Strict Scrutiny: Episode Summary – "Gender-Affirming Care in the Court’s Crosshairs"

Podcast Information:

• Title: Strict Scrutiny
• Host/Author: Crooked Media
• Description: Strict Scrutiny delves into the United States Supreme Court and the surrounding legal culture, offering in-depth, accessible, and irreverent analysis of Supreme Court cases, culture, and personalities. Hosted by constitutional law experts Leah Litman, Kate Shaw, and Melissa Murray, the podcast breaks down the latest legal headlines and their implications for everyday life.

Episode Details:

• Episode Title: Gender-Affirming Care in the Court’s Crosshairs
• Release Date: December 2, 2024

Introduction

Melissa Murray welcomes listeners back to Strict Scrutiny, introducing herself alongside co-hosts Leah Litman and Kate Shaw. The hosts outline the episode's agenda, which includes a segment on court culture, analysis of recent Supreme Court decisions, a preview of upcoming cases, and a heartbreaking story highlighting the real-life consequences of Supreme Court decisions.

Court Culture

Timestamp: [01:15]

Leah Litman begins by discussing the recent actions of Special Counsel Jack Smith, who filed unopposed motions to dismiss federal election interference and obstruction cases against former President Donald Trump. These dismissals, based on Justice Department policy stating that a sitting president cannot be prosecuted, were made "without prejudice," meaning they could be revived in the future.

Leah references colleague Karen Tani's insightful piece in the Harvard Law Review, highlighting Justice Elena Kagan's sentiments and drawing parallels to the biblical prophet Ezekiel: “The cases are dead, dead, dead” ([03:05] Leah Litman).

Federalist Society National Lawyers Convention

Timestamps: [03:32] – [14:26]

The hosts delve into the Federalist Society's annual National Lawyers Convention, focusing on a contentious panel titled "The Continued Independence of the Judiciary."

Key Participants:

• Steve Lotic (Field Marshal of the Left): A Georgetown University Law Center professor who emphasized that courts rely on elected branches, advocating for courts to maintain public support. “[Courts] depend on the elected branches… [they] should be mindful of the positions of the elected branches” ([04:44] Kate Shaw).

• Judge Edith Jones: Defended her fellow 5th Circuit judges against criticism from academics like Professor Vladek, stating, “It is not a fair fight for those who have a podium, an unregulated podium in the press and the law blogs and so on that they can use to cast these illegitimate aspersions” ([08:46] Jones).

Notable Exchange: Judge Jones scrutinizes Professor Vladek’s tweets, aggressively questioning his impartiality ([08:30] Leah Litman). The interaction is likened to reality TV drama, with hosts humorously comparing it to Real Housewives ([09:52] Kate Shaw).

Leah comments on the adversarial nature of the right's politics, noting their "victim mentality" and the targeting of law professors as adversaries ([12:46] Kate Shaw).

Democrats' Unilateral Deal on Court Nominations

Timestamps: [26:51] – [31:58]

Melissa Murray shifts focus to recent Democratic strategies in court nominations. Senate Majority Leader Chuck Schumer announced a "deal" with Republican senators to withdraw four Court of Appeals nominees in exchange for Republicans confirming approximately twelve district court judges.

Host Insights:

• Leah Litman: Expresses confusion over why Democrats, holding a majority, need to negotiate with the minority. Questions the necessity of withdrawing certain nominees like Adil Manji, who faced intense opposition ([27:41] Leah Litman).

• Kate Shaw: Criticizes the move as giving in to Republican pressures, fearing it could leave appeals courts more heavily skewed towards Republicans, weakening judicial checks on the incoming Trump administration ([28:18] Kate Shaw).

Leah summarizes the potential long-term impacts, emphasizing the frustration over Democrats appearing to "fold" in the face of Republican strategies ([29:09] Leah Litman).

Recent Court Decisions

Timestamps: [30:02] – [33:34]

Facebook vs. Amalgamated Bank: Melissa explains the Supreme Court’s dismissal of Facebook's securities fraud class action on the grounds that certiorari was improvidently granted. The case revolved around Facebook's disclosures about data breach risks post-Cambridge Analytica scandal. Despite skepticism from justices, the dismissal allows the 9th Circuit’s ruling to stand, letting the shareholder suit proceed.

Upcoming Supreme Court Cases

Timestamps: [33:34] – [68:08]

1. United States vs. Ketti: Gender-Affirming Care in Tennessee

Timestamp: [33:38] – [42:43]

The primary focus of this episode centers on Tennessee's ban on gender-affirming care for minors. The Supreme Court is evaluating whether the ban constitutes sex-based discrimination under the Equal Protection Clause, thereby subjecting it to strict scrutiny.

Key Points:

• Legal Arguments: Tennessee's law explicitly prohibits treatments that encourage minors to adopt a gender identity inconsistent with their sex assigned at birth, while allowing hormone treatments for non-gender-related medical issues ([38:32] Leah Litman).

• Comparison to Dobbs Decision: Leah and Leah articulate concerns that the Court’s approach in Dobbs—where it dismissed abortion restrictions as not constituting sex-based discrimination—may similarly affect decisions on gender-affirming care ([35:49] Leah Litman).

Notable Quotes:

• Melissa Murray: “This argument isn't wrong or off base. It's just not in favor with either past or current courts and their impoverished understanding of equality and the Equal Protection clause” ([34:22]).

• Kate Shaw: “I don't understand how anyone with a straight face can say that that is not a sex classification” ([39:39]).

Concerns:

• Potential resuscitation of discredited precedents like Loving v. Virginia, where laws that treat everyone equally can still be discriminatory ([36:21] Kate Shaw).
• Fear that the Court may equate gender-affirming care restrictions with historical abuses, undermining protections for transgender individuals ([41:26] Leah Litman).

2. FDA vs. Wages and White Lion Investments: E-Cigarette Flavors

Timestamp: [33:34] – [54:44]

Melissa discusses how the Supreme Court will decide if the FDA's denial of certain e-cigarette flavors was arbitrary and capricious under the Administrative Procedure Act. The case examines whether flavors like "Pink Lemonade" or "Suicide Bunny" appeal uniquely to minors or broadly to all consumers.

Key Points:

• FDA’s Rationale: Concerns about flavors attracting children, though hosts argue that these flavors also appeal to adults ([48:03] Melissa Murray).
• Administrative Law Implications: The Court's stance on agency discretion and the extent to which it can second-guess FDA decisions ([53:05] Kate Shaw).

Notable Quotes:

• Kate Shaw: “Approaches like in Ohio vs. EPA where the Court held the EPA's rule arbitrary might influence this decision” ([53:26]).

3. County Infrastructure Coalition vs. Eagle County, Colorado: NEPA Obligations

Timestamp: [54:44] – [57:34]

This case questions the extent to which agencies must consider environmental impacts under the National Environmental Policy Act (NEPA). Specifically, whether the Service Transportation Board (STB) adequately assessed the broader environmental consequences of a new rail line, including increased crude oil demand and potential accidents.

Key Points:

• Federal Government’s Position: STB's assessment was sufficient, focusing on direct environmental impacts ([55:04] Kate Shaw).
• Plaintiffs’ Argument: Need for a more comprehensive evaluation, including upstream and downstream effects ([55:30] Melissa Murray).

4. United States vs. Miller: Sovereign Immunity in Bankruptcy

Timestamp: [57:34] – [62:23]

This bankruptcy case explores whether a sovereign entity can be sued under bankruptcy law despite sovereign immunity protections. The dispute arises from a company’s payment to the IRS to satisfy tax obligations, followed by bankruptcy filings aimed at recovering those payments.

Key Points:

• Legal Question: Can the trustee avoid a debtor's tax payments to the U.S. under Section 544B of the Bankruptcy Code despite sovereign immunity?
• Government’s Defense: Sovereign immunity should prevent such suits unless explicitly waived ([57:34] Kate Shaw).

5. Republic of Hungary vs. Simon: Foreign Sovereign Immunity

Timestamp: [58:33] – [59:45]

This case examines exceptions to the Foreign Sovereign Immunities Act (FSIA), particularly in cases involving property expropriation under international law. Jewish survivors from the Hungarian Holocaust are suing over seized and sold properties reconstituted in national wealth and bonds issued in the U.S.

Key Points:

• Legal Questions: Proving an adequate commercial nexus and the burden of establishing the expropriation exception ([58:52] Kate Shaw).

6. Kucisus vs. United States: Wire Fraud and Contract Compliance

Timestamp: [59:51] – [62:24]

The case involves allegations of wire fraud against Pennsylvania’s Department of Transportation (PennDOT) for falsely certifying compliance with contract terms, specifically regarding the purchase of paint from a disadvantaged business enterprise.

Key Points:

• Fraud Definition: Whether false representation of non-economic contract terms constitutes deprivation of property under federal wire fraud statutes ([60:43] Melissa Murray).

7. Feliciano vs. Department of Transportation: Differential Pay for Reservists

Timestamp: [62:24] – [66:10]

This case questions whether federal civilian employees who are reservists are entitled to differential pay when called to active duty, even if their duties are not connected to the declared national emergency.

Key Points:

• Legal Issue: Whether performing non-emergency duties under a national emergency declaration entitles reservists to differential pay ([63:19] Melissa Murray).

Additional Cases:

• Non-Delegation Doctrine Case: Challenges the FCC’s administration of the Universal Service Fund, potentially reviving the non-delegation doctrine that limits administrative agency powers ([67:49] Leah Litman).

Tragic Consequences of Supreme Court Decisions:

Timestamp: [56:10] – [66:26]

ProPublica reports on the dire outcomes of restrictive abortion laws post-Dobbs v. Jackson Women's Health Organization. Highlighted cases include:

• Porsche and Fred: Portia and her raccoon, Fred, died after Texas doctors failed to perform necessary abortion procedures during a severe miscarriage, leading to dire family consequences ([63:19] Melissa Murray).

• State Responses: Both Georgia and Texas have cracked down on maternal mortality commissions, attempting to suppress reports on deaths resulting from abortion bans ([64:56] Leah Litman).

Notable Quotes:

• Melissa Murray: “Pregnancies can come out beautifully or horribly. Instead of putting laws in place to make pregnancies safer, we created laws that put them back in danger” ([65:39] Melissa Murray).

Closing Remarks and Calls to Action:

Timestamp: [67:59] – [71:19]

The hosts wrap up the episode with promotions for related podcasts and merchandise, emphasizing the importance of staying informed and engaged with ongoing legal battles that shape daily life. They highlight the emotional toll of recent decisions and encourage listeners to support organizations fighting for constitutional freedoms.

Final Thoughts: Leah Litman poignantly references the impact of Supreme Court decisions on personal lives, urging continued awareness and activism: “They are absolutely gutting. But we continue to do so because we think it's even worse to let what is happening to women, children, their families, go unnoticed in the march toward what feels like Gilead” ([65:39] Leah Litman).

Notable Quotes:

• Leah Litman: “The cases are dead, dead, dead” ([03:05]).
• Judge Edith Jones: “It is not a fair fight for those who have a podium… to cast these illegitimate aspersions” ([08:46]).
• Melissa Murray: “This argument isn't wrong or off base. It's just not in favor with either past or current courts” ([34:22]).
• Kate Shaw: “I don't understand how anyone with a straight face can say that that is not a sex classification” ([39:39]).
• Leah Litman: “We think it's even worse to let what is happening to women, children, their families, go unnoticed” ([65:39]).

Conclusion: In this episode of Strict Scrutiny, Leah, Kate, and Melissa navigate the complex interplay between Supreme Court decisions and their profound impacts on societal issues such as gender-affirming care, administrative law, and abortion rights. Through incisive analysis and engaging dialogue, the hosts illuminate the far-reaching consequences of judicial rulings, urging listeners to stay informed and proactive in the face of evolving legal landscapes.

For a deeper dive into the topics discussed, subscribers are encouraged to engage with the podcast's community and explore additional resources provided by Strict Scrutiny and Crooked Media.