended periods of time without the kind of social distancing that the church is provided,

and that uh it is unconstitutional. The church argues UH to single out of religious activity and say, well, churches can't meet when organizations secular activities of of other natures such as these for profit businesses, are able to meet with no explanation, or at least the government is required to provide an explanation for why it is discriminating against the religious activity, and Nevada provided none. Caroline, we didn't actually get a majority opinion here. The court rejected the

application without explanation. We did have a case Lass Beck in uh May where the court had a similar issue. M Can you try to fill in the blanks. What is your understanding of what the courts likely or probable rationale was here in in rejecting the application from the church. Um. There could be two ways of thinking about this. One of them is as she Justice Roberts did in the

earlier decision. The majority is taking a very deferential approach to emergency orders during a pandemic, and in that case, the usually more rigorous standards that they would apply are not applied because there is a public health emergency. Um. Ultimately, they don't think that religion is being singled out in

the way that amounts to odious discrimination against worship services. Now, Mike, Um, we've got three dissenting opinions to choose from in this gaze, from the Justice as Alito, Gorsage, and Kavanaugh saying the courts should have intervened. Um. You described earlier the church is having a pretty powerful argument. Um. Spell that out a little bit. Uh, Why on the merits of it does does the church have a pretty good claim in

your case? In your mind? Well, first of all, I want to say that I think the bought A case is quite different from the earlier California case where which was also five to four, and where Chief Justice Roberts wrote an opinion explaining why they rejected the argument of

the churches. There. Just read one let me read one short sentence from that California case where the Chief Justice Roberts says that the California order treats more leniently only dissimilar activities in which people neither congregate in large groups

nor remain in close proximity. For extended periods. So that may have been true in California, but it certainly is not true in the Nevada case, where if you look at pictures of the of the casinos that are open now, you have huge numbers of people and very close proximity. They stay there for a very long time. Um, it's much more dangerous from at least no public health expert, but at least in terms of being congregating in close proximity,

it looks much more dangerous. And add in the alcohol that served at at casinos, which means people, even if they are trying to to wear masks, they're going to be lifting them up in order to drink their beverages. And we all know that alcohol, you know, causes certain

decline in good judgment. Whereas this church is going to has basically eighty people, uh they want, the capacity is over twice that large, so they are spaced with families more than six persons apart, and with a number of protocols that, according to the expert in the case, are more stringent than those required by the by the c d C. So it's very hard to understand, I mean, how Nevada can justify saying that the churches cannot meet

with more than fifty people, whereas these other activities like casinos can now there in order to decide the case, though, the court should not be making up its own public health policy. But what the constitution requires is that the government justify what it's doing, and Nevada has offered no justification for this. I think the same. The Supreme Court has been quite consistent, you know, left and right on demanding that the government justify itself in in recent cases

like the Census case or like the the Adappa case. Recently, the Court has struck down government action that may very well be lawful on the ground that the government failed to offer any serious justification sational Here, Nevada has offered no justification for treating churches differently than it does these for profit businesses, and I think that that would be a sufficient basis for holding their action unconstitutional, at least if they If we're talking about on the merits now,

maybe preliminary injunctions are a different thing. Let me circle back to that. If if we have a mant Caroline, do you disagree with any of that? And is Mike asking the right questions here? Is that it should we be comparing. I think that I think that question is not so different, because I think what is really crucial is the state treating worship services the same as comparable

secular activities are worse than comparable secular activities. If they're treating the same as activities that pose the same kind of health risk, then there's really no constitutional problem. And I think, um that was at least a case in the first religious challenge that related its organizations were not treated worse than comparable secular activities. Now, if religious worship services alone are singled out for worse treatment, then you

clearly have a problem here. The case is a little tricky because worship services are treated the same as some comparable secular activities like going to a museum or the movies or a concert. It is also treated worse than many other secular activities, such as the ones listed like restaurants, bars, jims, and casinos. And I think in that case it's not quite as clear cut as it is when it's treated the same as all comparable activities, or religion alone is

treated differently than comparable secular activities. Mike, you were about to talk about the kind of the procedural status of this case is preliminary injunction, and we've got a Supreme Court order here that happened on kind of a spaces And I guess my question for both of you in the in the last few minutes we have left, is his is a good way to be deciding these these issues?

Is there? And should the standards be different when uh, it comes to the courts, both the lower courts and the Supreme Court, on such a rush basis, without without a full record, without a real chance to dive as deeply into these issues as perhaps the court needs to. Michael, what do you think? I do think that that that it's a real problem for the courts to have these things on, as you say, such a rushed basis, especially when uh, you know, it's potentially life and death at stake.

And I think this is the best way to understand what Chief Justice Roberts has done, because he has been um against the issuance of these rushed preliminary injunctions in a number of contexts where he's been somewhat consistent about pretty actually pretty dagon consistent, whereas the left and the right of the Court have tended to, uh to go there sort of ideological ways. He has voted to vacate. Uh, these sort of rushed in junctions in cases favored by

the left and favored by the right. And I think that may be what's going on here, Caroline, what's your

take on that. I don't know. I do want to pick up on the one point you mentioned, which is this is literally about a life and death situation, and I think the Court is really concerned about the granted it perhaps should not be influenced decisions, but I don't think you can the Supreme Court can ignore the fact that we are in the midst of a global pandemic um, and that these kinds of activities, both worship services and he knows, serve as vectors for the spread of the contagion,

and that really they should both be shut down. Um, they may be worry that they're both going to end up being open and and and and and again. That may explain why they may be more deferential than they really should be in in these cases. We're gonna have to leave it there. I want to thank I guess Caroline Mala Corbin and Michael McConnell, both religious liberty experts, for joining us on Bloomberg Law. And that's it for this edition of Bloomberg Law. I'm Greg Storing for June Grass.

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