Leave Trans Kids Alone You Absolute Freaks (with Chase Strangio)

Speaker 1 There are millions of podcasts out there, and you've chosen this one. Whether you're a regular or just here on a whim, it's what you have chosen to listen to.

Speaker 5 With Yoto, your kids can have the same choice.

Speaker 6 Yoto is a screen-free, ad-free audio player. With hundreds of Yoto cards, there are stories, music, and podcasts like this one, but for kids.

Speaker 8 Just slot a card into the player and let the adventure begin.

Speaker 10 Check out YotoPlay.com.

Speaker 10 Mr. Chief Justice, may it please the court.

Speaker 11 It's an old joke, but when an arguing man argues against two beautiful ladies like this, they're going to have the last word.

Speaker 12 She spoke not elegantly, but with unmistakable clarity.

Speaker 11 She said,

Speaker 12 I ask no favor for my sex.

Speaker 12 All I ask of our brethren is that they take their feet off our necks.

Speaker 13 Hello, and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We're your hosts.
I'm Melissa Murray.

Speaker 15 I'm Kate Shaw.

Speaker 14 And I'm Leah Littman. We have a big episode in store for you today.
We are going to recap the U.S. Supreme Court argument in the huge case on gender-affirming care.

Speaker 14 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.

Speaker 15 But first, the challenge to bans on gender-affirming care.

Speaker 15 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 U.S.

Speaker 15 Supreme Court, and previous strict scrutiny guest, guest, the one, the only Chase Strangio. Welcome back to the show, Chase.

Speaker 16 Thank you, guys. I've been very excited to come back on the show and talk to you

Speaker 16 and hear your take on our argument.

Speaker 14 I promise I have better questions than Sam Alito.

Speaker 14 Set the bar low and see if we can exceed it. We are in hell, as Melissa always says.

Speaker 14 So...

Speaker 15 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.

Speaker 15 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.

Speaker 15 Chase, do you want to first lay the groundwork by telling us about SB1, what it is, and what it does?

Speaker 16 Yeah, for sure.

Speaker 16 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 were provided by doctors.

Speaker 16 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.

Speaker 16 We went from two states that had previously banned this care in Alabama in 22, Arkansas in 21, and then 2023 was the explosion.

Speaker 16 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.

Speaker 16 You would go in, and leadership was like, Well, sorry, there's nothing you can do here. We are passing these bills.
These are our number one priorities. And so I testified against SB1 in Tennessee.

Speaker 16 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.

Speaker 16 So bill comes in, it moves very swiftly through the legislature. Thankfully that provision comes out, but in March, the governor signs the bill after it passes.

Speaker 16 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.

Speaker 16 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.

Speaker 16 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

Speaker 16 that's the lead up to the litigation that would become United States v. Scrimetty at the U.S.
Supreme Court.

Speaker 13 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.

Speaker 13 What was animating the interest in passing these bans at that moment? And why were they doing this? And was health the ostensible reason, or was there some other political rationale?

Speaker 16 I mean, I certainly think there was a political

Speaker 16 rationale, but I think health was the reason that they were claiming.

Speaker 16 And this is at the time when you, I think, sort of there's things happening globally, and then there's obviously things happening domestically. And domestically,

Speaker 16 it's after Dobbs.

Speaker 16 It's the next legislative session, and these are interconnected issues. These are emboldened legislatures after Dobbs comes down.

Speaker 16 And so you come into 2023 with this sort of mandate about what is is bodily autonomy? We can just, you know, run wild on people's rights.

Speaker 16 And so that's sort of one thing that's happening, obviously, in the U.S. And then the escalation of anti-trans rhetoric is also happening.

Speaker 16 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.

Speaker 16 And then that is all coalescing in 2023. And the GOP supermajority legislatures across the country are,

Speaker 16 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.

Speaker 16 And here they're saying, but not these parents.

Speaker 15 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.

Speaker 15 One, the connection between these bans on trans health care and abortion, right?

Speaker 15 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.

Speaker 15 So even if Dobbs says nothing on its face about enabling legislatures to pass bans like this, it inaugurates a constitutional culture shift that leads directly to all these moves that you were describing.

Speaker 15 I think that's really important context. And then the global context is really important too.

Speaker 15 So, things like the Don't Say Gay bill in Florida, right, which is not about trans health care per se, but it's obviously animated by the same spark, is modeled on a very similar law in Hungary.

Speaker 15 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.

Speaker 15 There's a convergence that this is very much a part of.

Speaker 16 Absolutely.

Speaker 15 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.

Speaker 15 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.

Speaker 15 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.

Speaker 15 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.

Speaker 15 And at issue here, right, when laws discriminate against certain groups or draw certain kinds of lines, then judicial review is more searching.

Speaker 15 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.

Speaker 15 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?

Speaker 16 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.

Speaker 16 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. And

Speaker 13 stop with the textualism.

Speaker 13 It doesn't work here. Okay.
This is the Constitution we're talking about. Stop it.

Speaker 14 Stop trying to make textualism happen.

Speaker 13 It's not happening.

Speaker 14 It's in this world. Textualism is for suckers.

Speaker 16 I mean,

Speaker 16 I've been learning this the hard way because we thought that inconsistent with sex actually was a sex classification.

Speaker 16 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.

Speaker 16 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.

Speaker 16 So we think filing this lawsuit, you know, it's a pretty straightforward claim, an equal protection sex discrimination claim.

Speaker 16 And the other reason why that's true is because this is an anti-classification court that doesn't ask.

Speaker 13 Not for this, Chase.

Speaker 13 It's like the parental rights.

Speaker 16 It's not actually, we know, but the idea was that

Speaker 16 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.

Speaker 16 How could you ever know what's benign or invidious, as this court has told us time and time again?

Speaker 16 So, the question is, and all we were really asking the court to do is reverse the Sixth Circuit, which had held this is not a sex classification, this is just a medical purpose classification, an age classification, which is frankly the dumbest argument that was ever presented.

Speaker 14 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.

Speaker 14 And it's like, you do realize why not both. And also, like, imagine a law that required minor students to attend segregated schools.

Speaker 14 Like, we wouldn't be saying that's an age classification, not a race classification.

Speaker 13 The part that Leah's 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.

Speaker 16 And the Supreme Court's, one of their first heightened scrutiny cases cases is about a sex classification for

Speaker 14 18 to 21 year olds.

Speaker 16 So it's, and everyone understands that that was an age and a sex classification, heightened scrutiny still applied. And so the Sixth Circuit says, no, no, no, rational basis, nothing to see here.

Speaker 16 Constitution is neutral. Go forth.
Ban everyone's health care.

Speaker 16 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.

Speaker 16 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 at argument.

Speaker 16 Their argument would be the same. This is a sex neutral line that just gets rational basis review.

Speaker 16 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.

Speaker 16 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.

Speaker 16 Vacate that judgment, remand for the lower courts to apply the right standard in the first instance.

Speaker 14 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.

Speaker 14 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.

Speaker 14 So basically, the idea is anytime a law explicitly takes account of race or sex, then it triggers heightened scrutiny.

Speaker 14 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?

Speaker 14 Like all over the place.

Speaker 14 And, you know, who understood that? I wanted to play this clip from Justice Kagan, right, who kind of went over the various ways this law is, as she said, imbued with sex.

Speaker 17 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 one's own sex or another sex.

Speaker 17 The whole thing 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

Speaker 17 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.

Speaker 13 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.

Speaker 13 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.

Speaker 13 And again, friend of the pod, Justice Samuel Alito, really seemed to want to characterize the challenger's argument here as based entirely on Bostock versus Clayton County, which, of course, is the 2020 case that interpreted Title VII's prohibition on discrimination based on sex to prohibit discrimination on the basis of both sex and gender identity.

Speaker 13 And we wanted to give you a little flavor of where his head was at, because it was somewhere else.

Speaker 14 Here we go.

Speaker 18 Your primary argument in

Speaker 18 your oral presentation this morning is based on Bostock-like reasoning. Is that not correct?

Speaker 20 I think that's incorrect. Our primary argument is that this statute on its face says you can't have medications inconsistent with sex.

Speaker 20 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.

Speaker 20 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.

Speaker 18 Well, you have a Bostock-like argument, and you say that

Speaker 18 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.

Speaker 18 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?

Speaker 18 Bostock involved the interpretation of particular language in a particular statute. And this is not a question of statutory interpretation.

Speaker 18 It's a question of the application of the Equal Protection Clause of the 14th Amendment.

Speaker 14 All right.

Speaker 13 Chase, there was so much shadow boxing with Bostock, even though that is a statutory case, a completely different case.

Speaker 13 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.

Speaker 13 But everyone seemed to be shadow boxing 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.

Speaker 13 Gorsuch, who wrote the six to three 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.
Has the cat got his tongue?

Speaker 13 What's going on here?

Speaker 16 This was really the surprise of the argument. You know,

Speaker 13 he was silent. I was definitely surprised that he had nothing else.

Speaker 16 I think the one thing coming out of the argument that really shocked everyone was Justice Gorsuch's silence.

Speaker 16 Because this was not an accidental silence, especially, I mean, Justice Gorsuch is an active questioner, and he obviously has feelings about this. We know he does.
Big feelings.

Speaker 16 Big feelings, thoughts. Some, you know, men don't have feelings.

Speaker 14 They have ideas. Ideas.

Speaker 14 That is a good clarification.

Speaker 16 So it will help us understand the framework that we're dealing with here with the law. So it started to get weirder and weirder as it went on.

Speaker 16 So it's one thing in the Solicitor General's time up, and then in the Seriatum, still nothing, then still nothing. So

Speaker 16 by the time I got up there, it was clear that this was a choice.

Speaker 16 Either he had laryngitis, as Chris Geidner said to me, or you know, he decided he was just going to wait and see how this played out.

Speaker 16 Obviously, I have no idea what was going on, what Justice Gorsuch thinks,

Speaker 16 but that was the biggest surprise of the argument, I think.

Speaker 14 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.

Speaker 14 But Kate and Melissa, do you think it was difficult for Neil Gorsuch to sit through several hours and not hear the sound of his own voice?

Speaker 15 Devastatingly difficult.

Speaker 14 Right, exactly. That had to be like the hardest few hours of his life.

Speaker 15 He deserves an award for it, actually.

Speaker 14 Great job, Neil. We know you can do hard things.

Speaker 1 There are millions of podcasts out there, and you've chosen this one. Whether you're a regular or just here on a whim, it's what you have chosen to listen to.

Speaker 5 With Yoto, your kids can have the same choice.

Speaker 6 Yoto is a screen-free, ad-free audio player. With hundreds of Yoto cards, there are stories, music, and podcasts like this one, but for kids.

Speaker 8 Just slot a card into the player and let the adventure begin.

Speaker 10 Check out Yotoplay.com.

Speaker 23 Just in thousands of winter arrivals at your Nordstrom rack store.

Speaker 22 Save up the 70% on coats, slippers, and cashmere from Kate Spade, New York, Vince, Ugg, Levi's, and more.

Speaker 14 Check out these boots. They've got the best gifts.

Speaker 25 My holiday shopping hack, join the Nordy Club.

Speaker 22 Get an extra 5% off every rack purchase with your Nordstrom credit card plus buy it online and pick it up in store the same day for free big gifts big perks that's why you rack

Speaker 14 so in the decision below the sixth circuit decision that the supreme court is reviewing the sixth 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.

Speaker 14 Now, there are different ways that the Supreme Court might say this law is or isn't subject to heightened review.

Speaker 14 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.

Speaker 14 So I guess, could you run through, Chase, what some of those different possibilities are and why they might potentially matter?

Speaker 16 Yeah, and so and just to clarify, we had the argument that it was a sex-based classification, then we also had the additional argument that the law classified based on transgender status, which in and of itself would warrant heightened scrutiny.

Speaker 16 They should consider it a quasi-suspect classification in its own right.

Speaker 16 So that was sort of, 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.

Speaker 16 So that's sort of one additional point here.

Speaker 16 And then, you know, there are lots of different ways that that they could say that rational basis applies and they have sort of escalating levels of concerningness.

Speaker 16 You know, 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 in a, I would say, doctrinally incoherent way, just say it's rational basis, nothing to see here, it's age and medical purpose.

Speaker 16 The problem with that is that

Speaker 16 it does actually classify based on sex. And I think everyone knows that.

Speaker 16 And so what's a little bit scary about what they could do is they could exempt medicine more broadly from heightened scrutiny when you know medical regulations classify based on sex.

Speaker 16 And that's sort of in the backdrop here because what kept coming up is, and this is where

Speaker 16 the argument was going at different times, is, isn't this just about real differences between males and females?

Speaker 16 How could we apply heightened scrutiny to laws that classify based on real differences as will often be true in medicine?

Speaker 16 This is very concerning because the entire purpose of heightened scrutiny and why it was developed is because

Speaker 16 every distinction based on sex for hundreds of years was justified based on biology.

Speaker 16 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.

Speaker 14 Aaron Ross Powell, well, and also imagine this in a post-Dobbs landscape, right?

Speaker 14 It's already scary enough, right, that the court allowed states to restrict a form of health care that is primarily used by women.

Speaker 14 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?

Speaker 14 That would be really terrifying.

Speaker 14 Yeah.

Speaker 16 And also, it's like, and then, like, why that police power? You could see a different one.

Speaker 16 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.

Speaker 16 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.

Speaker 16 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 is to say Alito says, you know, he re-invigorates Godaldig, which had been basically gone for 50 years and says that

Speaker 14 story decisis is for suckers unless it's an opinion taking away people's rights.

Speaker 14 That is very important.

Speaker 16 Yes.

Speaker 13 Sticking it to women specifically.

Speaker 13 Two questions, Chase, and they're sort of not necessarily in the same vein, although they are in the same vein of like possible arguments that could have been made.

Speaker 13 We haven't talked about why

Speaker 13 you think the court didn't take up the parental rights argument that was argued below. So I want to sort of bracket that.

Speaker 13 And then, secondarily, you just brought up the fact that you also briefed this question about considering transgender status as a suspect or a quasi-suspect classification entitled in its own right to intermediate review.

Speaker 13 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.

Speaker 13 And it usually turns on political powerlessness, a history of de jure discrimination, and immutability.

Speaker 13 And she really hammered on whether or not you could identify instances of what she called de jure segregation or discrimination against transgendered individuals.

Speaker 13 And what did you make of that argument?

Speaker 13 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.

Speaker 14 Read a fucking book, Amy. Like, you say you're an originalist and a historian, right? Like, look at some history.
Sorry. Originalism requires reading.
It's the first step.

Speaker 16 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

Speaker 16 version of this bill in 2021. And I'm always like, we're debating the history of discrimination prong of this.

Speaker 16 It's like so baffling to me. And the political powerlessness.
I mean,

Speaker 13 is it baffling?

Speaker 13 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.

Speaker 13 And you're showing them, like you talked about the bans in the military, you talked about cross-dressing bans. And she's like, no, no, no.
Show me a water fountain.

Speaker 16 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 invidious.

Speaker 16 So I think that

Speaker 16 you're right that it's not surprising.

Speaker 16 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 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.

Speaker 16 And it's like, I can't believe someone wrote that sentence because

Speaker 16 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.

Speaker 16 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?

Speaker 14 Melissa, I honest to goodness thought when you were saying they're paradigmatic quasi or suspect classification, I thought you were going to say, well, it's going to be white conservative religious men.

Speaker 13 That's the new 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.

Speaker 13 There's a new oppressed minority in town.

Speaker 15 Definitely not trans kids.

Speaker 16 No, no, who wield extraordinary political power, as we are witnessing every day. I I mean, if the election told us anything, it's that trans people are politically powerful.

Speaker 13 You're definitely going to have a voter referendum in Tennessee after this.

Speaker 14 I guarantee you.

Speaker 16 Yeah, I think so. I think we're winning.
I think we're winning.

Speaker 16 And then on the parental rights piece of it, so in addition to this equal protection claim, we represented 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.

Speaker 16 And the court did not take up that question, which, you know, in a curious turn of evidence only granted the United States' petition,

Speaker 16 which also nobody knows why. I guess we may find out after January 20th.

Speaker 16 But why didn't they take it?

Speaker 16 I think, one, there wasn't a clear circuit split. It could be just as simple as that.
Or

Speaker 16 they

Speaker 16 didn't want to have to say something limiting about parental rights since they generally love them, just not for these parents.

Speaker 16 And so I think that there would have been some tension there if they had to.

Speaker 13 Imagine being forced to be consistent in your principles. Imagine.
What would that look like?

Speaker 15 There also was Barrett, who 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.

Speaker 15 We do not foreclose those, sort of try to blunt the public reaction to the ruling by purporting to leave open this other avenue.

Speaker 15 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.

Speaker 13 That's totally what she's doing.

Speaker 16 Yeah, that was my unfortunate read of that, you know.

Speaker 16 series of questions from Justice Barrett to both sides. It's like, yes, you may think this is sad.

Speaker 16 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.

Speaker 16 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

Speaker 16 I think that that is possible. I will say just about the overall,

Speaker 16 I'm not an optimistic person in general. I think there's no real reason to be at this point.

Speaker 14 But I welcome to the club, Jay. Yes.

Speaker 16 I think that I didn't come in thinking, oh, you know,

Speaker 16 this is going to be easy.

Speaker 16 I also,

Speaker 16 I don't think we came out of the argument thinking it was

Speaker 16 any different than going in other than the confusion of the silence of Justice Gorsuch.

Speaker 16 So,

Speaker 16 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 how they think about these various questions.

Speaker 15 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.

Speaker 15 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.

Speaker 16 I will say, I came out of Bostock thinking there was a chance we would lose 9-0 because what did not happen in Bostock that did happen here is we didn't have a passionate defender of our side.

Speaker 16 There was a lot of confusion all around. You know, I think it was, I knew we weren't going to lose 9-0 in my heart.
I hoped at least.

Speaker 16 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,

Speaker 16 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.

Speaker 16 There's reasons for that that we did from Jackson, Kagan, and Sotomuir in this case.

Speaker 15 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.

Speaker 15 So one, the justices floating the possibility of regret from detransitioning

Speaker 15 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.

Speaker 15 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,

Speaker 15 you know, that Kavanaugh alluded to multiple times during the Dobbs oral argument and in his separate writing in Dobbs.

Speaker 15 Also, as we've talked about, the court invoking the idea that laws are about biological differences rather than sex classifications.

Speaker 15 So I guess, A, anything else to say about that? And then B,

Speaker 15 the CAS 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 CAS report, which as I understood wasn't in the record at all, but sort of what the CAS report had to say about any of this.

Speaker 16 Yes.

Speaker 16 So starting with the abortion connection, and Gonzales v.

Speaker 16 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, or the government is given a significant amount of latitude when there's medical or scientific uncertainty.

Speaker 16 And that language is quoted all the time in this litigation.

Speaker 16 And so I have had the good fortune of going back and reading Gonzalez regularly.

Speaker 16 And I think the other thing that the graphic ways in which Justice Kennedy describes the medical procedures also is a parallel here.

Speaker 16 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.

Speaker 16 And that is some, that is a rhetorical device that is deployed here as well.

Speaker 16 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.

Speaker 16 And that is very much present in Gonzalez.

Speaker 16 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 their regretters become the people who we the only people who we care about and that isn't to say that regret isn't itself a upsetting thing it certainly is it's just also part of life and and so to sort of say that we're gonna have all of our constitutional analysis be framed around the small number of people who regret something is one of the ways that we tried to say this law just cannot survive heightened scrutiny because any justification or any sort of explanation that the state puts forth is really true of all of medicine.

Speaker 16 Regret, we don't have

Speaker 16 randomized control trials. They really care about certain types of scientific evidence sometimes.

Speaker 16 And that

Speaker 16 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.

Speaker 16 And then the ways in which sort of biology again figures so prominently into this conversation to justify

Speaker 16 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.

Speaker 16 And then the CAS, so the CAS 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.

Speaker 16 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.

Speaker 14 Sam Alito is like, socialized health care is my passion.

Speaker 16 You know, I mean, he was reading from the cast review, which was published in April of 2024, like over a year after the record closed in this case. It's a preliminary injunction.

Speaker 16 They can go back and introduce it on at trial.

Speaker 16 And of course, the court cared not at all about the Trump-appointed judges, many, many factual findings that they, of course, ignored.

Speaker 14 So

Speaker 16 the CAS review

Speaker 16 comes out of the UK and is part of the UK shift against trans people too. It can't be sort of thought of as this neutral thing.

Speaker 16 And even the CAS 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

Speaker 16 does not recommend banning this care. 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.

Speaker 16 It is a recommendation and it is not a legislative enactment of any kind.

Speaker 16 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.

Speaker 14 You mentioned, Chase, the justices discovering their passion for foreign law.

Speaker 14 One other thing that seems to have caused the justices to turn a new leaf over is recognizing courts' limitations in accepting medical evidence.

Speaker 14 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.

Speaker 14 You know, the 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 M.

Speaker 14 Tala case, in which he literally second-guessed maternal medicine's views that abortions are medically recommended and necessary care for miscarriages.

Speaker 14 Like OBGYN say one thing, but Sam Alito isn't so sure.

Speaker 14 And then UJ's 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.

Speaker 18 I think I lost track of the discussion you were having about COVID.

Speaker 19 What was the point you were trying to make?

Speaker 18 Somebody was trying to make.

Speaker 24 Yes.

Speaker 24 I think it was me. And

Speaker 24 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.

Speaker 24 And I would point to Justice Gorsuch's statement in South Bay United Pentecostal, in which the purpose of heightened scrutiny, even when the government is grappling with experts of a medical character, 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.

Speaker 24 It is not exempt simply because it is in the context of public health or medicine.

Speaker 18 Well, I don't want to relive the COVID

Speaker 21 cases. You and me both.
Yeah.

Speaker 14 Chase, we could go on.

Speaker 14 We love having you here. We wanted to congratulate you on an absolutely terrific argument.

Speaker 14 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.

Speaker 14 We really appreciate you, you know, taking the time to talk with us about the case.

Speaker 16 Well, thank you for having me. And I just will have you know that I wore the special Title VII shirt that you guys sent me the night before the argument for good luck.

Speaker 16 So I was channeling the strict scrutiny vibes.

Speaker 16 So thank you and thank you for everything you do.

Speaker 13 I thought you were going to say you wore to Oort argument. I'm like, that is a boss bitch move right now.

Speaker 14 I was like, yes, that would have been

Speaker 13 definitely awesome. Awesome.

Speaker 16 So, I did not go that far.

Speaker 14 It wouldn't have been. I'm still glad you didn't.

Speaker 16 I still wanted to win the case.

Speaker 15 And I think we want that.

Speaker 16 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.

Speaker 15 We're so touched. Thank you so much.
Congratulations.

Speaker 1 There are millions of podcasts out there, and you've chosen this one. Whether you're a regular or just here on a whim, it's what you have chosen to listen to.

Speaker 5 With Yoto, your kids can have the same choice.

Speaker 7 Yoto is a screen-free, ad-free audio player.

Speaker 6 With hundreds of Yoto cards, there are stories, music, and podcasts like this one, but for kids.

Speaker 8 Just slot a card into the player and let the adventure begin.

Speaker 10 Check out yotoplay.com.

Speaker 16 Halloween's almost here. And with Target Circle 360, you can get everything you need delivered to your door right when you need it.
Out of their favorite candy? Ordered. Need snacks for a party?

Speaker 14 Done.

Speaker 15 Looking for a backup costume because your kid changed their mind?

Speaker 13 Handled.

Speaker 16 With Target Circle 360, Halloween fun is covered. Join now and get same-day delivery all season long.

Speaker 14 Only at Target.

Speaker 15 Membership required, subject to terms and conditions, applies to orders over $35.

Speaker 13 A few additional thoughts about the oral argument.

Speaker 13 Just generally,

Speaker 13 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 there's.

Speaker 15 No, no, Melissa with the unexpected 3-3-3.

Speaker 14 I know, I know, I know. It's a 3-3-3 court.
Wait, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, wait, wait.

Speaker 13 It's still a 6-3 court, but there's a big, there's a big six here. So there's the liberals, the three liberals.

Speaker 13 There are,

Speaker 13 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.

Speaker 13 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.

Speaker 13 And the question that they all seem to be grappling with is this sort of existential question in con law and life, I guess, but what is the court's actual institutional role?

Speaker 13 And so Thomas and Alito definitely think that the court's role is to let state legislatures do whatever they want, whenever.

Speaker 14 Red state legislatures. Red state legislatures.

Speaker 13 Correct. Correct.
But yes.

Speaker 13 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.

Speaker 13 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.

Speaker 12 When you're 1% of the population or less, very hard to see how the democratic process is going to protect you.

Speaker 13 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.

Speaker 13 Is this sex-based discrimination that triggers heightened scrutiny? So here she is.

Speaker 12 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.

Speaker 12 That it's a constitutional question that is being raised when that is happening as a threshold matter.

Speaker 12 And

Speaker 12 then you may get into

Speaker 12 why it is happening, what is the justification, and you've said here at the podium today that the different levels of scrutiny account for how

Speaker 12 strong the government's evidence has to be for doing that. And we really, the court really holds them to it in certain,

Speaker 12 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?

Speaker 12 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?

Speaker 14 And her point was: this isn't about whether trans kids can play sports or not.

Speaker 14 It's about whether the court is going to look at this law that requires differential treatment based on sex and do its job and demanding more rigorous scrutiny below.

Speaker 14 And that leaves the moderates who seem willing to abdicate any judicial role here because this is controversial and the Constitution has nothing to say about controversial subjects.

Speaker 14 And here is our favorite father of daughters articulating his new theory of judicial review, slash one he floated in his Dobbs concurrence.

Speaker 26 I mean, you've put forth forceful policy arguments to allow these medical treatments, and Justice Sotomayor's questions

Speaker 26 elaborated on that. But the 20-plus states on the other side put forth very forceful arguments against allowing these medical treatments for minors.

Speaker 26 So it seems to me that we looked at the Constitution, and the Constitution doesn't take sides on how to resolve that medical and policy debate. The Constitution's neutral on the question.

Speaker 26 At least that's one way to look at it. I want to get your reaction to that.

Speaker 26 If the Constitution doesn't take sides, if there's strong, forceful, scientific policy arguments on both sides in a situation like this,

Speaker 26 why isn't it best to leave it to the democratic process?

Speaker 13 See, this to me is the most interesting kind of, and it's not interesting because he said it.

Speaker 13 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.

Speaker 13 The court cannot get involved, which reminded me of your article with Dan Deacon, Leah, the New Major Major Questions Doctrine, where the court and advocates and regulated industries can basically gin up questions that are major just by making them controversial.

Speaker 13 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.

Speaker 13 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.

Speaker 13 Like he just literally could not leave that on the table.

Speaker 14 Also, just this 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.

Speaker 14 I mean, I would have been so embarrassed to say that, like, much less publicly. I certainly would never repeat it again.

Speaker 14 Like, Brett Kavanaugh doing con law and con theory is like Lisa Barlow singing Taylor Swift Fortnite. Like, it's, it's just egregious.

Speaker 13 It was egregious to Katanji 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.

Speaker 13 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 going to be controversy because science can go back and forth on different things.

Speaker 13 So here's her discussing this question and the ramifications for equal protection theory.

Speaker 12 And I guess my real concern, and I maybe I'll just ask you to react to my loving parallel because I'm getting kind of nervous,

Speaker 12 is that in loving, those same kinds of scientific arguments were made.

Speaker 12 So I'm reading here where the court says the argument is that if the equal 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.

Speaker 12 On this question, the state argues the scientific evidence is substantially in doubt.

Speaker 12 And consequently, the court should defer to the wisdom of the state legislature in adopting its policy of discouraging interracial marriages.

Speaker 12 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 that there's a proper fit.

Speaker 12 If instead we're just sort of doing what the state is encouraging encouraging here in Loving, where you just sort of say, well, there are lots of good reasons for this policy.

Speaker 12 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.

Speaker 15 Didn't it just feel like she was giving him a little con law 101? Like,

Speaker 15 really just like, Brett, here's the foundational stuff you're missing.

Speaker 14 Can law for dummies, right? I know you went to yellow.

Speaker 13 I know there's no grades in the first semester.

Speaker 15 The basketball court played your way through and maybe you miss this stuff, but let me remind you what it is we are doing here.

Speaker 15 Why are we here, Bob?

Speaker 14 Anyway, why are we here?

Speaker 15 I also wanted to play a clip of an exchange between Justice Alito and Solicitor General Prelager, in which Justice Alito really tried to insist that Dobbs resolved this case and just talk about it some more.

Speaker 15 So first, when Prelager attempted to explain to him why this case was different from Dobbs and Godaldig, because it involves a challenge to a law that explicitly and repeatedly says sex.

Speaker 15 He responded with this.

Speaker 18 Well,

Speaker 18 I'm not sure that's anything more than a play on words.

Speaker 15 And then there was this longer colloquy.

Speaker 18 Well, let me ask one final question that addresses Godaldig and Dobbs.

Speaker 18 Let's take Gedaldig first. One could make the same argument in Godalding that you've made here.
A man cannot,

Speaker 18 which concerned whether a pregnant woman was entitled to disability benefits for time missed at work when a man would be entitled to benefits for time missed at work.

Speaker 18 So in that situation, a man cannot work due to a medical condition that prevents him from working. He gets benefits.

Speaker 18 A 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.

Speaker 18 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

Speaker 18 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.

Speaker 18 So you can make exactly the same argument that you make here.

Speaker 18 under Godaldic and under Dobbs, and yet

Speaker 18 there was no equal protection problem in either of those cases.

Speaker 20 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.

Speaker 20 But here there's a facial sex classification. No one can take these medications if it would be inconsistent with their sex.

Speaker 20 And that's imposing on the face of the statute two parallel rules on classes of people according to their sex.

Speaker 20 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.

Speaker 20 That's a facial sex classification through and through, and I don't think it's controlled by Dobbs or Godoldic.

Speaker 15 God, SG Prelogger, she's got, let's see, one more week.

Speaker 13 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.

Speaker 13 Like, it was like subtle, but perceptible nonetheless. Like, I think she's just like, stop talking.
Like, just, just stop, stop.

Speaker 14 Yeah. Like, we all know this is a Schrod, right? Like, just shut the fuck up.
And, you know, I'm sick of you. Where is my anger translator? Where is she? Like, right?

Speaker 14 Exactly. But, you know, 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.

Speaker 14 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 vet a more like rolling back rights in here.

Speaker 14 And it's just, it's like, I wrote this opinion for speed.

Speaker 13 Let's go.

Speaker 14 Yeah.

Speaker 15 Before we get on to the other recaps that the U.S.

Speaker 15 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.

Speaker 15 So, starting with the Fifth Circuit.

Speaker 15 Remember earlier this year when we said the Fifth Circuit was challenging the idea of federal supremacy in general and federal supremacy at the border in particular?

Speaker 15 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.

Speaker 15 The Supreme Court, by a frighteningly slim majority, said, no, actually, federal supremacy is a real thing, including at the border.

Speaker 15 And it paused the injunction while the litigation in the case continued.

Speaker 14 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.

Speaker 14 So by a vote of two to one, 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.

Speaker 14 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.

Speaker 13 Well, we do know what federal supremacy is, so just a little primer might be in order.

Speaker 13 Remember McCulloch versus Maryland sort of stock case in first year of constitutional law?

Speaker 13 When Maryland taxed the National Bank, the Supreme Court weighed in and said, hey, the power to tax also entails the power to destroy.

Speaker 13 You can't do that to something the federal government creates states. So, no, you cannot tax a national bank.

Speaker 13 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.

Speaker 13 The power to destroy apparently does not extend to these fences. But anyway, what's going on here? This is insane.

Speaker 14 I mean, it's possible the Fifth Circuit is allowing like a little unconstitutionality as a treat or maybe a preview of things to come in the next administration.

Speaker 14 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.

Speaker 13 That's the Obama principle, the Obama doctrine.

Speaker 14 Right, exactly.

Speaker 14 Exactly.

Speaker 14 My guess is these courts will rediscover federal supremacy and executive power over immigration once Trump is back in office.

Speaker 14 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.

Speaker 14 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.

Speaker 14 So.

Speaker 15 That's the important set of answers to give on your Con Law exams for every taking Conlaw this spring. Leah just broke it right down for you.

Speaker 15 So back to this case, what is going to happen in it?

Speaker 15 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.

Speaker 15 And the Trump DOJ is likely to take a different position than the Biden administration with respect to border policy in general.

Speaker 15 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 1252F.

Speaker 15 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.

Speaker 15 So it's possible the Trump administration might ask the court to what's called mung-singwer the case, so vacate the opinion below if they change their position.

Speaker 15 And that would essentially, again, mean asking the court to vacate the decision as moot. So we will see what develops.

Speaker 13 with this case. 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.

Speaker 13 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.

Speaker 13 And they regulate them in part by restricting anonymous incorporation and by discouraging shell corporations.

Speaker 13 And again, this generally requires the companies to disclose their private stakeholder information to the Financial Crimes Enforcement Network within the Department of Treasury.

Speaker 13 And all of this is intended to combat money laundering, corruption, and more by making all of this transparent.

Speaker 13 Well, listeners, a district court in Texas has decided that Congress lacks authority under the Commerce Clause to regulate corporations in this way.

Speaker 13 So Congress lacks the authority under the Constitution to regulate corporations doing commerce under the Commerce Clause.

Speaker 13 Yeah.

Speaker 13 Yeah. Makes sense.
Checks out. What?

Speaker 14 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.

Speaker 14 It's actually doing business.

Speaker 13 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.

Speaker 13 All of this seems commercial and economic. So I'm not really understanding the problem here, except that Congress did something.

Speaker 14 Yeah.

Speaker 14 That might be enough. Right.

Speaker 14 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.

Speaker 14 In this case, a Trump appointee denied Target's motion to dismiss a class action case filed by Target shareholders.

Speaker 14 The shareholders brought suit saying that the company lied about the risk of consumer backlash to Target's 2023 Pride Week marketing campaign.

Speaker 14 So I wanted to spotlight this ruling because I worry worry it is really at the intersection of right-wingers using extra-legal outside of government tactics, like the agitation about Pride Week, right?

Speaker 14 Just from private actors. And they're using the law to enforce their preferences.

Speaker 14 Here, imposing liability on a company for essentially not predicting their baddie reactions and Heckler's veto attempt over acknowledging Pride.

Speaker 13 Never change, Florida.

Speaker 13 Just never change. We did get one very encouraging lower court decision that we should highlight.

Speaker 13 Listeners, you'll remember in 2023, the court dismantled affirmative action in higher education in SFFA versus Harvard.

Speaker 13 But in that decision, it sequestered the question of whether military service academies were also prohibited from considering race in their admissions calculuses.

Speaker 13 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.

Speaker 13 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.

Speaker 13 Army Reserve and the Maryland National Guard.

Speaker 13 And Judge Bennett wrote a 179-page ruling weighing this evidence and concluding that the Naval Academy has established a compelling national security interest and a diverse officer corps in the Navy and Marine corps.

Speaker 13 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

Speaker 13 who are all trained under the Naval Academy. So this is a very important victory for affirmative action.

Speaker 13 Ed Bloom has vowed to challenge this ruling to the Fourth Circuit and if necessary, to the Supreme Court.

Speaker 13 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.

Speaker 15 Yeah, but we will keep our eye on that case or those cases as they proceed.

Speaker 15 But for now, back to SCOTUS.

Speaker 15 We have a handful of other recaps to bring you, and the first is the oral argument in FDA versus White Lion, which is the case challenging the administration's denial of an application to market e-cigarettes with certain flavors.

Speaker 15 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.

Speaker 15 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.

Speaker 13 Well, we all know that the court loves to second guess agencies, especially when it involves questions of science.

Speaker 13 And if you don't believe me, go back and consider Ohio versus EPA, where the court shit all over the good neighbor rule. But here,

Speaker 13 We were really expecting the court to continue in its trend of just questioning science because they all have PhDs in chemistry or whatnot.

Speaker 13 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.

Speaker 13 So we are ready to admit when we get things wrong, and we'll say we might have underestimated them.

Speaker 13 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.

Speaker 13 So that's progress, too, I think.

Speaker 14 Yes, although it allows them to get to the same outcome. So one

Speaker 14 of the things that we have to be more positive.

Speaker 13 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.

Speaker 14 Until I get to see more Taylor Sift shows in my near future, it's going to be in the doldrums for me.

Speaker 14 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.

Speaker 14 Justice Kagan spent a lot of her time during the argument debunking that claim.

Speaker 14 You know, she pretty persuasively pointed out there wasn't a notice problem because the companies knew what was expected of them.

Speaker 14 The companies knew the FDA had already taken the position that certain flavors made products especially appealing to kids.

Speaker 14 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.

Speaker 14 And as Justice Kagan pointed out, the companies did provide that kind of evidence. It's just the agency wasn't convinced by it.

Speaker 13 The bulk of the argument time, however, seemed to turn on an issue that we actually flagged in our preview.

Speaker 13 And the issue is whether one of the agency's errors, which the government concedes was an error, was in fact harmless.

Speaker 13 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.

Speaker 13 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.

Speaker 13 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.

Speaker 13 That is, whether it was a harmless error.

Speaker 15 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.

Speaker 15 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.

Speaker 15 And also, the APA has an explicit provision in it requiring courts to be mindful of the rule of harmless error. And the government seems to have relied on that textual requirement.

Speaker 15 But, you know, foolish FDA. I suppose that's not the kind of textualism that the court has in mind.
Aaron Powell,

Speaker 14 once again, like wither textualism. Textualism applies when you're ruling against an agency.

Speaker 14 It doesn't apply like when textualism suggests a law hurting trans kids triggers heightened scrutiny or that a court should affirm an agency's ruling.

Speaker 15 It's okay though, actually, it does apply if it's a Trump administration agency

Speaker 15 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.

Speaker 14 It's important to keep track of these decision trees just so we all can understand what's happening here.

Speaker 14 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.

Speaker 13 The witch gave it back to him. Gave it back to him.

Speaker 14 And

Speaker 14 Neil used his voice to suggest maybe the courts should tear down entire chunks of the FDA while they're at it, even though that wasn't presented here.

Speaker 14 So, you can hear him making this bold suggestion in what follows.

Speaker 19 And let me just turn back real quickly to the enforcement action question. Are those conducted before ALJs?

Speaker 27 The civil enforcement actions, I am not sure, to tell you the truth.

Speaker 19 I am wondering, does a company ever have a chance to get before a judge and a jury?

Speaker 27 I think the answer is yes, but I am not sure about the details because we haven't really been engaging in those with respect to the products that are at issue in these cases.

Speaker 19 I mean, after Jarkassie, perhaps

Speaker 19 the answer is yes.

Speaker 27 We will certainly comply with what the law requires, Justice Burke.

Speaker 19 Thank you, Mr. Ginn.

Speaker 13 It'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.

Speaker 13 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.

Speaker 13 The question is whether the U.S.

Speaker 13 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.

Speaker 15 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.

Speaker 15 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 U.S.'s immunity from suit.

Speaker 14 The court also heard Republic of Hungary versus Simon.

Speaker 13 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 profits from the expropriated property with other funds that it now holds in the United States.

Speaker 13 Some of the case focused on the language in the statute, what it means means for the property to be quote-unquote exchanged for property that ends up in the United States.

Speaker 13 So again, more textualism that we can just forget, except when we're not.

Speaker 14 But here too, a lot of the case focused on less textualist considerations.

Speaker 14 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.

Speaker 14 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.

Speaker 14 There was also attention to the legislative history and what Congress was trying to get at through certain amendments.

Speaker 15 And once again, it wasn't totally clear where the court was leaning in this case.

Speaker 15 It seemed like maybe it was leaning against allowing suit, at least on this particular theory or these particular facts.

Speaker 15 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.

Speaker 14 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.

Speaker 14 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.

Speaker 14 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.

Speaker 14 Tune into Hysteria every Thursday, wherever you get your podcasts.

Speaker 13 Y'all, 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 activity.

Speaker 14 We had a great culture segment lined up. We really did.
We just had to spend more time on their abandonment of textualism and trans kids.

Speaker 14 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.

Speaker 14 Apparently, that's what's going to politicize the courts. We didn't even talk about bargains.

Speaker 13 I mean, like, the court just takes over everything.

Speaker 14 I know.

Speaker 14 They just suck up everything.

Speaker 13 But that's why we're here. Like, that's sucking sound.
That's the court. And that's us sucking it up and explaining it to you.
That's why we're here.

Speaker 13 Anyway, Strick Scrutiny is a crooked media production hosted and executive produced by Leah Lippman, me, Melissa Murray, and Kate Shaw. Produced and edited by Melody Rowell.

Speaker 13 Michael Goldsmith is our associate producer. We get audio support from Kyle Seglund and Charlotte Landis.
Our music is by Eddie Cooper.

Speaker 13 We get production support from Madeline Herringer and Ari Schwartz. And Matt DeGroote is our head of production.
And we are are very grateful for our digital team, Phoebe Bradford and Joe Matoski.

Speaker 13 You can subscribe to Strict Scrutiny on YouTube, where you can also catch full episodes.

Speaker 13 If you haven't already, be sure to subscribe to Strict Scrutiny in your favorite podcast app so you never miss an episode.

Speaker 13 And if you want to help other people find the show, please rate and review us. It really helps.

Speaker 1 There are millions of podcasts out there, and you've chosen this one. Whether you're a regular or just here on a whim, it's what you have chosen to listen to.

Speaker 5 With Yoto, your kids can have the same choice.

Speaker 6 Yoto is a screen-free, ad-free audio player.

Speaker 6 With hundreds of Yoto cards, there are stories, music, and podcasts like this one, but for kids, just slot a card into the player and let the adventure begin.

Speaker 10 Check out YotoPlay.com.

Speaker 25 Church's new boning wings don't just hit, they slap.

Speaker 25 Crunchy, juicy, flavor to the bone. Get them an original, spicy buffalo or hot honey lemon pepper.
Six wings, starting at $5.99. Churches.
Prices of participation may vary, tax extra.