← Amicus With Dahlia Lithwick | Law, justice, and the courts
Amicus With Dahlia Lithwick | Law, justice, and the courts
“No Right Is Safe”
00:56:19
The Supreme Court’s decision in Trump v CASA sent American democracy over a cliff.
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- [00:02]
Dalia Lithwick
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- [00:34]
Mark Joseph Stern
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- [01:05]
Dalia Lithwick
I'm Dalia Lithwick. This is Amicus Slate's podcast about the courts and the law and the Supreme Court.
- [01:14]
Mark Joseph Stern
If this decision is carried out to its logical conclusion, then it may be that everybody who has a constitutional violation inflicted upon them has to hire a lawyer, go to court, get their own personal injunction, at least until the Supreme Court rules. And we know the Supreme Court can drag its feet and take years to get there.
- [01:35]
Dalia Lithwick
The Supreme Court term rolled to its abrupt conclusion on Friday morning with a gut punch to the constitutional order in Trump Vacasa, the birthright citizenship case that came to the court dressed as a nationwide injunctions case, alongside a logjam of other cases that would in any other term with any other president, count as blockbusters but that barely break through the legal chaos of this past few months. The October 2024 term has seen a slow but unrelenting erosion of so many of the pillars of American democracy, an erosion of government regulatory power, the erosion of congressional authority, the brazen dismantling of decades of judicial precedent, and the flourishing of a shadow docke that all but dwarfs the public facing actions of the court itself. That slow erosion on Friday ended with a constitutional landslide. My co host, Mark Joseph Stern is here with me to talk through these last few decisions. And of course we will gather again next week for our annual term ending breakfast table, where we are going to try to think through the big themes of the term and grapple with the summer that may be far from quiet and because of the emergency docket. So welcome back, Mark.
- [02:53]
Mark Joseph Stern
Hi Dalia. I would say I'm happy to be here, but under the circumstances, I'll just say I'm happy to see you.
- [02:58]
Dalia Lithwick
Yeah, you know, I think we were both braced for a catastrophically bad morning, and then it was somehow worse. Yeah, it was worse than even we anticipated. And I want to start with the birthright citizenship nationwide injunctions case, because this was about as bad an outcome as we could have imagined, I think. And this is in a case where it seemed, at least from argument, that even the conservative justices appeared aware of both the chaos that it could unleash and also, I think we thought, after argument, aware, that the arguments about the 14th Amendment itself were kind of without merit. And yet here we have Amy Coney Barrett writing for all six conservatives with her sort of very lawyerly civ pro professor originalist hot take on the excesses of nationwide injunctions. It is hard to overstate how disastrous this really is.
- [03:56]
Mark Joseph Stern
It's an appalling decision across several dimensions. It's hard to know where to start. But I guess where I do want to begin is just by reminding everyone that for four years, Joe Biden and his administration were hit with an unceasing stream of universal injunctions from a hand picked crew of conservative judges, mostly in Texas and Louisiana, and the Supreme Court did nothing to stop it. For four years, key elements of Biden's agenda were halted nationwide by these judges, and the Supreme Court not only refused to step in, but also sometimes upheld those decisions when they came to the court. So four years of that was fine for a Democratic president, but now Trump has been in the White House again for barely five months, and suddenly the Supreme Court has seen fit to act, to abruptly take away critically important tool in some circumstances, including this one, to rein in a president's lawless actions. The fact that the court waited all that time while Biden toiled under these injunctions and then sprung into action, leapt in to relieve Trump from these injunctions really tells you everything you need to know, in my view, about what's truly animating this decision. And beneath all of the civil procedure and historical geekery, I think that the majority is made up of six justices who just think that Republican presidents have a greater claim to legitimacy when they're in the White House, have more executive authority than Democratic presidents deserve, and they want to get these lower courts out of the way so that Trump can rule as much like a king as is conceivable in a democracy, if we still have one.
- [05:43]
Dalia Lithwick
So let's just talk for a second about what the court found in effect, as we knew would happen, they didn't get to the merits question. They didn't get to this question of is birthright citizenship still Protected as a kind of Cornerstone of the 14th Amendment. They instead took the bait that had been proffered by the Trump Justice Department and said, we're going to use this as a way to say these nationwide injunctions are very, very, very bad and they exceed the authority of the courts. And so here we are now trying to figure out, I think, as a practical matter, what district courts around the country can do. They have 30 days. We're seeing class actions being filed. We've got district courts who have a certain amount of time in which to readdress these issues that will be brought in a different form. The intramural academic debate is really interesting right now, Mark. It slightly reminds me of the intramural academic debate after the immunity decision, right, where you could lawyer the heck out of this. You can say, oh, it's not that bad because you'll come and you'll bring it in a different form as a class action, and maybe this can be remedied and lawyers gonna lawy. And we can probably still protect plaintiffs who were otherwise protected en masse by these broad injunctions. But my view is pull away from the very lawyerly tendency to lawyer this problem. There are huge disadvantages. I think there's no other way to look at this. For every single individual plaintiff who is affected now by an executive order having to muster the finances, hire a lawyer, and bring a lawsuit because they have lost the broad protection of a nationwide injunction, right?
- [07:31]
Mark Joseph Stern
And the court says, oh, maybe class actions can fill the void. I don't believe it for a second. This is a court that has spent the last few decades weakening class actions, making them even harder to win. And in a concurrence, Justice Alito, joined by Justice Thomas, actually said, hey, lower courts don't just replace universal injunctions with class actions, because that's not okay either. I think that the thrust of this decision is that courts don't get to grant the broad relief that they have been granted in specifically cases where Trump has brazenly and egregiously violated the Constitution. This is a focus of Justice Jackson's dissent, and I think it's worth harping on. If this decision is carried out to its logical conclusion, then it may be that everybody who has a constitutional violation inflicted upon them has to, like you say, Dalia, hire a lawyer, go to court, get their own personal injunction, at least until the Supreme Court rules. And we know the Supreme Court can drag its feet and take years to get there. So this does create potential, essentially a catch me if you can system of relief. Where everybody is vulnerable to having their rights violated because nobody gets to go to court and say, please freeze this policy nationwide. It is patently unlawful, and it is harming millions of people. But I just kind of want to take a step back to look at how we got there, because you mentioned the court doesn't talk about the merits of the case. I agree. Of course, the court does not say birthright citizenship, good or bad, right or wrong. But the court sort of looked at two different alleged wrongs here. So the first wrong was what the plaintiffs say, which is that birthright citizenship is a constitutional right, which is true. It's enshrined in the 14th amendment. It is a guarantee that the president cannot take away by executive fiat. That's what the plaintiffs say, the defendants, the United States government, the president. They argue that the wrong is actually how courts reacted to those arguments, that the real wrong here, the egregious harm, is nationwide injunctions, universal injunctions that prohibit the implementation of this policy on the ground anywhere. And so the Supreme Court, looking at this debate, really could choose one or the other of those questions to address. They could have used this case to say, you know what birthright citizenship is in the 14th Amendment? Trump can't take it away. That resolves the question. But instead, they use this case as a vehicle to further empower Trump to hand Trump even more authority and to SAP the lower courts of their ability to rein him in in the face of a policy that I really believe, in the end, the court will find to be unconstitutional by a lopsided vote, even though the majority doesn't say anything about it on the merits. I think the law and the history are super clear that Trump cannot take away birthright citizenship from the children of immigrants without changing the Constitution. I think the majority will agree, but now they have given him the ability to start trying to do that on the ground because, you know, in their view of the correct priorities here, the biggest issue was Trump having his power trimmed to implement an unconstitutional policy. The problem wasn't the policy itself.
- [10:36]
Dalia Lithwick
Right? We've been talking about this for weeks now that the posture, the litigation posture, continues to be like, wait, the single greatest injustice here is that the president can't do his unconstitutional executive order. And as I said, the court just hook, line and sinker, took the bait that that was the constitutional wrong here. When this case was argued, we talked a lot, you and I, about how this outcome, while not deciding the question of birthright citizenship, would surely result in some kind of crazy quilt patchwork where birthright citizenship is the law in some states and it's not the law in others. And you and I have now just said we're gonna have to wait and see if there's some vehicle whereby it is challenged in every state. We're gonna have to see. And this was another sort of ongoing question at oral argument, which whether the Trump administration would ever even bring one of these cases if they lost it back up to scotus. Right. There's no promise they'll do that. And yet here we are, we are about to unloose the chaos, and the majority is sanguine about all that.
- [11:45]
Mark Joseph Stern
Yeah, I mean, the majority actually discusses the patchwork issue and seemingly acknowledges that it could be a problem, but then doesn't address how that problem can be resolved, which is creating a lot of confusion for US commentators. And I don't know exactly what the right answer is. Some, including our friend Ian Millhiser at Vox, suggests that there could be a new kind of nationwide injunction that rises from the ashes in this case that could somehow be justified on the grounds that we shouldn't be having a patchwork of laws where, you know, some children in some states get citizenship and others don't. But I find it hard to extract that from the decision. I'll just quote from what Justice Barrett writes. She says nothing like a universal injunction was available at the founding, or for that matter, for more than a century thereafter. Thus, under the Judiciary act, federal courts lack authority to issue them. I mean, she was pretty clear, no more universal injunctions. So the question is, can really creative lawyers find a way to finagle some kind of nationwide class action that perfectly substitutes for it? And that's what they're trying to do right now and all power to them. But I think they're going to run into the problem that Justice Barrett is concerned about here, which isn't just the scope of the relief geographically, but the fact that the relief benefits non parties. And I know this sounds a little bit wonky, but this is really at the heart of her decision. So she says basically, the only kinds of injunctions that are lawful today are the kind that would have been available at the High Court of Chancery in England at the time of the founding and in founding era American courts. I'm not going to get into why, as an originalist matter, she thinks that that is the rule. Justice Sotomayor responds, I think very persuasively that that is not, in fact, the rigid rule that the framers created, a judiciary that was meant to have flexible remedial powers to decide in emergency cases how to grant relief. But Barrett says, under my rule back then, in the old days, judges could not grant relief to non parties. They could only grant relief to the people and litigants who are before them, hat in hand, saying, please help us. And so if that is truly the new rule, and I think it sounds like it is, then I do think that finding a substitute will be impossible. Because what we, we need in this case, what the Constitution should require, is an injunction that benefits every single person who would have their citizenship stripped away from them, every single parent who would have their children denied citizenship and potentially rendered stateless. Not every single one of those people is going to be able to go to court, Dalia. Not every single one of those people can hire a lawyer and pay the filing fees. There need to be injunctions that protect all of them, even if they do not have the ability to get their own lawyer or join one of these lawsuits. And so that, I think, is the big question now and the big harm that we're going to see on the ground. You know, Trump said he's going to do this 30 day on ramp to start implementing this policy. That is not a lot of time. And if truly the most egregious harm here was an injunction that benefits non parties, well, then there are going to be people who fall through the cracks, many people who are not party to these lawsuits who wind up risking their infant citizenship simply because Barrett decided, as a quasi originalist and I think very unpersuasive matter, that our current judicial rules are forever chained to something that the High Court of Chancery in England was doing in the 1700s. That just doesn't sound like justice to me.
- [15:10]
Dalia Lithwick
Mark, you've kind of nodded to the dissents in this case, but I want to unpack them a little bit because both Justice Sotomayor and Justice Jackson sure go there. They go to full on defcon. Sotomayor starts with Dred Scott. Justice Ketanji Brown. Jackson talks about this decision as a, quote, existential threat to the rule of law. So there is sort of no denying that they both see this as an utter, unmitigated disaster. I both want you to sort of reflect on what is in these dissents, but also the tone that the justices take with one another, just sort of dripping contempt that we're hearing in the majority opinion. And these dissents, I find it, like, makes the hair on the back of my neck stand on edge when you hear justices talking about each other as though they're stupid, small Children.
- [16:08]
Mark Joseph Stern
It's pretty remarkable rhetoric, especially from Justice Barrett toward Justice Jackson. Justice Barrett writes, we will not dwell on Justice Jackson's argument, which is at odds with more than two centuries worth of precedent, not to mention the Constitution itself. We observe only this. Justice Jackson decries an imperial executive while embracing an imperial judiciary. So Barrett says, Justice Jackson, you're not even worth seriously engaging with. I'm just going to write you off in one line and claim that you are obsessed with turbocharging the power of the courts, whereas I am deferring to the democratic branches and ensuring that the President can exercise his sovereign prerogatives. But I think that she had to respond in some way, because what Justice Jackson is saying here is basically that the Supreme Court just ended democracy. Justice Jackson writes, I'll quote again, that today's decision will surely hasten the downfall of our governing institutions, enabling our collective demise. And she said, lawlessness will flourish, executive power will become completely uncontainable, and our beloved constitutional republic will be no more. So Justice Jackson is saying, this is the end of democracy as we know it. And the most that Barrett could really muster is a kind of, oh, turn away. This isn't worth engaging with, which is extraordinarily arrogant and I think a really ugly attitude to take toward a colleague who is jumping up and down, warning in the starkest possible terms that the Court has just plunged American democracy off of a cliff. Now, Barrett does respond a little bit more to Justice Sotomayor, and Justice Sotomayor's dissent is the principal dissent. It was joined by Kagan and Jackson, whereas Jackson's dissent, she only wrote for herself. So Sotomayor's rhetoric is like, a little less stark, but still extraordinarily harsh. She says, the rule of law is not a given in this nation nor any other. It is a precept of our democracy that will endure only if those brave in every branch fight for its survival. Today, the Court abdicates its vital role in that effort. With the stroke of a pen, the President has made a solemn mockery of our Constitution. Rather than stand firm, the Court gives way. And then Sotomayor accuses the majority of complicity in Trump's lawlessness. So I think there's like, three things going on in Sotomayor's dissent. The first is just saying you are wrong on the law and the history to the majority, like, these are clearly a last out. Maybe only in a narrow set of circumstances, but one of those is here. Second, and relatedly, birthright citizenship is one of the Clearest, most well established constitutional rights out there. Most rights are complicated and the text isn't super clear. And you have to debate about the meaning of broad terms like free speech. This is not that case. This is a case in which after the Civil War, we as a nation came together to enshrine into the 14th Amendment a repudiation of Dred Scott and to declare that all people born here would become American citizens. And that principle has lasted for more than 120 years. And now Trump is trying to get rid of it. And that makes it the worst possible time for the judiciary to trim its own power to rein in the president. And then third. And Sotomayor doesn't get too deep into this, but she gestures toward it. And it's what we're going to spend the next few months dealing with. There are more than two dozen other nationwide injunctions and restraining orders against Trump right now. And all of those are about to fall away. Right? The Trump administration is going to spend the next 24 hours filing a flurry of briefs in in courts around the country saying, you have issued a remedy that is unlawful and it must be cut down to the individual parties in this case. I just pulled up a list. I mean, there are so many, right? Illegal impoundments of domestic funding, illegal cuts to foreign aid, attacks on dei, attacks on voting rights, attacks on the civil service, attacks on all kinds of agencies and institutions within the government that have some independence from Trump or are implementing some kind of policy that Trump doesn't like. They were protected by nationwide injunctions, and now that's gone. So suddenly, a whole lot of people and groups and institutions are vulnerable to presidential lawlessness. And I think that's why Sotomayor uses this expansive rhetoric to step even beyond birthright citizenship, to say what happens next is going to be a rolling catastrophe for all rights that we previously thought to be protected by the judiciary. Because if Jud can't step in to protect these rights, this Congress sure isn't going to do it. And this president is dead set on revoking them. And so they will be revoked. And maybe those who are rich enough or lucky enough to get lawyers can get those rights back one day. But in the meantime, it will be lawlessness on the ground.
- [20:53]
Dalia Lithwick
We're going to take a short break. As it starts to get warmer, you.
- [21:00]
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- [21:02]
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- [23:11]
Dalia Lithwick
And we're back with Mark Joseph Stern as we reel from a really bad Supreme Court end of term. I just want to re up something you and I have been saying for the last couple of weeks on this show, which is the degree to which the Roberts Court, the sixth Justice Supermajority here, has been so cavalier about the powers of district courts. I mean they have done every single thing that they could do to kneecap district court judges to make it impossible for district court judges to do anything other than, I guess, rubber stamp everything that Donald Trump does. And that feels so at odds with just the like basic Schoolhouse Rock kind of ideas about equitable relief and separation of powers and how the Article 3 courts protect their own prerogatives. This is just a fundamental version of that same play right here.
- [24:08]
Mark Joseph Stern
Absolutely. This is something that was previewed, I think, as you're saying, over the last few months. Right. As the Supreme Court continually kneecapped these district courts that were issuing injunctions, that were sticking their necks out to defend the rule of law. All of that was just a run up to this decision. This decision now sort of confirms that the Supreme Court does not believe that district courts have meaningful authority to protect the entire nation from Trump's lawless extremes and saps a huge amount of judicial power with one single decision. Evinces, I think, and Justice Jackson writes this as well. Extraordinary disrespect for the district courts. And Justice Jackson points out, I think the majority here is really contributing to a culture of disrespect and defiance of district courts, which is something that we have seen over and over and over again. Something that whistleblower complaint confirms is an intentional policy of the Trump Justice Department, right, to defy lower courts, to flip them off, to test the limits of contempt and simply do whatever the president and his allies want, regardless of how explicitly a lower court has told them. No. This is the Supreme Court's conservative supermajority siding with the president over the lower courts in all of those cases, basically all at once saying, yeah, all of those orders were too broad, those injunctions were too broad. Those district courts, you know, they got out of bounds, they went too far. Trump was right all along. And that is the worst possible message that the court could send to the Trump administration right now, as it is getting ready to declare itself free from the rule of law, free from judicial restraints. For the Supreme Court to say, go for it in a decision like this, I mean, it's incredibly obtuse, if not downright malicious. Barrett kind of hides that fact in her very professorial opinion. But I am confident that some of the others, Thomas and Alito, they are rubbing their hands together in glee because this is what they have wanted for months.
- [26:03]
Dalia Lithwick
I think there's two chilling takes here. One is that Barrett and Kavanaugh and the Chief justice and to a lesser degree, Gorsuch, are simply blind to what the Trump administration is doing and has sought to do. And the language with which they have sought to do it and the brazenness with which they have sought to do it. The much more chilling version that you just sort of nodded to is, is that they're all completely aware of it, and it's fine. And you don't know if we're gonna die by naivete or die by sort of like genuine, legitimate juggernaut of malfeasance, but those are the choices. I also just wanna note that our friend Aaron Reichland Melnick at the American Immigration Council noted, and it's not a trivial observation, the justices are about to sail off on their summer vacations, right? I mean, literally go on their cruise ships and go to Aspen and go to wherever they go in the Alps, you know, to eat, like, foreign cheeses. And here we have district court judges who have 30 days now to try to breathe life, if they can, back into these lawsuits that they poured their hearts and souls into resolving in the first instance. Just the level of, again, as you're saying, disrespect for the work of district court judges, but disrespect for the work of courts themselves in evidence here is really staggering.
- [27:26]
Mark Joseph Stern
Yes, but at least the judges dealing with Birthright citizenship get 30 days as an on ramp. In so many of these other cases where there are currently nationwide injunctions, they have zero days, they have zero minutes. The Trump administration, probably, as you and I speak, is starting to implement policies that have been on hold because the Supreme Court just gave it the green light. So these, you know, illegal impoundments of all of this money, you know, cutting off domestic funding for key programs, cutting off foreign aid, trying to destroy the CFPB and other agencies, you know, trying to restrict voting rights rights by executive order, all that stuff is now going to start happening immediately. And the only people who are protected are those who happen to be the named plaintiffs in the case. It's just an incredibly bizarre way of doing law. And, I mean, part of what's so obtuse about Barrett's opinion is that she hides all of that behind history. And I think the history is not very good. I mean, look, I am a skeptic of nationwide injunctions. In some ways, I think they can clearly go too far. I think they've clearly been abused. But as our friend Steve Vladek has pointed out, the reason that there have been so many against Trump is because he has issued an unprecedented number of unconstitutional and lawless executive orders. The denominator matters, and these are not the examples of abuses of this tool that. That I think any reasonable person would point to, to say, yeah, the judiciary has gone too far. Like, these are examples of judges doing their jobs. And now as the justices, you know, sprint off into the Alps singing the sound of Music these district courts are going to have to scramble to figure out what in the world the Supreme Court just did and exactly how much authority they still have to protect people who are in desperate need of their rulings.
- [29:02]
Dalia Lithwick
I want to talk about another gut punch case, Mark, which is Mahmoud v. Taylor. This is a case. We talked about it a bunch on the show. You've written a ton about it now, saying that parents have the right to opt their children out of being forced to read LGBTQ books in public schools. This is another six, three Robert's Court, six majority this time. Justice Alito writing. You know, it's easy to get bogged down in, like, the details of what's in the books and what's not in the books. This is a sea change in terms of how the court has thought about both parental rights and the very nature of public education is all upended here in a case that it's. It's just hard to imagine where this ends, this opt out.
- [29:48]
Mark Joseph Stern
So this is a horrible decision that in any other term might be like the worst, because this is a direct assault on public education and the. The Democratic princip principles, lowercase D that undergird it. So I just want to be clear. This is about LGBTQ books, books with characters and themes that are lgbtq. But the children at issue in this case, they weren't, like, being forced to sit down and read it, like, you know, sound out each word to say, uncle Bobby is gay. They were just going to be somehow exposed to these books, maybe put in the same classroom as these books, maybe have the books read to them during story hour from time to time. And these are really anodyne books. I mean, one is Uncle Bobby's Wedding, which is this lovely book that actually we have gotten that my son absolutely adores. Don't Tell Justin. To Salido, which is about a little girl whose uncle is getting married. And she learns that families change, and that's okay. There's another Pride puppy, which is just about a sweet little dog who gets lost at a Pride parade and all the fun things he sees. These are G rated books. The only objection that parents have is that they don't believe that LGBTQ people deserve rights. They don't think that LGBTQ people should have equality under the law, and they don't want their children to think that it is okay to be lgbtq. And so the parents, when they learned that these books would be in classrooms, they went to court and argued that having their kids exposed to this material would violate their First Amendment right. To free exercise of religion by exposing their kids to materials that they don't want them to see. The problem, of course, is that parents traditionally do not have a veto over public education because otherwise public education will crumble. Right. Parents do not get to dictate exactly what is and is not taught in the classroom. And one of the goals of public education is to expose children to different kinds of ideas and different kinds of people that they wouldn't normally, normally see. And yet here, the supreme court, by a 63 vote, with Justice Alito writing, just decrees that from here on out, parents have a brand new First Amendment right to veto their children's exposure to materials that violate their own religious beliefs. That if the parents don't like gay people, then their kids have to be opted out of seeing a book featuring gay people in the classroom. The kids have to stand up and walk out and wait in the hallway while the teacher reads Uncle Bobby's Wedding. The Court makes up this new right out of whole cloth. It's not remotely rooted in precedent, as Justice Sotomayor explains. And yet another powerful dissent. She was working very much overtime this term. And I think that there's a deeper issue. I mean, she writes, today's ruling threatens the very essence of public education. The court constitutionalizes a parental veto power over curricular choices. Long left the democratic process. Exactly right. And I would just go a little further. It's not just that these kids are going to stand up and walk out of the classroom when the books are read during story hour. Right. The schools have already said in this case, we cannot possibly manage a system where students have a right to opt out of anything they don't like. We're just going to have to pull the books. They're just going to have to stop putting these books in classrooms because otherwise there will be an unmanageable constitutionalized system of opt outs that the school will have to enforce perfectly, at constant pain of a First Amendment lawsuit. Right. Subjecting the school to damages. And, and you know, this is the whole goal of this case. It's not just to protect, quote, unquote, religious children. It is to get these books out of classrooms. It is to ensure that children do not see LGBTQ people in the literature that they are exposed to at school. It is to further stigmatize the children of LGBTQ people and, of course, LGBTQ kids themselves, who are sent the overwhelmingly strong message when these books are pulled, that there is something wrong with them and their families, that their families are so, so different in a terrible, disgusting way. That their peers can't even be exposed to a book about those kinds of families. That is violently stigmatizing message to send to kids. And it's the one that the Supreme Court just enshrined into the First Amendment of the Constitution.
- [33:46]
Dalia Lithwick
And I just want to commend to listeners, it's worth looking at the appendix of Justice Alito's opinion with the like, unbelievably, like, sweet illustrations of families that don't necessarily look like the Alitos, right? Families that have made different choices. And you look at them and you're like, wait, this is unspeakable. Like, this is the appendix to embody, like, the horror that we are saving children from. And it's so staggering that we have just as a physicalization, a materialization of this moment that that is appended to this opinion, as though the reaction should a universal, like, thank God. Thank God children don't have to see those images. It's staggering.
- [34:35]
Mark Joseph Stern
It's staggering. And let's just be really clear about this. It's bigoted. The majority opinion in this case by Justice Alito is deeply bigoted and deeply homophobic. I mean, he reframes these utterly innocent children's books as insidious propaganda designed to brainwash children into supporting LGBTQ rights. He continues to misread Uncle Bobby's wedding. I spoke to the author. Listeners may remember. I did a deep read of this book. It is not in any way trying to convince children who dislike gay people to set aside their bigotry and embrace the gay agenda. It is about a niece whose family is growing and she isn't sure how she feels about change. But then she comes to love Uncle Bobby's new husband, and everyone is happy. That is not propaganda unless you look at it through the lens of homophobia. And you think that the mere depiction of gay people as being okay, as being acceptable, as being deserving of basic civil rights and civil liberties, is noxious and is something that you have to protect children against. And so I just want to say really clearly, the justices who signed onto this decision should be ashamed of themselves, and they should know better than to sign on to what notorious homophobe Sam Alito decides is unacceptable for children because it happens to humanize gay people as deserving of love and rights. Neil Gorsuch, Amy Coney Barrett, Brett Kavanaugh, John Roberts. We don't expect more of Clarence Thom. But the others, I think on some level, they know. They know that this is a disgusting opinion, that this is sending a very strong signal to Children in classrooms, to their parents, to all of us in the. In the public, that there's something wrong with being lgbtq, something so wrong with it that kids need to be protected from it, and that books that depict us as normal people living our lives are somehow insidious propaganda. It's a vile opinion and a vile holding, and it is going to harm many, many, many, many children alone in.
- [36:34]
Dalia Lithwick
Any kind of normal term. This would be, you know, the case we talk about for weeks. And what frightens me a tiny little bit, Mark, is in the tsunami of horrors that came down in the last couple of days. I hope this case is more than just a fleeting headline. I hope this is a moment for parents and their kids to sit down and have a real conversation about what it is, certainly what religious liberty, quote, unquote means and how it cannot be the Trojan horse by which we destroy every everybody else's rights and dignity.
- [37:07]
Mark Joseph Stern
Let me just do a little plug, go out and buy these books. Buy Uncle Bobby's wedding, Buy Pride Puppy. Like Dalia is saying, show them to your kids. Give them as gifts. Like, these books are really good, lovely children's literature. And this decision is so horrible, the one silver lining that could be extracted from it is perhaps a Streisand effect, where ultimately more children get to see these wonderful books and learn the very nice, neutral lessons that they impart under readers.
- [37:33]
Dalia Lithwick
So there was one actual, I guess, silver lining on Friday in a week of just one shit show after another. And that is a case that was yet another we hate Obamacare challenge to the constitutionality of the structure of the U.S. preventative Services Task Force. This is actually an unequivocal. Except, you're going to tell me in a minute why it's actually equivocal. But it is a win. We can put it in the W column.
- [38:01]
Mark Joseph Stern
So it's a win for the Constitution because the Supreme Court holds that this preventative task force is lawful, is constitutional, and does not violate the Appointments Clause. So the task force can continue its service. It can continue to recommend which preventative treatments insurers need to cover at no cost to patients, and a key plank of Obamacare will survive. But the problem is that in upholding the existence of this task force, the Supreme Court also confirmed the freedom of the HHS secretary to fire members of the task force at will and to block its recommendations, something that is not really clear from the statute itself. But Justice Kavanaugh's opinion for the court reads it that way. And so, yes, this body is continuing to exist. And that's a good thing. Yes, an attack on Obamacare failed, But but now RFK Jr. The current HHS secretary, is going to have newfound powers to purge this task force just like he purged the Vaccine Advisory Committee and replace them with stooges or if he doesn't fire them all, block their recommendations for what should be covered. And a lot of those recommendations are saving people's lives. Stuff like cancer prevention screening, prep for HIV prevention. That is what this task force is currently requiring insurance companies to cover at no cost. And RFK Jr could now very easily just blow up those recommendations and blow up the whole task task force.
- [39:29]
Dalia Lithwick
We're going to pause now to hear from some of our sponsors.
- [39:37]
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- [40:42]
Mark Joseph Stern
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- [41:16]
Dalia Lithwick
You know that one friend who somehow knows everything about money? Yeah. Now imagine they live in your phone. Say hey to Experian, your big financial friend. It's the app that helps you check your FICO score, find ways to save and basically feel like a financial genius. And guess what? It's totally free. So go on, download the Experian app. Trust me, having a beautiful is a total game changer. More now from my conversation with Mark Joseph Stern. As the October 2024 Supreme Court term goes out with a bang, a couple of whimpers, and a whole lot of bad news, another really important access to health care case that again would have been just a barnstormer in any other term comes down on Thursday. This is a case about whether or not states that are seeking to defund Planned Parenthood can be stopped from so doing by plaintiffs who actually claim a statutory right of action to get healthcare where they want it. This is just a massive, massive blow, not just to Planned Parenthood, but to lower income and minority patients who get their healthcare there.
- [42:29]
Mark Joseph Stern
Yeah, this is a ghastly ruling, and not just for Planned Parenthood, but it really nukes Medicaid. Because the way that Medicaid is set up, Congress granted Medicaid patients a right to choose their provider. It's called the free choice of provider provision. And Congress said quite clearly that as long as your provider is qualified to provide certain services, meaning they can do it competently and safely, you get to go to them. The Congress enacted this, by the way, in response to efforts by states to restrict which doctors Medicaid patients could go to. Congress said, no, we're not doing that. Medicaid patients deserve care. And yet South Carolina in this case, cut off Planned Parenthood from all Medicaid reimbursements. Not abortion. This is not about abortion. Under federal law, Medicaid dollars cannot cover abortion already. This is about things, cancer screenings, like STI screenings and checks like, like birth control. Right? This is stuff that's basic reproductive health care that saves lives. And yet South Carolina refused to let Medicaid cover any of it on the grounds that it hates Planned Parenthood. It just has an ideological hatred of Planned Parenthood, and it doesn't think that it should be able to get any Medicaid money for any services that it provides. That is obviously a violation of Congress's will to give patients a choice and a right. And so a patient of Planned Parenthood sued and the Supreme Court. Supreme Court threw out her lawsuit on Thursday and ruled, shockingly, that she actually doesn't have a right to choose her provider. That specifically she doesn't have a right to go to federal court and insist that Congress has given her the freedom to choose her provider. Because this is a law that gives money to states that States get to spend to implement a program. And according to the Court, those kinds of laws almost never give their beneficiaries a right to sue. That sounds a little wonky, but it has sweeping implications. Right. Think about all of the different kind of welfare programs that operate like this. Not just Medicaid, not just Medicare, but nutrition assistance, right. Housing assistance, disability programs, all of that stuff is designed not only to fund certain benefits for people, but to give those people a right to insist that they receive the benefits as Congress has dictated them. And on Thursday, the Supreme Court just took away that right in almost every single case and said no such right exists. That is really, really radical, and it is going to make a lot of rights enshrined by Congress basically unenforceable in federal court.
- [44:51]
Dalia Lithwick
And you mentioned this in your piece on Thursday, Mark, but it's really, I think, worth pulling on a little bit. Justice Jackson's dissent in this case explicitly ties the ruling in Medina to the white supremacists who attacked civil rights during Reconstruction. Again, this gets, like, batted away as, like, oh, you know, she's hysterical. She's comparing this to, you know, fundamental losses of civil rights. It is a fundamental, fundamental loss of a civil right.
- [45:20]
Mark Joseph Stern
Exactly. I mean, and she makes that comparison in part because the statute under which this patient tried to sue, it's known as section 1983, but it was enacted first as part of the Civil Rights act of 1871, a landmark statute that was intended to protect individuals rights to sue when states infringe upon their freedoms. And as Justice Jackson pointed out, almost as soon as Congress enacted the Civil Rights act of 1871, white supremacists started attacking it, including South Carolina, by the way. We saw massive pushback. And then white supremacists on the Supreme Court largely gutted the statute. And Jackson is telling us that history is repeating itself now that what we're seeing today is a bunch of. She doesn't say white supremacist, but she comes pretty close. A bunch of conservative activists in robes rolling back civil rights laws that Congress passed to protect individual liberties. And her message here is that the Supreme Court isn't just taking away rights that it previously created. Right. This isn't just like overturning Roe versus Wade. The Supreme Court is taking away rights that Congress created that the people's representatives, through the democratic process, attempted to enshrine into law. And so she is warning us that this is a blow to the very principle that the people can govern themselves and create rights that are enforceable when they see Fits that. This is ceding even more power to the Supreme Court to just declare that rights on paper to they have no remedies, they're unenforceable, and allow states like South Carolina to continue persecuting and harming the most vulnerable among us.
- [46:53]
Dalia Lithwick
And we can't really rap without talking about how the Roberts Court, the most, quote, unquote speech protective court in modern history, on Friday upheld Texas's age verification law for online content, thus dealing yet another punch in the throat to First Amendment rights.
- [47:13]
Mark Joseph Stern
To First Amendment rights. Into precedent. Yet another blow to precedent. Right. And I want to note that the Planned Parenthood decision essentially overturned a precedent from just two years ago. I mean, the court is like, on a tear. And I think the dynamic we're seeing is that even the occasional good decision is vulnerable to being rolled back or reversed a few years later. And in Free Speech Coalition versus Paxton, the court dramatically rolled back protections for online speech. Yes, it's a case about porn, and we all want to protect children from porn, but the way that Texas has done so is incredibly burdensome for adults and threatens to restrict a very, very broad amount of speech that is protected under the First Amendment. The Supreme Court had for years said that when the government tries to restrict sexual speech online, this is stuff that's not obscene, it's not legally obscene. It's, you know, graphic. It might be indecent, it might be gross. You and I might not want to see it, but it is still protected that when the government wants to restrict that, it has to survive strict scrutiny. Right. It has to have a compelling interest, and it has to narrowly tailor its solution. And here, Supreme Court just reversed course. And an opinion by Justice Clarence Thomas. The Supreme Court said, oh, never mind. As long as the government says that it's trying to protect children from seeing indecent speech, then we only apply a relaxed standard known as intermediate scrutiny. And this Texas law easily survives intermediate scrutiny. So the Court has, in its blitz on precedent now essentially taken away key First Amendment protections for the Internet and given states significantly more leeway and in my view, to restrict what we are allowed to see. Because let's be clear, even though Texas says that it's trying to protect minors, this burdens adults as well. Right. This creates a burdensome age verification system that many people aren't going to want to bother with, that has real data privacy concerns. People are simply not going to be able to access speech that they have a constitutional right to see. And that seems like a problem. Justice Kagan, in her really great Dissent says that seems like a really big problem that should trigger strict scrutiny. But Justice Thomas says nah. And all the other concerns conservatives join him.
- [49:18]
Dalia Lithwick
We end this conversation with me saying that it is a dark, dark day when truly the only great news is the court didn't eviscerate whatever's left of the Voting Rights Act. That's the good news. Right? Kelly versus Louisiana. We were waiting and waiting and waiting and waiting for this case is just a thicket. And the court held it over and decided they'll decide it next term. That's the good news.
- [49:47]
Mark Joseph Stern
Yeah, and I'm really not sure that's even good news, Dalia, because I fear. And we'll see. But the court teased that it's going to ask additional questions and seek supplemental briefing. And the question that some of the conservatives were really eager to answer during oral arguments was whether what remains of the Voting Rights act is unconstitutional because it requires in some circumstances race based redistricting in violation of the equal protection clause. That is an issue that the Supreme Court has danced around. I mean, just two years ago on Alan B. Milligan, it said that that wasn't a constitutional problem. But as we have seen, the Supreme Court will gladly knock over even recent precedent when it has an agenda item to check off the list. And so I do fear that even though this looks like a reprieve and maybe even a win because like a fair map gets to stay in place for now, that what the justices are really doing is broadening out their assault on the Voting Rights act so that their eventual decision is even worse.
- [50:41]
Dalia Lithwick
So I guess where all this is headed is the grim realization and you and I have flirted with this is a theory of the case that we are now in a really pretty chilling moment, Mark, where we have an imperial Supreme Court and an imperial presidency working together with a supine Congress and a caged lower court system. I mean, if there was any doubt that six members of the Roberts Court are fully on board for the idea that they are going to use their power to create an even more bulletproof immune Donald Trump presidency, I think we can lay that to rest. Right? That's the takeaway.
- [51:28]
Mark Joseph Stern
That's the takeaway. Whatever little flashes of independence and integrity that we got earlier in the term that gave us a little bit of opposition optimism, those were a mirage. That the court is absolutely MAGA pilled just as much as it was when it issued the immunity decision last term. And in a way, Friday's nationwide injunction decision is a follow on to the immunity decision the court is granting even more power to Trump to be essentially crowned a king above law, as Justice Sotomayor put it last year. And there were no defections from these big ticket decisions. Right? Like, we didn't see Barrett peel off. We didn't see Roberts peel off in any of the cases that we're talking about. Like the six are together on this. They are marching in lockstep. We know what they are marching us toward. It is a monarchical presidency buoyed by, as you say, an imperial court. And the liberal justices are doing almost everything in their power to warn us that this is happening. But as long as Congress doesn't do its job to stand up and stop this, the courts are all we have. And now they don't even get the power to issue universal injunctions. So query what we have left to protect democracy and civil rights from Trump. It's a whole lot less than we had even five months ago.
- [52:42]
Dalia Lithwick
We have a whole lot to think about. We have hundreds of pages of opinions still to read and a lot to process. Mark, I'm looking forward to doing that with you and our unbelievable panel of experts next week. And listeners, please do send your questions about the end of term, about any of the cases, about big thoughts you're having. You can get in touch with us@amicuslate.com Mark and I are going to be doing some mailbag shows over the summer and we want to hear from and we want to try to answer as many of your questions as we can answer without sobbing. Mark Stern is a senior writer for Slate. He is my cherished co host here on Amicus. Mark, thank you. We will talk to you next week.
- [53:25]
Mark Joseph Stern
Thanks so much Dalia.
- [53:28]
Dalia Lithwick
That is a wrap for this episode, a special shout out to our Slate plus members. Thank you so much, not just for listening in, but also for supporting the work that we do. That support is what gets us through Opinionpalooza. We literally cannot do this without you. And Slate plus members can join our end of term All Star panel next week from the comfort of your own homes or offices or conference rooms. Mark and I are going to be joined by Sherrilyn Ifill, Jamelle Bouie and Stephen Vladek for a live taping on Tuesday, July 1st at 1pm Eastern. Go to sleep. Slate.com amicusplus live to register and send us your questions too. Mark and I are going to hang around after the taping to try to answer as many of your questions as we can. So email them in to amicusatslate.com youm can also leave us a comment on our show page if you're listening on Spotify or Apple. Or you can find us@facebook.com amicuspodcast if you are not a Slate+ member but you'd like to join us, you can subscribe to Slate plus directly from the Amicus show page on Apple Podcasts and Spotify, or you can visit slate.com amicusplus to get access wherever you listen. Sara Burningham is Amicus Senior Producer. Our producer is Patrick Fort, Mia Lobel is Executive Producer of Slate podcasts, Hilary Fry is Slate's Editor in chief, Susan Matthews is Executive Editor and Beden Richmond is our Senior Director of Operations Operations. We will be back with our annual end of term Breakfast Table episode next week, and until then, take good care of yourselves.
- [55:16]
Mark Joseph Stern
Hi, I'm Josh Levine. My podcast the Queen tells the story of Linda Taylor. She was a con artist, a kid, and maybe even a murderer. She was also given the title the Welfare Queen and her story was used by Ronald Reagan to justify slashing aid to the poor. Now it's time to hear her real story. Over the course of four episodes, you'll find out what was done to Linda Taylor, what she did to others, and what was done in her name. The great lesson of this for me is that people will come to their own conclusions based on what their prejudices are. Subscribe to the Queen on Apple Podcasts or wherever you're listening right now.