Object to the existence of a quorum. We dont have to debate the her its of it. Theres an open question about the consequence. Okay. A professor at my law school, Washington College of law and an expert in constitutional law and many other things. Runs the sjd program there and an expert in issues related to race and the Supreme Court. We did have one really important race related case this term thats kind of gotten buried and lost in the shuffle. Maybe decided earlier. But it tells us a fair amount i think about where the court is at on the questions and relates to other cases that you can discuss, im sure. The schutte case, the voters of michigan announced they were going to change the constitution to forbid affirmative action, including particularly racebased affirmative in Higher Education and some other things and had the consequence of overruling a prior question saying the Michigan Law School could take race into account for admissions. And so, the court was presented with a question of whether the states voters could essentially ban affirmative action in that fashion. Uhhuh. And so, youre exactly right that this is sort of following up from the opinion 11 years ago, the gruder decision up holding the constitutional of race conscious admissions at the university of michigan. Whats important to keep in mind is that it is technically not an opinion thats about affirmative action in education across the board. So, it does nothing to alter the constitutionality across the board of those kinds of policies so it hasnt changed the holding of the gruder decision 11 years ago. It said that under the equal protection clause colleges and universities could create narrowly tailored Race Relations programs and also the probably opinion that got maybe more publicity last year, fischer versus university of texas because it was decided at the very end of the term. That was looking at the constitutionality of the university of texass admissions policy which included a race conscious component. This is an opinion and a case thats really more about an issue that relates to civic participation. So its about access to Self Government and this particular proposal, proposal 2, in the state of michigan, is a Voter Initiative that does have the effect of eliminating the affirmative Action Program at the university of michigan. This is a 62 decision. Just kagan recused herself. You could look at it in a variety of different ways. The types of initiatives, one of the Big Questions and something that was actually very eloquently discussed in Justice Sotomayors lengthy dissenting opinion is what it means to ensure meaningful political participation and whether it means that one need only remove formal barriers to participation or whether it includes a responsibility to vigilantly police the political process to ensure that all minority groups have equal access to participate. On the ground, proposal 2, a Ballot Initiative and a constitutional amendment like the one in michigan effectively means theres a higher burden placed for those to advocate for having a raceconscious admissions policy so if one in favor of race being one of a number of factors that are considered in admissions policies, one would need to basically overturn a state constitutional amendment to do so. Very, very high burden. If, however, you are a major donor to a university and you want to give a thumb on the scale to your kids, an alum, if youre an athletic officer and want to spend time promoting star student athletes to go to public universities in the state of michigan you could continue to do so. Other forms of affirmative action still stand. The one removed and singled out is consideration of race. And i think what one can think about with respect to what that means long term, again, it does not touches the merits, the constitutionality of race conscious admissions policies across the country but raised to the national level, a spotlight on this and because those who advocated for this type of Ballot Initiative in michigan were successful, i think that it does signal and can signal to voters across the country if there are others and other states and there have been who would like to push for similar measures as the one in michigan, the Supreme Court decision has given them really sort of more fuel to their fire to be able to do so. So i think thats one of the long term consequences of Something Like this. Another thing to keep in mind is that there have been instances in which the Supreme Court in decades past has examined similar types of Ballot Initiatives that would single out particular minority groups to make civic participation in certain areas more difficult and in those instances the Supreme Court has struck those down so there are ones relating to, for instance, in seattle and 1970s around bussing. In the city of akron. One thats a very common one that all of almost all constitutional law professors teach rumors versus evans with an amendment to the colorado constitution that had singled out gays and lesbians and said that under the colorado constitution, no state jurisdiction could create any policy that would protect gays and lesbians from discrimination and the Supreme Court held that you cannot single out a particular group based on animus and make it more difficult for them to participate in the political process so there were some who believed this was very much akin to that kind of reasoning and therefore should be struck down. It was struck down at the lower court but the Supreme Court reversed that. And so for those who would be in favor of the ability to continue these kinds of programs in a state like michigan, there have been those who look to Justice Sotomayors opinion as very interesting in terms of having a voice, a minority voice. Well, no pun intended both a racial minority on the court but also obvious lay dissenting opinion opposed to a majority that spoke very frankly and passionately about the role of race in the United States and the Important Role that the Supreme Court plays in needing to take account of it. So she actually referenced chief Justice Roberts opinion in a voluntary integration race case with elementary and secondary schools came out seven years where he said that the way to essentially end race discrimination in america was to stop talking about race and sotomayor said the way to address Racial Discrimination in america is to speak openly and candidly about the role of race, about continued barriers to opportunity so that we can move forward. Slight tweak on what the chief justice said. I think he said end Racial Discrimination by the end of stop discriminating not stopping to talk about race. I think. I dont think he ever suggested we dont need to talk about the issue. I would actually beg to differ with that piece of it. I think youre right i apologize. He said to end discrimination and wrapped up in that is a desire to stop talking about race. Maybe. But on that case in particular, though, i kind of go back to i think the 9th circuit addressed this issue or similar issue 20 years ago and one of the lines that always stuck with me from that opinion was the constitution does not require what it barely permits. We have had a very heated debate over whether racial considerations can be taken into account and to i apologize for this. Very relaxing. No problem. We have had a very Roberts Court. I thought i turned this off. But i guess i didnt. We have had a very heated debate in this country over whether race can be taken into account in School Admissions and other areas and the Supreme Court has resolved it narrowly but its a whole huge knnother step to say youre required to take the factors into account. That to me at least is an extraordinary proposition and why i think you saw that decision not being one of these strict 54 decisions but even Justice Breyer coming across to acknowledge that basic principle that at that level. Once you get to the level to take into account rather than whether you can take into account, that is really a decision that should be left to the political process. Well, can i just clarify one point there. You said whether they should be required to take race into account and thats not what the opinion is about, not what the case is about or proposal 2. Its its a proposal that eliminates the ability to do so. But its not the question was never should they be required to take race into account. Yeah. Perhaps. But i actually think, though, that it really does boil down to that. Can you say youre not allowed to not take into account because the political process decided it didnt want it to be taken into account. All right. So lets turn to religion. Something less controversial. Eric segall is a prolific author and expert on the court having published all over the place on major constitutional questions that the court is confronting and also working now as a coauthor on path breaking book on Supreme Court transparency. And is going to talk about religion for us. The first of the religion cases, the town of greece in which the greeks, the gree shans, the folks in that town started their Town Council Meetings with an invocation which they thought was akin to a legislative prayer. It was overwhelmingly a christian prayer based on who it is they happen to invite and there was a constitutional challenge that that was an establishment of religion. Elizabeth said that progressives are in favor of obamas recess appointments and noel canning case and didnt lose as badly as you thought you might. People who are in favor of separation of church and state lost as badly as they could have. No greater loss we could have suffered than this case. Eight years in a row prior to 1999, the town of greece, new york, started its very small Town Council Meetings where you would go if you want a zoning variance or if you want to argue about the local cable access channel, you have to conduct your business there. This is not a big state legislature. This is not the congress. This is a Small Town Council and prior to 1999, they began their meetings with what i think is an incredibly appropriate way to start the meetings, a moment of silence. Prayer or not pray and reflect. For eight consecutive years and sometimes prone to hyper bole but in this situation, im not. Eight consecutive years 100 christian prayers. No exceptions. For eight years. And two thirds of those prayers referred exples sitly to a number to different kinds of eli jous similar m boss and in many cases the chaplain of the month, what it was called, yes, the chaplain of the month would ask the audience to stand up or bow their heads in prayer to jesus. As a thought experiment i thought if i asked you to do that what the reaction would be and this is not a government meeting but in any event. The Supreme Court said that was not an establishment of religion, 54. Partisan divide. Justice kennedy and when i say flip flopping, on this one, he did about 17 flips. Given that he is the author of two opinions that say that prayers in Public School classrooms im sorry prayers at High School Graduation ceremonies and prayers at High School Football games are unconstitutional. I want to make just three points. First, eight years in a row of exclusively christian prayers, this is a situation where the Supreme Court upheld a clear preference of the government of a religion over all others. I dont think theres any other establishment clause case the Supreme Court has done that. Theres aid ace cases and neutral statutes has a disproportionately benefit of catholic or jewish schools but neutral practices with disproportionate effects. For the court and even justice rehnquist, before he left us, said that the core command of the establishment clause is the government cannot treat one religion over another. And thats exactly what the town of greece, new york, did. So that thats very significant i think in terms of doctrine. Even more importantly, whether you look at Justice Kennedys opinion for Justice Roberts and aly to or aly tos Supreme Court opinion or scalia and thomas, all of them read the establishment clause out of the constitution when it comes to legislative prayer cases and even more scary other cases, as well, because, excuse me, Justice Kennedy gave examples of when legislative prayer pry investigates the establishment clause and almost all of them would violate the free exercise clause. Theres well get back to this with the hobby lobby case but theres the establishment clause, the free exercise clause. One says the government cant reward religion too much. Thats the establishment clause. One says the government cannot coerce or penalize religion. Thats the free exercise clause. I think the balance is we want religious liberty and not religious supremacy. Well, in this case, everything Justice Kennedy, bringing a new case challenging legislative prayer, then you have to in effect make out a free exercise clause violation, a coercive. Kennedy said if the government took action against you because you refused to pray, that would be an establishment clause violation. Well no. Thats a free exercise clause violation. I think doctrinally if this case extends to other cases the establishment clause is in deep trouble which is consistent with scalia and thomas longstanding quest to end establishment clause cases altogether through the standing doctrine which they have tried to do and not Justice Kennedys quest and even more ironic because in the last paragraph 069 opinion Justice Kennedy says children that kids had to go to this Greece Town Council part of High School Civics programs and kids were in the room here when this was happening. Last point, i have one more minute . Last point is this. We have a solution talking about affirmative action, abortion, i have opinions but theyre hard questions and i dont know the answers. I have opinions. I have an answer for this. Same answer for High School Graduation ceremonies, Football Games and classrooms. Have a moment of silence. Ive been in football stadiums and baseball staid yums of 60,000 people after a National Tragedy and a moment of silence is a really powerful thing and it works. And it brings all the good things about prayer into the room but none of the controversial things. So if you want a prayer over a moment of silence, you are saying you want to inject religion into the government and i think thats what the establishment clause forbids. You know, i guess my take on that case is, i do agree that from your perspective its a pretty resounding loss but what i call it is the triumph of originalism but good for this ride only. What you see is Justice Kennedys opinion taking an originalist approach, and there i would argue that its different from cannon because you have an unbroken understanding of the application of the establishment clause dating back to the time of the founding and after that these types of prayers were permissible, but on the other hand, the way that the court approached it was that it was its holding solely based on legislative prayer and the fact there was with respect to this one type of practice a long and unbroken chain of history. So, yes. While it is a resounding loss for your side, i dont read too much into it. I dont look at it as a case where the principles are going to be translatable to other cases. From my perspective, were that it was so. But that rational upheld segregation and discrimination against women. We had segregation and discrimination forever and just looking about history, those two practices would have been upheld and none of us want them upheld. Looking at how Justice Kennedy approaches the hot button issue, he often adopts a measure of reasoning and that is easily distinguishable in the next one and i think thats the same kind of approach you saw him take in this case. We have one clue about whether or not therell be a doctrinal leak outside to other establishment clause questions when the court was asked to consider right on the heels of this case another school case where it was a Graduation Ceremony held in a church and just the court declined both to take up the case and also to have the case which had struck down the practice reconsidered by the court of appeals and the Justice Scalia said i thought we una bunch of establishment clause jurisprudence which i was so excited about five days ago and so it was some suggestion that it isnt going to be a revolution. Paul smith runs the Supreme Court appellate practice at jenner and black and doing Supreme Court cases as an acknowledged l