Carolina Journal Radio No. 912: Supreme Court welcomes originalist Amy Coney Barrett

From Cherokee to current attack and the largest city to the smallest and from the statehouse into the schoolhouse Carolina Journal radio your weekly news magazine discussing North Carolina's most of public policy events and issues welcome to Carolina Journal radio I Michiko got during the next hour, Donna Martinez and I will explore some major issues affecting our state governing boards should play a critical role in performing higher education that's according to a recent report from a leading North Carolina-based higher education watchdog to learn details, state lawmakers have different ideas about the best way to help small businesses coping with the impact of covert, 19 you'll hear highlights from a recent debate.

Speaking of covert it's had an impact on public school enrollment in North Carolina and expert assesses that impact will hear highlights from a North Carolina senator's questioning of a Supreme Court nominee.

Speaking of that nominee. Now a new Supreme Court justice Donna Martinez turns her attention to that topic in the Carolina Journal headline Notre Dame Law school graduate and mother of seven Amy Kony Barrett has now become only the 115th person to be sworn in as a member of the United States Supreme Court Justice Barrett is 48 years old and the fifth woman to serve on our country's highest court. So how will she change the court and will she change the court for now we turn to the director of legal studies for the John Locke foundation John Tuesday, who is been taking a look at some of her previous rulings and joints is to talk about the new justice John, welcome back to the show that you she is young young, just in general and young for a member of the court and potentially John, that's 30 to 40 years of Amy Kony Barrett on the United States Supreme Court. You know you got is a generation of impact on pretty interesting. Sorry, I think why well. I'm hoping everything she said or written up to this point makes me believe that she's going to be a diehard originalist like her mentor Anthony Scalia like Clarence Thomas and Lisa to recently new courses which is just what we need on the US Supreme Court in all courts in this country. Why do we need that because unfortunately it's a long story how it happened but the courts have sort of advocated what ought to be there job which is to enforce the law and they become super legislatures make law. No some situations where that's okay but it's not okay when they make law by reinterpreting and changing the meaning of duly enacted statutes and it's certainly not okay when they do it by reinterpreting and changing the meaning of the U.S. Constitution you have listened to you not only read some of her rulings but you listen to some of the things she said during her nomination hearing. She made some comments after being sworn in what you make of her philosophy. How does she really explain to people how she views her role as a judge in our justice. Well, much of the same way that some of our best Supreme Court justices have. She says that her job.

Ironically, this is something that Chief Justice Roberts said when he was being interviewed and when he was horny, but she really will do it. I think she's not she's going to call balls and strikes. She's going to apply the law as it's written and she's not going to let her personal policy preferences get in the way, let alone anything like party affiliation.

You just said something really interesting and I want to talk about that sheep you mentioned Chief Justice John Roberts and you may, a reference to some things that he said in his confirmation hearings and he is a nonattorney myself at my interpretation of what he said the balls and strikes comment was that he was not going to bring his preferences or views to his decisions, he was gonna call balls and strikes. Of course some. Then when he essentially wrote the opinion that said that the affordable care act Obama care was constitutional lot of folks kind of went back on their heels and said hey that's not exactly what you told us how you would view your job in your confirmation hearings gets me to this John which I think is a really interesting discussion as it relates to new justice set Barrett because in his confirmation hearings a few years ago.

John Roberts essentially said look you know I'm gonna call balls and strikes. My views don't matter here but then he made a controversial ruling in the majority opinion on the affordable care act Obama care, saying that it is constitutional.

So what you make now of when you hear a judge and now justice Barrett say I'm not going to do that can can we take stock that she won't. Well, you certainly may we learn this hardware you can't assume that they're going to do what they said they would do no think we should assume it's because they were lighter, being hypocritical at the time. There seems to be something about power. The changes people. And we seen it happen over and over again where justice moves to the left or at least to the center was to get on the Supreme Court. I think part of what happens is they start to see themselves not so much as judges but a statesman they're responsible for the total well-being of the country and sometimes you gotta make some compromises to their judicial principles could happen to justice Barrett but I hope what loaded. I don't really think it will.

She's had good role models. Anthony Scalia a good role model is clear and everything she's written makes me think she's sincere. So my hope is that you will stay the course.

Some of them have most notably Clarence Thomas for year after year and is been there 30 years now, but he has consistently adhered to a ritualism and textualism. Chief Justice John Roberts has been seen by a lot of folks over the past few years as as these swing vote really sure is he gonna go with the liberal wing or with the originalist conservative wing. Now that justice Barrett is on the court. What does she do what is her philosophy due to the so-called back-and-forth or is there a swing vote anymore. Yeah, that's I've been thinking about this is good interesting to see how it plays out. He certainly isn't going to be the swing vote in the sense that I have two groups equally for each on the left and on the right. That will give them put them in the position to be able to make the call dropping the case just interesting to see whether he continues to side with the left on controversial cases or whether he decides back. I can't.

I can't determine the outcome.

Either way, swimmers will go with my conscience and my best judicial thinking. I've seen some analysts say. Well, the court now is really 6236 some more conservative people and three more liberal people is that how you see it not really mean this is it's true.

Certainly that we've got three Democratic appointments and six Republican appointments and in terms of their political philosophers. I think we can we can say for certain that all three of those Democratic appointees are liberals and favored Democratic policy in general and you say the opposite for the other six.

What's been interesting over the years whether the three Democrats and three liberals tend to vote in lockstep along ideological lines on these controversial cases that really hasn't been true of the other six.

And the reason is a ritualism if you adhere to the philosophy that my job is to apply the law as it's written that makes it much harder for you to just go with your ideological preferences. So I think it will be interesting to my hope is that with six originalist or because I originalist case of Judge Justice Roberts on the court. We might start to see the whole court change its tenor and stop being so political stopping so ideological and start really thinking about what the law says and how it should probably be interpreted so will be watching to see how the justices behave in rule, etc. but John there is already backlash from Democrats and people who believe that a Amy Connie Barrett should never been nominated at the point she was nominated never been confirmed and also they don't like her philosophy of a regionalism there's been talk of what's called packing the court what you make of that. Well, it's kinda horrified to be honest I I'm I'm not worried, but I'm not terribly worried does a lot of institutional inertia.

A lot of me.

I think almost across-the-board academic lawyers and judges of all parties will probably stand up and say this is a mistake time at expanding the court adding people talk about judge packed court documenting adding seats to get the ideological balance you want and this goes back to the administration of of of Pres. Roosevelt when he threatened to pack the court and got the court to change some of its decisions, but if this happens, then everything is up for grabs.

I don't know how to play out over get me a watching going forward. Of course sent to see exactly how the new justice Amy Connie Barrett in separate ruling in some of these consequential cases in our guest John Coetzee will be writing about all of those decisions are many of them atleast@johnlocke.org John, thanks for joining us to stay with his folks much more Carolina journaling unit, in just a moment tired of fake names tired of reporters with political axes to grind.

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Many people believe American higher education needs major reform. What's the best way to make that reform happen next guest has a new report on the topic J shall and is director of policy analysis at the James G. Martin Center for academic renewal in his recent report on this topic is titled bolstering the board trustees are academia's best hope for reform.

Look back to the program.

J thanks Mitch so that the title got gives it away. You basically think if there's going to be reform it's going to have to involve trustees or at the KC University North Carolina systems of the board of governors, people who are not actually on the campus day-to-day. Yeah, I mean the current situation is, what academic itself has produced these are the people who've been in charge. Academics have been running the show. The control higher education's current governance is kind of an informal system called shared shared governance in which the board, the administration and the faculty. All have their own spheres of activity on the board is supposed to control the finances, the administration controls the day-to-day operations and communication with the outside world and the faculty controls the curriculum. The intellectual side of things you mentioned at the very outset of this report that there are two conditions needed to effect large-scale reforms and both of them involve changing the way that the trustees and and governors operate the need to use conditions you need to have a hierarchical organization if you're going to reform the situation you need to have firm leadership at the top you can't have a system where lots and lots of decisions are made at the bottom you were in the middle and they filter through lots of different committees and organizations you need to have a firm grip on the reins and somebody you can make things happen. The other thing you need to have once again, you need to have people in charge, or at least influencing poor from outside the organization and have not adopted the ways of thinking of the organization and can take a fresh look and say this has to change. I would imagine some people hearing the circus a way to that kind of goes against what we we often say of that in the right of center perspective the best decisions are made by the people who were closest to the decentralized things which are saying that to affect the changes that are needed in academia.

You really do need some sort of person at the top group of the top saying this is good happen, make it at all, for in many situations. I'm all for that Madisonian. Let's have lots of different centers of power that have balance each other out. But this is not the situation of that existed when we were creating the United States. This is an institution, rather self enclosed that has become very badly degraded to have the system it exists, is exactly that you have to. There's a lot of checks and balances so nothing ever gets done and because nothing ever gets done at the top, things seem to move in the direction that it's already moving in and that's a disaster on we've seen the results so to meet both of the conditions that you spell out you need strong board governance is your conclusion yes and one of the problems is that the board kinda got shoved a side in the late 1800s late 1900s or early 1900s. They they still have legal control. In most cases, they either get it from their state assemblies in the case of public schools or they get it from their charters which makes the board. The owners of the University, in perpetuity. However, in practice, something very different goes along and this is stifling. Any attempt to get anything done and it is also degraded the board. They have become people who don't expect to do anything they become the people who just are happy to be there and socialize. And if we tweak the board is a more serious organization.

We will get better. People hopefully another key thing is the board has to control its own people, and that by that I mean it has to control the training of people and it has to control the flow of information. The biggest problem is one of the biggest problems is the asymmetry of information problem in which the administration is able to treat the board and I'll get a little earthy here like mushrooms.

I'm sure many of you understand that they are kept in the dark and fed manure. And so by that way, the board has just been shoved aside, they are not fulfilling the duties that are legally Thursday or not fulfilling their fiduciary duty a joke has been that members of these types board show up vote yes and then collect the football and basketball tickets so you're talking about a very different way to operate how how would you go about getting to the type of board that's needed both first of all, I'm not so sure we can do it with a lot of the prestigious private colleges are universities. They are self there insulated by either massive endowments and their reputations and they are run by self-perpetuating boards which one sago woke they don't come back plus of their private they get to set their own rules. It public universities. It depends on the politics. If you have good politics in your state. They will be able to make boards that are appoint boards that will get something done. But there has to be the will and the awareness by the politicians and we seen that even with Republican politics are states dominated by Republicans, that isn't always the case. The third thing is, the less prestigious private colleges and I don't go into them much because they're sort of a different problem, but they are very influenced by market forces, and so there is some hope for them to so one of the things you mentioned that one of the loopback to is this idea of the members of the board's controlling themselves.

Another one of the ideas that has floated about with the UNC system in the past is having some new staff member or staff members who report only to the board and don't have any other connection to the University administration.

Is that still something to look at that is still very much something to look at that's paramount. Given that has to be done in North Carolina. We actually have a law on the boards that allows the UNC board of governors to hire their own staff so far they have opted not to. That's I consider that to be feckless, but yes we do. It has to be a high level policy person who is aware of what's going on in higher-rated and can inform the board accurately today.

There's a situation where the administration hires outside speakers to come in to inform them or people from the system to inform them so no alternative views are there. The other important thing is the training of new board members they are being told that you are advocates for the system you were to support the system and they're not being told their full range of responsibilities and duties. The report on this topic is called bolstering the board of trustees are academia's best hope for reform its author is Jay shall and director of policy analysis at the James G Martin Center for academic renewal J thanks for joining us.

Thank you, Mitch and Jordan will have more on Carolina journal radio just a moment. If you have freedom we got great news to share with you now.

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He started by addressing a Democratic colleagues statements about guns sinner fonts I mentioned earlier that we've had a surge in applications for guns are purchases of guns. I wonder if a part of that is where we find our society right now were seeing great cities burned and looted at mod Highway Patrol in North Carolina 75% fewer applications to go into the troopers Academy and record request for retirement. We see that a New York we see across this country. I think people are afraid because many people, including people on this committee are unwilling to condemn acts of violence in public safety out there and condemn violence against law enforcement, which is rampant by law stay up a sheriff's deputy, just about a month ago who was shot protecting a family. So yes sir fonts on. I suspect the gun purchases are up, but I suspect the root cause behind a lot of them have to do with people's personal safety. Tillis discussed more than just guns in public safety concerns. He also turned his attention to healthcare addressing Democrats questions about the future of the affordable care act popularly known as Obama care.

I don't think there's anybody in the U.S. Senate that does want to make sure that every single picture that we've seen her. Those folks have affordable healthcare and they can be cared for, but what we have here in the affordable care act is something that is so flawed that the majority of the Democratic candidates for proper for president all raise their hand and set a need to be replaced with something I call Medicare for all, which could be Medicare for not. We know the broken promises of if you like your doctor you could keep it if you like your healthcare you could keep it but were not talking about of the thousands of people who were already forced off of the job healthcare because employers change the hours announced that a working one full-time job. You gotta work two full-time jobs because the businesses can afford. We got a fundamental problem here. We need to protect everyone of them, but we also need to make sure that people who have a health plan under the affordable care act can actually afford to use it in the catastrophic situations is life-changing and thank God that it's there for them but what about so many other people that only have it will only use it if they have a catastrophic situation because they can't afford the co-pays they can afford the underlying cause we need to fix that we should expect the justice of the Supreme Court to fix it. That is our job. We should all show up here for work and we should get that done that. We should also work on all the other things of this country is suffering from those resulting covert that's North Carolina US Sen. Tom Tillis using the recent Supreme Court confirmation hearings to address other top public policy concerns return with more Carolina journal radio where doubling down on freedom at Carolina journal radio were proud to bring you stories that impact your life and your wallet. And now get twice as much freedom when you also listen to our podcast headlock available on iTunes and@johnlocke.org/podcast headlock is a little bit different.

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Welcome back Carolina journal radio why Mitch Coe got the North Carolina Gen. assembly's latest debate about coronavirus relief prompted a discussion in the state Senate about help for small businesses.

Democratic Sen. Kirk DeVere called for his colleagues to do more. I'm here before you one more time just like both previous relief bills that spoke to you about support for small businesses. While this bill has options for small businesses. Once again we can do more.

The same thing that I talked about last time I stood up and talk about support for small businesses. This body ran bills to open small businesses across our state.

I stood with many of you voted to do just that. Because I believe in our small business community but we have to do more. We ran bills for bars for June's bowling alleys and others. While this grant will help that we see in this bill. It doesn't do enough because it is not, and ultimately reach the businesses that have been hurt by this.

The restaurants that have been shut down the bone now as it had been shut bars that have been shuttered. They need help. So I want to offer another pathway forward on how we can help our small businesses and I hope this time, it follows on a positive note with the members of this body.

DeVere offered an amendment to the relief bill. We talk about a grant program small business grant relief. What this does is reallocate is basically says you take 30,000,030.5 million to that grant program and you allocate another 22, a small business. Facilities assistance program and a 10 million and $10 million of small business impact grant program.

We've had restaurants hotels that have shut down this mad business facility assistance programs will allow people to be able to pay their mortgages, pay the rent paid the things that operating expenses that we as business owners understand and that no no matter what happening.

They still have to pay those the $10 million for the impact grant program deal specifically with historically underutilized businesses. Those businesses that may have not had the opportunity to get the types of programs that were out there and they needed in their struggling right now Republican Sen. Carl Ford responded to his Democratic colleagues plan we can do more for small businesses.

It's called let them work.

Let them all get back open the holy doing the job that they want to do. That's how we can help small businesses. Let only open. They want to work there, ready to work people are ready for them to open. That's how you help small businesses get the government out of the way Republican Sen. Jim Perry also responded to the Democratic proposal will allow small businesses in the state that are hurting and I'll remind everyone in this chamber why there are hurting their shutdown.

We try to help everyone in here had an opportunity to help. At that time, but you chose not to do it. So now we're in a position that we contingency documents floating talking about giving state dollars to businesses and there are some constitutional concerns. We start talking about that a lot of you have read the articles written by the school government and concerns about exclusive emoluments. We've even heard rumors about new opinions being drafted, now the AG's office that disagree with earlier informal opinions that were given we got over 900,000 small businesses in our study and there are a ton of them are hurting and we all want to do something for them but I don't think dangling things that are undeliverable in front of them.

The best way to do it think we need to help them get back open. Get back to business. Listening to highlights from the state Senate debate about helping struggling small businesses in North Carolina Democrat Kirk Debbie Geer chimed in again, let's talk about what we can control because in the business world. You look at what you can control, not on your control, the decisions that the governor makes or other bodies outside of this body make, but is judicial governor are not in our control. What is in our control today is to put dollars in our small businesses hands clearly is that simple. This again when I talk about what we can do to open talk about saving businesses what to do what we can control we have the power in this body in this body to make this decision today to show that we stand with our small businesses and investing them public at Sen. Paul Newton critiqued a proposal to throw more money at small business relief. The intention is great and it mirrors the intention we've had to help our small businesses for this pandemic because there has been so much that they have not been able to control when we done that in this bill is $60,500,000 has is already in this bill we work closely with commerce to ensure that that money with the criteria that are in place for the small businesses could actually make it into their hands so your intentions are good, but we don't even know whether administratively commerce could deploy those dollars.

We have it to my knowledge you haven't talked with commerce.

It's one thing to want it or to try to will it happen it's another thing for these dollars to actually get out the door and into the hands of small business to the end of this year so there's a lot of unanswered questions about the amendment intentions good but the nuts and bolts and details are not there that we need to know to know what would be effective. Republican Sen. Ted Alexander echoed his colleagues support for getting businesses reopened I've heard today. Several folks are has been said that the easiest and most obvious thing we can do for healthcare and jobs and businesses is Medicaid or Medicare expansion.

I just want to add my words to say that I am in total agreement that we need to do more and that more is as has been said that we need to have our governor open up these businesses that are dying better pleading with us.

They are pleading with him and pleading with everyone that they know that they need to be open and that they are trying their best to label they are willing to open with the CDC guidelines. The FDA guidelines there wanting those things so that they can have a fighting chance. That's the way that we get our business open. That's why we agree reopen our economy and their many folks in this room who voted for those very measures.

And here we are the very last day of the session.

We need to have our governor here us that these businesses need to be reopened.

It's it's it's very light and again to try to do other things. At this point in time. Republican Sen. Brent Jackson explained why he couldn't support the Democratic plan. We got the 60+ million dollars going to this program which is going to businesses is already been put into place and can be get God out in the chamber.

His back that Senators ended up tabling the amendment.

The final relief package earned broad bipartisan support will return with more Carolina journal radio in a moment real influence. You either have it or you don't and at the John Locke foundation we have it, you'll find our guiding principles in many of the freedom forward reforms of the past decade here in North Carolina. So while others talk or complain or name call.

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Welcome back to Carolina journal radio Donna Martinez 19 is having a profound impact on North Carolina school kids on their parents on teachers and administrators as we all know and while it really could take quite a long time to really fully understand just how much 20/20 will change the future for these kids, we are getting a hint from some initial data about how parents are reacting. Dr. Terry stoops as VP for research. Also, the director of education studies here at the John Locke foundation in drilling down into the data and joins us now to reveal what he found Terry welcome back to the show.

Thank you. You are looking at enrollment numbers.

At least the initial enrollment numbers for the school year and there are some changes that you're seeing what's happening yeah absolutely some changes in these are looking at the first month enrollment numbers compared to the first month enrollment numbers from last year and the total decrease in public school population was more than 62,000 students, but that's a little deceiving because if you have to. You should break it down into charter school and district school and the district schools lost about 71,000 students, whereas the charter schools gained about 8500 students, so you're seeing part of the trajectory that we've seen in student enrollment over the last couple years with charter schools making gains and districts losing students except this year the district losses were much more pronounced than they have been in years past.

I know it's initial data but do you have any sense at all. Even if it's not from the data, but from your contacts across Sandy public school world the charter school world etc. as to why parents might say, a district classroom right now is just not good for my kid. I'm gonna try one of these public charters were seeing the most in the largest enrollment losses from kindergartners and that is where I think parents are having to decide whether to sit there kindergartner in front of a computer screen for hours every day, which is what many school districts are forcing parents to do or leaving that child out so-called redshirting that child and delaying their entry into school until they turn six or seven now this is completely legal will think many people know that you don't have to send your child to school when they turn five.

The law allows a parent to keep their child out of school until they turn seven and I think a lot of parents once they found that Alex would rather absorb the cost of having their child in daycare for an extra year or leaving our keeping them home for an extra year rather than having them go in to an unpredictable and really on a situation. It's really not beneficial to kids. I mean, especially the youngest kids really are not built to sit in front of computer screens. The older kids really don't have much of a problem with Apple for these younger kids. I think parents understand that that's not an ideal situation, and so one option is to leave them out. I can imagine having them a child, and particularly a young one. Were you trying to make these decisions about what is best because it's uncharted territory on the other side of the ledger.

Though I wonder Terry if this isn't in almost a perverse way because of covert, 19 that parents are really starting to understand their kids the importance of the learning environment and what the child's aptitudes are what the challenges are etc. could we perhaps have some sort of Silverlining out of this whole thing down the road that parents are little bit more connected to their kids and education. I absolutely think that's the case I think parents understand the value of looking at the educational environment that's provided to their children and not just trusting that sending their child off to a school is always going to be what's best for them and not only that we have to recognize to that.

There are parents that have actively made the choice to send their child to a non-district school there be a charter school, home, school or private school to provide a better educational environment, one that may not require the child to sit in front of the computer screen for it. It's interesting when you look at the data, even pre-Kovic data about the breakdown of the choices that parents are making it it still is that the traditional public classroom in North Carolina is the education point for the vast majority of kids, but more and more people are looking at other options. Tell us about your analysis of the data about those choices.

Well as I said earlier that the charter school increases.

About 8500 students, and so are charter schools across the state and we have 200 of them this year are going to enroll approximately hundred and 25,000 students and were seeing charter schools really in places where we haven't seen them in the past geographically were seeing them offer new grades. Additional grades were seeing them offer additional and new curricula and an educational environment so charter schools are deftly an option.

A lot of parents are pursuing working to see substantial increase in homeschooling my initial estimate for homeschool increase this year's can be about 13,000 students. Homeschooling is going to probably exceed hundred and 70,000 students will get the final date at the end of the fiscal year. So homeschooling is definitely something that I think a lot of parents are considering private schools. Interesting thing about private schools at the beginning of the summer there was a lot of concern about private schools because most private schools exist with parents paying tuition there there.

The vouchers are very limited and in North Carolina so they rely on out-of-pocket tuition payments, and with the economy what it is. A lot of parents may find that they can afford that private school tuition, so there was concern that private schools were going to close. But I think something wonderful happens in that private schools start offering a genuine alternative to districts in that alternative was in person instruction and parents decided that they would make the sacrifices necessary to send their children to private school because it gave them superior educational environment. Homeschooling want to go to back to that for a moment, because through this whole situation this year. I haven't really read or heard much about the homeschool population so are things much different for homeschool parents. I mean, obviously with COBIT. It's different, but in terms of actually educating their kids has much changed for them.

Not too much show. One thing to remember about the homeschool community is that it's very tight nets and there's a lot of co-ops and cooperative activities of homeschoolers engage with each other so there have been adjustments in that sense that perhaps there being a little more cautious in the co-ops and the field trips and the various communal activities. A lot of homeschoolers engage in but homeschool just continues to grow in North Carolina as a share of our student population. North Carolina has the largest homeschool population of any state in the nation. And that's certainly not going to change, and in light of covert. In fact, is just going to continue to increase with parents looking for alternatives like homeschooling that provide the best of both worlds, where the parent can be engaged in the child's education. Oversee the child's education and make sure that that child receives the superior education that they desperately need that's fascinating to me. Number one in the nation for homeschooling to we have any sense of why that is.

Or the characteristics of a homeschool parent.

It is organic. The growth of the homeschool population in North Carolina's completely organic and it's also diverse at first it was limited to evangelical parents who wanted to homeschool, to affirm their values and their religious beliefs but now homeschool parents come from across the religious and ideological spectrum and so were seeing a real diversity in the homeschool movement, especially from parents that really want to give their child a rigorous academic education so some just about values is about academics and parents are finding that there homeschool child can far exceed the academic abilities of a lot of other kids because they're receiving that individualized attention they wouldn't otherwise receive an districts there so many resources now in curriculum etc. I mean it's not like you would have trouble finding what she would need. That's right so the Internet is a is a wealth of information and not just information.

A wealth of support for homeschool families. So many go online and ask questions of their their other of other homeschool families about how to conduct certain types of instruction. It is a is a true community in North Carolina think the Internet has a lot a lot to do with that.

Will these initial numbers that Terry has been writing about here taking a look at a really pretty interesting. Sec. stoops's vice president for research. Also, the director of education studies at the John Locke foundation. That's all the time we have for the program this week.

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