← Amicus With Dahlia Lithwick | Law, justice, and the courts
Amicus With Dahlia Lithwick | Law, justice, and the courts
The Many Compromises of Elena Kagan
00:53:52
A brilliant liberal justice is all of a sudden joining the conservatives on some questionable cases. What’s up?
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- [00:01]
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- [00:32]
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- [01:05]
Dalia Lithwick
I'm Dalia Lithwick and this is Amicus Slate's podcast about the courts, the law and the Supreme Court. The High Court is hurtling towards its summer break, and the country is hurtling toward a summer that will be anything but relaxing. The ICE raids continue, the National Guard is back under the control of Donald Trump, and we we continue to see public figures threatened and arrested as part of this creeping new autocracy. Meanwhile, the High Court struck a body blow to transgender rights this past week in a case that reminds us how very ephemeral the wins in cases like Obergefell really were. In a couple of moments, I'll be joined by the ACLU's Chase Strangio, who argued that Scrametti case at the High Court for a postmortem on what happened and a warning about what he thinks comes next.
- [02:01]
Chase Strangio
We're not seeing science based analysis. We're seeing political analysis masquerading as science. And in the case of Scrometti, it's political ideology masquerading as science and masquerading as the record in the case, which it is not.
- [02:14]
Dalia Lithwick
Later on in the show, Mark Joseph Stern will be here to talk about a new tranche of cases that came down from SCOTUS on Friday morning, cases that should have signaled a return to the 6:3 divide on the Roberts court. Yet they kept coming in the form of seven to two splits. Justice Elena Kagan is doing something with that third vote. What is it?
- [02:36]
Mark Joseph Stern
What's the strategy? What's the play what is going on here? Because I cannot believe that Justice Kagan would give up her vote freely in exchange for nothing unless there were some master plan going on.
- [02:52]
Dalia Lithwick
But first, on Wednesday, the court upheld Tennessee's ban on gender affirming care for transgender minors, and in so doing, determined that this tiny minority of Americans both experienced no meaningful history of discrimination for constitutional purposes, and also that they could certainly protect themselves adequately at the ballot box. Chase Strangio litigated Scarmetti on behalf of the Tennessee plaintiffs. He is deputy Director for Transgender justice and staff attorney with the American Civil Libert. He is the first known transgender person to make oral arguments before the Supreme Court of the United States. Chase, welcome back to Amicus.
- [03:34]
Chase Strangio
Thanks, Dalia. Good to be here.
- [03:36]
Dalia Lithwick
This has no doubt been a rough couple of days for you. We had spoken to you right before the arguments in Skremetti, and then after we all listened to the arguments, it felt like it was going to be a tough one to win, I guess. I'm curious what surprised you most about the way the Chief justice handled the majority opinion and how you read sort of the scope of what they did?
- [04:02]
Chase Strangio
Yeah. Thanks, Dalia. So obviously, it's incredibly disappointing, especially for our clients who are transgender adolescents and their parents in Tennessee and a doctor who have to continue to live under this draconian law that, from our perspective, as Justice Sotomayor's dissent makes clear, so clearly does discriminate based on sex and transgender status. And so it's not the outcome that we wanted. I do think that in the universe of possible ways the Chief justice could have drafted the opinion against us, this is a narrow one. It is very much explicitly limited to the context of medical care. This particular line drawing, the Court goes out of its way to not reach questions about transgender status as a quasi suspect class, at least the majority, about whether or not Bostock, the 2020 decision holding that Title 7's prohibition on sex discrimination discriminates against or covers discrimination against LGBT people applies outside the Title VII context. So those are critical ways. It's narrower than the 6th Circuit opinion. And then I think even, you know, sort of in some places, the Court says that line drawing based on sex inconsistency in other context still trigger heightened scrutiny. So it is very limited, of course, for the transgender adolescents who have already lost their care across the country, it's devastating.
- [05:29]
Dalia Lithwick
This is, as you said, and as Justice Sotomayor flagged in her dissent, just a massive setback for transgender kids, for their parents around the country, for their physicians who want to give them care. And I think the impacts are going to be devastating. I'm wondering what the states that don't ban gender affirming care can do now to protect not just their own citizens, because I think we're gonna see a juggernaut, but kids from states that now have enforceable bans.
- [06:00]
Chase Strangio
The reality is, is that the overwhelming majority of these bans have been in effect for several years, since the Sixth Circuit's opinion in the summer of 2023. And so what's been happening around the country is that families that have the means and resources have been traveling out of state in order to get the care that they need, if they do so. And states have, in some contexts, protected those families to be able to. To travel. I think the most important thing that we need right now is for the states that do not have bans to remind their residents that they can continue to get health care in those states and that people traveling into those states can continue to get health care that is so important. This is not a mandate that the care be prohibited. I think that everyone needs to engage with the budget bill in Congress because there are provisions that would ban Medicaid coverage for people of all ages in every state across the country that would be a major blow, not just to transgender adolescents, but to transgender adults. And so that, I think, is something that we need people to be engaging on, and then we need blue state attorneys general to be, you know, robustly securing the ability of people to continue to receive care in their state when the Trump administration threatens that access, which the administration has already done. And we expect those attempts to escalate. So we need those leaders to continue to protect that access to care in their states.
- [07:28]
Dalia Lithwick
Chase, I think one of the reasons we really wanted to check in with you this week is that you predicted so much of what was coming after Dobbs. And I think you were prescient about so many things. And you were also, I think, really ringing the bell about the fact that attacks on transgender Americans will be a harbinger for all sorts of attacks on basic principles, we thought settled principles of equality, substantive due process, dignitary interests, right to medical care. I mean, you warned us. And my guess is that the movement that brought us Dobbs and Scarmetti certainly feels like it has the wind at its back. It's certainly based on some of the concurrences, feels that it can go further. And I would love your dispiriting roadmap of where they may head next in terms of the next targets you mentioned. Trans ad. But that's just the beginning, right?
- [08:29]
Chase Strangio
Yeah, that's absolutely just the beginning. And I really do think Dobbs was this turning point, both culturally and doctrinally, you know, in the reality for people across the country is that they started to accept this widespread erosion of bodily autonomy, even if we didn't accept it in our core or, you know, not to suggest we're not resisting it, but that became the norm. That was a huge change. And then the court's decision in Dobbs, obviously overturning the fundamental right to abortion, but also animating the 1973 Godolde case and really eroding equal protection in ways that the Court leaned into in Scremetti is such a devastating marker from 2022. And now what I think we're going to see are the attacks on healthcare for transgender adults. We are opening the door to some sort of potential doctrinal exception to equal protection in the context of medical care. I don't think the Court went so far as to say there are no heightened scrutiny protections when the government is discriminating based on suspect and quasi suspect characteristics in the context of medicine. But I think we're starting to see that. And who knows what will happen next. If it's, you know, sex specific medical care, if it's contraception, if there are other ways in which the movement starts to use these decisions to get at ivf, I can imagine all of that becoming more robust in the attacks that we see at the state and federal level. And then I think that we also need to recognize the anti science undercurrent that is the thread between Dobbs and Scrometti that we're also seeing from the federal government when it comes to the sabotaging of NIH grants, the rapid expansion of the anti vaccine rhetoric, ending research, critical scientific research trials through NIH and other federal grant programs. That's also here in Scremetti because the court is not looking at the record in the case. What they're pulling from is their ideas and vibes from public discourse. And that is also what you see when it comes to RFK ju of running hhs, that we're not seeing science based analysis. We're seeing political analysis masquerading as science. And in the case of Scrometti, it's political ideology masquerading as science and masquerading as the record in the case, which it is not.
- [10:51]
Dalia Lithwick
Chase, in the immediate aftermath of the decision, you posted a video with Pauli Murray in the background. And as I think you just mentioned, Pauli Murray's work on equal protection was very, very much every. In this case, Justice Amy Coney Barrett's reasoning that there's just no established history in America of discrimination against trans people is awfully hard to square with Pauli Murray's own story. And I'd love for you to talk for a minute about how Pauli Murray's story itself points to this long arc of history.
- [11:33]
Chase Strangio
Oh, yeah. So, you know, I think about Paulie every day. Paulie was a black, likely non binary or transgender, but assigned female at birth, lawyer, advocate, who was instrumental in the work that led to Brown vs Board of Education, and then Justice Ginsburg's work, pioneering theories of sex discrimination under the equal protection clause. And I, you know, thought about Pauli Murray so much when we were litigating Bostock, in which, you know, the arguments were that it is sex discrimination to discriminate against LGBT people. And Paulie lived all of those things. Paulie experienced race discrimination and sex discrimination in all of its different manifestations. And one of the things I think Paulie's legacy teaches us, and this is something I thought about a lot when I was being, you know, talked about as the first transgender person to argue before the Supreme Court, is that, you know, our firsts are always too late because of that history of discrimination. Pauli Murray easily could have been the first transgender person to argue before the Supreme Court Court in a world where there wasn't so much race discrimination and sex discrimination against women and transgender people. And yet here we are all of these years later, and in the case in which I'm the first transgender person openly to argue before the Supreme Court, we get a concurrence that says trans people don't get heightened scrutiny because there's no history of discrimination. And the history of discrimination is, of course, so profound that transgender people have been altogether pushed out of public life all around the world, and the research into our healthcare has been sabotaged and destroyed going back to Nazi Germany. And so, you know, that type of structural gaslighting is really remarkable, and just practically and historically is wrong. But also it sort of shows you how insufficient some of our equal protection doctrines are. The idea that, you know, you need to prove a certain type of history of discrimination to get the protections of the judiciary. When what happens if there is a renewed focus on a small group of people? Should the judiciary just throw up its hands and say, you know, equal protection be damned, deference to the legislatures, Go regulate this community like you would regulate milk vendors? That doesn't seem like it's going to be a protective mechanism that we should all be worried about.
- [13:58]
Dalia Lithwick
Yeah. I'm also just really mindful of Pauli Murray imploring physicians for care that would not be be given and the ways in which, you know, your own dignitary and autonomy and all of those interests are in no way reflected in the law as Pauli Murray experienced it. We're going to take a short break.
- [14:27]
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- [14:49]
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- [15:52]
Dalia Lithwick
Let's return now to my conversation with Chase Strangio of the aclu. I want to ask you to respond, if you would, to just the instantaneous finger pointing, including this big piece in the New York Times by Nick Compessor in which the ACLU is blamed and the movement is blamed. What is your answer to all the people who are now saying that, you know, affirming the rights of trans youth was simply a bridge too far for the LGBT movement and it was a bridge too far for the court, it was too much for Trump's America that this was a tactical error? What's your answer? I'm sort of reluctant to ask you to even answer that question, but my thought is you have something to say about it.
- [16:42]
Chase Strangio
You know, first of all, I think it's just baseline cruel to attack the communities that are reeling from not only executive branch attacks, but this recent decision from the Supreme Court. But people will stand from afar and judge the, you know, decisions that people make to defend their community. That's the reality of every single civil rights movement. There have been referenda about all of the things that people did wrong. I also think people aren't taking into account how rapidly things have shifted against transgender people. In 2021, when we brought the first case challenging one of these medical care bans, it was in the Conte context of Governor Asa Hutchinson vetoing the law as vast government overreach, a governor who certainly did not vindicate the rights of transgender people more generally. And at a time when the entire country was being, you know, inundated with parental rights rhetoric in the midst of the COVID pandemic. And then all of a sudden, these parents rights were being overridden by these laws, and many conservatives thought that that was a bridge too far. So we have to keep in mind the context in which this all started in 2021, in terms of the first legislative attacks on this health care and how people lost access to care. I also think that political journalists will have a different perspective than legal advocates. The equal protection clause is a check on majoritarian discrimination. It's not about what's popular. It's about protecting people from government discrimination. The ACLU, in its 105 year history, has often defended the rights of people who are unpopular, of causes that are unpopular. And so that is precisely the role of civil rights attorneys, as I see our duty and responsibility. And so that's just sort of one paradigmatic thing that I think is just wrong about the attacks. And then when it comes to just sort of this idea that it was a bridge too far to defend trans youth in this way. It certainly wasn't for the trans young people in their and their families. It certainly wasn't for the people who were having their lives uprooted. And, you know, what was the option? Here is my question. Do we sit back and accept a nationwide set of attacks and not fight back? And to me, you know, this was a moment when there were many, many different types of cases that were moving forward in the federal courts on behalf of transgender people in the context of really, really troubling and harmful discrimination. My answer is I do this work to fight back for my community. And the LGBT legal movement was aligned in that decision when it came to these bans. I've never seen our movement more aligned, to be honest, because the harms were just absolutely catastrophic. And the reality of the 6th Circuit's decision is that it was far more sweeping than the decision that we got from the Supreme Court. It left open a lot more avenues to continue to fight back in court. And so, you know, we live to fight another day. People will have their judgment. People will have their 8,000 word pieces. But we have a fight to wage on behalf of our communities.
- [19:51]
Dalia Lithwick
Chase, one of the things I'm proudest of about Amicus is how many middle school and high school kids listen with their folks and their teachers and their friends. And I would love to give you just a little bit of a closing argument here. What are you and what are the ACLU telling kids and families who are going to be most directly impacted by this decision and impacted, effective immediately. I just want to flag the American association of Pediatrics put out a really strong statement affirming the science undergirding gender, affirming care, affirming that physicians have the right to offer such care if it's in the best interest to their patients. I just would just love for you to tell me what you are saying to the folks who are really feeling that the bottom fell out of their world this week.
- [20:42]
Chase Strangio
Yeah, I mean, first I would say I'm sorry. I think the court got it wrong. I think the court ignored the science and even worse, ignored the reality of what every single parent and transgender person in the case was telling them. And that is a scary position to be in. I also would say that, you know, I'm a 42 year old person. 20 years ago, I did not have access to so many things that we were able to increase access to, but we fought for it once, we'll fight for it again. And, you know, just even the lesson of Pauli Murray reminds us that we do have a long history, and we have a long history of people who have taught us how to transform the world. And the thing that gives me the most sense of joy, purpose, and hope is the way in which young people know themselves and are willing to fight for themselves. And we will be with you every step of the way. It is scary when things come down from this court that undermine our ability to secure our constitutional rights under the federal Constitution. But we have many avenues to keep fighting, and we will do just that. And in 1986, when the Supreme Court held in Bowers B. Hardwick that states could permissibly criminalize same sex intimacy, it was a devastating blow to LGBTQ equality work to our dignity, and we built robust programs that led to the overturning of that decision 17 years later. And it was in 1986 that the ACLU's LGBT project was founded. And so from these moments of defeat, we build beautiful, transformative things. And that's exactly what we're going to do right now.
- [22:22]
Dalia Lithwick
Chase Strangio litigated Scarmetti on behalf of the Tennessee plaintiffs. He's deputy director for Transgender justice and staff attorney with the American Civil Liberties Union. Chase, I know this has been a head hella week for you, and I imagine you are exhausted, but I thank you so much for your work and for your voice and for giving us some time today.
- [22:43]
Chase Strangio
Thanks, Dalia. It's great to be with you.
- [22:52]
Dalia Lithwick
Joining me now is my trusty co host, Mark Joseph Stern, who is as Are we all asking whither what now? Elena kagan this week, in a strange series of cases that came down on Friday, Justice Kagan joined in some slightly hinky majority opinions, leaving Justices Sotomayor and Jackson to dissent alone. What is happening?
- [23:19]
Mark Joseph Stern
MARK Dahlia Friday was not the day we expected from the Supreme Court. We got none of the blockbusters that we so crave so that we can all go scatter for the summer. Instead, we got six, six smaller cases, some of which are really important, which we'll talk about. That, as you said, splintered the liberals in really bizarre ways that immediately send my mind to wonder, what's the strategy? What's the play? What is going on here? Because I cannot believe that Justice Kagan would give up her vote freely in exchange for nothing unless there were some master plan going on. So I hope that when we reconvene next week with the biggies under our belt, we will be able to see that plan in action and say, ah, yes, this scheme has all come to light. But as of now, I am scratching my head because she signed on to some stuff on Friday that really stinks to high heaven.
- [24:19]
Dalia Lithwick
Okay, the only biggie under my belt right now is made of cookies because I'm in the stress eating portion of June. But, uh, I would vape if I could, but I can't. So let's talk about the vaping case. R.J. reynolds Vapor Company this is a case. It's actually kind of a big deal, as you say, about the FDA's authority to limit where companies can bring their suits and what happens.
- [24:46]
Mark Joseph Stern
So this is a case involving a tobacco company that wants to sell and market a vaping product. The FDA doesn't think that it should be able to do so. It wants to check challenge these FDA regulations and it wants to challenge them in the fifth Circuit. Why is that? Because the fifth Circuit loves the tobacco industry. It loves vaping it consistently rules in favor of these corporations that pedal tobacco products. And so the, the tobacco company here said, why not go to the fight in Fifth? The answer why not seems to be in the law itself, which says that challenges to these FDA regulations must be filed either in the D.C. circuit or in these circuits where the company resides or has its principal place of business, which here would be the 4th Circuit. But the tobacco company said, no problem, we'll just get some gas stations to join our lawsuits, find those gas stations in Texas which falls within the fifth Circuit and say, look, look, these poor gas stations are being persecuted by the fda. They've joined with our lawsuit. Their principal place of business is now in Texas. So we have standing to sue within the fifth Circuit, and that can be our venue. And the Supreme Court said that that was okay on Friday in an opinion by Justice Amy Coney Barrett that I think is truly, unfathomably, deeply wrong. Simply as a matter of law, to allow a tobacco company to just bootstrap these gas stations claims onto the suit and then use all of that to shoehorn the case into the fifth Circuit where it does not belong, where Congress did not want it to be, is absurd. And yet not only did the court issue that ruling, Justice Kagan signed on to that ruling in full, leaving only Justice Jackson and Justice Sotomayor to dissent by themselves. So this is a huge handout to the tobacco industry. It is going to empower the Fifth Circuit to continue running interference for the industry whenever the FDA tries to regulate it. And, and I really think it further weakens Congress's ability to limit venue to say these kind of cases have to be funneled into these particular courts because Congress tried to do so here and the Supreme Court just blew it off.
- [27:06]
Dalia Lithwick
So the next in the trifecta of the Wither Elena Kagan cases is Diamond Energy versus epa. Boy, it has been a week at the epa. This one penned by Justice Brett Kavanaugh and not a 6 3, another 7 to 2 split it, finding that fuel producers have standing to sue over California's clean car standards that were approved by the epa. So this is another should have been six three if we thought we knew what was what. But it's seven to two.
- [27:40]
Mark Joseph Stern
It's seven to two. With Justice Kagan again joining the majority here. Brett Kavanaugh writes the opinion saying that fuel companies, so these gas producers have standing to challenge the EPA's decision to let California impose heightened fuel efficiency standards within their state. So to be clear, the Clean Air act says that California can impose higher standards than the rest of the country. The EPA has consistently allowed California to impose those heightened standards. And car companies aren't challenging it. So the companies that are directly affected by this regulation, they are not in court saying, we don't want, want to have higher fuel efficiency standards. Instead, it's the gas companies that went to court and said, well, we are going to suffer because if cars are more efficient or don't use fossil fuels at all, you know, EVs, for instance, then we will have less money and we are harmed and have standing under Article 3 of the Constitution. And the Supreme Court agreed, agreed with this, I think, attenuated theory of standing that even though the regulated corporation, the regulated industry, the car companies, they're nowhere to be seen here, the fuel companies that want people to spend money on gas get to wiggle their way into court and challenge these EPA regulations that allow California to set higher standards. And the court does all of this even though Trump and his administration are about to repeal those waivers that let California impose higher standards. And Congress actually just passed a measurement that would abolish those waivers and make it more difficult for the EPA to ever issue in the future. So this is a case that is basically moot, and yet the court rushed out a decision so that it could deliver a victory to the fossil fuel industry.
- [29:33]
Dalia Lithwick
And let's just read Justice Ketanji Brown Jackson dissenting here. I guess she's kind of channeling Sheldon Whitehouse. It really feels like he may have ghostwritten this, but what she's accusing the majority of is just like thumb on the scale for big business interests. Here's Ketanji Brown Jackson. Quote, this case gives fodder to the unfortunate perception that moneyed interests enjoy an easier road to relief in this court than ordinary citizens. She goes on to say later, quote, I worry that the fuel industry's gain comes at a reputational cost for this court, which is already viewed by many as being overly sympathetic to corporate interests, end quote. So I guess she's just naming it and then linking it to a decline in confidence in the court in order to put a thumb on the scale for big business. This is the kind of stuff that, like, sends the Chief justice into just like, paroxysms of fury when people make these claims. But she's doing it.
- [30:38]
Mark Joseph Stern
And since we're quoting, I can't help but add one more. Dalia Jackson writes that the Court, when evaluating petitions from moneyed individual interests, looks past the jurisdictional defects or other vehicle problems that would typically doom petitions from other parties. This court's simultaneous aversion to hearing cases involving the potential vindication of the rights of less powerful litigants, workers, criminal defendants, and the condemned, among others, will further fortify this impression that the court is looking out for moneyed interest above all others. These are fighting words. And I want to note this is the beginning of a split not just between Kagan on the one hand and Jackson and Sotomayor the on the other, but between Jackson and Sotomayor, because Sotomayor does not sign on to this dissent, which I think is fascinating, because in some ways it should be Sotomayor bait. She regularly accuses the court of disfavoring the rights of the vulnerable of criminal defendants in favor of the more powerful. But Sotomayor declines to sign on. Instead, she has a much shorter, more temperate dissent separate from Jackson. So she is distinguishing herself here. She is letting KBJ go out, do her own thing, call out the court in the movie most blunt sort of real politic terms, and herself just saying, oh, I think this is wrong, but I'm not gonna make a huge fuss out of it. And I think that that kind of difference in strategy comes out in another case that we're about to discuss.
- [32:03]
Dalia Lithwick
And that case is Stanley versus City of Sanford in which the court rules against a retired firefighter who wanted to sue her former employer for reducing healthcare benefits, benefits for disabled retirees because the ADA doesn't apply to her because she no longer worked for the city when she files. Her challenge comes to us with an unbelievably complicated array of subparts and votes and people signing on with other people. And Kagan is.
- [32:36]
Mark Joseph Stern
Kagan is with the majority. Kagan is yet again siding with the conservatives in a seven to two bottom line deciding decision to say that under title one of the Americans with Disabilities Act, a plaintiff who has already retired, who is facing discrimination involving her retirement benefits because of her disability, is not a qualified individual who is allowed to sue under the law. Which is a really devastating decision because of course, many forms of disability discrimination come after a person has retired and wants those benefits and is trying to claim the benefits that they rightfully earned. Earned here. The plaintiff was denied those benefits because of her disability. She was kicked off healthcare way earlier than she would have been because she was disabled. And the court said, too bad, you've retired, you're no longer actively in the job, you're no longer actively seeking it, so you cannot sue under Title 1 of the ADA. But there's a little bit of a silver lining here. So A smaller majority of the justice justices say that there is a possibility that the plaintiff here argued her case the wrong way and that there may be a way for other plaintiffs in a similar situation to file different kinds of lawsuits to vindicate their rights. So the court shuts off the main and most obvious avenue for relief, but suggests that there may be other avenues in the future. Doesn't determine it either way. But the court says this particular plaintiff has to lose. She can't get healthcare, she can't get damages. She's screwed.
- [34:15]
Dalia Lithwick
And we have Justice Jackson coming out just flaming sword, flaming. Another really strongly worded dissent that again takes direct aim, this time at Justice Gorsuch's preferred, most cynically deployed version of textualism. Here she goes. She says, quote, pure textualism's refusal to try to understand the text of a statute in the larger context of what Congress sought to achieve turns the interpretive task into a potent weapon for advancing judicial policy preferences. Ellipses think pure textualism is incessantly malleable, that its primary problem, and indeed it is certainly somehow always flexible enough to secure the majority's desired outcome, end quote. So she's just going after him for being a hack, deploying hack textualism.
- [35:12]
Mark Joseph Stern
Yes, and it's deserved in this case. I think it's really bizarre yet again that Justice Kagan signed on because the majority's reasoning here is really, really weak. I think the main argument Gorsuch makes is that Congress, in this one sliver of the ada, used present tense verbs. And so that tense implies that Congress was only protecting people who are actively seeking or holding a job, and does not apply to people who previously held a job and are now trying to vindic their right to benefits and not have those benefits denied because they've retired. I mean, that really does make a mockery of textualism, I think. And I think Justice Jackson is right to call him out. But I will note that Justice Sotomayor joins a big chunk of this dissent. She does not join the footnote that you just quoted. So Justice Sotomayor expressly refuses to sign on to Justice Jackson's extraordinary footnote, saying, the majority is butchering textualism. It's doing it wrong. It is using textualism to pretend that it's setting aside its policy preferences while in fact passing off its policy preferences under the guise of interpreting the plain meaning of a statute. I mean, she's going all out. And Sotomayor says, no, I'm not going to join that. I am going to play peacemaker here. And instead, Sotomayor writes her own separate opinion, saying, yeah, I mostly agree with Justice Jackson, but I just want to reiterate that the court still leaves room for a future plaintiff arguing a different theory to potentially vindicate their right to retirement benefits. So that is a, I think, a fascinating split screen between Jackson and Sotomayor. You have Jackson wanting to burn it all down. You have Jackson saying, this is fake textualism and Neil Gorsuch's broader claim to being a real textualist is bogus. And you have Sotomayor saying, I don't want to get into that. I'm not making this personal. And I'm trying desperately to draw some kind of silver lining out of this by noting that the court leaves open another avenue for relief. I mean, this is really a fascinating split. I think it partially reflects their personalities, but I. I think it also reflects their approach to a 6:3 court. And being in the minority, Jackson is like, I want to jump up and down, ring the alarm, and have the public be outraged by this. And Sotomayor is playing it cool, working behind the scenes, saying, how can we make sure this defeat for civil rights isn't bigger than it needs to be?
- [37:36]
Dalia Lithwick
You don't think there's an alternative theory wherein there's like, a little silver bowl and they each have to draw the name of a case out of the silver bowl and decide which of them is just gonna unload the wep ass, like, going full Kraken? You think it's not random like that?
- [37:54]
Mark Joseph Stern
I. I doubt that that is the case. But if there is such a silver bowl, then I'm sure it is an antique that Thomas Jefferson owned that all of the conservatives salivate over as a kind of makeshift Ouija board that they can use to commune with our departed framers.
- [38:10]
Dalia Lithwick
Okay. Cause I. I just thought it was like a candy dish that Justice Ginsburg stole from some reception that has, like, been handed down, and it's the release, the Kraken bowl. Anyway, your theory is much better than mine. Let's pause to hear from some of our sponsors. Time for some life talk. Life insurance talk, that is. You probably have it. But do you know how much you're paying for it and for how much you're being covered? There's a good chance you may be paying too much for too little. And did you know if you. If you receive life insurance through your job and you're unexpectedly laid off, you could suddenly be covered for nothing. Scary to think about, but simple to get right. So check out selectquote Today, in as little as 15 minutes. SelectQuote's licensed agents compare policies from top rated carriers to find you the best fit for your health and your budget. Selectquote even has partners with policies designed for many pre existing health conditions so you can get the protection you deserve. It's important to protect your family and your health and life insurance can provide that peace of mind. Get the right life insurance for you for less and save more than 50%@SelectQuote.com Amicus save more than 50% on term life insurance@SelectQuote.com AmicusToday to get started, that's SelectQuote.com Amicus this show is sponsored by BetterHelp. Men today face immense pressure to perform, to provide, to keep it all together. It's no wonder that 6 million men in the US suffer from depression every year. It is okay to struggle. Real strength comes from opening up about what you're carrying and doing something about it so you can be at your best for yourself and everyone in your Life. With over 35,000 therapists, BetterHelp is the world's largest online therapy platform, having served over 5 million people globally. It's convenient too. You can join a session with a therapist at the click of a button, helping you fit therapy into your busy life, plus switch therapists at any time. As the largest online therapy provider in the world, BetterHelp can provide access to mental health professionals with a diverse variety of expertise. Talk it out with BetterHelp. Our listeners get 10% off their first month@betterhelp.com Amicus that's betterhelp.com Amicus.
- [40:55]
Chase Strangio
As the.
- [40:56]
Dalia Lithwick
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- [42:54]
Mark Joseph Stern
Yes, we can. And this is a really awful decision. People think it's funny because it does involve spam faxes, which is a real blast from the past. Although I'm sure at least some justices still use fax machines.
- [43:06]
Dalia Lithwick
I mean, Mark, some justices still use quill pens. So there's no doubt that this, the, the fax is the principal mode in the Thomas chambers. Okay, keep going. I'm sorry.
- [43:15]
Mark Joseph Stern
Yeah, no, I mean, I think that the legal principle that this decision lays down is really dangerous because the court holds that district courts are not bound by a agencies statutory interpretation when those interpretations arise in enforcement proceedings which include private lawsuits. And so that gives district courts a huge amount of leeway to depart from what the federal agency has determined are the rules of the road to disagree with the agency to create a lot of chaos and confusion within the law. And it gives private parties a lot more leeway to basically defy federal agencies to say, well, you know, we're gonna try this anyway and see if a district court agrees with your rule, because if it doesn't, then we're off the hook. And Justice Kagan in her classically spicy dissent, gives the example of the Nuclear Regulatory Commission issuing a hypothetical rule that prohibits the shipment of radioactive plutonium by air. And she says, okay, so let's say that a party wants to put plutonium on an airplane and send it across the country. Can it just do so right away and then deal with the fallout, so to speak later, Just see if the agency tries to initiate an enforcement action and, you know, deal with what a district court decides or does it have to go through the lawful process before putting plutonium on an airplane, adhere to what the federal agency has decided and wait for express permission to do something crazy. And here the court says, do something crazy. Go ahead. The plutonium can go on the airplane. Go ahead and ship radioactive waste, do whatever you want, and then you can litigate it afterwards. You don't have to worry about the agency. You can just go off and do your own thing and see if the agency even bothers to take action against you. And if a district court agrees with it, that is bad. I think that is clearly bad. It is complicated and it's the kind of thing that the Supreme Court loves to do because the public doesn't get it. This is just like overturning Chevron deference. Right? This is just like killing off the statute of limitations in the corner post decision. It's tough, it's sticky. But if you really get into it, I think you will see that what the Supreme Court has done here is further kneecapped federal agencies ability to clearly, fairly and uniformly enforce the law and ensure that private parties across the country are sticking to what the federal agency said is the law.
- [45:48]
Dalia Lithwick
Yeah, you're, you're so right, Mark, that this is going to get covered as first and foremost a case about like imaginary predatory faxes. And they're actually a real thing. I think in the pharmaceutical industry. This is not a completely fanciful thing. It's a problem. But it's going to get covered as the horse and buggy fax case. And as you say, it does meaningful, meaningful damage to agency powers that have already been eroded systematically and as you say, invisibly over a long time. There we have it. 7 2, 7272 and then 6 to 3. I don't believe for one second that Kagan is becoming conservative. So what is your theory for why she is joining the conservative block? Time, time, time again.
- [46:39]
Mark Joseph Stern
So I think Kagan is showing the conservatives she's reasonable. She's a compromiser. She'll sign onto some slop that she maybe doesn't quite agree with if it makes the, the court look more in agreement than it really is. And she is angling to get, of course, Amy Coney Barrett and Chief Justice Roberts to side with her in a future case when it matters. Let's be clear. We can criticize Kagan for these votes. None of them was decisive for a bad outcome. Right. There was no 5, 4 decision where Kagan was the fifth vote to do something bad. These are what we call in the biz free votes. And I think it is okay, okay for her to offer up these free votes to show that she's got skin in the game, to show that she's a compromiser as long as she is getting something in return. So let's see what that something is. Are we going to get a half decent decision in some of the remaining blockbusters? Are we going to get some good decisions on the shadow dockets or at least have the court stay out of it when lower courts rule against Donald Trump? Can Kagan convince Barrett and Roberts to side with her in at least a handful of those and limit the damage? I don't know. Again, way too soon to tell. But I have to believe that there is a game she's playing because a jurist as utterly brilliant as Justice Kagan I do not think would sign on to some of the stuff that she signed on to if she weren't getting something good out of it in return.
- [48:02]
Dalia Lithwick
Mark before we walk away, we want to announce some important news to the people. Because as the good ship SCOTUS charts its course for its vacation land, I think starting in July, we are not packing up our leather satchels for European vacations. And we're neither of us, I think, fishing on billionaire yachts. We are instead gathering together a team of Constitutional law all stars for the annual Amicus Breakfast Table. But we're going to do a little different this year.
- [48:34]
Mark Joseph Stern
Yes, we are inviting our cherished Slate Plusketeers to join us for the live taping on July 1, and to stick around after the taping to ask us questions about the Supreme Court term that we are all praying will be in the rearview mirror at that point. I have a slight inside amicus question about this for you, though, Dalia. Our live taping is scheduled for 1pm Eastern Time on Tuesday, July 1. And by the way, you can head to slate.comamicus kiss+live to book your spot. I want to know, give us your institutional knowledge. Why exactly are we calling this the Breakfast table?
- [49:10]
Dalia Lithwick
Mark, sometimes it's better if you just start those questions with why are you old? To which the answer is I'm so old that I remember that Slate.com under the guidance of Mike Kinsley and Jack Schaer and David Plotz and all the early founding, I guess fathers had a regular feature called the Breakfast Table where two people would sit down and write each other letters, probably using faxes about what they were thinking about and doing. And we scaled that at the end of the term for a very big fun feature called the End of the Term Supreme Court breakfast table. And as you may recall, it was helmed by such luminaries as probably the OG right, Walter Dallinger, former Solicitor General. But we had had Paul Clement, we had had Judge Richard Posner, we've had Jack Goldsmith, we've had just extraordinary, extraordinary guests. And so even though it stopped being breakfast, it stopped being a table, it stopped being a series of missives in print on Slate.com, it is still the destination to find out awesome stuff as explained by excellent people. And so while we fight about it every single here@slate.com you are gonna have to pry the name the breakfast table out of my cold, dead hands because we are never naming it anything but that, because it's awesome. Mark, should we reveal who will be joining us at the breakfast table this year?
- [50:42]
Mark Joseph Stern
It would be my honor and my pleasure. We have such an all star lineup. Sherilyn Ifill, Jamelle Bouie, and our dear friend Steve Vladek.
- [50:51]
Dalia Lithwick
They will be joining me and Mark to reiterate, this court term is going to end. It's going to end and some big will be coming down between now and July 1st. What is left to talk about? What other cases are we waiting on?
- [51:05]
Mark Joseph Stern
Oh, my God, so much. We've got LGBTQ books in public schools. We've got the Voting Rights act in Louisiana. We've got the continued existence of the Rural Internet Fund. We've got birthright citizenship and nationwide injunctions. I mean, somehow the court keeps throwing all these decisions at us without getting to the biggies. But it can't last forever. And we're about to enter the final crunch where all is revealed. And I can't wait to talk it over with all our beloved plusketeers.
- [51:34]
Dalia Lithwick
So this is a gentle reminder to all of you to make sure that you have subscribed to Amicus in all the ways you might subscribe to Amicus for this glorious opinion palooza season. You don't want to miss our pop up episodes when the biggest decisions drop. So go to slate.com amicusplus to sign up to access full versions of our emergency episodes and to hear all of our episodes episodes ad free and to enjoy unlimited reading@slate.com and we always say thank you so much also for putting your muscle and your attention behind keeping the lights on here at Slate. And do not miss a thing by subscribing to our newsletter, Slate's legal brief. We'll keep you up to date on the Supreme Court and beyond with a weekly roundup from us here on Amicus. And from Slate's Jurisprudence Desk with all their latest articles that Slate that is all for this episode. Thank you so much for listening and thank you so much for your letters and your questions and your thoughts. You can always keep in touch@amicusatslate.com by leaving a comment for us on our show pages. If you're listening via Apple or Spotify or you can find us at facebook.com amicus podcast Sarah Burning Hands is Amicus Senior producer. Our producer is Patrick Fort, Hilary Frye is Slate's Editor in chief, Susan Matthews is Executive editor, Mia Lobel is executive producer of Slate Podcasts, and Ben Richmond is our Senior Director of Operations. We'll be back with another episode of Amicus next week.
- [53:20]
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- [53:49]
Josh
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- [54:20]
Chase Strangio
The great lesson of this for me.
- [54:22]
Dalia Lithwick
Is that people will come to their.
- [54:24]
Chase Strangio
Own conclusions based on what their prejudices are.
- [54:27]
Josh
Subscribe to the Queen on Apple Podcasts or wherever you're listening right now.