Strict Scrutiny Podcast: Will SCOTUS Allow Conversion Therapy for Minors?

Crooked Media | October 13, 2025
Hosts: Leah Litman, Kate Shaw, Melissa Murray
Special Guest: John Fabian Witt

Overview

This episode delivers a comprehensive analysis of the Supreme Court’s first week of the October 2025 term, focusing particularly on a case that could overturn Colorado’s ban on conversion therapy for minors. The hosts, all constitutional law professors, break down the oral arguments in Childs v. Salazar, connect them to wider legal and political trends, and summarize other key cases on the docket. They also provide context for ongoing legal battles involving presidential power, the use of the military in domestic affairs, and the erosion of institutional norms.

Additionally, the episode features an in-depth and uplifting interview with Yale legal historian John Fabian Witt about his new book, "The Radical Fund," illustrating the power of social movements in shaping democracy.

Main Segments & Key Insights

1. Current Legal & Political Climate

Time Stamp: 01:45–10:55

• Indictment of New York AG Letitia James
  • Kate, Leah, and Melissa outline troubling DOJ politicization, citing the recent indictment of Tish James by a Trump loyalist over dubious mortgage fraud claims.
    • “This is utterly terrifying stuff. It is fundamentally incompatible with the rule of law to have the President and chief law enforcement officers targeting people because of who they are... rather than what they did.” (Kate, 07:55)
  • They highlight the dangers of unchecked executive investigatory power, referencing the Supreme Court’s decision in Trump v. United States:
    • “Robert’s majority opinion... declared that investigative and prosecutorial decision making is the special province of the executive.” (Leah, 08:56)
  • The hosts express alarm at the systematic targeting of political opponents and lament the Supreme Court’s enabling role.
  • Notable: The indictment misidentifies James’s address, exemplifying the amateurish and partisan nature of such prosecutions.

2. Supreme Court Case Focus: Childs v. Salazar (Conversion Therapy and the First Amendment)

Time Stamp: 10:55–29:43

What’s at Stake

• Colorado's Ban: Bars licensed therapists from providing conversion therapy to minors.
• The challenge is brought by a therapist whose conduct may not even be prohibited by the law—raising serious standing questions.
• The case was advanced by Alliance Defending Freedom (ADF), echoing earlier right-wing legal offensives (e.g., 303 Creative).

Standing and Jurisdictional Gamesmanship

• Deep skepticism about whether plaintiff has standing—law hasn’t been enforced in six years, and therapies she claims to want to provide may be permissible.
  • “TLDR standing is also now for suckers because the justices apparently feel free to adjudicate any case seeking to vindicate right wing culture war grievances.” (Leah, 13:50)
• Justices Gorsuch and Barrett dismiss these problems; the Court seems eager to rule on the merits regardless of jurisdiction.

Oral Argument Themes

• Panelists recount justices repeatedly raising hypotheticals: can states ban dietitians from encouraging anorexia, or ban therapists from dangerous treatments? Are medical regulations now all viewpoint discrimination if they restrict certain advice?
  • “The idea that any regulation of speech, like divorce from context and divorce from the reason it’s being regulated, triggers strict scrutiny ... is just insane.” (Leah, 21:52)
• NIFLA v. Becerra referenced repeatedly: the case where the Court blocked California from requiring clinics to disclose if they did not provide abortions—now invoked to gut professional regulations in the name of free speech.

Host Observations

• Melissa Murray: “I have to say, I don’t know how I’m going to teach standing anymore.” ([14:05])
• Kate Shaw: Noted dangers in the Court’s willingness to prioritize right-wing grievances and manufacture standing for favored causes.
• The majority appeared prepared not only to invalidate Colorado’s law, but, as floated by Justice Barrett, possibly to immunize therapists from malpractice liability—a radical step.
  • “Christian therapist immunity for you.” (Kate, 16:52)

Wider Implications

• Abortion and reproductive rights jurisprudence are being repurposed to limit LGBTQ rights and other regulations.
  • “Now, apparently it’s great to frame everything around the Court’s special jurisprudence created for abortion. And that’s exactly what NIFLA was.” (Leah, 19:47)
• The hosts anticipate this will pave the way for more aggressive challenges to professional regulations under the guise of free speech.

Memorable Moments

• Justice Alito’s fixation on Buck v. Bell: “He has brought it up a number of times. He hates that decision.” (Kate, 23:17)
• Disdain for LGBTQ issues: “...the disdain with which at least some of the Republican appointees talk about sexual orientation and gender identity.” (Leah, 25:42)
• Potential for a supermajority to invalidate the law, with Kagan possibly joining, seeking a narrower path.

Possible Outcomes

• Full invalidation of Colorado’s law, with possibility for more expansive rulings (e.g., restricting malpractice suits).
• Some justices (Sotomayor, Jackson) searching for ways to limit the damage or secure stricter review on remand instead of outright reversal.

3. Other Key Cases Recapped

Selected Timestamps: 32:03–44:44

• Bost v. Illinois Department of Elections
  • Case on standing to challenge Illinois’ mail-in ballot-counting deadline.
  • Hosts lampoon the idea that campaign costs for extra staff are a “harm” entitling standing; warn of floodgates for anti-voting lawsuits.
  • “Too much democracy is the injury.” (Melissa, 36:21)
• Villarreal v. Texas
  • Right-to-counsel case: Can courts bar attorney-client discussions during trial recess?
  • Notably, “Dang, Gina: the state of Texas is taking more nuanced positions than the United States federal government. Ouch.” (Leah, 39:01)
• Burke v. Choi
  • Erie Doctrine/spoliation: whether state expert affidavit laws override federal pleading rules.
• Barrett v. United States
  • Sentencing, double jeopardy, interpretation of Armed Career Criminal Act.
• US Postal Service v. Conan
  • Scope of the Federal Tort Claims Act; postal exceptions and racial harassment allegations.
  • “Sam Alito wanted to ask about Christmas cards in this case.” (Leah, 44:45)

4. Wider Legal News

Timestamps: 45:42–61:54

• Federalization of the National Guard
  • Trump’s controversial deployments to Oregon and Illinois are challenged in court.
  • Lower court judges (even Trump appointees) rule the actions lack factual basis; administration resorts to legalistic non-compliance (slight tweaks to orders, same outcome).
    • “Basically, the administration again and again loses in court, changes like one tiny little irrelevant fact... resumes doing the unlawful thing...” (Kate, 48:28)
• Pushback and Protests
  • Highlighting popular and legal resistance in Chicago, Portland, and Oregon (including whimsical “furry” protests).
  • “As scary as this administration is... they’re still weak because people are unafraid.” (Melissa, 54:10)
• ICE and Police Abuses
  • Ongoing court fights over ICE illegal conduct, including body cam footage disproving ICE allegations in a shooting.

5. Notable Quotes & Moments

• “The people in Chicago and their elected representatives are very much not just sitting back and taking this... Genuinely inspiring and brilliant, brave ways.” (Kate, 53:19)
• On legal resilience: “It’s an exercise in popular constitutionalism... defining what this country is supposed to be.” (Melissa, 54:10)
• On absurd evidence for harm of conversion therapy bans: “Apparently this is all based on anonymous Reddit posts.” (Kate, 13:13)
• On contemporary legal education: “I don’t even know what to say anymore. Yeah, thanks, guys.” (Melissa, 14:05)

6. Interview: John Fabian Witt, "The Radical Fund"

Time Stamp: 77:34–102:14

About the Book

• Witt discusses the early 20th-century “Radical Fund”—a small (relatively speaking), time-limited private foundation that brought together civil rights and labor leaders, helping to reinvent industrial democracy and supporting pivotal litigation (including the early NAACP legal strategy).
• Its legacy: helping build legal and social infrastructures for the New Deal, civil rights, and labor organizing.
• “The magic... is putting those three movements, which are the three central social movements underlying New Deal liberalism and the civil rights age... in a room together.” (John, 82:52)

Parallels and Hope

• Witt notes that democratic progress came from movement-building and radical practical experimentation, not merely big-money philanthropy—suggesting possibility and hope amid today’s bleakness.
• “It doesn’t require resources to the tune of billions of dollars... Getting the kind of cast of hearts and minds together... for the 21st century... is a tall order. But the book has a real hopeful feel to it.” (Kate, 101:21)

Conclusion: Hosts’ Favorite Things & Takeaways

Time Stamps: 102:42––110:01

• The hosts highlight acts of resistance in Chicago and Portland, recommend podcasts and books for coping, and celebrate inspiring community events.
• Uplifting shout-outs to Lizzo-esque “Portland chicken” protesters and the importance of public demonstrations.
• Critical of the Supreme Court’s increasing hostility to progressive policies, but inspired by ongoing activism and legal resilience.

Notable Quotes (with Timestamps)

1. On the Chilling Effect of Supreme Court Decisions

   • “The Court’s decision in Trump v. United States made it a lot easier for him to do so. Because now he knows he faces zero liability for doing so.” (Melissa, 09:55)

2. On Conversion Therapy Bans

   • “Standing is also now for suckers, because the justices apparently feel free to adjudicate any case seeking to vindicate right wing culture war grievances.” (Leah, 13:50)

3. On Supreme Court’s Jurisprudence Drift

   • “Now, apparently, it’s great to frame everything around the Court’s special jurisprudence created for abortion. And that’s exactly what NIFLA was.” (Leah, 19:47)

4. On Absurd Evidence Basis

   • “Apparently this is all based on anonymous Reddit posts.” (Kate, 13:13)

5. On Defiance and Resistance

   • “As scary as this administration is and as tyrannical as the powers that... it is important to demonstrate that... people are not afraid.” (Melissa, 54:10)

6. John Fabian Witt on Movement-Building

   • “Calamities and catastrophes don’t determine their own outcome. Like, we don’t know whether a calamity is going to produce fascism and autocracy or some kind of better order. And it’s the ideas and social movements that calamities find that direct history into the paths that it takes.” (John, 91:47)

Final Thoughts

This episode underscores the Supreme Court’s increasing willingness to reshape constitutional law to serve culture war aims—often short-circuiting procedural safeguards and deference to democracy. Yet it ends on notes of hope: remembering historical examples of coalition-building, practical radicalism, and the power of resilient community activism—even, or especially, in dark times.

Quick Reference: Timestamps for Key Segments

• Letitia James Indictment & Immunity: 04:06–10:55
• Conversion Therapy Case Discussion: 10:55–29:43
• Mail-in Ballot Standing Case: 32:03–36:24
• Other Supreme Court Cases Recapped: 37:43–44:44
• Military Deployments & ICE Abuses: 45:42–61:54
• John Fabian Witt Interview: 77:34–102:14
• Hosts’ Recommendations & Closing: 102:42–110:01

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