Larry Tribe (3:57)

Thanks, Dalia. It's good to be with you.

Dahlia Lithwick (4:00)

And so if it's okay, can we just start with my nuts and bolts, why, how questions, and then we'll build up to existential stuff, which is coming. It is palpably insane, correct, that the White House is simply telling Democrats, this is how you run your impeachment. You have to have a vote first that is, on its face, without merit. Is that fair, what I'm saying? No.

Larry Tribe (4:23)

There's no basis at all for the position taken by the White House. The idea that the president, who is the subject of this impeachment proceeding, can dictate its terms would be very much like, you know, a defendant in a criminal case telling the prosecution, here's how you have to run things and here's here are the rules, and otherwise, I won't show up. Well, that's all very nice, but the system just doesn't work that way, and it couldn't work that way.

Dahlia Lithwick (4:50)

And am I also right, Larry, that at least in Watergate there were efforts to accommodate? So, for instance, Nixon would say, I'm not turning over the tapes, but at no juncture was there a blanket effort to stymie the entire machinery of impeachment. Is that fair?

Larry Tribe (5:08)

And in fact, never before in Our history. Has the target of an impeachment inquiry said, no thanks, I'm simply not going to participate because I don't like the way you're running it. I mean, that's just no way to run a railroad or a country. And we would go right off the cliff if the system of checks and balances really operated with the executive branch having the last word on checking itself. It just can't possibly work that way. And it's not going to work that way. The President, even though he has really gotten away with a lot so far, is just not going to get away with this.

Dahlia Lithwick (5:47)

So there's no formal rulebook that says the House will launch an impeachment inquiry doing xyz. The claim made in White House counsel's letter that the formal impeachment inquiry doesn't begin until the entire House votes is also a very fanciful claim that it's certainly the case that that has happened. It's also the case that impeach have begun without that happening. So there's no legal force. Toit is a political choice if Nancy Pelosi wants the entire House to vote, but it is not a legal marker, correct?

Larry Tribe (6:25)

That's absolutely correct. There's nothing in the Constitution or in the rules of the House that dictate that the House as a whole has to proclaim that we are now engaged in an impeachment inquiry. The reason that it's happened in some instances is that until fairly recently, the individual chairs of various investigatory committees didn't have the power to issue subpoenas unless there was a House resolution authorizing it. But now the standing rules of the House allow Jerry Nadler or Adam Schiff or Elijah Cummings or any of the other relevant chairs to issue subpoenas on behalf of their own committees. So there's simply nothing in the rules of the House that dictate that the sequence has to be the way the White House counsel says he wants it to be. And as you pointed out, there have been cases where individuals have been impeached and removed by the Congress, although it happens to be cases of judges rather than presidents, none of whom have ever been removed. But some judges have been impeached by the House, convicted and removed by the Senate without ever having a vote of the entire House initiating the impeachment inquiry. So clearly, if Nancy Pelosi were to cave to this demand, there would be another one that they would make up. They're simply, they're pulling things out of thin air in order to say, well, you better do it this way. But this, it would set a terrible precedent for the House to allow the President and his counsel to dictate the sequence of internal activity that has to happen in the House in order for impeachment to occur. And impeachment, of course, would simply trigger a trial in the Senate, which is where the President would get all of the rights that he says he wants to have in the House. The President's suggestion that he should have a right to confront witnesses and call his own witnesses and treat what's going on in the House of Representatives as a kind of trial, that. That's sort of paradoxical, because clearly, if that's what he wanted, I'm sure Nancy Pelosi would oblige him and dispense with the Senate and just try him in the House. But of course, that's not what he wants.

Dahlia Lithwick (8:43)

And this is something I've been struggling with just doctrinally all summer. And then it really was made manifest for the first time. It wasn't theoretical this week in Judge Beryl Howell's court in a dispute about whether grand jury material that was involved in the Mueller investigation could be declassified. And suddenly this question that was theoretical was real. And that was, is there some magical thing that happens when you are in a formal impeachment inquiry that means that courts are more likely to side against the White House? And I mention it only because Judge Howell, it sounded like she was saying that your posture would be much stronger here if you had just voted, the whole House had just voted to impeach. Am I correct that there is some doctrinal force in that vote?

Larry Tribe (9:37)

Not really. Judge Howell did say essentially that the counsel for the President would be deprived of a talking point if the House were to have that kind of procedure. But she expressed absolute incredulity at the thought that that has to happen. And in fact, I think at one point she said, wow, that's quite an extreme position in response to the being taken by the government, which was not only that you need an entire vote of the House to initiate the inquiry, but even if you had such a vote, they basically said that the precedents of the Watergate era should be reexamined and that really the Watergate grand jury material should never have been turned over because Rule 6e, which is the rule of the Federal Rules of Criminal Procedure, which unlock the door to secret grand jury material, they claim does not apply to an impeachment proceeding. It applies only to a technically judicial proceeding. Well, that's a position that would have meant we would never have seen the Nixon tapes, it would really rerun history in a dramatic way. And that really underscores the extremity of the position that the administration is taking before the Southern District of New York. In the case brought by Cy Vance, the Manhattan District Attorney, they took the position, which was roundly and quite brilliantly repudiated by Judge Marrero, that a sitting president simply can't be investigated or prosecuted, nor can any of his associates or allies for any criminal activity as long as he's President of the United States. I mean, that really would put the president totally above the law. And these extreme positions, the position taken in the Southern District of New York, the position taken before Judge Howell in the District of Columbia, the position taken in the White House letter to which you referred at the beginning, these are the most extreme positions ever taken by a chief executive of the United States. And I think that they're going to be as unsuccessful as they are extreme.

Dahlia Lithwick (12:01)

And while we're on this, I have a question that I want to ask. You've just answered the first part, which is these questions about immunity from even investigation. Just the capacious breadth of the claim that is being made in the courts, that you can't even look at me, you can't look at my family. It's not just that you can't convict me or indict me, but you can't even investigate. And I'm so glad you raised this issue of this goes way beyond claims that executives have made before. But it's related to the second part of that question that I have, which is the question, the claims that they're making about executive privilege, which are equally, for me, brain searing. I mean, the claims that, you know, anybody who ever worked for Trump, people who worked on the campaign, are now claiming privilege, or the White House is claiming privilege for them. People who have left the White House, people who knew, people who knew, people who talked to a guy. Can you also unpack the executive privilege claims that are being advanced?

Larry Tribe (13:00)

The whole idea of executive privilege is something that the U.S. supreme Court quite reasonably implied from the structure of the Constitution. Back in the Nixon tapes case, it said that there's nothing written in the Constitution that protects confidential advice the President gets from being routinely exposed. But in order to make the Constitution work, we have to assume that there is some kind of privilege, a little bit like the lawyer client privilege, for confidential advice. But the president, in this instance, is now extending that idea not only to confidential advice given to him, but to notes of conversations between people who never had anything to do with him. I mean, he's transforming a limited idea of shielding certain communications subject to exceptions into some sweeping umbrella of complete immunity from the law. And that's just a crazy position. And if and when even a conservative Supreme Court addresses it, they're going to cut it back dramatically.

Dahlia Lithwick (14:13)

Am I correct that the posture in that White House counsel letter that essentially says we are immune from impeachment because this isn't. I think the word fair was used seven times in that. It sounds like my kids. Right. It's not there. And then the posture taken in court, Larry, is we're not subject to legal processes because there's a congressional check called impeachment. So if I'm correct about this, they're saying at the same time, you can't do this because that. And also you can't do that because this. Right.

Larry Tribe (14:47)

It's very much like the magic trick of, you know, can't find the pea under the shell because it keeps moving. They say when you go after the guy through the criminal process, no, no, you can't do that. You have to go after us through impeachment. And when we go after them through impeachment, they say, no, no, no, that's not available either. Which adds up to the proposition that I'm the emperor, I am the state. Just as when President Trump apparently does think of himself that way, he not only touts his own brilliance and his genius and his wisdom, but he talks about when he took over America. That's the way he describes having become president. And that's just not the way our system is set up. That's not the way any constitutional democracy could possibly be set up. We are not ruled by Donald J. Trump. This is a self governing nation. That's the whole idea.

Dahlia Lithwick (15:44)

This takes me to what you said up at the top. You said it can't be the case that Congress is perfectly stymied. It cannot function that way. And that leads me to. And we've had quite anxious listener mail this week saying, what does Congress do? What teeth can Congress put into a system where essentially the nihilist argument has been made, I spit on your system. Your system does not bind me. And I guess we should start with the crazy talk about inherent contempt powers. I mean, is it in fact the case that things that have not been done since the Teapot Dome scandal, we're going to start jailing Hope Hicks, we're going to put Corey Lewandowski in the stocks, we're going to fine people tens of. Is that the power? Is that the teeth that Congress has.

Larry Tribe (16:35)

Well, a lot of people, I think, would have a lovely time imagining those perp walks, but I think that's not a realistic option. It's legal. It's a power that Congress has. It theoretically has the power the Supreme Court has, without dissent, affirmed it, the power to actually conduct a little trial of people who refuse to comply with subpoenas and orders to show up and produce documents. And if they don't go along, they can be locked in the basement of the Capitol or they can be subjected to escalating fines. But I think that would be a terrible distraction. Imagine in the modern world how that would look. I mean, it would really make the banana republic that the President has created look like sort of a banana soup republic. It's just not a good idea. Not that we can't do it. And maybe hanging it over the White House as a kind of sword of Damocles is rhetorically a good idea, but it's not something I favor. I think it would be a distraction. I think one has to go to court. One has to expedite proceedings in court. And if courts move too slowly, just with what they sometimes call all deliberate speed, then don't wait. As I've argued in various forums, including an op ed in the USA Today, I've argued that there's no reason why impeachment can't proceed right now on the basis of what we know while we continue to investigate. It would be justifiable for the House of Representatives to impeach the President for various abuses of power, particularly with respect to the way he withheld military assistance from a vulnerable Ukraine in order to benefit his own reelection campaign by getting manufactured dirt on Joe Biden and in order to achieve other things. I mean, that's an abuse of power. He could be impeached for that tomorrow. He could also be impeached for this kind of stonewalling. I spit on your Congress tomorrow. There's no reason why these impeachments can't proceed while Congress still digs around and tries to get to the bottom of certain details which we needn't know in order to say that he has abused his power in an impeachable way, but which the nation has a right to know. I mean, the way in which there is a kind of private State Department run by Giuliani and some thugs who were recently arrested and how this all has gone on under our noses for the last several months. I mean, all of that needs to be unearthed. But he can be impeached in the meantime. And there's no rule that says you can only impeach a president once. The stone wall that he had relied on in the House is beginning in the Senate is beginning to crack. It's not at all clear that the Senate will back him up. A lot of senators are so dismayed by the way he is throwing our allies, the Kurds, under the bus and virtually inviting ethnic cleansing by Erdogan. A lot of those people are beginning, I think, to reconsider whether they want to go down with this particular version of the Titanic.

Dahlia Lithwick (19:55)

So that's incredibly controversial, what you just said. I actually said the same thing this past week, I think, in print. Don't turn this into two years of waiting for Mueller. If Donald Trump can confessed to Lester Holt that he fired Jim Comey to get rid of the Russia probe, we don't need two more years of evidence. And essentially we've got, as I understand it, the three articles of impeachment against Nixon. You know, abuse of power, obstruction, ignoring subpoenas. We've got that in our hands. And trying to run after emoluments, which we've been doing for three years with very middling success, is not the way to go. I think that people who resist the analysis you and I just put forward tend to say, you're leaving too much on the table. You cannot leave on the table all the other bad conduct.

Larry Tribe (20:43)

But I don't want to leave it on the table. That is, I'm saying impeach the guy and keep pursuing him for all of these other things. I don't think that having voted an article of impeachment, you then fold up your briefcase and walk away. He should not be allowed to get away with any of these horrible things he's done. But that doesn't mean that because he's done so many abusive things that he can basically tie us up in knots and stay in power and take extremely dangerous steps that undermine our national security and erode our alliances. Just because he's done so much that's wrong that we can never quite catch up. It's like saying, not just I could shoot someone on Fifth Avenue and get away with it. Every time you go after me for shooting someone on Fifth Avenue, I'll shoot somebody else and you'll never, never catch up. I think that the way to put a stop to that is to impeach him now, not wait. But at the same time, don't leave anything on the table. Continue investigating. There's no rule that says, I mean, just as the House of Representatives can pass various measures dealing with gun safety and climate, notwithstanding the fact that those measures don't get anywhere in the Senate. So the House can vote articles of impeachment and continue to investigate and continue to identify more abuses and put pressure on the U.S. senate to confront this lawless, renegade president. And if they don't do it, they should pay a price at the election of 2020.

Dahlia Lithwick (22:26)

So you mentioned that the correct avenue, to the extent that, that the House is going to continue to try to obtain documents and testimony, that the correct path is the court's. And you also said, and I think this is correct, that's going to have to happen on an expedited basis. We saw a little bit of that this week when the Second Circuit in litigation, you mentioned the case about Donald Trump's tax returns. And the Second Circuit more or less said, you've got 12 seconds and then it's the fastest briefing schedule I've ever seen. So I think one thing we're going to see, presumably, is some of the courts speeding up so that this can't be slow walked until after the election. But it does raise the question that I think I'm asked. I suspect you're asked, Larry, more than anything, which is what is the role for the Supreme Court in all this? Are these issues going to end up in the court's lap? We know that the court is not going to get involved on the merits in debates about the propriety of impeachment. That goes back to Nixon versus United States. This was not Richard Nixon, a federal judge, Walter Nixon, who claimed in the courts that his impeachment trial had not given him due process. The court resoundingly says we're not getting involved in your impeachment disputes. But there's a second subset of questions which has to do with the emolument stuff. It has to do with the tax returns. It has to do with declassifying Mueller material. That kind of thing could go to the Supreme Court. That's not in the bucket of things the Supreme Court won't hear, per Walter Nixon.

Larry Tribe (24:05)

Well, there are two different issues, Dalia. The court is not going to review the merits of any impeachment article or the way in which either the House goes about impeaching the president or the Senate goes about trying him. The court will stay out of that, as it did and made clear it was going to do in the case of Judge Walter Nixon, the case that you've pointed out. But that doesn't mean the court has to stay out of the ancillary fights over the evidence that has to be produced so that if, for example, the search for the tax returns in the case brought by Cy Vance and then waylaid in the Southern District in a flanking maneuver by the White House that is now on an accelerated briefing and oral argument schedule in the Second Circuit, that one could get to the Supreme Court or any of a number of other cases in which the administration's far out, legally vacuous, indefensible position that you can't touch us, we can't be required to turn over anything because this impeachment whole thing is a kangaroo court. Any of those claims could well get to the Supreme Court relatively quickly. The Nixon tapes case didn't take all that long. But we shouldn't leave out of the calculus the fact that there are some people that the President is trying to gag and silence who are not within his control and who might voluntarily testify. I mean, some of the people involved in Ukrainegate and in the dissolution of the State Department who were involved in on the Ukraine desk look like they have things to say and they are not in the control of the administration and they may not resist testifying voluntarily. We don't even have to go to court so that the evidence is going to pile up from voluntary sources, including people like the whistleblower. And that pile of evidence can be accumulated while we try to get accelerated judgments from the judiciary, including the Supreme Court, in cases where witnesses are under the President's thumb and are not willing to come forward and comply with subpoenas. And in the meantime, we can impeach the President so we can do three things at once. And it seems to me that's exactly what we need to do in this existential crisis that the President has created.

Dahlia Lithwick (26:35)

The other thing you said up top, and I agree with you, is the Supreme Court is not going to allow some of these just completely meritless, self aggrandized, really, Twitter rants turned into legal arguments to stand. And I think I agree with. But it does raise for me this question of John Roberts, who will spend the next few months, Larry, doing three things at once. He will both be presiding over, I think, one of the biggest Supreme Court terms of my lifetime, which we will talk about, you and I, on another show. Two, he will be presiding over an impeachment trial in the Senate. And three, he will be, as you just pointed out in these ancillary cases, if not on the merits itself, really, overseeing some of these massive, massive legal questions about the President and his powers. Does that whatever you know about John Roberts and I know, you know him. Does that amount of pressure on the judicial branch, and particularly on the Supreme Court, in a moment when other institutions are really, I think, striving to stand up to their obligation to be guardrails, is that too much pressure on the Supreme Court to become the arbitration of all the things?

Larry Tribe (27:57)

Well, it's a great question. I certainly, you know, nothing that I confronted John Roberts with when he was my student in constitutional law approximates this, even though I'm a pretty tough teacher. Nothing approximates this. But keep in mind that his role with respect to presiding over the impeachment trial in the Senate is largely ceremonial. It's really not a role that is terribly substantive. The Senate as a whole can overrule him on particular points of order and on motions about evidence. That's a largely ceremonial role, and I think he's perfectly capable of carrying that out in a distinguished and orderly and impressive fashion while presiding on what you rightly say is the most important Supreme Court term in a very long time. On issues of LGBTQ rights rights and on issues of gun rights and on ultimately perhaps also issues of executive power, I don't see any reason why you can't do all three. And in fact, the overriding need for the Court to reassert its independence and its role as a not entirely political institution, I think will lead even the most conservative judges, even ones appointed by Donald Trump, even judges like Kavanaugh and Gorsuch, to step up to the plate and not simply act as partisan actors. I think it's likely that on some of these most extravagant claims by the President, the Court will be unanimous in rejecting them.

Dahlia Lithwick (29:36)

Larry, those are all my immediate burning technical questions. But now I want to give you a chance to step back and answer the big existential ones. How to think about this era defining moment? What is top of mind? What is your organizing theory of things to prioritize as we go through thinking about Congress as having all these latent inherent powers to do truly life changing things into Congress is now doing those things. How do we frame what needs to happen next and what we need to do to get to what happens next just in order to organize our minds going forward?

Larry Tribe (30:21)

Well, I guess what we do is try to step back and ask what is the country that we have inherited and what are the best parts of it that we would like to preserve? I mean, we need to preserve a system where there is no one person who is sort of the boss of all of us, where we can govern ourselves. And we need to say that whether we are Republicans or Democrats, whether we are conservatives or liberals. If we want to preserve a republic, and if we want to preserve the rule of law as more than just a slogan, then we have to go back to first principles and ask what is it that the people who designed this system were trying to do with something like the impeachment power? And if you look at what they were doing, overwhelmingly, it was about the fact that we might someday, despite what they thought would be the break that would be imposed on improvident choices by the Electoral college, which hasn't quite worked out as they hoped we might someday put in power, a demagogue who is in league with foreign influence and who is ready to sell out the country for his own or her own, although they probably didn't envision her as a possibility, his or her own political and financial fortunes. And that if that happened, we would need a way of cleansing the system to get rid of the malefactor, get rid of the cancer in the system and start over. I think people have to realize that we are at a moment that looks just like that. And even though the people have no direct vote in what happens, it is the case that those in Washington are at least sensitive to the barometer of public opinion. And as public opinion moves toward a majority that favor not just an impeachment inquiry but the removal of this president, I think people have to say, you know, let's register our views. If that's what we think should happen, regardless of where we are on the political spectrum, then let your congressmen know, let your senators know, because the system will be responsive to public pressure in the end.

Dahlia Lithwick (32:40)

Lawrence Tribe is the Carl M. Loeb University professor of Constitutional Law at Harvard. He is the co author, most recently of To End a the Power of Impeachment. He is also, in my life, one of my personal constitutional Sherpas and has been one of the folks who's kept me sane the last couple of years. Larry Tribe, thank you so much for taking time to be with us.

Larry Tribe (33:00)

Thank you, Adalia. You helped keep a lot of people sane. So I'm really pleased to be able to talk with you.

Dahlia Lithwick (33:07)

This past Tuesday, one of the most important LGBT rights cases of our lifetimes was argued at the Supreme Court. The issue which we actually discussed on last week's show a little bit is whether Title VII of the Civil Rights act of 1964 protects LGBT workers from being terminated by their employers simply because of who they are. The law on its face, bars, discrimination, quote, because of sex. But the employers of two gay Men and a transgender woman all take the position that they are not being fired because of their sex, and thus the law just doesn't reach them. In the first case that was heard on Tuesday morning, Professor Pamela Carlin of Stanford University Supreme Court Clinic represented two workers terminated from their jobs for being gay men. Pam, welcome back to the podcast.

Pam Karlan (33:59)

Thanks for having me.

Dahlia Lithwick (34:00)

So can we start? Just tell us about your two clients and the reasons for their termination.

Pam Karlan (34:06)

I want to be clear that one of them wasn't actually my direct client. The court combined two cases together and set them for oral argument. And we agreed that I would present argument on behalf of both men. So the man that the case is going to be named after, Gerald Bostock, was a child welfare worker in a suburban county outside of Atlanta, Clayton County. And he was an award winning promoter of the CASA program, which is this program that gets court appointed advocates for kids in need. He had placed 100% of the kids. He had won national recognition. And then he joined a gay softball league and among other things, encouraged members of the softball league to volunteer to be CASA advocates. And shortly thereafter, the county, he alleges, launched an audit of his program and then fired him. And he says he was fired not because he did anything wrong, but because he was gay. My client, Don Zarda, worked at a skydiving company where they would strap people who wanted to skydive to instructors and leap out of a plane with a parachute on them. And the way this is done is you are basically joined pelvis to pelvis, chest to back, with the person that you're diving with. And some people can be a little uncomfortable about this. And so there was a lot of joking around the flights where he would say to women he was strapped to, don't worry, I'm gay. And I've got an ex husband at home to prove that it. And a woman complained about this and he was fired from his job. And both of them brought lawsuits saying they'd been fired because of their sex, that is because they were gay men and therefore didn't conform to an expectation about how men should behave.

Dahlia Lithwick (35:46)

And we should be clear that Zarda died in 2014. His estate continued this lawsuit. So he's no longer alive. Right.

Pam Karlan (35:53)

His sister and his former partner are the executors of his estate. And they they're continuing the case on behalf of the estate.

Dahlia Lithwick (36:01)

It seems to me there's two chunks of this. One is the Parade of Horribles problem that we're going to talk about later. But the initial problem is just the Text of Title VII itself. Because I think we can all agree that in 1964, whatever it was that Congress was doing, they were not contemplating protecting gay workers. Or in the other case that you didn't argue, David Cole argued, a transgender worker. And so then we get into this really deep fight about whether because of sex includes homosexuality. And I just want to be sort of as transparent as I can because it seems obvious to me that of course it has to be because of sex. But I just want to read. This is what the government brief in this case said. The ordinary meaning of sex is biologically male or female. It does not include sexual orientation. An employer who discriminates against employees in same sex relationships does not violate Title 7 as long as it treats men in same sex relationships the same as women in same sex relationships. That's it. That's the nut of the case, right? That's the argument.

Pam Karlan (37:12)

That is their argument. And the problem with that argument is it ignores. Nobody is claiming that sexual orientation is the synonym for sex the way, for example, man and hombre might be synonyms for one another, or woman and lady might be synonyms for one another. What we're saying is that when you discriminate against someone for being gay, you are discriminating against him because he is a man who is doing something that would be perfectly acceptable if he were a woman, which is being attracted to other men.

Dahlia Lithwick (37:46)

You started your argument. I think, in fact, you rendered the room silent when you tried to talk about what judges are forced to do if they have to make gender stereotyped arguments. I'm just going to play it.

Justice Ginsburg (38:03)

The attempt to carve out discrimination against men for being gay from Title VII cannot be administered with either consistency or integrity, in the words of the en banc 2nd Circuit. It forces judges to resort to lexical bean counting, where they count up the frequency of epithets such as fat, gay, queer, real man, and femme to determine whether or not discrimination is based on sex or sexual orientation. That attempt is futile because when a man is discriminated against for being gay, he is discriminated against for not conforming to an expectation about how men should behave.

Dahlia Lithwick (38:39)

So, Pam, you are doing two things here. You're both making your because of sex point, but then you're wrapping it around this, this gender stereotyping argument, this Price Waterhouse argument about how courts have to think about gender. Right? You're doing both things.

Pam Karlan (38:56)

What I was trying to do there is to show that if you say, as every court agrees, that you can't force people to conform to sex stereotypes, that is, stereotypes about how people of their sex ought to behave. But you claim at the same time that you can discriminate against them them because of their sexual orientation. It's impossible to disentangle those two things. And so the quotation that I read from the 2nd Circuit says, Look, if what you're going to say is, you can't fire a woman for being too macho, that's Price Waterhouse. And you can't fire a man for being too effeminate, which is the corollary of that. How are you going to separate out the person who calls the man, you know, faggot or pansy or fairy from firing him because he's gay? It's not that, of course, all gay men are effeminate or even all effeminate men are gay, but it's that you can't separate these things out in a way that has any integrity or coherence, because both sets of epithets are about someone who's male and doesn't conform to what we think a man ought to be. And the court has been very clear about and has been clear since 1978, that you can't force people to conform to stereotypes that are based on their sex.

Dahlia Lithwick (40:16)

And the answer to that from Noel Francisco and from the employers in this case is, Pam, you're overly complicated. This has nothing to do with gender stereotyping. It just has to do with not protecting gay workers. Right. They felt like you were muddying the waters with that analysis.

Pam Karlan (40:34)

Well, I think they're actually muddying the waters by talking about sexual orientation, because you could talk about our clients cases without ever mentioning their sexual orientation. If you simply said this, which is a man who's attracted to men and a woman who's attracted to men, you fire the man for being attracted to men. You don't fire the woman for being attracted to men. That's sex discrimination, pure and simple. In the same way that the first sex discrimination case the court ever heard, a case called Phillips against Martin Marietta, they refused to hire women with small children at home, but they'd hire those men. And the court said, look, you know, treating women with small children at home differently than men with small children at home violates Title vii. It's sex discrimination. So it's got to follow from that that firing a woman with a wife at home but not firing a man with a wife at home is sex discrimination. There's nothing muddying the waters about that. What muddies the waters is when you try to say, well, you know, a gay man and a lesbian are actually engaged in the same behavior because they're not. They're engaged in very different behaviors. One group of them is attracted to women and the other group of them is attracted to men.

Dahlia Lithwick (41:47)

One of the things that I found so fascinating about this argument, Pam, is the pin the blame on the Congress component. And this came up in a whole bunch of different ways. Justice Ginsburg started by saying to you, look, let's all be clear that this was not what Congress had in mind in 1964. She said, when this was passed in many states, same sex relations was a criminal offense. And the APA had labeled it a mental illness. And then you had this great reference to mad men. Let's play it.

Justice Ginsburg (42:21)

This court has recognized again and again forms of sex discrimination that were not in Congress's contemplation in 1964. In 1964, those were the days of mad men. So the idea that sexual harassment would have been reached. Most courts didn't find sexual harassment to be actionable until this court did what.

Dahlia Lithwick (42:40)

You are being tagged for there, not by Justice Ginsburg, but the folks who say this wasn't in Congress's minds at the time is the exact thing that we're supposed to not do anymore, which is think about congressional intent, correct?

Pam Karlan (42:52)

That's right. And I took what Justice Ginsburg was doing was she was setting that point up. We don't look at the specific problem that Congress was directed at. We look at the language they use. And that's, you know, what Justice Scalia said in the on call case for a unanimous court. And that was a case about same sex sexual harassment in an all male workplace on an, on an oil platform. And Justice Scalia said, look, we're not, we're not governed by the precise problem Congress was thinking about. We're governed by the words it wrote and the words discrimination because of sex, because of such individual sex, which is the actual language, are capacious enough that in their natural reading, they protect men who are attracted to men in the same way that they attract women who don't walk in a feminine manner or don't talk in a feminine manner manner.

Dahlia Lithwick (43:53)

And the other version of pin the blame on Congress was, it seems to me, both Chief Justice Roberts and Sam Alito were evincing massive anxiety about the court taking it upon itself to expand Title VII in a way that would make it the dreaded super legislature.

Pam Karlan (44:13)

Well, we're not asking them to expand Title VII at all. We're asking them just to apply the language that's written. And not carve an exception into the statute that Congress didn't create. Congress created a bunch of exceptions in Title vii, including with regard to sex discrimination, something called the BFOQ or the bona fide occupational qualification. So Congress said, look, when sex actually matters to a job, you can refuse to hire women or you can refuse to hire men. And the leading Supreme Court case on this is a case called Dothard against Rawlinson, where the the court said that Alabama could have a rule that you couldn't guard opposite sex prisoners. So men couldn't work in certain contact positions in the women's prison and women couldn't work in certain contact positions in the men's prison. So when you want to have a rule that says no opposite sex contact and it's relevant to the job, you can have that rule. And so theoretically, if there's a job for which you shouldn't have same sex contact, you could have that as a rule. But what you can't do is just bar women altogether from a job or bar men altogether from jobs. And so we say apply the words as written. And if Congress wants to write an exemption into Title VII for sexual orientation discrimination, as opposed to all other forms of sex stereotyping and sex discrimination, Congress can do that. But they haven't done that and the court shouldn't.

Dahlia Lithwick (45:39)

And that's the answer to the hypo. You were asked about having men working with women who'd been been sexually assaulted and the victims of terrible trauma. Right? That's not what you're asking for.

Pam Karlan (45:50)

Yeah. And of course, that was a question in the other case. Nobody has made any argument in the Supreme Court that a person's sexual orientation is relevant to their ability to do any of the jobs that have. That gay people have been excluded from.

Dahlia Lithwick (46:05)

And I want you to talk a minute, if you would, Pam, about it seems as though on the liberal wing of the court there was a lot of. Can't we just confine this to when people are harmed? You made the point. Look, you're calling me Ms. Carlin, you're calling my colleague on the other side, Mr. Harris. There's no harm there. But when we're talking about firing people from their employment, there is real harm in that.

Pam Karlan (46:35)

Right. And that was focusing on a different word in the statute, the word discriminate. Because. Because the Supreme Court has said in some prior cases involving Title VII that discrimination means a real injury, some kind of something more than an innocuous difference. So, you know, an employer who says, yes, ma' AM to, you know, to female employees and no, sir, to male employees is obviously treating them differently on account of sexual. That is, the thing that determines whether they call you Ms. Or Mr. Or the thing that explains why they call you ma' am or sir is your sex. No one denies that. But it doesn't inflict an injury on people to use those honorifics that are based on sex. And so the court seemed absolutely obsessed with bathrooms. And in our brief, we point to all the pages in the government's brief where they talk about bathrooms. And the fact is, right now we have separate sex bathrooms, both in the circuits where sexual orientation is covered by Title VII and in the circuits where sexual orientation is not covered. And nothing about this case changes whether or not you can have single sex bathrooms.

Dahlia Lithwick (47:52)

Well, I did want to ask you about, because I read, I think Mother Jones counted 50 between your argument and David Cole's argument. 50, 50 episodes in the transcript where the word bathroom arises. And I don't want to ask you to speculate why the obsession, but I mean, I certainly know when we talk about the era, there was also talk of bathrooms. And certainly in the public school transgender bathroom cases, there is some weird fetishizing about bathrooms that eludes me. And I wonder if you got any sense from just the obsessiveness that the court lasered in on this. What is the anxiety there?

Pam Karlan (48:39)

I don't really understand the anxiety there because, you know, as I said, we've had, you can't discriminate on the basis of sex. Everybody's understood that since 1964. And yet since 1964, no one has successfully challenged the idea of single sex bathrooms. The only cases where bathrooms have come into play when we're talking about men and women generally are cases where the facilities are not equal in some way. And so, for example, there's a case that involves, I think it was firefighters, where the women firefighters bathroom was basically in a closet and it didn't have a full shower while the men had, you know, a really comfortable place for, you know, comfortable locker room. And the court in that case, it was a lower court, said, this is not fair. Women are being subjected to inferior terms and conditions of employment. But otherwise, you know, sex discrimination in employment has been forbidden since 1964, and we still have single sex bathrooms. So I can't see how anything about our case, win, lose or draw, is going to change anything about bathrooms.

Dahlia Lithwick (49:53)

I want to play for one second. ACLU lawyer David Cole argued for Amy Stevens in the second case. And I want to talk about it for a second. But here was him making exactly the point that you just made about the existence of bathrooms for decades, except he actually said it in his argument in reference to the bathrooms at the Supreme Court.

David Cole (50:14)

There are transgender male lawyers in this courtroom following the mayor dress code and going to the men's room, and the court's dress code and sex segregated restrooms have not fallen. So the notion that somehow this is going to be a huge upheaval, we haven't seen that upheaval for 20 years. There's no reason you would see that upheld. Transgender people follow the rule that's associated with their gender identity. It's not disruptive.

Dahlia Lithwick (50:39)

And I think, Pam, the question that I pull out of that is it does seem as though there was an immense amount of slippage between what were supposed to be your discrete issues and the discrete issues involving Amy Stevens, the transgender worker from Michigan who brought related but different claims. In the second hour, I wonder if part of the confusion in this case is that you spent an immense amount of time answering questions that should have been directed to David Cole.

Pam Karlan (51:07)

Yeah, I was surprised by that. And several times I tried to say, look, when it comes to bathrooms and sexual orientation, there's never been an issue. It's always been the case that gay, straight and bisexual men use the men's room and lesbians, bisexual women, and straight women use the women's room. So nothing about sexual orientation casts any real light on which bathroom you use. You would have thought that they didn't know that David Cole was going to be there in, know, 45 minutes to talk about. To talk about the question of bathrooms.

Dahlia Lithwick (51:49)

That was my overwhelming takeaway, listening to your argument, was that there was this visceral kind of torpor of some kind of social anxiety that didn't go to your issues at all, certainly didn't go to questions of employment. And that, you know, Justice Gorsuch at some point gave voice to it. Just this idea that this is going to affect some sea change and it's all just too much. And it felt like it was a way of sort of almost the sloppiness of conflating a whole bunch of issues that actually had nothing to do with your particular appeal was of a piece with this sense that it's all just happening too fast and we can't be responsible for it. Am I mischaracterizing? You can tell me if I'm overstating that.

Pam Karlan (52:38)

Well, I don't think you're overstating it. I think there's a lot that the two cases have in common. They're both cases about stereotypes based on expectations of how women should be and how men should be. So I don't think the two issues are completely unrelated to one another, but I think that the courts, what's interesting here is you would think, and indeed the polling data kind of suggests this, that there's much broader support for non discrimination in employment right now today than there was, for example, example, support for marriage equality. There are a lot of people, and I tried to get this point across to the court, that there are a lot of people who have religious objections, for example, to homosexuality, who have no objection to hiring people who are gay or lesbian in the same way that, you know, lots of employers may have religious objections to other religions. They may think people who don't share their religion are going to hell, but they have no trouble hiring those people to work in their company.

Dahlia Lithwick (53:41)

But part of the slippery slope here is that this isn't cabin to employment. Presumably, if Title VII doesn't protect LGBT workers from being fired, then everything else, housing, all other forms of discrimination are back on the block. Right. At least in states that don't have state civil rights protections. Is that correct?

Pam Karlan (54:01)

I mean, that's true that with regard to those federal statutes that prohibit discrimination on the basis. But for example, right now the federal public accommodations statute doesn't prevent discrimination because of sex. So it's unlike, for example, the Colorado public accommodations provision that was at issue in Masterpiece Cakeshop right now, public accommodations can discriminate on the basis of sex as a matter of federal law.

Dahlia Lithwick (54:29)

And you've mentioned religion twice now. And it's interesting. We teed this case up with Erwin Chemerinsky. And I said to him, religion is not expressly in this case. And he said it's not, but it underpins everything. And here listen to John Roberts worrying about religious exemptions for religious dissenters who don't like the state civil rights protections.

Chief Justice Roberts (54:51)

I think about 23 states have been passing laws to address these issues. And I don't know how many of them, but I think it's a big part of them, when they do extend the coverage against discrimination on the basis of sex to sexual orientation, they also include an exemption for religious organizations. Now, if we're going to be extending the understanding of what sex encompasses, and I know your argument that that's not doing that, how do we address that other concern that at least I think almost every state legislature that has extended it has felt compelled to address?

Dahlia Lithwick (55:32)

And then later on, Noel Francisco also made a point of worrying about religious dissenters.

David Cole (55:40)

It would expand the scope of liability without giving any consideration to those religious liberty interests on the other side of the balance. And that is precisely why this is the type of issue that is better left to Congress than the courts.

Dahlia Lithwick (55:52)

And, Pam, my question for you is, yet again, this feels like its masterpiece cake shop in some sense, because the court is showing great solicitude for religious objections. But this case, it does not come up as a religion case.

Pam Karlan (56:09)

Well, that's correct. That the two cases in front of the Supreme Court, there was no claim regarding religion at all in Gerald Bostick's case. In fact, there couldn't be because Gerald Bostic was employed by a public agency. And public agencies don't have the right. Right to enforce their religious views because they're not entitled to have religious views in the first place. Altitude Express claims it doesn't discriminate against anybody. It doesn't claim that it has a religious objection. And there were virtually no amicus briefs on the other side saying that we have a religious objection to hiring gay men, lesbians, or bisexuals. So, you know, it's this fear that there are religious objectors out there. And. And, you know, as I tried to point out to the court, first of all, 85% of American employers are too small to be covered by Title vii. So if you're thinking about, like, a lot of mom and pop businesses, if they have religious objections, they're free not to hire gay people in the same way that if they have religious objections to hiring women who want to work outside the home, they don't have to hire women. And on top of that, the Supreme Court has already created what it calls the ministerial exception, which is an exception for workers even in otherwise covered businesses who are spreading the religious message of their employer. So, for example, parochial schools or churches or the like, they're already free to discriminate on the basis of sex, on the basis of people going outside the religion to complain to the government. That's the hazard on a TABOR case. So it's a very small tale, religious objectors wagging a very large dog here, which is most of the employers and most of the employees who are actually covered by Title vii.

Dahlia Lithwick (58:08)

So in a sense, I guess I want to put it into that Merc I was talking about, where there is some generalized anxiety that the justices are importing into this that is just not emblematic of the facts of this case or even, I think, as you described, the facts on the ground, it's just something they're concerned about. And they have to keep giving voice to. Must be very, very frustrating to have to keep answering those questions.

Pam Karlan (58:34)

It is frustrating because of course, you know, Gerald Bostock worked for Clayton county for 10 years, winning national awards and praise, and then they discovered he was gay, and all of a sudden they wanted to fire him. It's not that they're not firing him for not doing his job well as a gay man. He was doing his job well as a gay man for a decade.

Dahlia Lithwick (58:58)

I have to play this exchange between you and Justice Alito only because you talk about Saturday Night Live. I haven't checked, but I'm guessing it's one of the first references to Saturday Night Live.

Larry Tribe (59:09)

Is that discrimination on the basis of sex where the decision maker doesn't even know the person's sex.

Dahlia Lithwick (59:14)

And.

Justice Ginsburg (59:14)

And how do they know the person's sexual orientation?

Larry Tribe (59:16)

Because somebody who interviewed the candidates tells.

Justice Ginsburg (59:19)

Them that and they're unable to tell anything about the person selves.

Pam Karlan (59:23)

So this is Saturday Night Live Pat as.

Justice Ginsburg (59:26)

As an example.

Dahlia Lithwick (59:27)

Right.

Larry Tribe (59:27)

Well, I'm not familiar with that.

Justice Ginsburg (59:28)

Which is the person named Pat.

Pam Karlan (59:30)

And you can never tell whether Pat.

Justice Ginsburg (59:31)

Is a man or a woman.

Dahlia Lithwick (59:32)

I guess my first question, Pam, is can you unpack for me what he was driving at in that question?

Pam Karlan (59:39)

Yeah. So he's saying if you've got to know somebody's sex to discriminate against them because of sex, what happens if you just have an employer who says, I'm not going to hire anyone who has the wrong sexual orientation and the employer has no idea whether the person is a man or a woman?

Dahlia Lithwick (59:57)

I appreciate you restating it. Still don't understand what he was asking you.

Pam Karlan (60:02)

Well, what he's trying to suggest is, is because you could discriminate against someone on the basis of their sexual orientation without knowing their sex.

Dahlia Lithwick (60:11)

Oh, there can be a no gender. Okay.

Pam Karlan (60:13)

That must mean that sex discrimination and sexual orientation discrimination aren't the same thing. And of course, I didn't want to be too flip at the court, and I already felt like talking about Saturday Night Pat was a little bit. But there's this other famous Saturday Night Live routine that kept coming up in my mind and during the argument prep and the mood, I would sort of joke about occasionally, which is, you may remember the famous Gilda Radner, Dan Aykroyd thing about the white stuff in the can. And it's a floor wax. No, it's a dessert topping.

Dahlia Lithwick (60:44)

Okay. Yep.

Pam Karlan (60:45)

Do you remember that? Do you remember that Saturday night? And I sort of feel that's what we're talking about here sex discrimination and, you know, sexual orientation discrimination and sex discrimination. It can be both simultaneously, can be a dessert topping and a floor wax. But of course, if he didn't know who Pat was, then that analogy probably also wouldn't have been helpful.

Dahlia Lithwick (61:06)

The last thing I have to have to ask you, Pam, is that every account I saw of the argument talked about Neil Gorsuch being in play. I think several points in the argument he seemed to concede. I think he conceded to David Cole, quote, assume for the moment I'm with you on the textual evidence. I think he said it was very close. I think he conceded to you that he understood that there were real harms implicated in your clients losing this case, in your view. And I think that people say he will approach this as a textualist. What is it about textualist Neil Gorsuch that makes you think he might side.

Pam Karlan (61:50)

With you, that the text is so very clear here that if you take two people who do exactly the same thing, one of them's a man, one of them's a woman, woman, and you fire one of them and not the other, that's sex discrimination.

Dahlia Lithwick (62:05)

The court looks as though it never changes, Pam. And yet all around you things are and were changing. I know it's ridiculous to be fighting a rear guard action about something that we all thought was a protection, but in some sense, the world around the justices has changed too. And I think particularly for the younger justices, the world that they inhabit is very much a world that can't tolerate this kind of discrimination.

Pam Karlan (62:36)

Well, I think that's right. And you know, I clerked the year of Bowers against Hardwick. That was the case about whether Georgia could make sodomy a 20 year offense. And the justices went into conference there, and Justice Lewis Powell said during the conference, Justice Blackmun told us about this after, you know, I don't think I've ever met a homosexual. And the difference between that in 1986 and today, when not only have the justices met people, but they KN knew that at council table there were gay people, there were bisexuals, there were people who were transgender. That's a sea change. And that sea change has got to have some effect on the court because it sees right in front of it living proof of the point that we're trying to make in the case, which is people's sexual orientation and people's gender identity has no bearing on whether they're qualified. Qualified to do a superb job. And that's what Title VII is about.

Dahlia Lithwick (63:32)

And in a deep way. Pam, maybe this is a good place to conclude, but in a deep way. This is not about marriage. This is about work. Not every single LGBT American will marry or want to marry, but almost all of them will want to work. This is really, I think, going to affect millions and millions and millions of people in ways that we haven't fully thought about. I hope the justices have thought about that.

Pam Karlan (64:00)

Well, yeah, I mean, you know, not everybody gets married, but pretty much everyone who's an adult works.

Dahlia Lithwick (64:05)

Pam Karlan is co director of Stanford Law School Supreme Court Litigation Clinic, where students litigate live cases before the court. One of the nation's leading experts on voting in the political process, she served as an assistant counsel and cooperating attorney for the NAACP Legal Defense Fund and as a deputy assistant attorney general in the Civil Rights Division of the Department of Chairman. Pam, as always, it is a pleasure to have you on and we'll talk to you when this case is decided.

Larry Tribe (64:32)

Great.

Pam Karlan (64:33)

Thanks for having me.

Dahlia Lithwick (64:35)

Thank you so much for listening to Amicus, but I'm wondering, could you be enjoying this a little bit more? This and all of our fabulous late shows just a little more. Like by binging episodes without ever listening to a commercial or by getting special bonus content from your very favorite chose. If you join our membership program, Slate plus, all this and more awaits you. And it's only $35 for your first year and you can sign up for free for two weeks just to check it out first. And that's not all. By signing up for Slate plus, you'll be supporting this show and all of our journalism here at Slate. We know you value our coverage and we really value your support. Sign up for Slate plus and help secure Slate's future. To learn more and to begin your free two week trial, go to slate.com amicusplus and that is a wrap for this episode of Amicus. If you want to get in touch, our email, as ever, is amicuslate.com We've noticed a big uptick in questions around the impeachment and we're going to try to keep answering them on the show. You can also find us@facebook.com amicus podcast and thank you for your feedback. Today's show was produced by Sara Burningham. Gabriel Roth is Editorial Director of Slate Podcasts and June Thomas is senior Managing Producer of Slate Podcasts. We'll be back with you with another episode in two weeks.