A federal judge has ruled that the University of North Carolina did not discriminate against white and Asian American applicants and that the university can continue to consider race as a factor in its undergraduate admissions. Federal Judge Laretta Biggs ruled late Monday that the university has shown that it has a compelling reason to pursue a diverse student body and has demonstrated that measurable benefits come from that goal. It was the second trial lass in as many years for the conservative groups Students for Fair Admissions, which also sued Harvard. Joining me is Audrey Anderson, who heads the higher education practice at Bassbarian SIMS. It took about eleven months after the trial for the judge to reach her decision. Why so long? I'm actually not surprised at all by that, First of all, even though that she stopped taking evidence in November, the parties did not hand in their post trial briefs until February. Maybe so she didn't have the whole case before her until February, and has her opinion actually pointed out the evidence in the case was really voluminous. Her trial lasted eight days long, but the parties had come to agreement on lots and lots of other evidence that they stipulated should be part of the record. So in addition to the eight days of trial testimony, there was lots and lots of other expert reports and other materials that the parties agreed they did not need live evidence about, but that were nonetheless in the record. So she had a really voluminous amount of information to go through, and she wrote a one hundred sixty one page long decision. So I'm not at all surprised that it took her this amount of time in order to put out this. It's the same group Students for Fair Admissions. Are their claims here similar to the claims they brought in the Harvard suit, Yes, jun they're very similar. They alleged that the University of North Carolina put too much weight on race in admitting students to its programs, and also that it did not adequately consider race neutral alternatives before using race as a factor. The difference between this case and the Harvard case factually is that in Harvard, there was evidence that one factor in the Harvard admissions program, the personal rating, had been analyzed by Harvard itself to show that it disadvantaged Asian American students. Now, Harvard said that that analysis their own researchers had done was incomplete and wasn't really accurate, but nonetheless it was part of the record, and so a lot of what the experts were talking about in the Harvard case was, does this one piece of evidence, the differences in the personal rating, which is a very subjective rating between Asian American students and other students, show that Harvard is really discriminating against Asian American students. And so that was a lens that was used a lot in the Harvard case. There was nothing like that in the North Carolina case. So there was no smoking gun evidence to show that u n C was discriminating against any racial group. So Students for Fair Admissions s f f A had even more of a kind of sterile, statistical kind of case that they put forward to say that based on this statistical analysis which shows that the test scores and g p a's of Black students and Latin X students tend to be lower than the test scores and g p as of white and Asian students, that means there must be discrimination or there must be too much weight being put on race by the admissions people at the University of North Carolina. So tell us what Judge Loretta Biggs ruled and why. So she ruled that the University of North Carolina's use of race is completely consistent with what the Supreme Court has held is appropriate under the Constitution. So she found that the University of North Carolina had proved that it was using race for the educational benefits of diversity, that it had looked at its own school and said, this is why we want to use race, or this is what we're trying to get out of diversity. We think that there are educational benefits and that our students will have more in depth discussions. We think that diverse groups of people come up with more innovative and creative solutions to problems. We think that having a diverse group of students teaches our students empathy and understanding. They have five different things that they had identified that a diverse student body would bring to the University of North Carolina student body would bring to the University of North Carolina. So Judge Biggs found that they had proved that, and she also found that they needed to use race in order to meet those goals, so the use of race was necessary, and they didn't use it anymore than they needed to in order to hit those goals, so their use of race was narrowly tailored. According to the u n C website, this year's incoming class of five thousand, six hundred students included six five percent to identify as white or Caucasian, twenty one percent as Asian or Asian American, twelve percent as Black or African American, and ten percent who said they were Hispanic, Latino or Latino. But yet, the judge criticized the school for not making enough strides in recent years and said it's been defined by most of its existence by discriminatory and obstructionist policies, not ones that hurt white and Asian American students, but that disadvantaged students of color. Well, that was another interesting difference between this case and Harvard. In this case, the judge allowed a group of students to intervene as parties on the same side as the university, so they were also defending the university's affirmative action policy. These were students of color, so once these students were parties, they were able to put in a dents like the other parties did, and they put in an expert report that UM put out all the history of the University of North Carolina when it comes to race, and that history isn't very good when it comes to black students. Those students also testified at the trial. Black students, Hispanic students testified about how what their experience was at the University of North Carolina. Some of them were recent alums, some of them, I think we're current students at the time. They testified and about how they were still often the only student of color in their classes, how they were sometimes called racial epithets at the University of North Carolina, how they felt tokenized, and that everyone in the classroom would look at them to speak for their race when any topic came up in class that might have some kind of an aspect of racial difference in it. So Judge Big wrote a long footnote about the historical expert evidence that they had put in and also talked about the testimony from those students interveners, and it clearly had an effect on her. But that helped the university because that shows that they still need to use race in order to hit those goals that they have of getting the educational benefits of diversity, So did she want them to do more? In some way? Did she suggest what they should be doing. Here's the point I think it goes to. You may remember June that in the Michigan cases Grutter and Grat, the cases that you know, almost twenty years ago, the court held that colleges and universities could use race and admission. Justice soca Onnor in that case wrote that she thought that colleges universities would no longer have to take race into account in twenty five years because it would no longer be necessary. And I think that what Judge Biggs is doing. He is though I don't think she ever mentions that part of the Grutter opinion. I think she's putting down a little bit of a marker to say we're not close to that. We might be close in time to that twenty five years, but in terms of our country's evolution, we are nowhere near close to the time, at least not at the University of North Carolina, where race is no longer necessary because we have some kind of a color blind society. That's what I think Judge Biggs was doing. So the Students for Fair Admission said they'll appeal and if necessary, up to the Supreme Court. And that's the point, isn't it. They want to appeal this case up to the Supreme Court exactly. They always expected that this was only the first stop on their journey for this case. So they will appeal it to the United States Court of Appeals for the Fourth Circuit. And whatever outcome the Fourth Circuit has, I would expect that the losing party would then seek review from the United States Supreme Court. The Students for Fair Admissions lost the case against Harvard and appealed it to the Supreme Court. The Court postponed action on that case. Tell us what happened. Well, the Court has asked for the views of the Solicitor General in that case, which is a common move that the Supreme Court makes when it is thinking about a case that has some kind of federal constitutional question or federal implication. It wants to know what the views of the United States government are when the Court considers whether or not to take the case. So the Supreme Court has asked for the views of the Solicitor General's office, and I think it we expect that the Solicitor General will deliver that brief to the Court sometime before the end of the calendar year. There's no deadline for the Solicitor General to file that brief. They can file it whenever they want to, but we kind of expect them to do it before the end of the calendar year, and that will allow the Court, if it wants to, to make a decision as to whether or not reviews the Harvard case in time for that case to be heard. This term advocates for affirmative action. Are they afraid that the Supreme Court will take the case? Here's the interesting thing, June. So s f f A has put in its questions presented to the courts, should the Court overrule Grutter and Grats. They've teed it right up. They say that that's what they want the Court to review their case to do. That's their first question presented. So it's not just proponents of affirmative action, you know, making something up. That's clearly what s f f A is just right out asking the Court to do. You know, when you get away from a hot button topic like abortion, like affirmative action, and you're just in the realm of regular cases. The Supreme Court doesn't usually take a case to review unless there's some kind of a divide between the lower court, and so Judge Biggs decisions would usually caution away from the court taking a case to review. Here we have Judge Biggs decision being very much in line with Judge Burrow's decision from the District of Massachusetts, which was affirmed by the First Circuit. So these two courts seem to be looking at the U n C Applications process and the Harvard process very much the same way, all in line with what the Supreme Court has helped. That would all be something to say, Court, there's nothing for you to weigh in on the courts. They are all seeing this the same way. In line your President, let it go, let the law further develop before you take it on and rule on it. That would be how a Supreme Court advocate would look at this case if it were not a hot button case. But with the change in the court, with new members of the Court who probably disagree with the court precedent, everybody has this up for grabs. Thanks Audrey. That's Audrey Anderson of Bassparian SIMS. President Joe Biden's bipartisan commission studying changes to the U s Supreme Court released a draft of its findings in which it wrote favorably of creating term limits for judges and cautioned against the Court adding justices. It lost two of its conservative members and several of its liberal members were critical of the initial findings. In short, neither liberals nor conservatives seemed to be overly happy with the commission. Joining me is Josh Blackman, Professor of Constitutional law at the Alt Texas College of Law. These initial recommendations just give us an overview of what they will recommend. It is not the right word, because they're not making recommendations. What did they say? The panel discussed a couple major areas, One whether the Court to be expanded with new seats, to whether term limits for the justice might be appropriate. Three, whether the courts so called shadow or emergency doctors performed. And fourth they discussed usual ethics and the ethics codes that applies to the Supreme Court. The longest short of it is the court where the panel made no recommendations. In the Court, it isn't even clear they can make recommendations of what's to do. And even the areas on which there were some agreement, there was no majority opinion. So to speak. Um, there was a pretty strong sentiment against explaining the court. There were some agreement on whether there's be terminalments, but there was disagreement if the terminments to be imposed through a simple Act of Congress the statute, whether it cons social amendment was necessary. So really, June, at the end, this was much as you about nothing. Um. There really wasn't much acame of this lengthy product of the stuff. Several of your pages of report that frankly, I didn't even read it. You didn't read it, but you're doing an interview on it. I skimmed it, and I got I got to highlight. Many people have said that the President just appointed this panel to waste time or to bide his time, because he wants to avoid this issue which liberals are so incensed about. I think that's right. President Biden was never in favor of so called court reform. He was always very transparent about that fact. Um, so he I think he created his commission to sort of deflex attention for a few months. UM. On Friday, after the Commission had their meeting, a reporter asked Biden what he thought about terminus with screame Court and President Biden had one word answer, no, doesn't know. No. So it's like, you know, you submit a paper to be graded and in fine mincily your teacher says, never mind, not interested. Right, It's it's immediate rejection of the only area there was some agreement upon UM. So this was really much to do about nothing. Biden didn't want to do anything. He created his egghead panel with fellow academic to sort of stretch things out, and now it's going to just vanish and disappear. There's actually some bipartisan support for term limits, isn't there? There is? Um. The panel said it was content in term limits, but they didn't agree on whether it to be done through a simple Act of Congress of statute, whether a new constitutional moment was necessary UM for requires and amendments of the Constitution. It's not gonna happen. We don't. We don't have that much consensus in the country at all. Perhaps that happens for a statute. And then Biden was asked to that and said nope, no, not interested. So again I think we're basically back where it started from. I mean, he has said in the past that he did not in favor of packing the Court, but to say no to term limits. Why have the panel? I don't think Biden ever wants to have his panel. I think he simply needed a way to deflect the attention show he was doing something. During the campaign, he promised that he would have created panel, and he did it, and now he who will probably ignore their report? And when I think it's significant this panel is not target than making a recommendation, they would basically have their hands tied me up. The two conservative members of the panel quit last week. Any indication as to why they quit at this point after six months, Well, these are respected people. One is Jack Goldsmith at Harvard who worked at the George to W. Bush Justice Department, together as Caleb Nelson's a lot professor at Virginia CLOrk for Clarence Thomas and both them very well. These a respected people. There must be something in the report they didn't agree with, or there must be something coming that they're going to disagree with. We don't We don't quite know the different um. But I'll make this point more clearly. Uh, there were no dissent right, the members were not required to join the report. They could earn their own descent. But I think this sort of resignation was a quiet dissent to signal that this was not unanimous, that there was there was disagreement over what remedies to adopt. Also, the draft report will say some commissioners believe, but other commissioners believe. So there's not even a consensus about the report in the report right, and and the group doesn't even agree with what their charge was is what they were instructed to do. It's a very weird, disjointed process. I mean imaging a different world June where the government said, okay, you have sixty days, give us a list of five recommendations. They would know exactly what to do. But Biden had a sort of open ended report saying let's discuss the Supreme Court and and that's it. So it's kind of like a long article that you've seen in academic journal that again no one will read, including me, because it's more than true tra pages material. I think you should be required to. I think that would violence the ash amendmentist rule and the nusual punishment. I fell that joke from Justice Leave by the way Justice Glee once it reading the entire Affordable Care Act would be a violation the aph Amendment so I can't take credit for that joke. Did they come out firmly against court packing? Yes, for the most part, Um, there was a very general consensus that expand the court would do significant damage to the institution in the long run. A few members of the of the Commission actually spoke up saying we need to be more open. Lawrence Tribe of Harvard said we're going to break the glass moment, right in case the emergency, break the glass. Um, But there's just no movement for it. I think that that approach is dead. Pauls have shown that the public has lost respect for the court. The Court is more out of favor than it's been in a while after the last term. Is there a way to it's that without tinkering with the court? Well, you know, I think it's it depends which way you look at it. Right, there are six conservative members now, and therefore you have more conservative opinions. But even then you have justice who were moderate. Robert's Kavana and Barrett is sort of in the middle of this three three three courts. Um. So I don't think sinkering it is necessary. And see, I think trying to tinker at the court would likely prove disastrous in the long run. Um, it's just it's it's this sort of this freak of accident that Trump got to Ginsburg see right before the election, and this Belie seat theayed open through the other elections. So there were two additional justices that probably wouldn't have happened otherwise. Uh. The other way to look at it is Republicans have had many justice of the years that simply weren't Conservative John Paul Stevens, David Suitor, O'Connor, and Kennedy on most occasions. So you know, the Democrats got lucky in number of cases, but they've they've not rolled the dice well last you know, six years or so. It really wasn't a freak of nature. It really was Mitch McConnell responsible for holding open and Justice Scalia seat and then using different reasoning to fill Justice Ruth Bader Ginsburg's seat right before an election. That politicizes the court, doesn't it more than it already is? Well, Look, I think I think the short answer is that, Um, McConnell is a politician, UM, and he saw an opportunity and he was willing to um keep the seat open at great expense. Um, and so far the Democrats has not been able to retaliate with that sort of hard ball. So I do. I do think the mccomposition when I said to Creak of Nature that the vacancies of rose at just the right moment, because there's no guarantee either the Scalia seat or the Gainsky open up just when they did. How would the Democrats retaliate. Do you have any advice for the Democrats? Well, look, the leader of the Democratic Party, Joe Biden, said not interested. So I think the short answers is no momentum. Perhaps, you know, progressive activists wish for it, but there's not much. We've heard several justices talk about how the court is not politicized. Do you think they've take into account how some of their more controversial decisions will affect the public. I hope not. I think when the justices start thinking about the general public and more political right, because that means they can be swayed by things are not law um. In my mind, the least political justice, the justice puts his head in the standard doesn't consider the sort of sentiment. But we don't live in my sort of ideal world. I think Robert that people think. I think Kavan does, Embarratt may as well. The other freedom the draft analysis said that Congress would be authorized to write a code of conduct for the justices, and but Chief Justice Roberts has suggested he doesn't believe that Congress has congressional authority to impose conduct rules on the Supreme Court. He did say that do you think the Court needs some conduct rules because we don't know when they're accusing themselves and when they're not well. So there's there's two questions. One can Congress fread a code of the justice is I used to be persuaded by John Roberts that they couldn't, and now I think Roberts is wrong. Um. I think it's true that the Constitution, you know, refers to the creation of Supreme Court but not the judges, and Congress has to enact or created the seats midstream corpied statute. Right, even the Chief Justice was created by statute, and Congress creates the seas by statute. They can regularly sets these. I think Roberts is arguing the separation powers is simply wrong, but you'll probably stick to it. Um. I think the more important question is what would that code be and let's be frank, your recusal right if the justice steps down in the case. On most court, if a justice recused, the judge recuses, it's no big deal because the're a bunch of other judges. But in the U. Spreme Corps of Justice recuses, there's no one to back up as an alternate. So I think you as a little more thoughtful with the source of awards you have. UM. But I I think Congress could do something for the the court. Do you think the Court itself, the justices should be doing that, should have outlined some rules and regulations for at least for recusal. I think the justice internally do. There was a discussion in the early going back thirty years where Chief Justice Ranklist asked all the sitting justices to agree to the code that binds lower court judges. Um, we don't know if that's been updated. We don't. We just we don't know. UM. So I think it'll be meaningful. But you know, the justice they recused all the time, and it happens in various cases. In fact, Justice the Leado is known to recuse when the case is granted and then he excels the stopped and he goes back on the case. So it's sort of most silly. I think judges just not only stop they showing on mutual funds and index funds, and that that that's the dresses almost all these issues. But that that's my naive approached. Didn't the Commission say something about that as well? There was a report in the Wall Street Journal a couple of weeks ago that a lot of these lower court judges are having um owning stock in cases. Weren't realize that the justices are pretty good at the stock ownership. Uh, there there might be some errors of stiff through, but they're they're pretty diligent up on that. I understand that this report addressed the shadow docket and the problems with it. It does it seem as if the justices themselves are starting to recognize the problems with the shadow docket or not recognized. I think Plato is like, get over, it is not a big deal and does not have with the criticism. Um. I think Justice Brier sort of criticizing and Justice Cadence criticizing, and then again they're on the losing side these cases, so I don't think that there's much appetite. I mean, keep in mind. You when these cases come to the court, the parties are asking for immediate ruling, right they want to ruling two or three days. The court can't move below when the parties want to move fast. Um. So I think a lot of it has to do with what relief the parties are asking for. I think that I think the shadow dots stuff is really really overblown. I really do. Um. It's a courtward of grant certain decide the case six months later, it will connect the exact same way. So people, I think are just upset at the result. It's not a sleary the process. Thanks Josh. That's Professor Josh Blackman of the South Texas College of Law. And that's it for the edition of the Bloomberg Law Show. Remember you can always get the latest legal news on our Bloomberg Lawn podcast. You can find them on Apple Podcasts, Spotify, and at www dot Bloomberg dot com, Slash Podcasts Last Law. I'm June Grosso and you're listening to Bloomberg

A federal judge has ruled that the University of North Carolina did not discriminate against white and Asian American applicants and that the university can continue to consider race as a factor in its undergraduate admissions. Federal Judge Laretta Biggs ruled late Monday that the university has shown that it has a compelling reason to pursue a diverse student body and has demonstrated that measurable benefits come from that goal. It was the second trial lass in as many years for the conservative groups Students for Fair Admissions, which also sued Harvard. Joining me is Audrey Anderson, who heads the higher education practice at Bassbarian SIMS. It took about eleven months after the trial for the judge to reach her decision. Why so long? I'm actually not surprised at all by that, First of all, even though that she stopped taking evidence in November, the parties did not hand in their post trial briefs until February. Maybe so she didn't have the whole case before her until February, and has her opinion actually pointed out the evidence in the case was really voluminous. Her trial lasted eight days long, but the parties had come to agreement on lots and lots of other evidence that they stipulated should be part of the record. So in addition to the eight days of trial testimony, there was lots and lots of other expert reports and other materials that the parties agreed they did not need live evidence about, but that were nonetheless in the record. So she had a really voluminous amount of information to go through, and she wrote a one hundred sixty one page long decision. So I'm not at all surprised that it took her this amount of time in order to put out this. It's the same group Students for Fair Admissions. Are their claims here similar to the claims they brought in the Harvard suit, Yes, jun they're very similar. They alleged that the University of North Carolina put too much weight on race in admitting students to its programs, and also that it did not adequately consider race neutral alternatives before using race as a factor. The difference between this case and the Harvard case factually is that in Harvard, there was evidence that one factor in the Harvard admissions program, the personal rating, had been analyzed by Harvard itself to show that it disadvantaged Asian American students. Now, Harvard said that that analysis their own researchers had done was incomplete and wasn't really accurate, but nonetheless it was part of the record, and so a lot of what the experts were talking about in the Harvard case was, does this one piece of evidence, the differences in the personal rating, which is a very subjective rating between Asian American students and other students, show that Harvard is really discriminating against Asian American students. And so that was a lens that was used a lot in the Harvard case. There was nothing like that in the North Carolina case. So there was no smoking gun evidence to show that u n C was discriminating against any racial group. So Students for Fair Admissions s f f A had even more of a kind of sterile, statistical kind of case that they put forward to say that based on this statistical analysis which shows that the test scores and g p a's of Black students and Latin X students tend to be lower than the test scores and g p as of white and Asian students, that means there must be discrimination or there must be too much weight being put on race by the admissions people at the University of North Carolina. So tell us what Judge Loretta Biggs ruled and why. So she ruled that the University of North Carolina's use of race is completely consistent with what the Supreme Court has held is appropriate under the Constitution. So she found that the University of North Carolina had proved that it was using race for the educational benefits of diversity, that it had looked at its own school and said, this is why we want to use race, or this is what we're trying to get out of diversity. We think that there are educational benefits and that our students will have more in depth discussions. We think that diverse groups of people come up with more innovative and creative solutions to problems. We think that having a diverse group of students teaches our students empathy and understanding. They have five different things that they had identified that a diverse student body would bring to the University of North Carolina student body would bring to the University of North Carolina. So Judge Biggs found that they had proved that, and she also found that they needed to use race in order to meet those goals, so the use of race was necessary, and they didn't use it anymore than they needed to in order to hit those goals, so their use of race was narrowly tailored. According to the u n C website, this year's incoming class of five thousand, six hundred students included six five percent to identify as white or Caucasian, twenty one percent as Asian or Asian American, twelve percent as Black or African American, and ten percent who said they were Hispanic, Latino or Latino. But yet, the judge criticized the school for not making enough strides in recent years and said it's been defined by most of its existence by discriminatory and obstructionist policies, not ones that hurt white and Asian American students, but that disadvantaged students of color. Well, that was another interesting difference between this case and Harvard. In this case, the judge allowed a group of students to intervene as parties on the same side as the university, so they were also defending the university's affirmative action policy. These were students of color, so once these students were parties, they were able to put in a dents like the other parties did, and they put in an expert report that UM put out all the history of the University of North Carolina when it comes to race, and that history isn't very good when it comes to black students. Those students also testified at the trial. Black students, Hispanic students testified about how what their experience was at the University of North Carolina. Some of them were recent alums, some of them, I think we're current students at the time. They testified and about how they were still often the only student of color in their classes, how they were sometimes called racial epithets at the University of North Carolina, how they felt tokenized, and that everyone in the classroom would look at them to speak for their race when any topic came up in class that might have some kind of an aspect of racial difference in it. So Judge Big wrote a long footnote about the historical expert evidence that they had put in and also talked about the testimony from those students interveners, and it clearly had an effect on her. But that helped the university because that shows that they still need to use race in order to hit those goals that they have of getting the educational benefits of diversity, So did she want them to do more? In some way? Did she suggest what they should be doing. Here's the point I think it goes to. You may remember June that in the Michigan cases Grutter and Grat, the cases that you know, almost twenty years ago, the court held that colleges and universities could use race and admission. Justice soca Onnor in that case wrote that she thought that colleges universities would no longer have to take race into account in twenty five years because it would no longer be necessary. And I think that what Judge Biggs is doing. He is though I don't think she ever mentions that part of the Grutter opinion. I think she's putting down a little bit of a marker to say we're not close to that. We might be close in time to that twenty five years, but in terms of our country's evolution, we are nowhere near close to the time, at least not at the University of North Carolina, where race is no longer necessary because we have some kind of a color blind society. That's what I think Judge Biggs was doing. So the Students for Fair Admission said they'll appeal and if necessary, up to the Supreme Court. And that's the point, isn't it. They want to appeal this case up to the Supreme Court exactly. They always expected that this was only the first stop on their journey for this case. So they will appeal it to the United States Court of Appeals for the Fourth Circuit. And whatever outcome the Fourth Circuit has, I would expect that the losing party would then seek review from the United States Supreme Court. The Students for Fair Admissions lost the case against Harvard and appealed it to the Supreme Court. The Court postponed action on that case. Tell us what happened. Well, the Court has asked for the views of the Solicitor General in that case, which is a common move that the Supreme Court makes when it is thinking about a case that has some kind of federal constitutional question or federal implication. It wants to know what the views of the United States government are when the Court considers whether or not to take the case. So the Supreme Court has asked for the views of the Solicitor General's office, and I think it we expect that the Solicitor General will deliver that brief to the Court sometime before the end of the calendar year. There's no deadline for the Solicitor General to file that brief. They can file it whenever they want to, but we kind of expect them to do it before the end of the calendar year, and that will allow the Court, if it wants to, to make a decision as to whether or not reviews the Harvard case in time for that case to be heard. This term advocates for affirmative action. Are they afraid that the Supreme Court will take the case? Here's the interesting thing, June. So s f f A has put in its questions presented to the courts, should the Court overrule Grutter and Grats. They've teed it right up. They say that that's what they want the Court to review their case to do. That's their first question presented. So it's not just proponents of affirmative action, you know, making something up. That's clearly what s f f A is just right out asking the Court to do. You know, when you get away from a hot button topic like abortion, like affirmative action, and you're just in the realm of regular cases. The Supreme Court doesn't usually take a case to review unless there's some kind of a divide between the lower court, and so Judge Biggs decisions would usually caution away from the court taking a case to review. Here we have Judge Biggs decision being very much in line with Judge Burrow's decision from the District of Massachusetts, which was affirmed by the First Circuit. So these two courts seem to be looking at the U n C Applications process and the Harvard process very much the same way, all in line with what the Supreme Court has helped. That would all be something to say, Court, there's nothing for you to weigh in on the courts. They are all seeing this the same way. In line your President, let it go, let the law further develop before you take it on and rule on it. That would be how a Supreme Court advocate would look at this case if it were not a hot button case. But with the change in the court, with new members of the Court who probably disagree with the court precedent, everybody has this up for grabs. Thanks Audrey. That's Audrey Anderson of Bassparian SIMS. President Joe Biden's bipartisan commission studying changes to the U s Supreme Court released a draft of its findings in which it wrote favorably of creating term limits for judges and cautioned against the Court adding justices. It lost two of its conservative members and several of its liberal members were critical of the initial findings. In short, neither liberals nor conservatives seemed to be overly happy with the commission. Joining me is Josh Blackman, Professor of Constitutional law at the Alt Texas College of Law. These initial recommendations just give us an overview of what they will recommend. It is not the right word, because they're not making recommendations. What did they say? The panel discussed a couple major areas, One whether the Court to be expanded with new seats, to whether term limits for the justice might be appropriate. Three, whether the courts so called shadow or emergency doctors performed. And fourth they discussed usual ethics and the ethics codes that applies to the Supreme Court. The longest short of it is the court where the panel made no recommendations. In the Court, it isn't even clear they can make recommendations of what's to do. And even the areas on which there were some agreement, there was no majority opinion. So to speak. Um, there was a pretty strong sentiment against explaining the court. There were some agreement on whether there's be terminalments, but there was disagreement if the terminments to be imposed through a simple Act of Congress the statute, whether it cons social amendment was necessary. So really, June, at the end, this was much as you about nothing. Um. There really wasn't much acame of this lengthy product of the stuff. Several of your pages of report that frankly, I didn't even read it. You didn't read it, but you're doing an interview on it. I skimmed it, and I got I got to highlight. Many people have said that the President just appointed this panel to waste time or to bide his time, because he wants to avoid this issue which liberals are so incensed about. I think that's right. President Biden was never in favor of so called court reform. He was always very transparent about that fact. Um, so he I think he created his commission to sort of deflex attention for a few months. UM. On Friday, after the Commission had their meeting, a reporter asked Biden what he thought about terminus with screame Court and President Biden had one word answer, no, doesn't know. No. So it's like, you know, you submit a paper to be graded and in fine mincily your teacher says, never mind, not interested. Right, It's it's immediate rejection of the only area there was some agreement upon UM. So this was really much to do about nothing. Biden didn't want to do anything. He created his egghead panel with fellow academic to sort of stretch things out, and now it's going to just vanish and disappear. There's actually some bipartisan support for term limits, isn't there? There is? Um. The panel said it was content in term limits, but they didn't agree on whether it to be done through a simple Act of Congress of statute, whether a new constitutional moment was necessary UM for requires and amendments of the Constitution. It's not gonna happen. We don't. We don't have that much consensus in the country at all. Perhaps that happens for a statute. And then Biden was asked to that and said nope, no, not interested. So again I think we're basically back where it started from. I mean, he has said in the past that he did not in favor of packing the Court, but to say no to term limits. Why have the panel? I don't think Biden ever wants to have his panel. I think he simply needed a way to deflect the attention show he was doing something. During the campaign, he promised that he would have created panel, and he did it, and now he who will probably ignore their report? And when I think it's significant this panel is not target than making a recommendation, they would basically have their hands tied me up. The two conservative members of the panel quit last week. Any indication as to why they quit at this point after six months, Well, these are respected people. One is Jack Goldsmith at Harvard who worked at the George to W. Bush Justice Department, together as Caleb Nelson's a lot professor at Virginia CLOrk for Clarence Thomas and both them very well. These a respected people. There must be something in the report they didn't agree with, or there must be something coming that they're going to disagree with. We don't We don't quite know the different um. But I'll make this point more clearly. Uh, there were no dissent right, the members were not required to join the report. They could earn their own descent. But I think this sort of resignation was a quiet dissent to signal that this was not unanimous, that there was there was disagreement over what remedies to adopt. Also, the draft report will say some commissioners believe, but other commissioners believe. So there's not even a consensus about the report in the report right, and and the group doesn't even agree with what their charge was is what they were instructed to do. It's a very weird, disjointed process. I mean imaging a different world June where the government said, okay, you have sixty days, give us a list of five recommendations. They would know exactly what to do. But Biden had a sort of open ended report saying let's discuss the Supreme Court and and that's it. So it's kind of like a long article that you've seen in academic journal that again no one will read, including me, because it's more than true tra pages material. I think you should be required to. I think that would violence the ash amendmentist rule and the nusual punishment. I fell that joke from Justice Leave by the way Justice Glee once it reading the entire Affordable Care Act would be a violation the aph Amendment so I can't take credit for that joke. Did they come out firmly against court packing? Yes, for the most part, Um, there was a very general consensus that expand the court would do significant damage to the institution in the long run. A few members of the of the Commission actually spoke up saying we need to be more open. Lawrence Tribe of Harvard said we're going to break the glass moment, right in case the emergency, break the glass. Um, But there's just no movement for it. I think that that approach is dead. Pauls have shown that the public has lost respect for the court. The Court is more out of favor than it's been in a while after the last term. Is there a way to it's that without tinkering with the court? Well, you know, I think it's it depends which way you look at it. Right, there are six conservative members now, and therefore you have more conservative opinions. But even then you have justice who were moderate. Robert's Kavana and Barrett is sort of in the middle of this three three three courts. Um. So I don't think sinkering it is necessary. And see, I think trying to tinker at the court would likely prove disastrous in the long run. Um, it's just it's it's this sort of this freak of accident that Trump got to Ginsburg see right before the election, and this Belie seat theayed open through the other elections. So there were two additional justices that probably wouldn't have happened otherwise. Uh. The other way to look at it is Republicans have had many justice of the years that simply weren't Conservative John Paul Stevens, David Suitor, O'Connor, and Kennedy on most occasions. So you know, the Democrats got lucky in number of cases, but they've they've not rolled the dice well last you know, six years or so. It really wasn't a freak of nature. It really was Mitch McConnell responsible for holding open and Justice Scalia seat and then using different reasoning to fill Justice Ruth Bader Ginsburg's seat right before an election. That politicizes the court, doesn't it more than it already is? Well, Look, I think I think the short answer is that, Um, McConnell is a politician, UM, and he saw an opportunity and he was willing to um keep the seat open at great expense. Um, and so far the Democrats has not been able to retaliate with that sort of hard ball. So I do. I do think the mccomposition when I said to Creak of Nature that the vacancies of rose at just the right moment, because there's no guarantee either the Scalia seat or the Gainsky open up just when they did. How would the Democrats retaliate. Do you have any advice for the Democrats? Well, look, the leader of the Democratic Party, Joe Biden, said not interested. So I think the short answers is no momentum. Perhaps, you know, progressive activists wish for it, but there's not much. We've heard several justices talk about how the court is not politicized. Do you think they've take into account how some of their more controversial decisions will affect the public. I hope not. I think when the justices start thinking about the general public and more political right, because that means they can be swayed by things are not law um. In my mind, the least political justice, the justice puts his head in the standard doesn't consider the sort of sentiment. But we don't live in my sort of ideal world. I think Robert that people think. I think Kavan does, Embarratt may as well. The other freedom the draft analysis said that Congress would be authorized to write a code of conduct for the justices, and but Chief Justice Roberts has suggested he doesn't believe that Congress has congressional authority to impose conduct rules on the Supreme Court. He did say that do you think the Court needs some conduct rules because we don't know when they're accusing themselves and when they're not well. So there's there's two questions. One can Congress fread a code of the justice is I used to be persuaded by John Roberts that they couldn't, and now I think Roberts is wrong. Um. I think it's true that the Constitution, you know, refers to the creation of Supreme Court but not the judges, and Congress has to enact or created the seats midstream corpied statute. Right, even the Chief Justice was created by statute, and Congress creates the seas by statute. They can regularly sets these. I think Roberts is arguing the separation powers is simply wrong, but you'll probably stick to it. Um. I think the more important question is what would that code be and let's be frank, your recusal right if the justice steps down in the case. On most court, if a justice recused, the judge recuses, it's no big deal because the're a bunch of other judges. But in the U. Spreme Corps of Justice recuses, there's no one to back up as an alternate. So I think you as a little more thoughtful with the source of awards you have. UM. But I I think Congress could do something for the the court. Do you think the Court itself, the justices should be doing that, should have outlined some rules and regulations for at least for recusal. I think the justice internally do. There was a discussion in the early going back thirty years where Chief Justice Ranklist asked all the sitting justices to agree to the code that binds lower court judges. Um, we don't know if that's been updated. We don't. We just we don't know. UM. So I think it'll be meaningful. But you know, the justice they recused all the time, and it happens in various cases. In fact, Justice the Leado is known to recuse when the case is granted and then he excels the stopped and he goes back on the case. So it's sort of most silly. I think judges just not only stop they showing on mutual funds and index funds, and that that that's the dresses almost all these issues. But that that's my naive approached. Didn't the Commission say something about that as well? There was a report in the Wall Street Journal a couple of weeks ago that a lot of these lower court judges are having um owning stock in cases. Weren't realize that the justices are pretty good at the stock ownership. Uh, there there might be some errors of stiff through, but they're they're pretty diligent up on that. I understand that this report addressed the shadow docket and the problems with it. It does it seem as if the justices themselves are starting to recognize the problems with the shadow docket or not recognized. I think Plato is like, get over, it is not a big deal and does not have with the criticism. Um. I think Justice Brier sort of criticizing and Justice Cadence criticizing, and then again they're on the losing side these cases, so I don't think that there's much appetite. I mean, keep in mind. You when these cases come to the court, the parties are asking for immediate ruling, right they want to ruling two or three days. The court can't move below when the parties want to move fast. Um. So I think a lot of it has to do with what relief the parties are asking for. I think that I think the shadow dots stuff is really really overblown. I really do. Um. It's a courtward of grant certain decide the case six months later, it will connect the exact same way. So people, I think are just upset at the result. It's not a sleary the process. Thanks Josh. That's Professor Josh Blackman of the South Texas College of Law. And that's it for the edition of the Bloomberg Law Show. Remember you can always get the latest legal news on our Bloomberg Lawn podcast. You can find them on Apple Podcasts, Spotify, and at www dot Bloomberg dot com, Slash Podcasts Last Law. I'm June Grosso and you're listening to Bloomberg