Podcast Title: Strict Scrutiny
Host/Authors: Leah Litman, Kate Shaw, Melissa Murray
Episode Title: SCOTUS Strengthens Conservative War on Education
Release Date: June 30, 2025

Introduction

Leah Litman (00:00) opens the episode with a brief mention of the sponsor, Americans United for Separation of Church and State, emphasizing the critical role of church-state separation in public education. The introduction sets the tone for the episode, highlighting the ongoing efforts by conservative groups to influence educational curricula through legal avenues.

Main Cases Discussed

1. Mahmoud vs Taylor: Maryland School District and LGBTQ+ Curriculum

Overview:

Kate Shaw (01:43) introduces the primary focus of the episode: two significant First Amendment cases decided by the Supreme Court. The first case, Mahmoud vs Taylor, involves the Maryland school district's decision to include LGBTQ+ inclusive reading materials in their curriculum. The initiative aimed to reflect the diversity of families in Montgomery County, including gay families and students experiencing gender dysphoria. However, some parents objected on religious grounds, seeking to opt their children out of these lessons.

Key Issues:

• Opt-Out Challenges: The school district found it impractical to allow opt-outs, especially in elementary schools, due to logistical constraints and the potential stigmatization of LGBTQ+ students (Melissa Murray, 02:14).

• Supreme Court Ruling: Justice Alito, writing for the majority (6-3), determined that the inclusion of LGBTQ+ materials substantially burdens the religious practices of parents. The court required the school district to offer opt-outs, deeming the policy not sufficiently compelling to override religious objections (Leah Litman, 03:27).

Justice Alito’s Opinion:

• Normative Messaging: Alito argued that the storybooks used in the curriculum promote the acceptance of same-sex marriage and transgender identities. For instance, he stated that “Prince and Night” conveys that same-sex marriage should be universally celebrated (Leah Litman, 04:24).

• Literary Analysis Critique: Kate Shaw (04:24) criticizes Alito's literary analysis as superficial, likening it to "freshman literature analysis." She points out that Alito misinterprets the intent of the storybooks, suggesting they indoctrinate children rather than simply presenting diverse perspectives.

Dissenting Opinion: Justice Sotomayor

• Impact on Public Education: Justice Sotomayor strongly dissented, arguing that the ruling threatens the very essence of public education by granting parents veto power over curricular choices traditionally managed by elected school boards (Kate Shaw, 20:07).

• Promotion of Pluralism: Sotomayor emphasized that public schools are meant to expose children to a range of concepts and views necessary for a democratic society, countering the majority’s notion that inclusive curricula undermine religious beliefs (Melissa Murray, 21:45).

Broader Implications:

• Religious Freedom vs. Educational Pluralism: The court's decision sets a precedent that allows religious objections to influence public education content, potentially destabilizing the pluralistic foundation of public schooling (Leah Litman, 09:02).

• Selective Burdens on Speech: The ruling suggests that certain types of speech, particularly those associated with LGBTQ+ identities, do not receive robust First Amendment protections, aligning with Project 2025’s agenda to limit such expressions in public institutions (Melissa Murray, 19:47).

2. Free Speech Coalition vs Paxton: Texas Age Verification for Adult Websites

Overview:

Kate Shaw (29:57) transitions to the second major case of the term: Free Speech Coalition vs Paxton. This case examines a Texas statute requiring websites hosting adult content to verify users' ages, thereby removing anonymity and potentially restricting access to non-obscene pornography for adults.

Legal Background:

• First Amendment Standards: Traditionally, laws that burden adults’ access to non-obscene speech that can be restricted for minors are subject to strict scrutiny— the highest level of judicial review. This standard ensures that such laws serve a compelling state interest and are narrowly tailored (Leah Litman, 30:46).

Supreme Court Decision:

• Majority Ruling: Contrary to established precedent, the Supreme Court applied intermediate scrutiny instead of strict scrutiny to this case, allowing the Texas law to stand (Leah Litman, 33:10).

• Justice Kagan’s Dissent: Justice Kagan vehemently criticized the majority for undermining First Amendment protections. She argued that the requirement of age verification constitutes a direct burden on adult speech rights, regardless of the method employed, and emphasized the circular reasoning in the majority’s analysis (Melissa Murray, 33:46).

Implications of the Ruling:

• Erosion of Free Speech Protections: By lowering the scrutiny level, the court potentially opens the door for more laws to restrict adult access to constitutionally protected speech without meeting the stringent requirements of strict scrutiny (Kate Shaw, 39:17).

• Precedent and Future Cases: The decision undermines previous rulings that applied strict scrutiny to similar cases, signaling a shift towards more permissive interpretations that favor regulatory measures over free speech rights (Kate Shaw, 39:21).

Additional Cases and Legal Developments

1. Kennedy vs Braidwood Management: Appointment of Preventative Services Task Force Members

Overview:

The Supreme Court addressed whether part-time, volunteer members of the Preventative Services Task Force at the Department of Health and Human Services (HHS) qualify as principal officers under the Constitution. If classified as such, their appointment without Senate confirmation would be unconstitutional.

Ruling:

• Majority Opinion: Justice Kavanaugh, writing for a 6-3 majority, determined that these task force members are inferior officers and can be appointed by the Secretary of HHS. This decision maintains the structure of preventative care designations without disrupting current insurance mechanisms (Melissa Murray, 41:57).

• Dissenting Opinion: Justices Thomas, Alito, and Gorsuch dissented, arguing against the politicization of administrative appointments and expressing concern over the increased power of the Department of Health and Human Services (Kate Shaw, 43:22).

Implications:

• Political Control Over Health Policies: The ruling empowers the Department of Health and Human Services to exert greater influence over preventative health services, potentially aligning health policies more closely with the administration's conservative ideology (Leah Litman, 43:22).

2. FCC vs Consumers Research Services: Non-Delegation Doctrine

Overview:

This case revolved around the FCC's Universal Services Fund, wherein a private company was appointed to administer the fund, leading the Fifth Circuit to challenge this delegation of authority as unconstitutional under the non-delegation doctrine.

Ruling:

• Majority Opinion: In a 6-3 decision, Justice Kagan upheld the FCC's delegation, rejecting the notion that appointing a private entity to manage the fund constituted an unconstitutional delegation of legislative powers (Melissa Murray, 46:05).

• Dissenting Opinion: Justice Gorsuch, joined by Justices Thomas and Alito, argued for a revival of the non-delegation doctrine, contending that Congress's authority should not be so broadly interpreted (Kate Shaw, 48:30).

Implications:

• Administrative State: The decision reinforces the current administrative framework, allowing agencies like the FCC more leeway in managing and implementing policies without stringent constitutional constraints (Melissa Murray, 45:29).

Broader Themes and Analysis

Judicial Consistency and Precedent:

• The Supreme Court's decisions in both Mahmoud vs Taylor and Free Speech Coalition vs Paxton demonstrate a departure from established First Amendment precedents, particularly the application of strict scrutiny to content-based restrictions.

• Leah Litman (16:38) criticizes the Court for its inconsistent application of legal standards, suggesting a selective approach that favors conservative ideologies over traditional interpretations of free speech.

Impact on Public Education and Free Speech:

• The ruling in Mahmoud vs Taylor signifies a broader conservative strategy to influence public education by leveraging religious freedoms. This poses significant challenges to the pluralistic and inclusive foundations of public schooling systems.

• In Free Speech Coalition vs Paxton, the reduction of scrutiny standards undermines adult free speech rights, with potential ramifications for how other forms of speech might be regulated in the future.

Concerns Over Judicial Philosophy:

• The episodes highlight a shift towards a more interventionist judiciary that aligns with conservative policy goals. This includes undermining precedents that protect marginalized groups and limit government interference in personal freedoms.

• The hosts express alarm over the court’s willingness to reinterpret or disregard long-standing precedents to serve a specific ideological agenda, raising questions about the future stability and neutrality of the Supreme Court.

Conclusion

The episode of Strict Scrutiny delves deeply into two pivotal Supreme Court cases, Mahmoud vs Taylor and Free Speech Coalition vs Paxton, illustrating how the Court's recent decisions are advancing a conservative agenda that challenges the foundations of public education and free speech. Through critical analysis of majority and dissenting opinions, the hosts underscore the potential long-term repercussions on American legal and cultural landscapes. The episode serves as a comprehensive examination of the interplay between judicial decisions and societal values, highlighting the imperative for vigilance in safeguarding constitutional protections.

Notable Quotes:

• Leah Litman (03:27): “Justice Alito believes all of the storybooks carry a normative message that same sex marriage and being transgender are okay.”

• Kate Shaw (04:24): “The opinion also engages in some pretty B minus level college freshman literary analysis of said elementary school storybooks.”

• Melissa Murray (09:02): “The idea that this court knows best and is going to impose its views about one set of values reigning supreme over all others is fucking outrageous.”

• Justice Sotomayor (20:27): “Today's ruling threatens the very essence of public education.”

• Justice Kagan's Dissent (33:10): “The majority's analysis reduces to this. Requiring age verification does not directly burden adult speech rights because adults have no right to be free from the burden of age verification.”

This comprehensive summary encapsulates the key discussions, legal analyses, and critical insights presented in the episode, providing a clear understanding for listeners and non-listeners alike.