Clarence Thomas and Future Implications

Strict scrutiny is brought to you by Americans United for Separation of Church and State. The Trump administration's excessive Christian nationalist rhetoric is only building as we move toward the two hundred fiftieth anniversary of the Declaration of Independence. Those most caught in the crossfire are federal work ers specifically, a multifaith group of federal employees filed a new lawsuit against the United States Department of Agriculture for violating the separation of church and state and the religious freedom, promised in our Constitution. Our friends at American's United for Separation of Church and State received emails from multiple USDA employees. A handful of employees reached out saying the proselytizing Easter email sent by Secretary of Agriculture Brook Rollins to more than one hundred thousand USDA employees is an abuse of power that violates the separation of church and state promised in the First Amendment. They are absolutely right. Common law, it doesn't have to be that hard. I mean, Constitution just straight up says shall make no law respecting and establishment of religion. Seriously, what is with these guys and erasing the first sentence of constitutional provisions? That's what birthright citizenship is about to. Anyways, the hits keep on coming from this administration , and Americans United is doing their best to keep up the fight against Christian nationalism. If you want to help, head to AU dot org slash crooked to learn more about their work and how you can get involved. This is Larry Fleck, owner of the Floor Store. July fourth is one holiday that lights up our country and our fourth of July sale is here to light up your home. So from now to july sixth, everything in our stores will be twenty five percent off. That's carpet, hardwood, laminate , waterproof flooring, and much more. If we sell it, it's twenty five percent off. At two years free financing and you won't need fireworks. 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All I ask of our brethren is that they take their feet off our necks Hello, this is Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We're your hosts. I'm Melissa Murray. I'm Kate Shaw. And I'm Leah Litman, and ug , this is an emergency episode . We got four opinions today, including two major immigration cases we wanted to cover right away, these immigration cases written by San Alito. Which basically we can stop the episode stop we're done seeing We're done. Yep, yep. We're done . Basically folks, you already know if Sam Alito's writing, we're crying. Yeah . We're talking about these cases right now because they are very, very significant. They will enable a lot of the Trump administration's gratuitously, cruel, careless , and deeply, deeply consequential immigration policy. These decisions will free this administration of most legal obligations , maybe even give them a get out of law free card to just do their worst with regard to people who are here in the United States who they believe are not quote unquote heritage Americans. Yeah . And there are a lot of what we might call legal problems with the analysis on display in Sam Alito's two opinions , but also they're just kind of a bott om line sort of takeaway that we wanted to start with, which is, you know, a line from Justice Ottomayer's Descent in one of the cases that kind of sums up the two opinions together, and that is, quote, The consequences of to day's decision are predictable, more people will die . And if you're thinking, that sounds like Dobbs, you're right. Yeah. Also , let's run that back again. Yep, just one day four year anniversary and we will do more of that. So we're going to focus in this emergency episode on the case about the administration's termination of temporary protected status programs for Haiti and Syria and then the case about as anylum procedure that would allow the administration to avoid processing asylum seekers as required by law so long as immigration officials stop a person at the border. As we said, there were two other cases today. We will say at least a few words about those in our regular episode that will be in your ear holes on Monday morning . And despite what you may hear about this very non ideological nonpartisan court, both of these opinions were six three and both of them were about as bad as can be. Yeah . Okay, so we'll start with the asylum case, Mullin versus Altro Lado. Okay, so as we said, six three decision authored by Justice Alito, and the court basically gave the administration in this case, a get out of the law governing asylum free card . The specific question in the case is whether an individual who has been stopped at or outside the border quote, arrives in the United States for purposes of asylum law, which would mean the individual has to be allowed to claim asylum and have their asylum claim assessed. Here, the court held that for purposes of the relevant asylum statutes, an alien arrives in the United States when the non citizen crosses the border into the United States. As the majority reasoned, you don't say a running back is in the end zone when they are standing outside of it. Yes, this was Sam Alito's legal analysis of complicated immigration law. I think he got an assistant here. I think he got an assist on that one from you know. Entire logic here requires divorcing the word in from the entire structure of immigration law, its context, the fact that this provision exists in a broader statutory scheme , why this provision was enacted, and so on. We should talk about the broader context of all of this right now. So in twenty sixteen, the Department of Homeland Secur ity responded to a surge of asylum seekers at the southern border by implementing a metering system that imposes a daily limit on the number of asylum seekers that can be processed in a given day. And to enforce that policy, DHS officials would stand on the U. S. side of the border, and if the allotment for the day had been met, they would stop asylum seekers from entering into the United States in order to be processed. So if you reached your limit for that day, people had to stay on the other side of the border, even if they were presenting themselves, even if they were interacting with officials from the United States , despite the fact that asylum law exists and requires them to be processed. So there's this artificial limit and even when you're right on the border interacting with U. S. officials, if they reach the limit, you're out of luck. The metering policy, however, was rescinded in twenty twenty one. And if you're wondering, doesn't that make this case moot? Well , good for you. You could be a lawyer, but not for the Supreme Court. This is all to say that the court deciding to take up this challenge was totally a choice because this issue isn't really live anymore because this policy is no longer extant. But evidently the court just could not let pass the opportunity to tell the administration what it could do if it wanted to, say, revive a policy like this , and it is essentially handing through this very tortured reading of this statutory term arrives or arrives in an insane loophole to the administration. If you are two feet from the U. S. border in Mexico, that should not give the administration the authority to deprive people of human rights like the right to claim asylum or to ignore asylum protections like putting aside international law under U. S. statute . But right now the administration under this reading may be able to circumvent a bunch of law s protecting asylum seekers just by physically obstructing preventing their entry at the border. And I want to situate this case within a broader trend of just rendering legal protect ions at least the ones these guys on the courts don't like completely unenforceable . So again, we'll talk more about this on our regular episode, but another decision issued last week said protections for legal permanent residence at the border. Those don't actually apply at the border because LOL , second, the terms of spending programs , those can't be enforced against state officials that are obligated by them because why ? We said so and we made a fun little analogy international human rights law. That can't really be enforced in Cisco. Why? Because Justice Scalia didn't want to. State court suits in Monsanto, that was an opinion decided by today , those can't proceed because that would allow corporations to be sued. And we'll talk about that in our regular episode. So just greatest hits , lots of bangers. Denying access to courts and severing rights from remedies and also just like big wins for the Trump administration. I think those are the two corporations and corporations, right, who are obviously on the same side of these cases Those are two big themes, I think, of this week's decisions. Well, I also think another theme here is we do what the fuck we want to do. Like who gonna check me boo? Like I mean, to reiterate the cour,t t didn' have to make this decision. The metering policy is no longer in effect. The Trump administration, however, asked the court to take up this case and made moves about how maybe it could revive this policy. Therefore, there was not a mutinous issue . Again, they wanted this case before the court because they wanted the go ahead for basically obliterating what exists for protections for asylum seekers. And the court was like, yeah, that sounds great. Let's do that. Ashtag, yolo, yolo court. We started off by referencing a line from Justice Sotomayor . She was not going to go quietly in dissent in this case . We were not in the courtroom on Thursday. So when the court issues decisions, they take the bench and the author of a majority opinion typically reads a summary and when the dissent feels really strong ly about the case, then they will sometimes also read what's called a bench statement . But I have never heard of like a reply from the author of the opinion, a rebuttal. There's no name for it because it doesn't happen, but evidently Alito on the bench responded to Justice Sotomayor . Yeah, so Chris Geiner at Laudork, Lawrence Hurley at NBC reported that Alito countered Justice Sotomay or with a further statement from the bench because he is the saddest, whiniest little man never beating the allegations that he is nothing more than an angry eighty year old grandpa whose brain has been addled by Fox news and needs to tilt at the wind. Sorry, Melissa. So we do have a readout from the hill on what happened in the courtroom. So as you just recounted, he first briefly read the majority's position, justice Sotomayor then read her dissenting opinion. When she criticized the majority opinion as egregiously wrong, the hill reports that Justice Alito leaned forward in his chair, propped his chin on his hands, and stared up at the ceiling . Okay , that's such a picture. Then, when Justice Sotomayor commented about the majority opinions reference to the language of arrival in the context of immigration and briefly used the example of landing at Reagan National Airport , Alito briefly set his gaze on Sotomayor. Then after she concluded, he softly cleared his throat before issuing a rare off the cuff response to a dissent , not just rare, I think kind of unprecedented. I think it's unprecedented . The Conservative Justice appeared testy as he said that there was much more that he would have added if he'd known that Sotomayor would read her dissent aloud in full. What a fun sore loser . It also winner winners, winner winner talking about this is just like remember obviously the is it not twenty a ten state of the Union it is right? When he shakes his head when Obama describes citizens United and he just like cannot control himself , this is, I think, that energy And it's possible that he was stirred to taking this perhaps unprecedented step because Justice Otomayer was unsparing in her dissent and evidently from the bench statement too. So she said the court's opinion kind of amounted to, well we said, never again, but that turned out to be yes again after eighty years because as she notes, international humanitarian law, including protections for asylum , emerged after the Holocaust and the international moral reckoning it provoked. That's what this opinion largely dismantles. Yeah, so she recounts, quote, one infamous incident when the voyage of the MS. Louis, in nineteen thirty nine, over nine hundred Jewish refugees attempted to flee persecution in Nazi Germany and were turned away , only for many of them to be murdered . And Congress passed the Refugee Act in nineteen eighty, quote, because it did not want this country to repeat the mistakes of its past being able to turn away refugees only for them to die horrific deaths. And again, this is what the court's opinion allows the administration to do to just effectively deny anyone asylum protections even if they have very meritorious asylum claims and the administration would otherwise be required to consider them under federal law and international law because they just managed to block them at the border . Can I go back to Justice Alito? I'm sorry. I definitely appreciated the history lesson both from you and from Justice Sotomayor. And I think it's really useful context for people who aren't familiar with these statutes, there is a provenance here and one worth remembering . But I will just say justice Sotomayor has a history of calling out her conservative colleagues on just like the batshit things that they do. So if you'll recall in Trump versus Hawaii, which I'm going to come back to another point in this episode, in Trump versus Hawaii, she basically talked about the travel ban and analogized it to the cour int'sfamous decision in Koramatsu, which was the case that basically greenlighted the internment of Japanese people of Japanese descent and Japanese Americans during World War . And the Chief Justice, you know, I felt like it almost felt like he went back to the original opinion. He'd wrote it and just like, oh by the way, that's not true. And we are dismantling Kormazzi right now where it's no longer good law. It was never good law and yeah. And so there he says the reference to Koramatsu gives us an opportunity to make explicit what 's already been like written in the annals of history, but we're going to do it ourselves. Yeah. Right. I mean, it was a more decorous kind of way to respond to it, but it's basically what Alito is doing totally hate being called on their shit. Like Alitos is just more bitchy and mean spirited and the and strict petty. But they're all doing, they hate being called on this. They hate being told . Can I say on that all of them? Because as the hill suggests , apparently the hill says that the other Conservative Justices display littleed reaction to Justice Sotomayor, with several of them like Barrick Gorsuch and Thomas staring down at their papers and Kavanaugh staring directly at Justice Sotomayor throughout her speech from the bench as if she was the problem . Well, I mean , so again, remember that remark that Justice Sortamayor made for which she later apologized about, you know, I have a colleague and he's got rich parents and he doesn't know anyone who works a day job and he's just out of touch. And then she apologized for IB and I think there's there's a lot of stuff going on here . Yeah . And yeah, they don't like to be called out. They don't like to be called up by her, and they also must have the last word. So whether that's in the form of an opinion or this kind of final statement, it's pretty wild. They just won six, three. Like you can't. But it's not enough to win. You must be celebrated as the most amazing justice who is doing perfect law and know politics as well. No one can criticize them. On that tip, do you remember after Daes when the chief justice issued his year end report to the federal jud iciary, and he was like, you know what this all reminds me of reminds me of segregation? , where these judges stood up for the Constitution and the rule of law in the face of massive resistance and all these segregationists came for them. Like basically you ladies who want rights over your body, you're basically like segregationists and us were those noble judges standing up for the Constitution and the rule of law and taking away to us from controlling your body . Ain't no thank . We would like to integrate you into Trad Wifelife . 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And here the court basically said one , immigration statutes, or at least some of them, maybe all of them, those aren't real laws that are actually enforceable against the Trump administration specifically here the court said that the federal statutes governing this temporary protected status or TPS designation and the kind of revisiting of the designation, either to terminate or extend it, that those statutes which requ, certain procedures be undertaken before any modification is made and specifically before TPS status is canceled , these statutes and their requirements are basically not subject to judicial review , full stop . Just to be clear, that's really important that the court is sort of hanging its hat on these are just not reviewable because there is very little question that the Trump administration failed to comply with the letter of the law here . As we discussed in our live show in New York City last week, the New York Times has reported and emails confirm that the Department of Homeland Security canceled the TPS program for Haitian nationals without waiting for the required statutory consultation with another department, in this case the Department of State . But don't worry, the court manages to avoid that unfortunate factual and statutory wrink le by concluding that the statute doesn't permit review of the Secretary's determination that TPS should be rescinded. And to be very clear here, the majority gives the term determination a very broad meaning that includes not just the decision to rescind TPS, but basically the quote chain of events that leads to that decision. And this again sparks the man with the butterfly meme. Is this textualism? Oh, for sure. For sure. As Justice Kagan said, quote, very broad would be one description for that reading of the term determin ation, very strange would be another . But in addition to rejecting the statutory claims, the claims that the executive branch had not followed the laws as far as the required procedures they have to follow. Before we go on to the constitutional, can we just can I say one more thing about the statutory? Because those are the two arguments in the case, right? That the statutes weren't followed. It's like a statutory argument and then there's a separate constitutional argument that also fails L.ea, we'll talk about in a minute. But I just I was trying to figure out whether because in the oral argument, I thought the plaintiff's attorney tried, I think, very kind of savvily to say, if you guys accept this no judicial review argument , then literally goes so administrations could cancel everybody's TPS, they could like grant TPS to every country in the world and like they were trying to appeal to the conservative sensibilities of the majority by saying, What if a Democratic President decides to like let everybody in the world in using TPS designation ? And I just couldn't tell whether Alito tried to be like to leave a little crack open so that if there is a future Democratic administration that uses TPS in a way that is too expansive or too generous, they might still say, well, we didn't say no judicial review, just not much judicial review. Like, I don't know if you guys had a read on that, but it felt like there might have been some effort to kind of like see around that corner and make sure that if it came to actually reining in expansive use of this authority in the NOT very that's never going to happen. We're never going to have a Democratic president because we're going to fuck up the election so hard, change these districts so incredibly that it's going to be Republican rule forever. Yeah. But they may be just like that belt and suspendering in case they are unsuccessful somehow in doing that. So anyway, I just wanted to throw out that possibility, but sorry, Leah, you're gonna talk about the other, the constitutional equal protection argument. Yeah. So the court also rejected the claim that the cancellation of TPS for Haitian nationals was the product of unconstitutional animus and racial discrimination. So I think in one of the more cowardly and craven moves Sam Alito has made, which is saying something , he refuses to even quote and include the foul racist remarks that the president made about Haitian nationals before his administration canceled the TPS program for Hait ian nationals . To my mind, like he kind of goes, see no evil, hear no evil, speak no evil and applies that to the horrific blatant racism, which included the grotesque remarks from the president about how Haitians have AIDS were eating cats and dogs would poison the blood of the country and how Haiti is a shit hole country when, according to the president, we should really be taking people from Norway and Sweden. This apparently , to Sam Alito's delicate eyes, ears, and pen, who could not even recite this is not racist, which means I think the effect of this ruling is to legalize racis m. You know, as Justice Kagan noted in her dissent , the majority declines to put these statements in print. Like they apparently find the statements so repellent and racially inflected that they don't go in the opinion . And just to situate this case kind of in some context of the court's other jurisprudence , talking about poisoning the blood of the country isn't racist, but you know what is racist? Enforcing the Voting Rights Act and multiracial democracy. Also from the pen of Sam Alito. Yeah . Not from his pen, but also trying to ensure a modicum of diversity in institutions of higher learning . Also racist also relying on state laws from reconstruction to justify restrictions on gun rights. We'll get to that in our next episode. That too is racist. I mean those laws were racist but, the reliance on it being racist is sort of an innovation of this majority . Yeah, so there's lots of examples, but Trump's words those aren't among them. Yeah. And also what, is evidence of animus? Again, not saying that Haitian nationals will poison the blood of the country, but talking about how if someone wants to do business in a state, they might have to comply with laws that go against their religious beliefs, that is anim us. Yeah . Rule of law. Yeah, I mean, so Alito actually has the goal to basically say, you know, he won't actually reproduce verbatim any of these st atements . And then he has the goal to basically say that this rhetoric is just the rough and tumble of politics. Like he says, quote I almost can't even believe that he put this in the opinion that he did. Just read it. I will. Political discourse by prominent public figures is increasingly couched in terms that would have scandalized the public just a short time ago. And the statements cited by Miat respondents, the plaintiffs in the case, in the Haiti case, especially those concerning Haiti and Haitian immigrants to this country exemplify this development. It's just the coarsening of the culture, ladies. Everyone does it. Well, also one additional thing he says about them, he says, quote, The respondents that is a federal government identify a strong race neutral explanation of these official statements. The present administration's general stance on immigration and its obvious antipathy toward past administrations TPS policies. I'm sorry, is their general stance on immigration racist ? And also did they not like the previous administration's TPS policies because they admitted black people? Like what the fault? Their xenophobia completely cleanses the racism. Like it's just wild reasoning. Well, I mean, are you surprised by I mean like this is kind of like partisan versus racial gerrymandering it's not racism, it's xenophobia It's not racial gerrymandering if it's partisan gerrymandering. Completely again , I think all of this smacks the court's decision in Trump versus Hawaii, which upheld the third iteration of the travel ban, the one that had been sanitized to some degree . And I really think although it's against type, you should read these cases in tandem with Kelly and the other Voting Rights Act cases where the court is, I think , giving birth to a new understanding of discriminatory intent. And basically it's this, like no one white ever being racist when they say blatantly racist things or when they organize extinct government structures to disadvantage racial minorities. That's not racism. Like the intent isn't there . That can be explained by other r ace neutral criteria or events . Instead, as Leah alluded to before , what actually gives rise to racism is thinking about diversity, thinking about equality and equity, suggesting that the n ation's history may be punctuated by episodes where we disadvantage and even subjugate certain groups . And I'm thinking here specifically of the recent third circuit case that clears the way for the National Park Service at the direction of the president to eliminate all references or many references to slavery in a public exhibit on independent small . That's the real racial intent here that is discriminatory and subject to judicial censure. The rest of this, you know, it's all fine. Like there are perfectly plausible, race neutral explanations for all of these things. Yeah. I can't tell if it's like plausibly race neutral or the coarsening of our politics, like both or bright yeah or both. Anything but racism? Yeah, yeah. I mean yeah . Okay, we are going to do some quoting from Elena Kagan's dissent, which I think sums all of it up pretty well . She says the plaintiffs are entitled to stay in the country while these suits go forward. Remember this cases came up like way early. Like there was there had been some discovery, but the cases were still ongoing . So she says that. And then she says, respectfully, I dissent from the court's decision that they may instead respectful be put on the next plane. She kind of goes out of her way. It's interesting. At one point, she says, you know, she does call the majority out in refusing to actually reproduce the racist statements at issue in the case. But then she also says that those actually contrast with the majority's quite respectful discussion of the cond itions in Haiti, and it's like the majority's refusal to denigrate Haitians as a group . I'm not quite sure. She goes out of her way. Literally in heaven way too nice to her colleagues . Yeah. Yeah, I mean, it's this is why it is so hard. And Melissa, you said this, you know, calls to mind Trump versus Hawaii. Like absolutely. I have a piece that I think will be out by Monday. I think this is just so much worse because in Trump, Hawaii, I at least read it as having. There is this like through line of A id's there is at least a distaste that the Roberts opinion is able to muster about the statements, which you don't have in the elite opinion because like he won't even explicitly talk about them. So it's not enough, but it's more. But I do think you also have, at least on my read of Trump versus Hawaii, this like the tenor of the opinion is, okay, the president said some crazy stuff, but there was this interagen cy process and like those experts like cleansed the process of like whatever discriminatory taints the president's statements way better at this than Sam Alito. I hear you saying he assigned him this opinion. He assigned both these . And staying silent, not writing anything separate, I thought was a very revealing choice because yeah, he doesn't have, you know, even if he wanted to call the administration out in the way that he did in the Census citizenship case and the Docker Recision case. He doesn't have the votes to do it, but he does have his vote, and he decided to give his vote fully and without a separate writing at all to Sam Alito and this appalling. Melissa says see which got your voice slash pen, John. Like what's going on? Yep . Well, I mean, the best part is Samuel Alito is only too happy to carry water for the chief justice to do this. I mean, like, I mean, have you ever seen a more willing butch soldier? Yes, sir. I'll jump into the racism. Yes . I'm sure he want asked for these opinions. He wanted to write these cases. No, I'm sure he did. I mean, but I mean like my point with regard to, you know, it's gotten so much worse. Like, I don't absolve John Roberts of it. I mean, like I think he just makes it look more decorous in Trump versus Hawaii. He's better at it. He's better at making it look just, you know, okay, and it's not total like there are reasons and here's why even though we know that Trump said those things, and of course they inflected the process by which that executive order was promulgated . Of course it did. But now they don't even care about just sort of like, okay, we're going to deal with this, but there are actually these other reasons. And they're like, you know what? There's no racism here because what there really is is xenophobia. And that's okay. That's like, that's a choice. I mean, it's the same way we used to hate partisan gerrymandering. We wrote a whole decision about how unseemly partisan gerrymandering is. And now, you know, I John Roberts, I'm going to ced the pen to Sam Alito to talk about how partisan gerrymandering is your birthright if you're a Republican. Completely. You know what? Even though this is a short episode, I think we need to have our evergreen segment. We need to talk about Justice Clarence Thomas. Do we? I think we do. Yes. Because you know what? He would go further. Shopping shopping these opinions not far enough for Clarence Thomas. No, how far does he want to go, Leia ? He would make it a fish a fish. He would say that the equal protection guarantees actually don't apply to the federal government also, so even if it was racial discrimination , that wouldn't be unconstitutional. Fifth Amendment, you endanger girl? . That's angry invitation to basically rescind the Fifth Amendment, which includes a due process clause that has been interpreted by this court in Boeing v. Sharp, a companion case to Brown versus Board of Education to include an implicit equal protection guarantee that applies to the federal government as much as the states. And apparently, Clarence Thomas takes that personally. , if Justice Thomas has to live through the indignity of seeing the court enforce the first sentence of the fourteenth Amendment , he really wants to take the Fifth Amendment out to the woodshed . You know, he needs a little consolation prize. Anyway, folks, if in the next couple of weeks, probably next week when we get the court's decision in birthright citizenship, and you hear all of those hot takes talking about how decorous this court has been, how they really stood up for the rule of law, how they stood up for the Constitution, and they went toe to toe with this president and did not blink . I want you to come back and run this episode back. And just think about all the things the court did on immigration before it did that one thing that it actually could have done a year ago, but yeah please do not forget everything that happened this week, including how the court again enabled a lot of the racist xenophobic elements of Trump's immigration agenda sometimes gratuitously , right? Just telling them they could do something they weren't even doing at the time. Yeah , yeah, yeah. All right, ladies, till next time, opinions coming down we will recon row. We will have an episod e in your ears and IS on Monday. The court will have more opinions. There are eight to go, so probably Monday and Tuesday is that what we're assuming . Definitely Monday and Monday will not be the last day . I am hoping it's Tuesday and it won't go into July because