← Amicus With Dahlia Lithwick | Law, justice, and the courts
Amicus With Dahlia Lithwick | Law, justice, and the courts
Sneak Preview: SCOTUS Made it Worse
00:15:14
Amicus plus members have some big questions at the end of this Supreme Court term, and we’re answering them.
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A
I'm Dahlia Lithwick.
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B
And I'm Mark Joseph Stern, and this.
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Is Amicus Slate's podcast about the courts, the law, and the Supreme Court.
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Welcome back to the Amicus Smokeless Cigar Bar for our Slate Plus Frequent Flyers. Thank you for subscribing and then resubscribing and supporting us in all the ways.
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A
That you do and for our new members. And we know, because we saw the math, that there are a lot of you this opinionpalooza season. We just want to thank you, thank you, thank you for putting some of your hard earned money towards the journalism we do here at Slate. It's how we keep the lights on around here and your support fuels the work that we do throughout the end of the Supreme Court term and beyond. We are going to have a lot of fun together, as much fun as we can have, I guess, under the circumstances, and we are going to get through some of this hard stuff together. Our Smokeless Cigar Bar is your smokeless cigar bar.
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B
And finally, for those of you who are not yet SLEEP subscribers, we are sharing this taste of our end of term Mailbag bonus episode to give you a sense of some of the content our cherished plusketeers can access with their membership. And because we brought you our All Star Breakfast Table episode as soon as we could and you got your main episode early this week.
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A
So welcome to all of you. And let us now turn our attention to the amicuslate.com let me say it again amicaslate.com inbox and a heap of just really smart and insightful questions that came in from our Amicus listeners in the last couple of days. And I want to start with a pair of questions about Mahmood v. Taylor. That's the case about LGBTQ books in public schools. And here's the first question Valda Winslow writes in with this question. Dear Amiki, I'll confess that I haven't done the research, but isn't it some kind of a principle that requires kids to opt out of prayer in public school? And it's insufficient because it is coercive since it stigmatizes and embarrasses the children in front of their peers. I remember this argument, for example, in the coach preying on the center line case, in which the court tortured the facts to say that the coach was on the sideline and it was not during the game. I thought that was done in order to sidestep this principle. So in addition to Mahmoud v. Taylor being horrifically dehumanizing to LGBTQ people, do you think that it could be a setup to be used in the Ten Commandments cases or prayer or other religious teaching in the public schools cases. In other words, can those advocating for the Christian majority now argue that anyone in the minority should be permitted to opt out and cite this case as precedential?
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B
So that's a great question, and there's a lot going on in this case that your question touches on that raises issues that the court's gonna have to spend years clarifying. As you say, the Supreme Court did hold in some of its school prayer cases that allowing the prayer in school and then forcing certain children to opt out would be stigmatizing for those children. And I could see a parent now coming forward and saying, well, I wanna opt out my child from seeing an LGBTQ book in school, but that doesn' go far enough for me because my child will be stigmatized if she has to stand up and leave the classroom while Uncle Bobby's wedding is red. So I want to go further, and I want the school to pull Uncle Bobby's wedding all together and ensure that nobody will ever see it to protect my child from the stigma of opting out. I think that's very possibly a next step. I think that the Fifth Circuit may well take this case and use it to crack down on all education involving progressive topics. LGBTQ equality, women, minority religions. And to pick up on that point, you know, there's a big question of whether this is limited to LGBTQ issues or if the principle that the court has announced extends even further. I think that if you take the court at its word, it's not just LGBTQ books that are suspects that, you know, have to trigger this opt out rule. It seems quite possible that a book about a female astronaut could trigger an opt out because religious parents don't want their children to think that women can go to space. Books about women in the workforce, books about religious minorities, a book about the story of Passover, about the Holocaust, the persecution of Jews. There are religious objections to all of that. And it's possible that starting now, parents could say, I don't want my kid to see that, so they're going to have to stand up and opt out. There's no age limit on this decision either. You know, this was specifically about younger children, but what about middle school and high school, where these topics get really complicated? Right, where there are, you know, a lot of issues that students debate and discuss in history, in English class that are heavy and difficult and might involve controversial issues? From here on out, it's quite possible that those parents who don't want their kids discussing those topics or learning about them could say, sorry, they can't participate in this lesson on the Civil War because we think that the south should have won. Sorry, they can't learn this lesson about evolutionary biology because we think Darwin was the devil and evolution is false. There's no limiting principles that Alito really puts in this opinion in Mahmoud. And so just to tie it all back, you mentioned the Ten Commandments case. This is a case right now in the 5th Circuit where the 5th Circuit recently ruled that states cannot require public schools to put up the Ten Commandments in every classroom. In a more consistent court, that decision should stand because the Supreme Court has already said that schools can't do such a thing. And at a bare minimum, there would be some kind of rule that the courts would have to develop where if a school wanted to show the Ten Commandments, then non Christian students should be able to stand up and walk out. Out. Right. Non Christian students should never have to be exposed to Christian ideology in schools because that would violate their beliefs. But this is not a consistent Supreme Court. I do not think it's going to apply this decision consistently. I think it will consistently instead use this ruling to stigmatize LGBTQ families to further entrench the supremacy of white people and Christianity in public school curricula.
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A
Yeah, just two quick follow ons. One, we had a question from a teacher, Michelle, who was like, I'm a teacher. I have no idea what to do. And I think it goes to something Jamel said in the main show when we were talking about this case earlier this week, which is the impulse is absolutely gonna be to chill any book that is controversial. No school district, no school is going to risk having, you know, extort lawsuit brought because some parent objects. And so what a teacher is going to be forced to do is essentially pre vet what could cause anybody any consternation. And I think we're going back to, like, what Richard Scarry books. Like, maybe, you know, we could return to the age of, you know, Pat the Bunny. Although maybe that's coercive, I don't know. But it really will lead, I think, to massive, massive pressure on teachers, which is part of the point, right? You want to chill educators and school boards from doing anything that might be problematic. And, you know, again, this is the antithesis of what public education is meant to be. The other thing that I love about this very deft question, and I'll try to just say this quickly, is that you're exactly right. To say that when we originally framed how to think about children in public education, the fear was that children would feel coerced. Right? The fear was that children. Children didn't want to be the one who was, you know, the one kid who didn't stand up or the one kid who didn't want to draw attention to themselves. And that was such a singularly important way that, you know, justices like Sandra Day o' Connor and Anthony Kennedy thought about religious coercion and why they thought schools were particularly susceptible to coercion. And so you're exactly right. This completely upends it. Right now, the argument is that the book is coercive and that these children can't be coerced by incredibly sweet, warm, generous books about LGBTQ families. And so, like, watch the trick, right? Watch the subversion there, because they're completely reversing the logic of the cases that said that kids are highly, highly susceptible to being pressured. And now they're saying books that intimate that families can be structured any way other than yours, those are what's coercive. It's a complete upending.
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B
And I just have to pick up on this comment from Elizabeth Guzik saying Pat the Bunny is, in fact, heteronormative. I couldn't agree more. And I would note that there are many, many books and schools that feature heterosexual couples getting happily married. What if I oppose heterosexual people getting married based on religious beliefs? What if I think that only people of the same sex should get married? Can I force my child to be opted out from being exposed to Pat the Bunny and other books that feature straight people celebrating life events and being in love? Of course not. Because what the majority is telegraphing in this case in Mahmoud v. Taylor is that there's something different about LGBTQ people. There's something wrong with their relationships. There's something wrong with their families. And so heterosexuality is invisible across all classroom materials. We just assume that that is the norm. It's the air that we breathe, right? But homosex depictions of gay couples, depictions of LGBTQ people, that is suspect and wrong. And that is why, when Dolly and I first podcasted about this decision, after it came down, I said, this is a bigoted opinion, and I absolutely stand by that. This is bigotry from Alito, and it is bigotry from every justice who signed onto it.
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A
An amazing corrective. I want to ask Paul Michael Davis's question, which is, can you explain why the major questions doctrine that's in quotation marks here wasn't invoked when deciding the CASA birthright citizenship case, but it was used in overturning student loan relief under Biden. Is it because they didn't decide the merits of casa, but did decide the merits of student loan relief? And if so, why can the court seemingly then choose to decide procedural questions versus the merits?
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B
So I think there's sort of two questions here. I'll start with the procedural question versus the merits. Right. I mean, that is totally at the Supreme Court's discretion. The court could have asked the parties in CASA to talk about birthright citizenship and tee up a ruling on Trump's executive order because it obviously violates the citizenship clause of the 14th Amendment, and it shouldn't have been difficult for the Supreme Court to say so. But instead, the Supreme Court manipulated its docket, manipulated the case to make it an attack on the universal injunctions that had been holding this executive order back from being implemented, and ignored the merits altogether. The. The converse happened in the student loan case. That was really a case about standing, because no one was clearly injured by the Biden administration for giving student loans. And the Supreme Court, as Justice Kagan wrote persuasively in her dissent, should have started and ended by saying nobody has standing. But instead, the court manipulated its standing doctrine to pretend that there was standing by some party and then swiftly reached the merits and invoked the major questions doctrine and said that the policy was unlawful. And in doing so, Justice Kagan expressly said that the majority violated the Constitution by exceeding its power, which is a pretty rare charge for a justice to levy at the majority. So that is all totally discretionary, and it can fade into the background, but we should always pay attention to how the court is tweaking its docket and the questions that it takes up to reach the outcome that it wants to. This other question of the major questions doctrine, I mean, look, I think Dolly and I have made it clear, right? We always put this in air quotes. It's not a real thing. It's totally malleable. It's total bs. It rests on what five or six just justices see as a major question. And when they think they've spotted a major question, then they apply super close scrutiny to what the executive branch has tried to do and will usually strike it down. They did this with the student loan relief program under Biden. They did it with climate regulation under Biden. I doubt that they will do this to anything that Donald Trump tries to enact. Um, I. I still think that it's likely that they'll strike down the birthright citizenship order. On the merits, I'm less certain of that than I was a week ago. I still think it's more likely than not, but I doubt that they'll invoke the questions doctrine. I think that that doctrine will lie dormant throughout four years of Trump. And if you had any doubt about that, I'll note that just last week, Justice Brett Kavanaugh wrote a concurrence where he strongly implied that the major questions doctrine wouldn't apply to Trump's tariffs. Remember, one of the grounds that the lower court used to strike down the tariffs was essentially invoking the major questions doctrine to say that Congress didn't give Trump this power clearly enough. So it was a major question about a power that Trump couldn't exercise. Here is Brett Kavanaugh, like one creators of the major questions doctrine, who wielded it so ferociously under Biden, giving up in advance and strongly suggesting that major questions, it just, just doesn't apply to tariffs because that's foreign policy, that's foreign trade, and that's beyond the remit of the federal judiciary. So this is the reason why I fundamentally object to this doctrine in the first place. It is so malleable that all it really does is help courts pick the outcome that they want to reach and then guide themselves along the way and act as if they have any legal basis for doing so.
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A
Mark, you asking the next question?
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B
Yes. I was not sure if you wanted to add a blast of fury on top of that, Dahlia.
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A
No, what? I actually wanted to add that it occurred to me as you were talking, I went back and looked at some Richard Scarry, like ridiculously heteronormative. There's nothing. Nothing survives. Just the dictionary. Okay. No, it's you.
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B
Next question. A worrying question from Michael Balch.
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A
Slate plus members can access our conversation in full right now. You can subscribe to Slate plus directly from the Amicus show page on Apple Podcasts and Spotify, or visit slate.comamicusplus to get access wherever you listen.