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- [00:00]
Kate Shaw
Join Vanguard for a moment of meditation. Take a deep breath. Picture yourself reaching your financial goals. Feel that freedom. Visit vanguard.com investinginyou to learn more. All investing is subject to risk.
- [00:16]
Harry Littman
This episode is brought to you by Lifelock. It's Cybersecurity awareness month and LifeLock has tips to protect your identity. Use strong passwords, set up Multi Factor Authentication, report phishing and update the software on your devices. And for comprehensive identity protection, let Lifelock alert you to suspicious uses of your personal information. Lifelock also fixes identity theft, guaranteed or your money back. Stay smart, safe and protected with a 30 day free trial at lifelock.com podcast. Terms apply welcome to Talking Feds One on One deep dive discussions with national figures about the most fascinating and consequential issues defining our culture and shaping our lives. I'm your host Harry Littman. It's the first week in October, but the crisp fall feel of a new Supreme Court term is less pronounced than in past years because the Court was so active over the summer, most notably delivering a series of victories to the administration on its shadow docket without full briefing or oral argument. Or, I really should say, the Court's conservative super majority because the six conservative justices, for the most part, joined together in the endorsement of Trump's claims, at least to the extent of dissolving stays on them in the lower courts. Now we are back with a full term of argued cases, some of which will give the Court the opportunity to dramatically transform longstanding constitutional rules and with them, the daily lives of all Americans, to preview the important trends in the term ahead and in particular, analyze how they may dovetail with the authoritarian agenda of the President. We're really fortunate to be able to welcome one of the most knowledgeable and trenchant Supreme Court commentators in the country, Kate Shaw. Kate is a professor of law at the University of Pennsylvania Law School and co host of the Gold Standard Supreme Court podcast Strict Scrutiny, among other distinctions. And I just want to name two because they're Jermaine she was at the White House Counsel, which had to do with a lot of litigation with different agencies, and she clerked at the Supreme Court for Justice Stevens. Kate, thanks so much for joining Talking Feds one on one.
- [02:44]
Kate Shaw
Thanks for having me back, Harry.
- [02:46]
Harry Littman
Okay, so where to start? I think we can't just jump in with the big cases for the term, as is traditionally done, without a few words about the Court's busy summer, when the Court repeatedly sided with the administration in circumstances that, while technically are provisional and temporary, basically settled very big questions involving his assertion of outsized power and his superseding of legislative power. The progressives issued plaintiff dissents, but really couldn't combat 84% of the Trump administration's emergency motions, which are already much more plentiful than past administrations prevailed. When you were in the Obama counsel's office, it was closer to 50 50. So what's your take on the court's use of the shadow docket over the summer?
- [03:40]
Kate Shaw
Well, I'm so glad we are not just pretending this is a curtain raiser on a Supreme Court term that is like any other year. I mean, that sort of standard fare, we sort of sit down and talk about the big cases the court is going to decide and sometimes identify some major themes. But it's not as though the last term has really ended. Right. We basically, up until the eve of the new term, the court was handing victory after victory to the White House and to President Trump. And you're right, these victories have been technically temporary. So when a party prevails on the shadow docket, what the Supreme Court is doing is weighing in on what the status quo will be while litigation proceeds, maybe up to and including Supreme Court litigation, but. But allowing the administration to proceed even temporarily in some of its efforts is essentially the whole ball game. So if you let the president dissolve the Department of Education temporarily, that's letting the president dissolve the Department of Education or fire officials, or refuse to spend appropriated billions of dollars. And so, you know, I think you're right to highlight everything that's happened on the shadow docket over the summer. And also I think we should note that we can talk about a couple of the cases that the court has already agreed or, you know, already actually heard arguments in. But there's going to be more activity on the shadow docket over the course of the next year as well, in parallel with the merits docket. And in some ways, what is most important right now is what is happening on the shadow docket.
- [05:01]
Harry Littman
Yeah, it's a great point. I think there are four or so out there and I'll just add a couple points. That's true. So totally true. Would you say both because of the different timeline of legal cases with events in the real world. So by, you know, in 18 months, were things to be reversed? What? Department of Education?
- [05:18]
Kate Shaw
Exactly.
- [05:19]
Harry Littman
Right. But then, but also the court habitually opines, in order to grant its temporary stay or remove stays, that one party or another is likely to prevail on the merits. So they would also have to totally shift gears and, you know, put it in reverse going 50 miles an hour or whatever, and it's just not too likely. All right, so much more to say about that. But I, and this for listeners too, I want to really make fairly quick work of the traditional preview of the term because there's some big ass questions I really want to get to. So let's talk about the docket. You know, my poor listeners have been hearing for months about Humphrey's executor and the like. But you know, the fate of independent agencies. A, is it preordained? Is, is Humphrey's executor dead? And B, what are they doing? And is there any principled rationale to the one exception that seems to remain, namely the Fed?
- [06:20]
Kate Shaw
So what are they doing? Yes, I think they are, you know, on the way to dispatch poor Humphrey's executor and to formally overrule it, which they have come close to doing but have not technically done. And so I think they'll do that in the case actually involving the same agency as Humphrey's executor. That's the Slaughter case involving the Federal Trade Commission. But your question is. So you know, the court so far has granted the President the temporary power to fire every head of an independent agency that he has, you know, sought.
- [06:46]
Harry Littman
To without a cause, just willing. Nilla.
- [06:48]
Kate Shaw
Yeah. Just because he wants someone else in that position. And so remember, these are Laura Loomer does or, or right. Some, some part of the Trump coalition does, but we're talking about the National Labor Relations Board, the Consumer Product Safety Commission, the Equal Employment Opportunity Commission. So I just want to underscore these cases are about presidential power, but they're also about, in your intro, I think alluded to this, issues that really do touch basically all of us. Right. The safety of the products that the cribs we put our children in. That's the Consumer Product Safety Commission. It is by design a bipartisan expert body. Trump says, no, I want to be able to install my people at the head of that agency. And so far the court seems to be poised to completely grant him the unfettered authority to do that. That's true about the National Labor Relations Board, which, you know, both protects unionization but also protects workers more broadly, not just union activities. And the list is very long. Okay, so those are most of the agencies, but of right. That the big question is, is the court going to carve out an exception for the Fed and is there a defensible argument that the Fed can be carved out from the rest of these independent agencies? So the Fed is in Some ways very similar to all these agencies that for over a hundred years Congress has created with a degree of independence from the President, because the idea is there are certain kinds of government functions that we want discharged by, you know, independent bipartisan experts who have a degree of insulation from the political whims of the President. And that was a choice that Congress made beginning, you know, in the late 1880s and has made in a series of agency kind of design choices since. Okay, so then the Fed is like those other agencies in that it is a multi member body where the governors have these terms of years that don't align with a presidential term. So every President has been saddled with a, this central bank that has on it some people the President or somebody of the President's party, a predecessor President picked, and some people the President would not have personally selected. And again, that is by design. And as important as those values are with all of these other agencies that I just mentioned, it's always been of even greater importance that the Fed be genuinely independent from politics so that it can make decisions about things like interest rates, which obviously intersect closely with inflation and prices, and with an eye to the greater economic health of the nation and not with an eye to the political fortunes of the President. And that is a core value Fed independence that Presidents, whether they have liked it or not, have basically honored until this President. So this President, people will remember, made noises on the campaign trail and after assuming office about potentially firing Fed chair Jerome Powell, maybe, you know, because just he wanted to, but he also seemed to be playing with the idea that he would try to manufacture some kind of cause. Because I should say, maybe I haven't said this clearly. You, you sort of alluded to this. These are not statutes that prevent the President from firing heads of independent agencies. They just require the President to have a reason and to state the reason. You know, various versions of the statutes look different, but they're all some kind of good cause requirement. And actually the Fed statute just says for good cause. That's really all that's in the statute. So the President seemed like he was maybe trying to build a case that he could for cause fire Jerome Powell, maybe because of cost overruns and a Fed building renovation, but seems to have decided to pull back from that because it just wasn't plausible. And instead to seek to fire another Fed governor appointed by a Democratic President, Lisa Cook, on the ostensible grounds that there was fraud in a mortgage application, that the President has claimed two separate mortgage applications, claimed two separate residences as primary residences in order potentially to get favorable interest rate treatments. So can the president say or can the court say rather maybe the Fed is different because the history of the Federal Reserve bank, which traces back in the court's view to the first and second national banks, distinguishes it from other independent agencies. Or maybe the court could potentially, you know, say the Fed actually can't be distinguished from other independent agencies and the President, either for cause or even without cause, can summarily remove people from the Fed. So I think there's going to be my view, for what it is worth, is that that it's very hard to draw a principal distinction between the Fed and the other agencies. The court might try to manufacture one by pointing to ostensible distinctions between these agencies. But if it does that, it's really going to be doing it because it is concerned about what it would do to the US and global economy to give the President unfettered access to the, you know, appointing, filling the seats on the Fed rather than because there is a principled legal basis on which to distinguish the Fed.
- [11:37]
Harry Littman
Yeah, look, I totally agree with you. You know, they've been, they've had this project for over 10 years of trimming back agency after agency. This one only has one member, this one exercises prosecutorial power. But where they are now at these, you know, everything we learned in law school, you can rip out that chapter for your students or future students about what independent agencies. And let me take it aside on this aside. Justice Kagan, who knows administrative law better than anyone, has made this point very well in dissents. We are talking about agencies and a structure of government that is a little ungainly, you know, perhaps, but has served the country very well since the New Deal, that being all thrown out the window. And to me the Fed is there flinching, you know, it's basically like well, if he messes around with the nrb, we'll be okay. But here the world economy and the national economy would go down the drain. But you know, that's that I think shows that there doing it for unprincipled reasons anyway we will see and I think it's a genuine question whether whether they'll try to have I'm reminded when I quirked of Chief Justice Renk was saying about the Penn Railroad exempting them and so that was a really big railroad. And here they they've said likewise about the Fed. And was it Trump v. Wilcox? Oh, that's a, you know, and they gave things that describe the Fed but certainly didn't distinguish it. So anyway, we'll see.
- [13:00]
Kate Shaw
Yeah, but yeah, it was Wilcox. And just to come back to Kagan in another case, not the case involving the case involving the way the Consumer Financial Protection Bureau is funded, Justice Kagan basically made the point that you are making, and I just want to quote her. She basically said, you know, there was an argument, well, do. Do. Does everything we're saying about this other agency, the cfpb, also mean there's a problem with the Fed? This wasn't about the heads of the Fed, but the funding of the Fed and the party challenging the CFPB sort of tried to backpedal. And Kagan said, right, because the Fed is just too important or whatever. Not that there's a real difference. And I think that essentially is the question, is the Court going to say the Fed too important or whatever? And is that recognizable as legal reasoning? I would say no.
- [13:44]
Harry Littman
I would say no also. All right, one more quick, important executive power case that's coming up is his attempt to impose tariffs all over the world. Willy nilly. He says the International Emergency Economic Powers Act. Emergency. It's always an emergency. Lets him regulate importation of foreign goods to a lot of people, including courts of appeals. Sure walks like a tax, quacks like a tax. And that, you know, taxation being Congress's quintessential power, how do you think they'll approach it? Well, will they employ the major questions doctrine? How do you see this really big question that also more than the other, encompasses a big theme of Trump 2.0, namely the complete, not just arrogation of big power, but the subsuming of congressional power. How do you see this playing out?
- [14:42]
Kate Shaw
Yeah, so, right. So the statute that you just mentioned, Harry, ipa, I'll call it for short, is a statute from the late 1970s that gives the President certain authorities when the President declares an emergency. So there is a deep question, which is whether that statutory authority even gives the President the power to impose tariffs at all. Because tariffs, tariffs are, you know, do obviously function like taxes. Taxation is a power that belongs to Congress and not to the President. And also this is a textualist court, at least on its own telling. And there is no explicit authorization to impose tariffs in ipa. There are other statutes in which Congress has delegated to the President the power to fix tariffs. Lots of them, actually. Once upon a time, there was a lot of argument about whether those violated something called the non delegation doctrine. Um, but the court had basically decided that so long as Congress gave the President guidance about how to decide what these tariffs should be, it was okay. For Congress to sort of share some of that authority with the President. This statute doesn't say tariffs. So there is an argument that the Federal Circuit actually didn't even reach that the President has no authority to impose tariffs at all under the statute. The, the, the question on which the Federal Circuit ruled against the President was essentially whether these asserted emergencies satisfy the statutory standard. And all the President has really point in his court filings, which are distinct from his public, you know, telling about these tariffs is essentially this finding that there are these trade imbalances between the US and lots of trading partners and that those imbalances.
- [16:13]
Harry Littman
Emergency, right.
- [16:14]
Kate Shaw
Constitute an emergency and that courts don't really have the power to probe that determination by the President. And that is a theme that I think, you know, goes far beyond this tariffs case. Right. When the President says emergency and makes some very, you know, thin. Offer some very thin explanation or justification for the finding, he doesn't just say the word emergency. He a little bit tries to explain or support it. But these are very, very thin, maybe frequently pretextual justifications.
- [16:45]
Harry Littman
Maybe especially in the words of our untethered to the facts, you might even say, right, correct. This to me is the biggest hovering question out there. Will they greenlight some kind of emergency proclamation even though the courts know he's lying to, not to put too fine a point on it, on the notion of deference. That's why I was buoyed by immigrants opinion in Portland, saying, yeah, I got to give deference. That's not the same as rolling over. Let's move quickly at least just a few minutes on some of the hot button social issues. The court has three LGBTQ cases, including two on transgender athletes, which the NCAA reports. There are 10 in the whole NCAA. But it's taken on this outside symbolic importance. I wanted to ask you about the one big case that's been heard so far, the child's case, which, which they took up. And you have a religious therapist who wants to be able to counsel people with gender dysphoria to stay with their biological identity. In large part, she, you know, it's part of the record because of sort of religious reasons. And Colorado has determined that trying to do this by any means is really injurious to health causes in the short term before puberty ends, you know, can, if you do that, can cause depression, suicides and the like. So they see it as like just regulation of medicine. Same as you would tell doctors, you can't prescribe late trill. You can't do, you know, wacky kinds of things. And I just want to add quickly that last year, as you know, in the Scarmetti case, the court get green lighted the way for Tennessee to, to actually foreclose certain kinds of treatments. That was on the conservative side. So I don't know if you listen to the argument, but just in general, I wanted to ask you about Childs and anything you want to sort of amplify with respect to the other, you know, both the, the other LGBTQ + cases and the sort of religious freedom hot button cases that may be coming down the pike.
- [18:59]
Kate Shaw
There's lots to say. I'll try to be brief. Yes, I mean, I did listen to the argument Yesterday in Childs vs Elzar and you're right to connect it to Scrametti, the case out of Tennessee. Right. So last term the court deferred to the state of Tennessee and its legislature when they decided to ban certain kinds of medical care that the state decided was inconsistent with the sex of the child. So gender affirming care for children can constitutionally be banned in the state of Tennessee. So you have the court there basically saying you decide. But of course, along comes Colorado that has made a very different decision and has said, we are going to ban a certain kind of care, but we're going to ban it in an effort to protect. Right. Both trans, but also gay and LGBTQ individuals, not just children, but adults. Because there is tons of evidence and really I think a pretty strong scientific consensus that this kind of therapy is actually very damaging for recipients of that therapy.
- [19:53]
Harry Littman
So every medical. It was strange that there was a dispute about this at court. It should have been worked out, Barrett in particular. But every major medical organization just says, you know, these are terrible outcomes and.
- [20:05]
Kate Shaw
Right. And we do ban certain kinds of interventions that are dangerous and destructive to patients.
- [20:11]
Harry Littman
Whatever.
- [20:12]
Kate Shaw
Yeah. And yet, despite the fact that on their face, you would think these come down the same way. If this is a court that's going to defer to legislatures when they make decisions, it did not seem, coming out of the oral argument, as though the court is going to apply that sort of principle. Now there we should say these were different, different constitutional challenges. It was an equal protection challenge in the Tennessee case. This is a First Amendment challenge. Right. This therapist and her legal team say that it is a First Amendment violation for the state essentially to prohibit her from providing a certain kind of talk therapy as the decision, as the argument kept describing it. But you're right, I think, Harry, that this is, it's a First Amendment speech claim, not a First Amendment religion claim, but it's a speech claim with a heavy religion overlay, which was exactly the same presentation as the 303 creative case from a couple of terms ago, where the court sided with the speech claim of a would be wedding website designer who said she didn't want to design websites for same sex couples because it would be compelling her speech. But the reason she didn't want to provide what, you know, she said was this kind of speech was sort of a religiously grounded objection to same sex marriage. And there, despite lots of standing questions about whether she should have been in front of the court at all, she won. And this another case out of the same state and a very similar theory and the same legal team representing the therapist, I think is very likely to come down the same way. And honest, I was kind of hearing certain strains in the oral argument that made me think there's a chance this isn't Even just a 6, 3 win, but a bigger win in which, at least in concurrences, it's possible that one or more of the Democratic appointees goes along on the basis that this is viewpoint discrimination. And in the same way, you would not want a state in the age when, you know, the DSM said that being gay was itself, you know, a mental illness.
- [21:56]
Harry Littman
Yeah.
- [21:57]
Kate Shaw
You wouldn't want a state to be able to prohibit therapists from saying to, you know, a gay patient, no, you're fine, you're wonderful the way you are, because, but, you know, allow them to try to counsel people out of being gay. That somehow that logic means here that anything, any kind of intervention, even if supported by scientific consensus, is viewpoint discrimination. It has to get a very skeptical look and likely be struck down. So that, I think, unfortunately, is where this case is likely going.
- [22:22]
Harry Littman
I mean, Kagan presented again Kagan almost as a syllogism, you know, what seemed, what seemed an argument for viewpoint discrimination, especially because the court has more or less said it's a little room, but that, you know, speech by providers is, is the state gets no less protection under the First Amendment. But I agree with you, it's a whole different episode. Maybe we'll have it one day or part of one about the strategic calls of the three. Like, you know, a few terms ago, Kagan went along with a, an establishment clause case on this grandfathering rationale that I think was her way of, of cabining damage, et cetera. So. But anyway, that's a whole different point.
- [23:06]
Kate Shaw
Yeah. And she's done it a few times.
- [23:07]
Harry Littman
And yeah, I think she's a strategic operator.
- [23:11]
Kate Shaw
Absolutely. Talking feds is supported by the Brennan center for Justice. In this new political era, the Brennan center will do what they do best, defend the Constitution and the rule of law. They're prepared to fight against presidential overreach and will continue advocating for reforms to resist weaponized government, stop billionaires from corrupting our elections and ensure every eligible American has the freedom to vote. Stay informed by visiting Brennan Center.org look.
- [23:39]
Harry Littman
There'S so much more in this term, plus things to come there. You know, copyright, environment, Second Amendment cases. But I really, really, really want to take advantage of the opportunity to speak with you to ask some broader points. Let me start here. It's maybe the $64,000 question, but you know, at the very beginning of the of Trump 2.0 and the alien Enemies act, it seemed like the court was going to push back on a certain notion of judicial independence and not let him have his way. Since then there has been this really concatenation as you spelled out of time after time permitting, Trump outsize assertions of executive power. Now we, I think you and I, but many people that we respect really see in this trend a kind of existential challenge like is this going to lead to the end of the American experiment? I'm not asking you to psychoanalyze the six, but you have to imagine that they would not share that goal even if they are bullish as can be on executive power in general. So how do you sort of read them? Do you think it's mainly strategic? Don't want to, you know, confront the president and lose? Do you think they don't think the stakes are the same as we tend to think they are. What is it?
- [25:04]
Kate Shaw
Yeah, it's such a hard question and I think the answer might be a little bit different depending on who in the six justice super majority you're talking about. You know, I think that so the sort of pivots on some of these are, you know, Roberts and Barrett. I think that the other four, not for identical reasons, but just for the sake of efficiency, we'll sort of group them together. I certainly don't think they think they are co signing the end of American constitutional democracy or you know, authoring it. But I do think they have a vision of constitutional democracy that can coexist with an executive who possesses nearly unchecked power. And I think they're just fundamentally wrong if they think that is consistent with constitutional design, constitutional history. And I mean I, I, I, I don't have a way to explain how they have come to convince themselves of this. But I think that the only way to really understand it is that they somehow have that the other threats that, you know, so maybe an unchecked executive is a threat of a certain sort, but that that pales in comparison to other kinds of threats that, you know, lower courts issuing decisions constraining president presidential power can constitute a larger threat. Again, I don't quite see how that squares, but I think that's a possibility. So I think to my mind, the harder question is Roberts and Barrett, who, if they choose to join with the three Democratic appointees, could literally save American democracy, I think, in my view and yours. And yet they have so far not stepped up to the task of acting as a bulwark against this president who seems.
- [26:29]
Harry Littman
Well, Barrett blithely says, oh, the Constitution is well and good. Thank you, Justice Barrett.
- [26:33]
Kate Shaw
It's been hard, however, that. Yeah. On the book tour and. Yeah. And also that I don't know what a constitutional crisis would look like, she said. And I just want her to look around. And so that, I think, is one possible answer, that she's just seeing the world through different filters and different kind of info ecosystems, kind of silos than we are. And so things look much better. But if you see the things happening on the ground in cities like Portland and Chicago, even if your perspective on who's at fault is different, I don't see how you can fail to see that something incredibly significant and deeply disturbing is happening. So I think with Roberts and Barrett, there's a couple of possibilities. One is they are trying to hold their fire for the big one. And I don't know what they think that is or why they think they will be heated if they try to check him then. But I think that they may think that that is the play. They may think that all this is overstated and that we have sort of cycles of presidential power expansion and contraction and that things moved too far in the direction of contraction. Although I think they thought that Biden was too powerful. So I'm not quite sure how they square that, but that somehow this is a healthy corrective and that somehow the lower core piece of it is, I think, what I find the most, most difficult to get my head around because the sort of, you know, honor among thieves among federal judges has long been powerful enough that you just would always think the Supreme Court would, at least out of institutional loyalty, get the backs of lower court judges who are doing their level best, to quote Roberts in a different context, to get it right under very difficult circumstances. And yet Again and again, you see the Supreme Court throwing them under the bus. And I think it's incredibly disheartening for them, understanding, understandably.
- [28:11]
Harry Littman
Oh, my gosh. Yeah. I just want to add a couple little things. First, a war story of sorts. I was actually at the department when Roberts was the Deputy Solicitor General. And, you know, I don't have a rich record here, but I think, you know, my general objection to the Supreme Court, at least I tell myself it's not conservative versus liberal. It's how they are up. They have a certain camp and an allegiance to a kind of set of beliefs that grew up in the 80s. But anyway, I am here to report that at least at the. That point, Roberts was all in on the, you know, executive power and growth of it, et cetera. And that has, you know, informed me since is any case safe. Obergefell, New York Times versus Sullivan. Griswold, Mapp versus Ohio. You hear a lot of talk these days about how the true intellectual leader of the court. I think there's reasons to doubt this, but nevertheless is Justice Thomas. And he has certainly laid out, has Justice Thomas a total wrecking ball of an agenda for court precedents for dating over 100 years. With that the case, do you have any sense about whether he is the now current intellectual leader, but also whether that means he's called, you know, he's called for reconsideration of New York Times versus Sullivan. Obergefell seems to fall under the rationale of Rose overruling, but we'll see whether they would cabin that off, same as they would the Fed. Griswold, too, and then incorporation. He's spoken to. What's your thought? I'm not asking you to predict. I'm asking you to opine about what might be off the table with these six.
- [30:00]
Kate Shaw
Well, I think you're right to identify all those as in some degree of danger. I think it's right that Thomas has been critical, critical of all of them. And Thomas is contemptuous of stare decisis. He's contemptuous of precedent with which he disagrees. And just the hubris in that, the sort of way he did an interview with Jen Mascot last week in which he talked about stare decisis and just says basically we don't have to abide by precedent if it's really stupid and it's just.
- [30:23]
Harry Littman
And the Constitution. Yeah.
- [30:25]
Kate Shaw
And. Or if it gets. Yeah, if it gets the Constitution wrong enough. Right. That's all we have allegiance to. And. And he's got a pretty idiosyncratic view of the Constitution, but it is one with, you know, in growing support. So of I mean, I think Sullivan is very vulnerable. I think the court has, you know, thankfully passed on some opportunities to take up a case that actually squarely presents the question of the future of New York Times versus Sullivan, the case that, you know, provides relatively broad First Amendment protections to good faith mistakes by members of the media and others in criticizing or reporting on public figures. And, and I think that it's been in the crosshairs for quite some time. I think Griswold is vulnerable, honestly. I actually think that at the end of the day, I don't see them actually taking the final step to overrule Obergefell, largely because of the kind of, you know, pragmatic fed reasons that we were just talking about. It would be wildly it's not polite. It would. Right. And that's again, that's if they're not doing what is recognizably legal reasoning, it becomes less and less clear what the point of the Supreme Court is if it's not doing anything different from the officials we elect to channel popular will. But I think that's more and more how they look. And I think that neither you nor I have gotten to that position cavalierly, but the evidence is mounting. So but I will say that I don't think they would overrule Obergefell, which hopefully is comforting to people, but I certainly don't think that it would have zero votes and I think it could have as many as four. But I think at the end of the day I think it probably wouldn't have five. But I am not 100% certain of that.
- [31:55]
Harry Littman
Kate Shaw, so great to be with you. I hope we can talk more as this certain to be blockbuster one way or another term unfolds. Appreciate your time. Good luck as always with the great Strict Scrutiny podcast and hope to see you soon.
- [32:09]
Kate Shaw
Thanks Harry. Always good to talk to you.
- [32:13]
Harry Littman
Thank you for tuning in to One on One, a weekly conversation series from Talking Feds. If you like what you've heard, please tell a friend to subscribe to us on Apple Podcasts or wherever they get their podcasts. And please take us moment to rate and review the show. You can also subscribe to us on YouTube where we are posting full episodes and daily updates on top legal stories. Check us out on substack harrylitman.substack.com where we're posting two or three bulletins a week breaking down the various threats to constitutional norms and the rule of law and talking Fezes Join forces with the Contrarian I'm a founding contributor to this new media venture, committed to reviving the diversity of opinion that feels increasingly rare in today's news landscape, where legacy media seems to be tacking toward Trump for business reasons rather than editorial ones. Rest assured, we're still the same scrappy independent podcast you've come to know and trust just now linked up with an ambitious and vital project designed for this pivotal moment in our nation's legal and political discourse. Find out more@contrarian.substack.com thanks for tuning in. And don't worry, as long as you need answers, the Feds Will keep Talking Talking Feds is produced by Luke Cregan and Katie Upshaw, associate producer Becca Haveian sound Engineering by Matt McCarthy, Cardle Rosie, Don Griffin, David Lieberman, Hansa Mahadranathan, Emma Maynard and Hallie Necker are our contributing writers. Production assistance by Akshaj Turbailu and Sebastian Navarro. Our music, as ever, is by the amazing Philip Glass. Talking Feds is a production of Deledo llc. I'm Harry Littman. Talk to you a lot later.