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Strict Scrutiny
Leave Trans Kids Alone You Absolute Freaks (with Chase Strangio)
01:09:59
Kate, Melissa, and Leah break down United States v. Skrmetti, the Court’s big case on gender-affirming care for minors, with the ACLU’s Chase Strangio. Chase is one of the lawyers who argued the case–as well as the first known transgender lawyer to argue at the Supreme Court. The hosts then make a pit stop at the always-out-there Fifth Circuit before recapping the other cases the Court heard this week.
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- [00:01]
Melissa Murray
Variety raves maria is absolute perfection. And Entertainment Weekly hails Academy Award winner Angelina Jolie. Brings tragedy and triumph to the last days of opera singer Maria Callas.
- [00:12]
Kate Shaw
Finally, I am in control.
- [00:13]
Melissa Murray
And critics agree. It's a towering tour de force performance from Angelina Jolie and a career best.
- [00:20]
Kate Shaw
My life is opera. There is no reason in Opera Maria.
- [00:25]
Melissa Murray
Directed by Pablo Laray, for your consideration, now playing its lech theaters and on Netflix December 11th.
- [00:32]
Leah Lippman
Mr. Chief Justice, May it please report. It's an old joke, but when an argument man argues against two beautiful ladies like this, they're going to have the last word.
- [00:46]
Chase Strangio
She spoke not elegantly, but with unmistakable clarity.
- [00:51]
Leah Lippman
She said, I ask no favor for my sex.
- [00:56]
Chase Strangio
All I ask of our brethren is.
- [00:59]
Leah Lippman
That they take their feet off our necks.
- [01:16]
Melissa Murray
Hello and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We're your host. I'm Melissa Murray.
- [01:25]
Kate Shaw
I'm Kate Shaw.
- [01:26]
Chase Strangio
And I'm Leah Lippman. We have a big episode in store for you today. We are going to recap the US Supreme Court argument in the huge case on gender affair affirming care. Then we will cover the Supreme Court of the Fifth Circuit and the Supreme Court of the District of Texas's latest forays into lawlessness before we recap the other arguments the Supreme Court heard last week.
- [01:46]
Kate Shaw
But first, the challenge to bans on gender affirming care. And to help us cover the argument, we are beyond delighted to have the pleasure of speaking with one of the lawyers who argued the case, the first known transgender lawyer to argue at the US Supreme Court, and previous strict scrutiny guest, the one, the only, Chase Strangio. Welcome back to the show, Chase.
- [02:05]
Leah Lippman
Thank you guys. I've been very excited to come back on the show and talk to you and hear your take on our argument.
- [02:13]
Chase Strangio
I promise I have better questions than Sam Alito. Set the bar low and see if we can exceed it in hell, as.
- [02:20]
Kate Shaw
Melissa always tells us. So, yeah, we are really excited to talk through the argument with you, Chase. You did a fantastic job. Before we get into the details of the argument, let's maybe remind our listeners what is at stake. The case involves a challenge to a Tennessee ban on gender affirming care for minors. The issue about that law, the one that the court took up, was a pretty narrow one as we will discuss. Chase, do you want to first lay the groundwork by telling us about SB1, what it is and what it does?
- [02:50]
Leah Lippman
Yeah, for sure. So sb1, as the name suggests, was the first filed bill in 2023 in Tennessee. Because of course, the most urgent thing for the state of Tennessee was to override the decisions of parents to take care of their children based on the medical advice that they provided by doctors. So 2023 was the year where states across the country really came in hot and were like, our number one priority is banning medical care for trans adolescents. We went from two states that had previously banned this care, in Alabama in 22, Arkansas in 21. And then 2023 was the explosion. And I'll say, as someone who's been lobbying in state legislatures for a long time, it was wild to see what was happening in 2023. You would go in and leadership was like, well, sorry, there's nothing you can do here we are passing. These are our number one priorities. And so I testified against SB1 in Tennessee. And, you know, it actually started out even worse, if you can imagine, than it ended up, because not only did it have the categorical ban on gender affirming medical care that has no exceptions for medical need and strips people of the care they have been receiving, but the originally filed version had a child abuse provision, so also would have deemed the parents who consent to this treatment on behalf of their children child abusers, thus allowing the state to come in and investigate families, as they have done in Texas, pursuant to an order from our favorite Attorney General, Ken Paxton. So bill comes in, moves very swiftly through the legislature. Thankfully, that provision comes out. But in March, the governor signs the bill after it passes, and the aclu, along with Lambda Legal and our co counsel at Aiken Gump, quickly filed a lawsuit. It was set to go into effect on July 1st, and we wanted to, as we had in every single one of these bills that passed across the country, block it before it went into effect. Because in our minds, the idea of these bills was just unimaginable. These families had spent years with their children suffering, only to find relief from this medical care and then have it stripped away. So we quickly filed a lawsuit and that's the lead up to the litigation that would become United States vs. Scurmeti at the US Supreme Court.
- [05:07]
Melissa Murray
So Chase, you said that there was just this flurry of activity around 2023, which is around the same time where we had bans on curricula and certain kinds of books in schools, also under the rubric of parental rights. What was animating the interest in passing these bans at that moment? And you know, why were they doing this? And was. Was health the ostensible reason or was there some other political Rationale.
- [05:30]
Leah Lippman
I mean, I certainly think there was a political rationales, but I think health was the reason that they were claiming. And this is at the time when I think sort of there's things happening globally and then there's obviously things happening domestically. And domestically it's after Dobbs, it's the next legislative session. And these are interconnected issues. These are emboldened legislatures after Dobbs comes down. And so you come into 2023 with this sort of mandate about what is bodily autonomy. We can just run wild on people's rights. And so that's sort of one thing that's happening obviously in the US and then the escalation of anti trans rhetoric is also happening. And then globally, you also are seeing this attack on medical care for trans people that really does coincide with the rise of far right governments around the world. And then that is all coalescing in 2023 and the GOP supermajority legislatures across the country are, you know, deciding, this is it, this is our thing that we're going to focus on. And of course, the irony is that it is coinciding with all of the parental rights rhetoric. And here they're saying, but not these parents.
- [06:38]
Kate Shaw
Yeah, I feel like we could say a lot more about this. But I do think two things that are super important in what you just said. One, the connection between these bans on trans healthcare and abortion. Right. Until Dobbs, there was this backdrop, understanding that the Constitution actually protected a zone of autonomy and privacy and liberty, and that encompassed certain sorts of medical decisions. So even if Dobbs says none, nothing on its face about enabling legislators to pass bans like this, it inaugurates a constitutional culture shift that leads directly to all these moves that you were describing. I think that's really important context. And then the global context is really important too. So things like the don't say gay bill in Florida. Right. Which is not about trans healthcare per se, but it's obviously animated by the same spark, is modeled on a very similar law in Hungary. So you have this kind of cross pollination between authoritarian governments at the state or federal level that this is not happening just completely coincidentally, all at the same time. There's a convergence that this is very much a part of.
- [07:39]
Leah Lippman
Absolutely.
- [07:41]
Kate Shaw
So maybe now let's pivot to the kind of specific formal issue before the court, which, as we said, is a fairly technical one. And it's whether this law triggers heightened scrutiny under the equal protection clause. And that turns in part on whether this is a law that discriminates or classifies on the basis of sex. And just again, to sort of lay the basic groundwork, the basic gist of this part of equal protection jurisprudence is that, you know, look, most economic legislation gets very minimal deferential, rational basis review. Courts don't require legislatures to prove that their laws are sensible or wise or good policy. They're presumptively just upheld. But there are important exceptions to that rule. And at issue here, right? When laws discriminate against certain groups or draw certain kinds of lines, then judicial review is more searching. And again, in particular here, laws that discriminate on the basis of sex are one category of laws that trigger heightened scrutiny and specifically intermediate scrutiny. So that's again the background, Chase. So what is the debate about whether this law contains a sex classification that would require courts to use intermediate scrutiny in reviewing it?
- [08:52]
Leah Lippman
Yeah, and so, you know, going back to our initial filing in 2023, our first, just most obvious claim in our mind is this equal protection claim on the ground that this is a law that classifies based on sex. Because you know what the law says? It says you can't do something inconsistent with your sex. That's what it says. That's the prohibition.
- [09:11]
Melissa Murray
Stop with the textualism. It doesn't work here, okay? This is the Constitution we're talking about. Stop it.
- [09:19]
Chase Strangio
Stop trying to make textualism happen.
- [09:20]
Melissa Murray
We're in a position. It's not happening.
- [09:22]
Chase Strangio
Textualism is for suckers.
- [09:24]
Leah Lippman
I mean, I, you know, I've been learning this the hard way because we thought that inconsistent with sex actually was a sex classification, and especially because Tennessee decided to go even further and say not only are we hinging our prohibition on that which is inconsistent with someone's sex. We are telling you that we're not just doing it for medical reasons. We're doing it because we want adolescents to appreciate their sex and ban things that could cause them to be disdainful of their sex. So we think filing this lawsuit, you know, it's a pretty straightforward claim, an equal protection sex discrimination claim. And the other reason why that's true is because this is an anti classification court that doesn't.
- [10:07]
Melissa Murray
Not for this, Chase.
- [10:10]
Leah Lippman
Parental rights. It's not actually. We know, but the idea was that even if they claim a benign purpose, as they try to do with their appreciate sex language, they just want people to appreciate their sex. How could you ever know what's benign or invidious, as this court has told us time and time again? So the question is, and all we were really asking the court to do is reverse the 6th Circuit which had held this is not a sex classification. This is just a medical purpose classification, an age classification, which is frankly dumbest argument that was ever presented.
- [10:50]
Chase Strangio
Can I just pipe in about that dumbest argument ever just to make clear about it. So the logic of this argument was, well, why isn't this an age classification? Because it restricts care for minors. And it's like you do realize why not both. And also like imagine a law that required minor students to attend segregated schools. Like we wouldn't be saying that's an age classification, not a race classification.
- [11:15]
Melissa Murray
The part that Lee is not mentioning is it was Justice Thomas who raised the age classification question, who having attended segregated schools in his childhood, might have known better. But alas.
- [11:26]
Leah Lippman
And the Supreme Court's one of their first heightened scrutiny cases is about a sex classification for 18 to 21 year old. So it's. And everyone understands that that was an age and a sex classification heightened scrutiny still applied. And so the 6th Circuit says no, no, no rational basis. Nothing to see here. Constitution is neutral. Go forth, ban everyone's healthcare. And the other thing that's important about this age point, this age classification argument is that none of this actually hinges on the restriction being for minors only. And that's actually one of the scariest parts of this is take out the minor part, just say no medical treatment inconsistent with sex. And the Solicitor General of Tennessee admitted this argument. Their argument would be the same. This is a sex neutral line that just gets rational basis review. And so that's one of the reasons why we brought this case to the Supreme Court because of that catastrophic lower court holding. And all we were saying is, look, they got it wrong. We know you have a lot of questions about the science and the application of heightened scrutiny, but none of that changes that this is a sex classification. Vacate that judgment. Remand for the lower courts to apply the right standard in the first instance.
- [12:33]
Chase Strangio
Yeah. So I just want to say a little bit more because you were talking about benign justifications and whatnot, just to kind of explain what those are for some of our listeners. So the idea that this is an anti classification court is I think most easily understood in the context of the Court's affirmative action jurisprudence. So basically the idea is anytime a law explicitly takes account of race or sex, then it triggers heightened scrutiny. It doesn't matter if it's doing so for benign purposes, like an affirmative action or invidious ones. And as you pointed out, right, like this law just says sex, sex, sex, sex, sex, sex, sex. Right, like all over the place. And you know who understood that I wanted to play this clip from Justice Kagan. Right. Who? Various ways. This law is, as she said, imbued with sex.
- [13:18]
Justice Kagan
I mean, the prohibited purpose here is treating gender dysphoria, which is to say that the prohibited purpose is something about whether or not one is identifying with.
- [13:28]
Leah Lippman
One'S own sex or another sex.
- [13:30]
Justice Kagan
The whole thing is imbued with sex. I mean, it's based on sex. You might have reasons for thinking that it's an appropriate regulation and those reasons should be tested and respect given to them. But it's a dodge to say that this is not based on sex, it's based on medical purpose when the medical purpose is utterly and entirely about sex.
- [13:55]
Melissa Murray
We should also note here that although we were really talking about this equal protection sex based discrimination argument, there's also an argument that was made here that even if rational basis were applied, and rational basis is the lowest level of judicial scrutiny, it would still fail because the law in question, SB1, is not rationally related to the state's purported interest in safeguarding children's health. But for purposes of the podcast, we're going to focus on the claims about why the law should trigger heightened scrutiny because it is a species of sex based discrimination. And again, friend of the pod, Justice Samuel Alito really seemed to want to characterize the challengers argument here as based entirely on Bostock versus Clayton county, which of course is the 2020 that interpreted Title 7's prohibition on discrimination based on sex to prohibit discrimination on the basis of both sex and gender identity. And we wanted to give you a little flavor of where his head was at because it was somewhere else. Here we go.
- [14:58]
Justice Alito
Your primary argument in the oral presentation this morning is based on Bostock like reasoning. Is that not correct?
- [15:06]
Chase Strangio
I think that incorrect. Our primary argument is that this statute on its face says you can't have medications inconsistent with sex. And no matter what you think about transgender discrimination generally, that's a sex based line. It's no different than saying you can't dress inconsistent with your sex. My friends concede on page 25 of their brief, that's obviously a facial sex classification. But our primary argument is SB1 is worded exactly the same way and it works exactly the same way.
- [15:32]
Justice Alito
Well, you have a bust on like argument and you say that a girl who wants to live like a boy cannot be administered testosterone, but a boy who wants to live like a boy can be administered testosterone. And that's one of your major arguments. I take that to be a Bostock like argument. So my question is, why should we look to Bostock here? Bostock involved the interpretation, a particular language in a particular statute. And this is not a question of statutory interpretation. It's a question of the application of the Equal Protection clause of the 14th Amendment.
- [16:11]
Melissa Murray
All right, Chase. There was so much shadow boxing with Bostock, even though that is a statutory case, a completely different case, this is a constitutional case and could stand on its own bottom as a constitutional case under the extant precedents dealing with sex based discrimination for purposes of the Equal Protection Clause. But everyone seemed to be shadowboxing with Bostock except one person who remained studiously silent in all of that, which was very curious because that studiously silent person was none other than Neil M. Gorsuch, who wrote the 6 to 3 opinion in Bostock. So what's going on there? Does he have anything to say? It seemed he had a lot to say in 2020. Is the cat got his tongue? What's going on here?
- [16:58]
Leah Lippman
This was really the surprise of the argument, you know, surprised us that he was silent.
- [17:02]
Melissa Murray
I was definitely surprised that he had nothing to do.
- [17:04]
Leah Lippman
I think the one thing coming out of the argument that really shocked everyone was Justice Gorsuch's silence. Because this was not an accidental silence. Especially, I mean this. Justice Gorsuch is an active questioner and he obviously has feelings about this and we know he does.
- [17:21]
Melissa Murray
Big feelings.
- [17:22]
Leah Lippman
Big feelings. Thoughts.
- [17:24]
Chase Strangio
Some, you know, men don't have feelings, they have ideas.
- [17:27]
Leah Lippman
Ideas. That is a good clarification. So it will help us understand the framework that we're dealing with here with the law. So it started to get like weirder and weirder as it went on. So it's one thing in the Solicitor Generals time up and then in the seriatim, still nothing, then still nothing. So by the time I got up there, it was clear that this was a choice. Either some, he had laryngitis, as Chris Geithner said to me, or, you know, he decided he was just going to wait and see how this played out. Obviously I have no idea what was going on, what Justice Gorsuch thinks, but that was the biggest surprise of the argument.
- [18:08]
Chase Strangio
I think I have a question that I'm going to put to my co hosts and not to Chase, given that Chase is an advocate appearing before the court. So feel free to bow out of this one, Chase. But Kate and Melissa, do you think it was difficult for Neil Gorson to sit through several hours and not hear the sound of his own voice?
- [18:24]
Kate Shaw
Devastatingly difficult.
- [18:26]
Chase Strangio
Right? Exactly. That had to be like the hardest few hours of his life.
- [18:29]
Kate Shaw
He deserves an award for it actually.
- [18:31]
Leah Lippman
Right?
- [18:32]
Chase Strangio
Great job Neil. We know you can do hard things. Strict Scrutiny is brought to you by bookshop.org I'm about to embark on vacation, which means it's time to load up on all the great books. Reading is what fundamental I just started Fourth Wing and I can't wait to continue the series. Maybe you're searching for an incisive history that helps you make sense of this moment, or a novel that takes you out of it. Bookshop.org has you covered. Bookshop.org helps foster culture, curiosity and a love of reading for generations to come. Every purchase made directly supports local independent bookstores. Discover new books updated weekly and bestsellers from bookstores across the country. So I can support my favorite local bookstore Literati. You can find your nearest shop with the bookstore map Everyone knows during our Favorite Things episode we're going to recommend a bunch of wonderful books for you to give as part of the holiday gift giving season. Bookshop.org will help you do that. Your next read is waiting. Use code strict24 to get 10% off your next order at bookshop.org crooked that's strict24 at bookshop.org/crooked for 10% off strict scrutiny is brought to you by Quince I love giving gifts because it's a way of making sure that people around me know that I appreciate them, even though I'm usually harried, frenzied, short and more. It's great when you can get someone a gift they wouldn't necessarily get for themselves. That little bit of luxury that they don't know they're missing. For quality gifts at an affordable price, there's Quince. Quince lets you treat your loved ones and yourself to everyday luxury at an affordable price. From 14 karat gold jewelry to Italian leather handbags, all Quint's Items are priced 50 to 80% less than similar brands. One of our favorite items is the Scuba blazer. The fabric is wonderful and it can be paired with a bunch of exciting, I don't know, neckties, shirts and more for a totally put together look. There's also the cashmere tee which goes under a bunch of different blazers and it's super soft and comfortable. Honestly, Melissa is so Quince pilled from all of their wonderful products she's a little jealous and has kind of FOMO that I got to read this ad. Gift Luxury this holiday season without the luxury price tag, go to quince.comstrict for 365 day returns plus free shipping on your order. That's Q U I N C E.comstrict to get free shipping and 365 day returns. Quince.com/strict. So in the decision below, the 6th Circuit decision that the Supreme Court is reviewing, the 6th Circuit ruled quite broadly that this law did not classify people on the basis of sex, and seemingly that any laws distinguishing between transgender and cisgender people are subject only to rational basis review. Now, there are different ways that the Supreme Court might say this law is or isn't subject to heightened review. You know, it might say, well, it's just in the context of medical uncertainty or just in the context of regulation of medicine that heightened scrutiny does or doesn't apply. So I guess could you run through Chase what some of those different possibilities are and why they might potentially matter?
- [21:53]
Leah Lippman
Yeah. And so, and just to clarify, we had the argument that it was a sex based classification. Then we also had the, the additional argument that the law classified based on transgender status, which in and of itself would warrant heightened scrutiny. They should consider it a quasi suspect classification in its own right. So that was sort. That argument actually got more play during the argument than I was expecting because Justice Barrett seemed to engage on it more than one would have expected. So that's sort of one additional point here. And then there are lots of different ways that they could say that rational basis applies and they have sort of escalating levels of concerning ness. I think the first one is that this is a law that just classifies based on medical purpose and sort of just ignore the text of the statute itself and do a little bit, you know, without locking in, I would say, doctrinally incoherent way, just say it's rational basis. Nothing to see here. It's age and medical purpose. The problem with that is that it does actually classify based on sex. And I think everyone knows that. And so what's a little bit scary about what they could do is they could exempt medicine more broadly from heightened scrutiny when medical regulations classify based on sex. And that's sort of in the backdrop here, because what kept coming up is, and this is where, you know, the argument was going at different times is, isn't this just about real differences between males and females? How could we apply heightened scrutiny to laws that classify based on real differences, as will often be true in medicine? This is very concerning because the entire purpose of heightened scrutiny and why it was developed is because every distinction based on sex, sex for hundreds of years was justified based on biology. And so if we now all of a sudden, say, well, no, no, no. If the state comes in and says, biology, therefore no heightened scrutiny, that basically just undermines all of the court sex discrimination cases.
- [23:59]
Chase Strangio
Well, and also imagine this in a post Dobbs landscape, right. It's already scary enough, right, that the court allowed states to restrict a form of health care that is primarily used by women. If it then took the next step forward and said all state regulation in the medical field that distinguishes between people on the basis of sex doesn't trigger heightened scrutiny. I mean, what could that mean? Right. That would be really terrifying.
- [24:20]
Leah Lippman
Yeah. And also it's like. And then, like, why that police power. You could see a different one. And it really, it starts to seem like this is really the beginning of the erosion of all of the equal protection jurisprudence and the, you know, a framework of tears of scrutiny. And that's sort of also operating in the background here as the court has moved away and towards their various different versions of originalism. And so that's sort of one thing that's also lingering. And then there's also just Dobbs and the ways in which the one paragraph on equal protection figures so prominently in this litigation across the country, which is to say Alito says, you know, he reinvigorates Gedoldig, which had been basically gone for 50 years, and says that, yeah.
- [25:07]
Chase Strangio
Stare decisis is for suckers, unless it's an opinion taking away people's rights.
- [25:11]
Leah Lippman
That is very important.
- [25:13]
Chase Strangio
Yes, exactly.
- [25:13]
Melissa Murray
Well, sticking it to women, specifically. Two questions, Chase, and they're sort of not necessarily in the same vein, although they are in the same vein of possible arguments that could have been made. We haven't talked about why you think the court didn't take up the parental rights argument that was argued below. So I want to sort of bracket that. And then secondarily, you just brought up the fact that you also briefed this question about considering transgender status as a suspect or quasi suspect classification entitled in its own right to intermediate review. And Justice Barrett had lots to say about this, and she seemed to be pushing on the criteria that has been established in cases like Cleburne around when we consider certain groups quasi or suspect classes, and it usually turns on political powerlessness, a history of de jure discrimination and immutability. And she really hammered on whether or not you could identify instances of what she called de jure segregation or discrimination against transgendered individuals. And what did you make of that argument? And then just sort of broadly, if you could go back and, like, just let us know why you think the Court was at such great pains to avoid the parental rights question, which also could have decided this case.
- [26:29]
Chase Strangio
Read a fucking book, Amy. Like you say you're an originalist and a historian, right? Like, look at some history.
- [26:34]
Melissa Murray
Sorry, originalism requires reading. It's the first step.
- [26:39]
Leah Lippman
I mean, you know, this, I have to say. So I've, I've litigated these cases across the country for, you know, the last four years, since Arkansas passed their, their version of this bill in 2021. And I'm always like, we're debating the history of discrimination prong of this. It's like so baffling to me. And the political powerlessness, they. I mean, is it baffling?
- [27:02]
Melissa Murray
I think if you start from the premise that in their mind, the paradigmatic suspect class is like black people. They want to see something that looks like a broad regime of Jim Crow, but for women or for gay people or for transgender people. And you're showing them, like, you talked about the bands in the military, you talked about cross dressing bands. And she's like, no, no, no, show me a water fountain.
- [27:27]
Leah Lippman
Yeah, yeah, you're right, you're right. And then of course, it's like. But then also that's not enough because then, you know, you can actually tell what is benign and what's in video. So I think that you're right, that it's not surprising. But every time we get into a conversation about it in courts and when the other side is talking about it as they're sort of annihilating people's rights and then also claiming there's no history of discrimination and, and a huge amount of political power, it's just, you know, I think that in Tennessee's brief, they said it blinks reality to suggest that trans people don't wield significant political power. And it's like, I can't believe someone wrote that sentence because, like, and as Justice Sotomayor says in the argument, like, it's a little hard to protect yourself in the majoritarian process when you're like less than 1% of the population. If that's not the role of the Constitution and the courts to step in and be a check, like, what are we doing here?
- [28:26]
Chase Strangio
Melissa, I honest to goodness thought when you were saying they're paradigmatic, quasi or suspect classification, I thought you were gonna say was gonna be white, conservative, religious.
- [28:35]
Melissa Murray
Men, but like, they were the only group paradigmatic minority. That's the new one. But historically, the whole equal protection paradigm has hinged and been organized around race. But yes, you're right. There's a new oppressed minority in town.
- [28:51]
Kate Shaw
Definitely not trans kids.
- [28:52]
Leah Lippman
No, no. Who wield extraordinary political power, as we are witnessing every day. I mean, if the election told us anything, it's that trans people are politically powerful.
- [29:00]
Melissa Murray
You're definitely going to have a voter referendum in Tennessee after this, I guarantee.
- [29:04]
Leah Lippman
Yeah, I think. I think so. I think we're winning. I think we're winning. And then on the parental rights piece of it, so. So in addition to this equal protection claim, we represented, you know, the parents of the trans adolescents, arguing that under the apparently oldest and most important of the fundamental rights, the rights of parents to direct the care, custody, and control of their minor children, that this was an infringement on that right by banning medical care that the parents were consenting to, that the adolescents wanted, that the doctors were recommending. And the court did not take up that question, which, you know, in a curious turn of events, only granted the United States petition, which also. Nobody knows why. I guess we may find out after January 20th. But why didn't they take it? I think one, there wasn't a clear circuit split. It could be just as simple as that, or they didn't want to have to say something limiting about parental rights, since they generally love them, just not for these parents. And so I think that there would have been some tension there if they had to.
- [30:07]
Melissa Murray
Imagine being forced to be consistent in your principles. Imagine. What would that look like?
- [30:13]
Kate Shaw
Also, there also was Barrett, who I. I don't want to write off. I actually genuinely don't totally know where she is on this, but she had one aside that I found sort of chilling, which is that I could see her voting against your clients, but then writing something that says, but there is a separate set of arguments around parental rights. We do not foreclose those. Sort of try to blunt the public reaction to the ruling by purporting to leave open this other avenue. But in the short term, obviously, kids and families are totally out of luck. Like, I thought, possibly she's laying the groundwork for that.
- [30:44]
Melissa Murray
Oh, I thought that's totally what she was doing.
- [30:46]
Leah Lippman
Yeah, that was my unfortunate read of that. You know, series of questions from Justice Barrett to both sides is like, yes, you may think this is sad, all these kids suffering, especially with Justice Sotomayor coming in hot with the facts and the realities of what's going on here, and Barrett, you know, asking these questions. My concern is that she's laying the groundwork for something along the lines of, don't worry that you can still try to do this in this other claim you lost below and in every other court. So I think that that is possible. I will say just about the overall, I'm not an optimistic person in general. I think there's no real reason to be at this point. But I welcome to the club, Chase. Yes, I think that I didn't come in thinking, oh, you know, this is, this is going to be easy. I also, I don't think we came out of the argument thinking it was any different than going in, other than the confusion of the silence of Justice Gorsuch. So, you know, I think all of the post argument reporting is really just projecting all of the things we know about the justices onto the analysis. But I don't actually think anything came out of the argument that would suggest anything more definitive than just our assumptions about where they would be leaning based on, you know, how they think about these various questions.
- [32:08]
Kate Shaw
I agree with that. And I also think coming out of Bostock, it was really hard to know what was going to happen, which is again, not at all to like so unwarranted optimism by any stretch. But I actually don't know that some of the headlines justices poised to rule Against Transgender adolescence seemed overblown to me based on what actually transpired during the argument.
- [32:27]
Leah Lippman
I will say I came out of Bostock thinking there was a chance we would lose 90 because what did not happen in Boston that did happen here is we didn't have a passionate defender of our side. There was a lot of confusion all around. I think it was I knew we weren't going to lose 90 in my heart, I hoped at least. And the court has changed and the country has changed dramatically in terms of the tenor and the various ways in which the justices feel they have to show up in these spaces and also the way in which, because we have the live streaming arguments, the way they happen. But we did not have the sort of vigorous defense of trans life in Bostock, and it was a statutory case. There's reasons for that that we did from Jackson, Kagan and Sotomayor in this case.
- [33:10]
Kate Shaw
Let me ask a quick question about abortion and Dobbs, which we've already mentioned a couple of times, and that is the justices sort of seeming to make a couple of connections, explicit ones that we haven't already alluded to. So one, the justices floating the possibility of regret from detransitioning really seemed to call to mind Justice Kennedy invoking the prospect that women would come to regret abortions and to use that regret as a justification for abortion restrictions in Gonzalez versus Carhartt, and then separately the kind of insistence that there was medical uncertainty about when gender affirming care or certain kinds of it are warranted, and that that uncertainty meant that states should get more latitude, which is also what the court said in pre Dobbs cases like Gonzalez. And you know, that Kavanaugh alluded to multiple times during the Dobbs oral argument and in his separate writing in Dobbs, also, as we've talked about, the court invoking the idea that laws are about biological differences rather than sex classifications. So I guess A, anything else to say about that. And then B, the Cass Report is something that came up during the oral argument and didn't know if you wanted to sort of clarify the relevance of the CAST report, which as I understood, wasn't in the record at all, but sort of what the CAST report had to say about any of this.
- [34:28]
Leah Lippman
Yes. So starting with the abortion connection and Gonzales v. Carhartt comes up in all of our litigation because of the language in that decision that says that states, you know, are given a significant amount of latitude where the government is given a significant amount of latitude when there's medical or scientific uncertainty. And that language is quoted all the time in this litigation. And so I have had the good fortune of going back and reading Gonzalez regularly. And I think the other thing that the graphic ways in which Justice Kennedy describes the medical procedures also as a parallel here, this idea like you could describe any medical procedure in detail and it sounds gruesome, especially, you know, that, you know, if you're talking about body parts and you're talking about what's happening, that's just the nature of it. And that is some that is rhetorical device that is deployed here as well. The states and Naramiki often will talk about the physical effects of this medication on people's bodies in sort of a way to have this, you know, sort of gruesome, visceral reaction for the reader. And that is very much present in Gonzales. And so that is something that I always think about when I'm rereading that opinion. And this idea that they can just throw up their hands and say medical and scientific uncertainty, we therefore defer to the legislature, even if we're using a sex classification, is a significant parallel to the abortion cases. And of course, in both cases there wasn't medical and scientific uncertainty. And that, of course, is deeply frustrating. And then this idea that the very, very, you know, sort of, if infinitesimally small percentage of regret when compared to the people who are, you know, benefiting from or you know, medically needing this care, somehow the regretters become the people who we, the only people who we care about. And that isn't to say that regret isn't itself an upsetting thing. It certainly is. It's just also part of life. And so to sort of say that we're going to have all of our constitutional analysis be framed around the small number of people who regret something is one of the ways that we try to say this law just cannot survive heightened scrutiny. Because any justification or any sort explanation that the state puts forth is really true of all of medicine. Regret. We don't have, you know, randomized control trials. They really care about certain types of scientific evidence sometimes. And that you, you know, there's, there's not, you can't predict what's going to happen 30 years into the future. Like that's just a description of pediatrics. And yet this is the only medical care that is banned. And then the ways in which sort of biology again figures so prominently into this conversation to justify a deference to the legislature and a real erosion of the entire purpose of heightened scrutiny for sex classifications is just an overarching concern that we should all have about what's going on here. And then the cast. So the CAST review is this, it's a report from the UK and I'm sure everyone is surprised to know that all of a sudden all of our justices care about socialized health systems in Europe.
- [37:20]
Chase Strangio
Foreign law.
- [37:21]
Leah Lippman
Yes and yes, international law and medical systems that actually pay for health care for individuals. It is a new area of interest once again, principally inconsistent with other positions.
- [37:35]
Chase Strangio
Sam Alito is like, socialized health care is my passion.
- [37:40]
Leah Lippman
You know, I mean, he was reading from the CAST review, which was published In April of 2020, 24, like over a year after the record closed in this case. It's a preliminary injunction. They can go back and introduce it on at trial. And of course the court cared not at all about the Trump appointed judges. Many, many factual findings that they of course ignored. So the CAST review is, it comes out of the UK and is part of the UK shift against trans people too. It can't be sort of of thought of as this neutral thing. And even the CAST review, which is, you know, in theory, this review of the evidence supporting the prescription of puberty, delaying medication and hormones to adolescents who are trans under the age of 18, does not recommend banning this care that Hillary Cass herself says that yes, for some people this will be medically necessary. And so, and also it is not the policy of the NHS it is an. It is a recommendation, and it is not a legislative enactment of any kind. So it's so incredibly irrelevant as sort of like a legal matter, as a factual matter. And yet it figures so prominently in the public discourse, which then gets brought into the legal conversation and ends up taking up like 50% of the argument, which actually doesn't change the main question about whether this is a law that classifies based on sex. But here we are.
- [39:04]
Chase Strangio
You mentioned, Chase, the justices discovering their passion for foreign law. One other thing that seems to have caused the justices to turn a new leaf over is recognizing courts limitations in assessing medical evidence. So on the idea that, well, there's medical uncertainty here, so we can't possibly have courts looking at the medical evidence and saying, right, who's in the right? Or whatnot, you know, the just justices were expressing some reticence to have the courts assess the science behind the law, suggesting courts are somehow ill equipped to evaluate scientific claims, leading all of us to stare quietly and gently in Ohio versus EPA or a bunch of other administrative law cases, or Sam Alito's own writing in the EM Tallah case in which he literally second guessed maternal medicine's views that abortions are medically recommended and necessary, necessary care for miscarriages like OB GYN say one thing, but Sam Alito isn't so sure. And then you, Chase, pointed out that the court has claimed there was medical uncertainty while subjecting state rules to heightened review in the COVID cases, leading to this exchange, which we just had to play here.
- [40:18]
Leah Lippman
I think I lost track of the discussion you were having about COVID What was the point you were trying to make? Somebody was trying to make. Yes, I think it was me. And the point about COVID and the question of whether or not this court has ever considered applying heightened scrutiny to contexts in which states are grappling with evolving medical evidence. And I would point to Justice Gorsuch's statement in South Bay United Pentecostal, in which the. The purpose of heightened scrutiny, even when the government is grappling with experts of a medical character, is to still test whether or not that infringement on an individual right or that use of a suspect classification meets the heightened scrutiny standard. It's not exempt simply because it is in the context of public health or medicine. Well, I don't want to relive the COVID cases.
- [41:13]
Chase Strangio
You and me both, Chase, we could go on. We love having you here. We wanted to congratulate you on an absolutely terrific argument, like so much is asked of you in so many different contexts and so many different ways and you always end up exceeding the ask and the bar. We really appreciate you taking the time to talk with us about the case.
- [41:39]
Leah Lippman
Well, thank you for having me. And I just will have you know that I WORE the special Title 7 shirt that you guys sent me the night before the argument for good luck. So I was channeling the strict scrutiny vibes. So thank you and thank you for everything you do.
- [41:55]
Melissa Murray
I thought you were going to say you were a total argument. I'm like, that is a boss move right there.
- [42:03]
Leah Lippman
That would have been definite.
- [42:06]
Melissa Murray
Awesome.
- [42:07]
Leah Lippman
Awesome. So I did not go that far. It wouldn't have been. Yes, I still wanted to win the case.
- [42:14]
Kate Shaw
We want that too.
- [42:15]
Leah Lippman
I think that that would have. It was the right. It was the right energy. So thank you. Thank you guys and good to see you.
- [42:22]
Kate Shaw
We're so touched. Thank you so much.
- [42:23]
Melissa Murray
Congratulations.
- [42:29]
Chase Strangio
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- [44:53]
Melissa Murray
A few additional thoughts about the oral argument Just generally at bottom, I actually saw this as kind of an existential question for the Court and there were three different factions among the Justices, so.
- [45:05]
Kate Shaw
Oh no, Melissa with the unexpected 333.
- [45:08]
Melissa Murray
I know, I know, I know, it's.
- [45:09]
Chase Strangio
A three, three, three court.
- [45:10]
Melissa Murray
Wait, no, no no no wait. It's still a six. Three court. But there's a big, there's a big six here. So there's the liberals. The three liberals. There are maybe we call them the weirdos. I don't know what we're calling them. The conservatives. Definitely two. Mostly because our little stop clock was so silent and we don't know where Neil Gorsuch is. But Thomas and Alito were definitely there and we know where they are going with this. And then there were the three that are trying studiously to be moderate. And the question that they all seem to be grappling with is this sort of existential question in con law, in life, I guess. But what is the Court's actual institutional role? And so Thomas and Alito definitely think that the Court's role is to let state legislatures do whatever they want whenever.
- [45:59]
Chase Strangio
Red state legislatures.
- [46:00]
Melissa Murray
Red state legislatures. Correct. Correct.
- [46:02]
Chase Strangio
But.
- [46:02]
Melissa Murray
But yes, I think the liberals very much believe that it is true that the Court should ordinarily defer to the elected officials because they are closer to the people, but not in circumstances where those elected officials are discriminating against minority groups that cannot vindicate their own interests in the political process. And that came out very, very clearly in this interjection from Justice Sotomayor, who was in conversation with a Solicitor General from Tennessee. So let's hear her.
- [46:32]
Kate Shaw
Sorry.
- [46:32]
Leah Lippman
When you're 1% of the population or less, very hard to see how the democratic process is going to protect you.
- [46:40]
Melissa Murray
And then Justice Jackson got into it by driving home the same point by pressing her colleagues and the advocates to stop talking about women's sports. Stop talking about this other stuff and really just sort of focus on this one very narrow question. Is this sex based discrimination that triggers heightened scrutiny? So here she is.
- [46:59]
Justice Kagan
So I guess I'm suddenly quite worried about the role of the court questions and the constitutional allocation of authority concerns because I understood that it was bedrock in the equal protection framework, that there was a constitutional issue in any situation in which the legislature is drawing lines on the basis of a suspect classification, that it's a constitutional question that is being raised when that is happening as a threshold matter. And then you may get into why is it happening? What is the justification? And you've said here at the podium today that the different levels of screw account for how strong the government's evidence has to be for doing that. And we really, the court really holds them to it in certain, in a heightened scrutiny scenario. But the kind of initial issue is that a law is drawing lines on the basis of some suspect classification. Does that accord with your understanding of what we normally do? And that's a question for the court because it's a constitutional question. Is the statute doing this? Right.
- [48:24]
Chase Strangio
And her point was this isn't about whether trans kids can play sports or not. It's about whether the court is going to look at this law that requires differential treatment based on sex and do its job in demanding more rigorous scrutiny below. And that leaves the moderates who seem willing to abdicate any judicial rule here because this is controversial and the Constitution has nothing to say about controversial subjects. And here is our favorite father of daughters articulating his new theory of judicial review, slash one he floated in his Dobbs concurrence.
- [48:59]
Leah Lippman
You've put forth forceful policy arguments to allow these medical treatments and Justice Sotomayor's questions elaborated on.
- [49:10]
Chase Strangio
But the 20 plus states on the.
- [49:12]
Leah Lippman
Other side put forth very forceful arguments.
- [49:15]
Justice Alito
Against allowing these medical treatments for minors.
- [49:19]
Leah Lippman
So it seems to me that we.
- [49:21]
Chase Strangio
Look to the Constitution and the Constitution.
- [49:24]
Justice Alito
Doesn'T take sides on how to resolve.
- [49:26]
Leah Lippman
That medical and policy debate.
- [49:29]
Chase Strangio
The Constitution is neutral on the question.
- [49:32]
Justice Alito
At least that's one way to look at it.
- [49:33]
Chase Strangio
I want to get your reaction to that. You know, if the Constitution doesn't take.
- [49:38]
Justice Alito
Sides, if they're strong, forceful scientific policy arguments on both sides in a situation.
- [49:44]
Leah Lippman
Like this, why isn't it best to leave it to the democratic process?
- [49:50]
Melissa Murray
So this to me is the most interesting kind of. It's not interesting because he said it. It's not interesting substantively, but it is interesting in sort of this question of what is the court's role here? Because he seems to be saying and articulating, I think, a new role, which is where anything is controversial, the court cannot get involved. Which reminded me of your article with Dan Deacon, Leah. The new major questions doctrine, where the court and advocates and regulated industries can basically gin up questions that are major just by making them controversial. And here's a similar kind of thing. Just make something controversial, and the court can say, you know what? We don't actually care if you're discriminating against protected groups. We're out. Because the Constitution is studiously neutral about these questions of real controversy. I also thought that it was just so predictable that he had to talk about sports. Like, he just literally could not leave that on the table.
- [50:41]
Chase Strangio
Also, just this, like, idea that he thinks it was so profound for him to write his concurrence in Dobbs, in which he said the Constitution is neither pro life nor pro choice, that he had to reprise that again. I mean, I would have been so embarrassed to say that, like, much less publicly. I certainly would never repeat it again. Like Brett Kavanaugh doing con law and con theory is like Lisa Barlow singing Taylor Swift Fortnite. Like, it's. It's just egregious.
- [51:11]
Melissa Murray
It was egregious to Ketanji Brown Jackson as well. And she really does not like this whole idea that, like, the court has no role to play because Brett Kavanaugh thinks something is controversial. So she weighed in here and talked about this idea of just sort of ginning up controversy or the fact that in medical circumstances, there's always gonna be controversy because. Because science can go back and forth on different things. So here's her discussing this question and the ramifications for equal protection theory.
- [51:38]
Justice Kagan
And I guess my real concern. And maybe I'll just ask you to react to my loving parallel, because I'm getting kind of nervous, is that in loving, those same kinds of scientific arguments were made. So I'm reading here where the court says the argument is that if the equal protection protection clause does not outlaw miscegenation statutes because of their reliance on racial classifications, the question of constitutionality would thus become whether there was any rational basis for a state to treat interracial marriages differently from other marriages. On this question, the state argues the scientific evidence is substantially in doubt, and consequently, the court should defer to the wisdom of the state legislature in adopting its policy of discouraging interracial marriages. And so, for me, this kind of idea that the way we look at it is not first Are you drawing these classifications and then State give us your evidence so we can make sure.
- [52:36]
Leah Lippman
That there's a proper fit.
- [52:37]
Justice Kagan
If instead we're just sort of doing what the state is encouraging here and loving, where you just sort of say, well, there are lots of good reasons for this policy, and who are we, as the court, to say otherwise? I'm worried that we're undermining the foundations of some of our bedrock equal protection cases.
- [52:55]
Kate Shaw
Didn't it just feel like she was giving him a Little Con Law 101? Like, really just like, Brett, here's the foundational stuff you're missing.
- [53:04]
Chase Strangio
Con Law for Dummies, right?
- [53:05]
Melissa Murray
I know you went to Yale. I know there's no grades in the first semester.
- [53:08]
Chase Strangio
Right?
- [53:09]
Kate Shaw
Your basketball court, you know, played your way through. And maybe you missed this stuff. But let me remind you what it is we are doing here. Why are we here anyway? Why are we here? We also wanted to play a clip of an exchange between Justice Alo and Solicitor General Prelogger in which Justice Alo really tried to insist that Dos resolved this case and just talk about it some more. So first, when Prelogger attempted to explain to him why this case was different from Dos and Gadig because it involves a challenge to a law that explicitly and repeatedly says sex, he responded with this.
- [53:45]
Justice Alito
Well, I'm not sure that's anything more than a play on words.
- [53:50]
Kate Shaw
And then there was this longer colloquy.
- [53:53]
Justice Alito
Let me ask one final question that addresses Gedaldig and Dobbs. Let's take Gedaldig first. One could make the same argument in Gedaldig that you've made here. A man cannot, which concerned whether a pregnant woman was entitled to display disability benefits for time missed at work when a man would be entitled to benefits for time missed at work. So in that situation, a man cannot work due to a medical condition that prevents him from working. He gets benefits. The woman cannot work due to a medical condition, pregnancy, that prevents her from working for a period of time. She doesn't get benefits. It's the same argument you're making here. Or we could do it in Dobbs. A man who has a medical condition that causes physical and mental distress and pain and limits his daily activities, cannot, can get a corrective medical procedure. Let's say it's a hip replacement. But a woman who has a medical condition that produces similar consequences, namely pregnancy, cannot get an abortion. So you can make exactly the same argument that you make here under Gedaldig and under Dobbs, and yet there was no equal protection problem in either of those cases.
- [55:14]
Chase Strangio
And that's because the court said that there was no facial sex classification insofar as using pregnancy does not automatically mean that that's a proxy for sex. But here there's a facial sex classification. No one can take these medicine medications if it would be inconsistent with their sex. And that's imposing on the face of the statute two parallel rules on classes of people according to their sex. All adolescent males who want to take these medications to feminize their bodies and all adolescent females who want to take these medications for masculinizing purposes. That's a facial sex classification through and through. And I don't think it's controlled by Dobbs or Godoldic.
- [55:49]
Kate Shaw
God. SG prelogger. She's got, let's see, one more week.
- [55:53]
Melissa Murray
You know what? She may be the only person who's ready for this term to end, who's ready to be out of office, because I don't. Like, she was a little short with him. Like, it was, like, subtle but perceptible nonetheless. Like, I think she's just like, stop talking. Like, just stop. Stop.
- [56:12]
Chase Strangio
Yeah. Like, we all know this is a shroud, right? Like, just shut the fuck up. And, you know, I'm sick of you.
- [56:19]
Melissa Murray
Where is my anger translator? Where is she?
- [56:22]
Chase Strangio
Exactly. But, you know, the. The sound of, like, Sam Alito invoking his own opinion in Dobbs to justify even more discrimination, I think would have been too much for anyone with a brain and. Or a heart. It's like you can hear the sound of him, like, slapping it like it's a used car and being like, this bad boy can fit a more, like, rolling back rights in here. And it's just, just.
- [56:48]
Melissa Murray
It's like, I wrote this opinion for speed. Let's go.
- [56:51]
Chase Strangio
All right. Yeah.
- [56:53]
Kate Shaw
Before we get on to the other recaps that the US Supreme Court heard last week, we wanted to cover a few developments from the Supreme Court of the fifth Circuit, which is obviously in its own la la land, and also the Supreme Court, another one you may not have heard of, of the District of Texas, which had a real one as well. So starting with the fifth Circuit, Remember earlier this year when we said the fifth Circuit was challenging the idea of federal supremacy in general and federal suprem at the border in particular? So back then, if you don't recall, the fifth Circuit refused to pause an injunction that had blocked the federal government from cutting down barbed wire Texas had put up around the border to block federal immigration officials from doing their jobs. The Supreme Court by a frighteningly slim majority said no, actually federal supremacy is a real thing, including at the border. And it paused the injunction while the litigation in the case case continued.
- [57:48]
Chase Strangio
Well now the Supreme Court of the fifth Circuit, which definitely views itself as supreme to the Supreme Court, has come back and said, lol, make me so. By a vote of 2 to 1, judges Duncan and Willette said that it was appropriate to issue an injunction against the United States preventing the United States from taking countervailing measures when Texas officers were interfering with federal officers around the border. Judge Ramirez, who was appointed to the Fifth Circuit by President Biden, issued a dissent. But her colleagues in the majority said the United States cannot cut down some wire obstacles Texas erected around the border because federal supremacy. Dunno her.
- [58:24]
Melissa Murray
Well, we do know what federal supremacy is, so just a little primer might be in order. Remember McCulloch vs. Maryland sort of stock case in first year constitutional law, when Maryland taxed the national bank, the Supreme Court weighed in and said, hey, the power to tax also entails the power to destroy. You can't do that to something the federal government creates state. So no, you cannot tax a national bank, but apparently you can put up barbed wire fences to block federal officers and federal buildings from executing federal policy. That is totally, totally fine. The power to destroy apparently does not extend to these fences. But anyway, what's going on here? This is insane.
- [59:05]
Chase Strangio
I mean, it's possible the 5th Circuit is allowing like a little unconstitutionality as a treatment or maybe a preview of things to come in the next administration. Another explanation which I know we've talked about before, obviously we all know Democratic presidents don't get to exercise the executive power or all of the executive power like Republican presidents do.
- [59:24]
Melissa Murray
That's the Obama principle. The Obama doctrine.
- [59:26]
Chase Strangio
Right, exactly, exactly. My guess is these courts will rediscover federal supremacy and executive power over immigration once Trump is back in office. And you know, so I just want to step back and for the constitutional scholars in the audience to take stock about what the state of constitutional law is. The Constitution gives the president discretion to harshly enforce immigration law, but not to treat migrants humanely, to restrict reproductive rights, to do some criming, but not to forgive student loans.
- [59:56]
Kate Shaw
So that's, those are, that's the important set of answers to give on your con law exams from JT this spring. Leah just broke, broke it right down for you. So back to this case. What is going to happen in it? Presumably the federal government will take it up to the Supreme Court. There will be obviously on January 20th a transition from the Biden to the Trump Justice Department. And the Trump DOJ is likely to take a different position than the Biden administration with respect to border policy in general. But it is still possible the administration wouldn't want this decision to stand because it opens up the cases in which you can get an injunction against the federal government in immigration cases under 1252 F. And of course, it undermines federal supremacy and federal authority over immigration, which the Trump administration in waiting is fine with when the Biden administration is actually in power, but it might not be fine with once it actually takes the reins. So it's possible the Trump administration might ask the court to what's called monksing were the case. So vacate the opinion below if they change their position. And that would essentially, again, mean asking the court to vacate the decision as moot. So we will see what develops with this case.
- [61:05]
Melissa Murray
But that's not all the shenanigans going down in the Lone Star State. We also got a district court decision that says that a corporate disclosure regime violates the Commerce Clause. Yes, that's right. This case involves a challenge to the Corporate Transparency act, which regulates companies that are registered to do business in the states. And they regulate them in part by restricting anonymous incorporation and by discouraging shell corporations. And again, this generally requires the companies to disclose their private stakeholder information to the Financial Crimes Enforcement Network within the Department of Treasury. And all of this is intended to combat money laundering, corruption, and more by making all of this transparent. Well, listeners, a district court in Texas has decided that Congress lacks authority under the Commerce Clause to regulate corporations in this way. So Congress lacks the authority under the Constitution to regulate corporations doing commerce under the Commerce Clause. Yeah, Makes sense. Checks out. What?
- [62:11]
Chase Strangio
Yeah, this is like the move away from textualism. Like, doesn't matter if the law says sex. This is like, doesn't matter if it's commerce. Right. It's not actually commerce. It's just. It's wild.
- [62:21]
Melissa Murray
It's actually doing business. I mean, this is like the court has, like, rolled back some of the Commerce Clause jurisprudence. Like, has to be economic in nature, has to be sort of commercial in nature. All of this seems commercial and economic. So I'm not really understanding the problem here except that Congress did something.
- [62:36]
Chase Strangio
Yeah, that might be enough. Right. Because we didn't want to leave Melissa's home state out of this Supreme Court of other courts besides the Supreme Court. We also wanted to draw your attention to a district court decision from Florida. In this case, a Trump appointee denied target's motion to dismiss a class action case filed by Target shareholders. The shareholders brought suit saying that the company lied about the risk of consumer backlash to Target's 2023 Pride Week marketing campaign. So I wanted to spotlight this ruling because I worry it is really at the intersection of right wingers using extra legal outside of government tactics like the agitation about Pride Week. Right. Just from private actors. And they're using the law to enforce their preferences here, imposing liability on a company for essentially not predicting their baddie reactions. And Heckler's veto attempt over acknowledging Pride Never change, Florida.
- [63:36]
Melissa Murray
Just never change. We did get one very encouraging lower court decision that we should highlight listeners you'll remember. In 2023, the court dismantled affirmative action in higher education in SFFA versus Harvard. But in that decision it sequestered the question of whether military service academies were also prohibited from considering race in their admissions calculuses. Well, Ed Bloom, the architect of the SFFA challenge, took that personally and he filed a series of legal challenges against the military academy's consideration of race. And there was one case in Maryland involving the Naval Academy and there was an extensive bench trial before Judge Richard Bennett, who is a Republican appointee who served over 20 years in the U.S. army Reserve and the Maryland National Guard. And Judge Bennett wrote a 179 page ruling weighing this evidence and concluding that the Naval Academy has established a compelling national security interest in a diverse officer corps in the Navy and Marine Corps. And he specifically noted that the national security interest is in rectifying the significant deficiency in the number of people of color who are Navy and Marine officers who are all trained under the Naval Academy. So this is a very important victory for affirmative action. Ed Bloom has vowed to challenge this ruling to the 4th Circuit and if necessary, to the Supreme Court. We should also note there's a parallel challenge against West Point that is also pending at a different federal district court. So more to see here, but some encouraging news.
- [65:04]
Kate Shaw
Yeah, but we will keep our eye on that case or those cases as they proceed. But for now, back to scotus. We have a handful of other recaps to bring you. And the first is the oral argument in FDA vs. White lion, which is the case challenging the administration's denial of an application to market e cigarettes with certain flavors. The Fifth Circuit ruled that the denial was arbitrary and capricious in violation of the Administrative Procedure act, which is the law that requires agency decision making, among other things, to be supported by evidence, explained by reasons and reasonable. So the company that's defending the lower court ruling has seemingly identified other reasons, that is reasons other than the grounds the Fifth Circuit gave for thinking the denial was arbitrary and capricious. And more on all that in just a minute.
- [65:48]
Melissa Murray
Well, we all know that the court loves to second guess agencies, especially when it involves questions of science. And if you don't believe me, go back and consider Ohio vs EPA, where the court shit all over the good neighbor rule. But here we were really expecting the court to continue in its trend of just questioning science because they all have PhDs in chemistry or whatnot. But it wasn't actually clear from this oral argument if there are in fact five votes to say that the agency's decision wasn't adequately supported by the facts and science. So we are ready to admit when we get things wrong and we'll say we might have underestimated them here. The argument seemed more focused on the supposed procedural errors that the agency had made in the decision making process rather than the fact that the agency is just wrong, wrong, wrong on science. So that's progress too, I think.
- [66:40]
Chase Strangio
Yes, although it allows them to get to the same outcome. So one.
- [66:43]
Melissa Murray
You know what, Leah, we have to be more positive. We can't have like an in the Doldrums podcast for the next four years. So we have to take our victories where we can find them. Like this is going to lose on procedural grounds.
- [66:54]
Chase Strangio
Until I get to see more Taylor Swift shows in my near future, it's going to be in the doldrums for me. So one alleged procedural error Here was the FDA's change in whether companies were required to submit certain kinds of evidence to the agency. Justice Kagan spent a lot of her time during the argument debunking that claim. You know, she pretty persuasively pointed out there wasn't a notice problem because the companies knew what was expected of them. The companies knew the FDA had already taken the position that survived certain flavors made products especially appealing to kids. And the companies knew that in order to overcome that evidence, they would have to put forward evidence that there were some offsetting benefits of the E cigarettes, like reducing the chance that someone who used the E cigarette would then use regular cigarettes. And as Justice Kagan pointed out, the companies did provide that kind of evidence. It's just the agency wasn't convinced by it.
- [67:43]
Melissa Murray
The bulk of the argument time, however, seemed to turn on an issue that we actually flagged in our preview. And the issue is whether one of the agency's errors, which the government concedes was an error, was in fact harmless. So Just to recap, the agency had previously told companies that it wanted fine grained data about how companies plan to keep different flavors and different dosages out of the hands of children. But that turned out to be too much data and the agency came back and basically said we're not going to review it because none of these plans will actually work. Well, that was an error. An agency can't just change its criteria or requirements midstream. The question though, for purposes of this argument is whether that error mattered to the ultimate outcome here, that is whether it was a harmless error.
- [68:26]
Kate Shaw
There's good reason to think it was harmless because no one doubts the companies lack an effective way to keep these products out of kids hands. And these companies didn't propose another way of doing so. And the Supreme Court, as we mentioned last week, had previously allowed the Trump administration to get away with an error the court deemed harmless when the administration granted exceptions and carve outs to the requirement for contraceptive insurance coverage by employers. And also the APA has an explicit provision in it requiring courts to be mindful of the rules rule of harmless error. And the government seems to have relied on that textual requirement. But you know, foolish fda, I suppose that's not the kind of textualism that the court has in mind.
- [69:12]
Chase Strangio
Once again, like wither textualism, textualism applies when you're ruling against an agency. It doesn't apply like when textualism suggests a law hurting trans kids triggers heightened scrutiny or right that a court should affirm an agency's ruling. It's okay.
- [69:27]
Kate Shaw
Though actually it does apply if it's a Trump administration agency helping employers not give their employees contraceptives. That is the one and only occasion in which this rule can redound to the benefit of the federal government.
- [69:39]
Chase Strangio
It's important to keep track of these decision trees just so we all can understand what's happening here. So that's an overview of how the oral argument in this case went. Chaos monkey Neil Gorsuch, who participated in this one, seemed to want to even go further in this case. He found his voice which gave it back to him.
- [69:57]
Melissa Murray
Gave it back to him.
- [69:59]
Chase Strangio
And Neil used his voice to suggest maybe the court should tear down entire chunks of the FDA while they're at it, even though that wasn't presented here. So you can hear him making this bold suggestion in what follows. And let me just turn back real quickly to the enforcement action question.
- [70:16]
Leah Lippman
Are Those conducted before ALJs the civil enforcement actions?
- [70:22]
Chase Strangio
I'm not sure to tell you the.
- [70:23]
Leah Lippman
Truth, but I'm wondering, does a company.
- [70:26]
Chase Strangio
Ever have A chance to get before a judge and a jury.
- [70:31]
Leah Lippman
I think the answer is yes, but I'm not sure about the details because we haven't really been engaging in those.
- [70:37]
Chase Strangio
With respect to the products that are.
- [70:38]
Leah Lippman
At issue in these cases.
- [70:40]
Chase Strangio
I mean, after Jarkassee, perhaps the answer.
- [70:43]
Leah Lippman
Is yes, we will certainly comply with what the law requires. Justice thank you, Mr. Gantt.
- [70:50]
Melissa Murray
He's going to avenge his mom. Neil's mom's got it going on anyway. The court also heard oral argument in United States versus Miller. This was a bankruptcy sovereign immunity case that's about whether bankruptcy trustees can sue the United States to recover money paid to the United States and then put that money into the bankruptcy estate state. The question is whether the US has waived its sovereign immunity under the Bankruptcy Code even though it hasn't waived its sovereign immunity in non bankruptcy cases involving the same substantive law.
- [71:19]
Kate Shaw
Although this is a statutory interpretation case, a lot of the argument was devoted to figuring out what work like substantively the provision was doing, whether one side's interpretation would mean the provision had no effect and what Congress might have been trying to achieve through the measures. Once again, wither textualism. It was kind of hard to get a sense for where the court was leaning in this case, although it did seem like the lawyer arguing for the federal government made some headway in convincing the court what Congress might have been getting at if it wasn't waiving the US's immunity from suit.
- [71:51]
Chase Strangio
The court also heard Republic of Hungary versus Simon.
- [71:55]
Melissa Murray
This is the case about when, if ever, you can sue foreign sovereigns for expropriating property based on the theory that the foreign government commingled its property from the expropriated property with other funds that it now holds in the United States. Some of the case focused on the language in the statute, what it means for the property to be, quote, unquote, exchanged for property that ends up in the United States. So again, more textualism that we can just forget, except when we're not.
- [72:22]
Chase Strangio
But here too, a lot of the case focused on less textualist considerations. There were concerns about evasion, the prospect that foreign states could get away with expropriation as long as they maintained a separate bank account for expropriated money. There was also concern about foreign policy implications of the different interpretations, as well as what the rest of the world does in cases like this. There was also attention to the legislative history and what Congress was trying to get at through certain amendments.
- [72:48]
Kate Shaw
And once again, it wasn't totally clear where the court was leaning in this case. It seemed like maybe it was leaning against allowing suit, at least on this particular theory or these particular facts. And that, again, is the idea that a foreign sovereign commingled profits from expropriated property with its national wealth and then issued bonds in the United States.
- [73:06]
Chase Strangio
So one last thing before we go the election results have sparked plenty of conversations, and the latest episode of Hysteria is diving into the biggest ones. Aaron and Alyssa are joined by editor at the 19th News, Aaron Haynes, to break down how racism and misogyny paved the way for Trump's win. And if you can't look away from Trump's problematic cabinet picks, they're breaking down the latest on disgraced Secretary of Defense nominee Pete Hegseth. Tune into Hysteria every Thursday. Wherever you get your podcasts, y'all.
- [73:35]
Melissa Murray
I just love that this court was so problematic. We couldn't even talk about Cash Patel. Like, the court, like, literally eclipsed Cash Patel as director of the FBI.
- [73:43]
Chase Strangio
We had a great culture segment lined up. We just had to spend more time on their abandonment of textualism and trans kids. You know, we also wanted to talk about Mitch McConnell, all of a sudden becoming concerned about courts being partisan in the sense that some judges might withdraw their retirement announcements and not allow Republican presidents to replace them. Apparently, that's what's going to politicize the courts.
- [74:05]
Melissa Murray
We didn't even take about pardons. I mean, like, the court just takes over everything.
- [74:10]
Chase Strangio
I know they, they just suck up.
- [74:12]
Melissa Murray
Everything, but that's why we're here. Like that sucking sound, that's the court and that's us sucking it up and explaining it to you. That's why we're here. Anyway, Stroke Scrutiny is a crooked media production hosted and executive produced by Leah Lippman, Melissa Murray and Kate Shaw. Produced and edited by Melody Rowell. Michael Goldsmith is our associate producer. We get audio support from Kyle Seglin and Charlotte Landis. Our music is by Eddie Cooper. We get production support from Madeline Herringer and Ari Schwartz, and Matt DeGroote is our head of production. And we are very grateful for our digital team, Phoebe Bradford and Joe Matoski. You can subscribe toStrix on YouTube, where you can also catch full episodes if you haven't already. Be sure to subscribe to Strict Scrutiny in your favorite podcast app so you never miss an episode. And if you want to help other people find the show, please rate and review us. It really helps.
- [75:11]
Kate Shaw
The first ever Kia K4 seamlessly combines.
- [75:13]
Leah Lippman
Bold style and advanced tech with striking.
- [75:16]
Kate Shaw
Star map, LED headlight lights and an available panoramic display the Kia K4 delivers design and function. The available Surround View and Blind Spot View monitors can help provide added confidence. Plus, SiriusXM comes standard, bringing you closer.
- [75:30]
Leah Lippman
To what you love.
- [75:30]
Kate Shaw
The Kia K4 balances aesthetics and innovation. Learn more at kia.com K4 surround view and Blind Spot View monitors may not detect all objects around or behind the vehicle.
- [75:41]
Melissa Murray
Variety raves Maria is absolute perfection, and Entertainment Weekly hails Academy Award winner Angelina Jolie. Brings tragedy and triumph to the last days of opera singer Maria Callis.
- [75:52]
Kate Shaw
Finally, I am in control, and critics agree.
- [75:55]
Melissa Murray
It's a towering tour de force performance from Angelina Jolie and a career best.
- [76:00]
Kate Shaw
My life is opera. There is no reason in Opera Maria.
- [76:05]
Melissa Murray
Directed by Pablo Laray for your consideration, now playing its lech theaters and on Netflix December 11th.