Reflections on Court Reform and Retirement

Strict Srutin is brought 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 and fiftieth anniversary of the Declaration of Independence Those most caught in the crossfire are federal workers specifically. A multi faith 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 Americans 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 aggriculture Brooke 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. Con 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 too. 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. org slash crooked to learn more about their work and how you can get involved Justice, it please the court It's an old joke, but man arg is against two beautiful ladies like this, they're going to have the last work. Not elegant unmistakable clarity. Dad I ask no favor for my sex of our brethren that they take their feet. O our next This is another emergency episode of Strict Srutiny, your podcast about the emergency that is the Supreme Court that came within one vote of rescinding the Constitution and our entire post civil War constitutional order. With that intro, we're your host. I'm Leah Litman. I'm Kate Shaw. And I'm Melissa Murray and let's start off with a top line overview. So this morning, the Supreme Court held Five, two, four that the United States Constitution exists. I wrote a whole book about it, so can confirm Well, at least the Constitution exists sometimes because this decision means that F people, five fucking people on the Supreme Court decided that the proposition that the Constitution says what it says is actually meaningful. That's it. just five people, five to four We are literally doing constitutional law by a single vote, and we're doing it on literally the most straightforward constitutional question ever Recall back in january twenty twenty five, when one of the first district judges probably going to say his name incorrectly. I think it's Jud Kenauer, a Reagan appointee out in Washington, had this to say about the president's birthright order, rescinding birthright citizenship for the children of undocumented immigrants and the children of immigrants who are here on temporary statuses,ote Where were the lawyers when this decision was being made? I have difficulty understanding how a member of the bar could state unequivocally that this is a constitutional order. It just boggles my mind where the lawyers on the Supremeourt The lawyer, That's where some of those lawyers were in fact on the United States Supreme Court. And if we sound Really alarmed? this is incredibly alarming. It honestly, I don't think is an overstatement to say, the system is hanging by a thread, a wisp. Donald Trump came within a single vote of getting the Supreme Court to say that the fourteenth Amendment does not in fact guarantee birthright citizenship It came within a single vote of adopting a completely off the wall theory of citizenship that A few years ago, Three years ago, five years ago was understood to be the province, exclusive province of right wing cranks and cooks The theory that says that some people born in the United States are not citizens, even though the Constitution clearly says that all persons born in the United States are citizens This is all to say, listeners, that we know that there are those in the media who are telling you that this is a huge victory, that you should be applauding the Supreme Court for standing up to the president, standing up for the Constitution and the rule of law and I'm just not going to sugar coat this. This is great that this happened, that the people who were impacted by this executive order now have some clarity about their circumstances. but I don't know that this is the unalloyed victory that people are claiming it is. We are literally a single vote away from the United Statesupreme Court undoing recconstruction Like It's go time, people. It is time to wake up. Here is how Justice Katanji Brown Jackson described the position that managed to garner four votes in this case All the talk about the detestable Dred Scott decision. The government and the principal disscent propose a return to its core tenet That's not overstating things, like what she just said This is literally a court where there are more than one member. who is ready to double down on a return to white supremacy and Dred Scott That is where we are. This is not An unvarnished victory, this is actually a real problem But please tell me again how much we should celebrate the court upholding the Constitution by a single vote. Should we also apologize to the justices for being so critical of them? Probably can't wait to hear those takes either The other headline for today, and this is less significant, but still worth noting, is that Brett Kavanaugh wants you to know that he is, in fact a total tool, and it's nine to nothing on that. So Coach Kavanaugh had quite a, he authored a deeply transphobic opinion saying that both federal law and the federal Constitution don't protect trans people from discrimination least in the context of sports, because sports. He also authored an opinion that eviscerated a campaign finance law that was designed to prevent corruption, to prevent the super rich from circumventing limits on how much they can contribute directly to a candidate. which means that a single rich individual can now single handandedly give over half a million dollars to a candidate directly because freedom isn't free and free speech Elon Musk sits somewhere stroking a hairless cat And and and while all of that was happening in House Kavanaugh, there was briefly a story that MPR broke about how friend of the pod, Sam Alito had announced his retirement. And while we were like, told you so It only took twenty minutes before MPR retracted that story because and this is just rank speculation on my part, everyone knows that the first rule of the Supreme Court is that you don't step on the court's news cycle When John G. Roberts, noted institutionalist manages to corral for other people to properly read the Constitution You must devote the requisite amount of time to applauding and glazing the court for standing up for the Constitution and the rule of law. You do not make it all about you. Sam at least not Tuesday. mayaybe by week's end, things will look different. But because for this emergency episode, we cannot focus on the prospect of Sam Alito's retirement. We will instead focus on Scota saying Trans people are second class citizens. Scotus opening up even more spending in elections that invites corruption. and Scotis demonstrating that Five out of nine, which is not a great percentage of justices can read the Constitution. Okay, that is a lot to cover on this emergency episode. Let's get to it. We're going need a bigger podcast We're going to need a bigger court and if you have not swung on court reform, I just don't know. what are you even doing What are you even doing? Please, please just listen to this episode. Okay. We will start with birthright and then we will talk about how the court eviscerated part of the fourteenth Amendment on the very same day it issued birthright and how it made one more effort to fuck with the upcoming midterm elections by clearing the way for more money in politics and political corruption All right, so again, you may have seen all of the headlines or much of a commentary about how the Supreme Court invalidated the president's executive order by a six to three vote. It's kind of true, not as nuanced as it should be. And more importantly, those takes obscure something that is way more significant This court held by only a five to four vote that the presresident's executive order, which denied birthright citizenship to thoseose who were born in the United States to undocumented immigrants or individuals who are here on temporary statuses are they're not citizens and that Only five people on the court believes that an executive order saying such a thing violates the Constitution That means that what these six to three headlines do not convey is that Kavanaugh Noted institutionalist in the manner of John G. Roberts and a father of daughters says that while a statute that Congress passed in the nineteen forties prohibits the president from denying birthright citizenship to some people born in the United States, the Constitution itself does not. So shorter, Brett Kavanaugh, Congress can, if it wants to, repeal birthright citizenship tomorrow and allow the president to do the same. This is Big Justice Thomas energy. This is Brett Kavanaugh effectively inviting Congress to do the damn thing. And you know, I know we've talked a lot about recent books that say that, you know this court is all about empowering Congress. Is this what they were talking about? Do not want this kind of. Tell me Kate that we were gonna to get this reveal this week. This isnt. Oh, o, how it came. So Reactions to it being five four, in my view, it should be an absolute scandal. Yeah. Rarely does the court do something that surprises me. I thought seven two, maybe six three and OMG, it is five four And that is obviously an invitation to just try it again Just by way of comparison, the Supreme Court's initial decision, affirming birthright citizenship in Wang Kim Ark was six to two That case was decided two years after Pessy versus Ferguson upheld separate but equal segregation. This court is to the right right wing of the Pessi court Yeah And this core today has moved the Overton window faster than the speed of light. I mean, It took decades for the right wing legal movement to successfully mobilize in order to overturn Re and Chevron and Humphrey's executor took them a long time to generate the material and then the votes to do that. And that's you know also true about a lot of maybe like, you know second tier priority list items, Lemon, and of the Voting Rights Act, Affirmative action, and more been second tier for the Conservative Legal movement. Those took time. This happened in the span of like eighteen months, which is terrifying, and it is not how constitutional democracies are supposed to work So I want to go back to the oral arguments in Trump versus Barbara. So after that oral argument, I think we all felt pretty confident that there was sizeable majority. And I think we also said that the fact that this wouldn't be unanimous was a real travesty, but we were mostly talking about Alito, maybe Thomas like putting on their fox grandpa hats and foox grandpaing on this decision Neil Gorsuch seemed really skeptical oral argument. And he askedor General John Saer. You sure you want to rely on Won Kim Ark? I mean, just so to me was surprising. The other thing that I think is really surprising is the way this is being covered in the mainstream media with so many people ignoring five, one, three, really five to four outline and just focusing on this top line the court saves birthbright citizenship, which we knew was going to happen, but it seems especially egregious given how divided the court was. And like just sit with that for a moment. There are four people on this court who are ready to say that just soly citizenship does not exist for the children of certain immigrant groups. like J just for heritage Americans, I guess. I mean, but like we are really there. We are one vote away from it And not just media, but frankly, Democratic leaders, they too are all over the statements that the Supreme Court has affirmed birthright citizenship and isn't this great for the rule of law I mean, like this is such a great opportunity for those people to begin thinking about like we actually need to move forward to the midterm elections. We need to start taking this seriously. We are in a democratic crisis. Lots of things need to be on the table, strengthening Congress, also disempowering this court from what it is doing. And instead, we're just getting these outrageous takes. All to say The birthright citizenship issue is not going to go away. Kavanaugh literally breathhe new life into it. L put him on the Sistine chapel We are one vote away from making this happen and The Supreme Court has literally licensed more advocacy around this issue. This is not settling a question. This is Dobs partart two. They're just going to figure out how to do this through legislation. This is going to continue going. So nothing is really settled here. do not restest easy There's more to come And Trump So his appointees maybe can't all read the Constitution. It's not clear how well his Sotus math kind of works, but he seems to maybe think that he is actually able to get Congress to pass ition do through legislation, what he tried to do through executive order and that that would fly. And at least right now on the narrowest of votes, that is not the case. But nevertheless, he took to trruth Social soon after the opinion to post, we can easily make it up in Congress through legislation. Congress should start today. So I think to the point you were just making, like this is very much not like a defeat that we should say inters the issue for all time, they are going to continue to try. Is he wrong, though, Kate? I mean, if you can redistrict Congress in an entirely different direction and hold the line on the Senate Maybe this does happen in two years or four years. Oh, you could get it. I don't know that yeah, it's definitely possible you can get it through Congress, but you still have the five who say this is unconstitutional. So you take a flip a vote. Well, and just on that five holding the line, do we know that the chief Justice would hold the line? He reversed course on the Voting Rights Act three years ago saying seection two is constitutional and prohibits unintentional discrimination only for three years later to be like, e maybe not And I will say I'm not going to defend John Roberts, but like know, that Alllan vers. Milligan was short, It was grudging. is it would be very hard for him to go back on the lengthy majority opinion that he has drafted that says the history is clear and definitive. I don't know, he won't be che forever either Speaking of Chief I think that that separate writing from Brett Kavanaugh makes clear that Brett Kavanaugh wants to be chief. Such a pick me. But Kavanagh says the Cstitution doesn't mandate birthright citizenship. but because Congress has legislated to create birthright citizenship, that invalidates the executive order. And that's what Trump's sort of slight misunderstanding seems to rest on Kavanaugh absolutely did not need to write anything about the constitutional question. He could say the statute that Congress has passed forbids this executive order, full stop actually have such a hard time except for maybe through this theory, just sloted Leia that he just wants to be chief. because He actually like if he were a good colleague and maybe like wanted to give some cover to the chief and Amy Coney Barrett, who did vote with the Democratic appointees to strike down the order, could have joined them, right? Like, I amm sure they're going to take a ton of incoming from like MAGa hordes who will be furious that the court has thwarted the president. He did not do that. But even if he wasn't going to like vote with them, he could have just like said nothing about the constitutional question and like just just written about the statute, I just I cannot fathom why he decided to write and also to write this like shitty half baked few paragraphs that he wrote about the constitutional issue, which he says is complicated, but then like doesn't actually treat in any complex fashion. So anyway, don't you think hard for course from someone who really wants to be liked by both sides. I mean, like doesn't this succeed? he's part of This five to four Majority sort of that upholds this statue mean grudgingly, but he's there. You have people saying that he's the deciding vote to uphold birthright citizenship. and yet he opens up this window for the MAGA faithful to continue prosecuting this issue. He gets to have it both ways Yeah maybe and gets to be Chief Justice mayavy Maybe. So his opinion in this case reminded me of his opinion in the Affordable Care Act case when he was on the DC circuit, because in that case, he did not have the balls to come out and say, this law is obviously constitutional under existing precedent. Instead, he said the Anti Injunction Act prevents court from hearing this challenge because it's a tax under the Anti Injunction Act, But then of course, wouldn't say that it's also a tax under the Constitution. It's like he recognized he couldn't go forward with saying This law is constitutional and still get a Supreme Court appointment But he also couldn't at that time bring himself to do something so hackish. And so here it's like, I want to get credit for invalidating this executive order, but also I have further career aspirationsation. Big auditioning sort them out this way. Big auditioning energy. 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The water Day podcast you know and loveve is shaking things up You already know that five days a week, I, Jane Caston, bring you the need to know news and expert analysis on the big stories shaping today and tomorrow Stories like how social media warps our perception of the world and the strange reality of who is signing up to work for IC all in less time than it takes to roast a chicken And now, whatday episodes will be hitting your YouTube and podcast feeds in the afternoons You'll get the breaking news even faster heck out one today. Now dropping in the PM on YouTube and wherever you get your podcasts Okay, let's talk a little bit maybe about the Roberts Majority opinion in addition to this scandalous fact that it was only for five justices. A couple of things to say. One, I sort of alluded to this. I have to admit I had sort of an unsettling feeling while I was reading it, which was that The Roberts's opinion was pretty good. Like the history seemed right. It was pretty well done. And then I was like, what is this feeling I'm feeling? And then I got to the last page and saw the citation to Martha Jones and her book. and I realized he had probably he and his clerks had read it closely and it really informed his recounting of the history. And that, I think made it all make sense. Okay, so I said a nice thing about the Roberts's opinion now. actually, that's a nice thing about Martha Jones and Kate and the anticus brief that they autoreor. I know. R. D did a great. really did J J keep heing it. Right. exxactly. I don't think Robert cited Mazer, but Jackson definitely did, in any event The other thing I wanted to ask in a very different spirit about John Roberts is like Does he read the opinions that he writes when he writes other opinions, like I actually couldn't get my head around the cognitive dissonance just between Robert's opinions, like This week. so it was unclear whether he had read his own opinion in slaughter, right? allowing the president to fire an FTC commissioner when he wrote Cook, which was issued on the same day that offers like a massive carve out Agst an opinion in slaughter that said like basically no ifs ands or buts, the president has all the power to fire. So that was confusing. And then here, I'm not sure if you read his full on embrace of Andrew Johnson in the slaughter opinion before his discussion of reconstruction in Barbara, the birthright citizenship case because he iss talking about the Civil Rights Act of eighteen sixty six, which predates the fourteenth Amendment It contained language very similar to what ultimately ended up in the Constitution in the fourteenth Amendment. All persons born in the United States and not subject to any foreign power are citizens of the United States. And then he says, the specter of Dreads got loomed over the efforts. and know it was decided to do this not just by statute, but through constitutional amendment. And he talks about opponents to the eighteen sixty six Civil Rights Act. I'm just like, I wonder whether all of the deep historical reading he did might have mentioned that the eighteen sixty six Civil Rights Act was actually vetoed by President Andrew Johnson, who is like subjected to Robert's warm embrace In the sllaughter case, the act passed over Johnson's veto and I just felt like again, the cognitive dissonance between those two accounts was really hard for me to get over. Well more cognitive dissonance from this court. I mean, you're asking does John Roberts read his decisions and sort of think about the inconsistencies between them? Bret Kavanaugh read his own concurrence slash dissent and the opinion that he joins? I mean, like there's a lot of dissonance between these two. Here is the Kavanaugh concurrent slash dissent in Trump versus Barbara, quote The Constitution is an enduring document, and its principles were designed to and do apply to modern conditions and developments The original constitutional principles do not change absent a constitutional amendment, but the relevant principles, both the rules, and exceptions alike, must be faithfully applied not only to circumstances as they existed in seventeen eighty seven, seventeen ninety one, and eighteen sixty eight, for example, but also to modern situations that were unknown or unanticipated by the Constitution's framers. Big if true, also, how does this now relate to the rest of your concurrerence He's a living constitutionalist in the right circumstces Melissa and he' now told us that And your other decisions, I mean, just again. Well, and specifically, the Second Amendment, because here in Barbara, he is inviting himself to make open ended judicial exceptions to the Constitution based on policy considerations saying there are changed circumstances when in the Second Amendment, the court's jurisprudence, including Kavanaughs, fails to account for how firearms look a lot different today than they did two hundred years ago And On that point, the court just granted cert and will decide next term, whether the Second Amendment allows governments to prohibit owning an AR fifteen or other semi automatic rifle. Well, James Madison had an AR fifteen, so I'm sure it'll be fine. Basically. I mean you're talking about the Second Amendment. I think you could also say the same thing about his fourteenth Amendment jurisprudence. L if you took an originalist view of the fourteenth Amendment and the fifteenth Amendment the voting rights cases It is race conscious. It's explicitly race conscious. and Coach Kavanaugh is always about race neutrality. So I mean, it's super selective, it's super itinerant and whatever Here we are So We need to talk about the girls are fighting. So in particular, Justice Jackson and Justice Thomas are fighting again some more. and Justice Jackson's concurrence here takes Justice Thomas, who wrote the prrincipleal dissent to the woodshed. and separately, we are going to need to talk about Justice Tom. Okay, great. So Justice Jackson writes, quote Despite his longstanding endorsement of a colorblind constitution, yes, girl. Justice Thomas real personal. Real personal, real fast. Despite his longstanding endorsement of a colorblind constitution, Justice Thomas now surprisingly suggests that the citizenship clause was a race conscious remedial measure relating only to freed slaves such as Dred Scott and those who shared with them certain characteristics Justice Thomas's telling elides the entire point of the Second foundounding. and she could have just stopped there. But she continues. The Reconstruction amendments were an anti caste anti subordination reset for the nation, not a mere spot treatment for the dark stain of slavery KBJ The fourteenth Amendment is not a tied pen, you tools. L this is a real thing. like it's basically oxy clean for this whole nation and we need to get on that. And I love that she pointed out how Thomas again, is always ready to invoke race when it suits him and always ready to be race neutral when he wants to. Yeah Yes. She also has a couple of just like savage footnotes. She basically says just as Thomas thinks and says and is rightes that the court has not always made good on the promise of equal citizenship guaranteed by the fourth Amendment and inssurance in a foote, I suspect that Justice Thomas and I disagree about when and how that promise of equal citizenship has been denied by this court. My list is long and sadly only getting longer, and she offers a very long list. the most recent installment of which is Louisiana versus Cal. A list that begins with civil rights cases in Plessie versus Ferguson Y. This is the throughot line she draws. Students for Fair addmissions is in there too. Yeah.ary up. She wants all the bang. She wants every Yeah. and I just I love is that this the kind of antie Canon that she is willing into being, It's gonna to take a long time. like no be around the bush about that, but I really think that she is like starting to lay the foundations. And anyway, there's one foote footnote fifty three. there are a of footnotes in the Jackson separate concurrence. I mean, she joins in full, but she writes a lot also. And she says, there are myriad ways in which the court's adherence to colorblindness is mistaken, someome of which I haveve addressed in other opinions. And she says, one wonders how the outcomes in the above cases that long list of terribly misgued opinions might have differed had the court, like the government and the principal dissent today, relied upon the fact that the fourteenth Amendment was enacted to ensure that Black Americans are not treated as second class citizens. So where was the energy you're bringing today, Justice Thomas, in Students for Fair Admissions, or KLA or any number of other cases In light of the vote count, I was left wondering what the vote count on cert was, specifically. Was this the chief Jice thinking, I am going to grant cEert and get an easy layup and win for the Supreme Court's PR, or was it the dissenters granting cert because they wanted to bulldoze birthright citizenship. I don't know I love the idea of Chief Justice John Roberts thinking that he is the Jalen Brunson of the court, and he's going to do this. And I think it might have been the dissenters In light of the vote count, it could have been Justice Thomas's princial dissent,, wow. We need to talk about it. So the dissent ends with this quote We'm not sure that today's opinion will stand the test of time The citizenship clause added greatly to the dignity and glory of American citizenship Today's opinion devalues that citizenship So first of all Let's go back to the idea that the citizenship clause only applies to Black Americans and their descendants and therefore rank xenophobia is anti racist. that's basically the energy here. and going forward, That's where we've got to come back. This will not stand the test of time. This is an invitation to keep pushing on this and to makeake this happen again Like let's recycle our shitty arguments about same sex marriage and use them. against birthright citizenship Okay, we should also say a word about the Alito descent, which no one joins and which really is' on the way out maybe it's very hard to know what is happening this week. so maybe we'll know more about Thursday by next week. But in any event It really reads as a Fox newews segment in century Schbook font. That is the Spreme Court opinion font. I mean, like truly, the second sentence is like sneers about, quote birth tourists It then launches this screed about, quote, a long period during which a coderie of actors, executive branch officials, states and cities and a variety of private groups sent the message to would be immigrants that our immigration laws would not be taken too seriously. This message coupled with ineffective or unenthusiastic enforcement, spurred massive illegal immigration. It also kind of goes like Full great replacement theory talking about the grotesque results of a child born here to a birth tourist being automatically a citizen and warning about the intensifying trend of, quote, the overall foreign born population of the United States. L it's really a shocking document. It's actually a real take for someone who is the descendant of Italian immigrants Indeed. Amian I was actually kind of shocked by this, again, recognizing the real politique here. I mean, this man, his father, wasn't his father like came from Italy? He's not that far removed from coming over. and yet, you know, we're talking about birth tourism. I mean, ye Everyone came from somewhere else, my guy Except the Native Americans, my guy? Yes So I expected that in today's episode, we would have to talk about the fact that even though the court told the president he can't unilaterally nullify birthright citizenship, we would have to remind people that the court created the need for this decision, staging the media fawning over them by basically drawing this out and then insisting that the federal government bring it back to them. I thought we'd have to situate this case alongside many other cases where the justices told the president what he can do, including his racist immigration agenda, including the decisions we talked about last week, canceling TPS or giving the presresident a giant loophole to evade all of asylum law, racial profiling and immigration enforcement, and so on. I thought we would have to spend time situating this case along the many cases that did nullify provisions of the Reconstruction ammendments, like the courts of Voting Rights decisions out of Alabama, the one we are about to talk about, nullifying the fourteenth Amendment's equal protion guarantee for trans people, at least in the context of sports, nullifying equal protection principles applicable to the federal government, allowing the president to smear Haitian nationals with vile racist statements, saying the presresident isn't subject to provisions in the fourteenth Amendment, barring insurrectionists from office until Congress says he is. And instead the focus is how they came within one vote of nullifying the edifice of the post Civil warar constitutional order The world I was envisioning was already bad enough, but now there are four votes against the fourourteenth Amendment. againain, for all of the Dmocratic elected leaders who still are not on the Supreme Court reform train It cannot be up to the court, which provisions of the Constitution get enforced, Which groups have constitutional rights? It shouldn't be up to the court whether to give the presresident a hapass from the Constitution federal laws. likeike, am I supposed to be grateful that the court, in its benevolence would enforce the nineteenth Amendment and not allow state to tell me I can't vote tomorrow. No, and we shouldn't do the same when they do that for birthright citizenship by one vote How many votes do we think The challenge to the law that purports to override the nineteenth Amendment would get on this court. I mean, I think that a state legislature could probably muster a couple of votes. I mean, one thought I just had while you were talking, Leah is You know, I think Trump is probably not going to try to seek a third term, but like I feel like he would have at least two and maybe as many as four votes for the twenty second Amendment, not meaning what it very clearly says cannot serve a third term. So I very much hope we never have to test that proposition All right Let's pivot. This wasn't the only big decision that we got today. Obviously, this will be the focus for many traditional media outlets There are other really bad decisions here and we should talk about them. Let's start first with the other things that the court had to say about the fourourteenth Amendment and our nation's constitutional reset in favor of equality or Maybe not, a quality maybe Maybe not. Okay, and I'm actually going to hop off here because this week is nuts. So I'm going to let you guys land the emergency episode plane, but I will be on the term recap. We're going to record later this week. It'll be in your ears on Monday. and so I will be able to weigh in on the T athletes cases on that episode By guys Well The wild rumpuspenia Yeah So we talked a lot about this case when it was argued and we basically called this. so no surprises for us here, the court by a six to three vote. tell that federal law that bars gender discrimination in the context of educational institutions, Title nine. and the Constitution allows states to exclude trans women and girls from female sports teams. So technically, the decision on the Title IX question is actually unanimous. and it is six to three on the second question, the constitutional question about whether or not this violates the fourteenth Amendment quality mandate. The reasoning though, on the Title IXine issue is very different in the majority opinion and the concurrence on the judgment. So we're going to tease that out. Basically, the majority opinion says that Bostock, which was the court's decision saying that Title seven, which prohibits discrimination on the basis of sex and employment, also prohibits discrimination on the basis of gender identity. That was a decision written by Neil Gorsuch. The court here held that Bostock does not apply to school sports programs that are covered under Title nine The rationale for that as authored by Kurge Kavanagh seems to be because sports Okay, so Kavanaugh says that Title nine protects against discrimination solely on the basis of biological sex, maybe just in the sports context, a phrase his opinion uses seven times. Here's some of the quote unquote reasoning. Justice Kavanaugh says, quote We also must recognize the distinctiveness of competitive sports obbviously Isn't that in the Constitution? Didn't James Madison play on a pickup basketball team and get it? Well, it turns out Bret Kavanaugh is gonna to say that's in the Constitution, so get ready for that. He also says, quote, Title seII concerns employment. Whereas Title Iine, as relevant here, focuses on sports The two factual contexts are vastly different They don't pay for sport. Oh wait, they do pay you for sports after my decision in Alston Yeah. So the Democratic appointees concur with the result, but again, don't sign on to that reasoning. I think the bigger story, as we were just alluding to, is the court's six to three equal protection holding, where the court said the state bans didn't violate the equal prrotection clause because biology And also sports, My reading is that the court decided they were going to give a pass to sex discrimination under the equal prrotection Clause because they don't much care for trans people, at least in the context of sports. The court seems to have carved out an exception from a general rule in their equal protection jurisprudence, which is that there can be what are known as as applied challenges. As applied challenges are where a plaintiff argues the law is unconstitutional as applied to them other people like them, even if the law isn't uncstitutional as applied to everyone. And the structure of the plaintiff's argument here was that the state laws aren't unconstitutional as applied to cis women, but they are as applied to some trans women. acknowledges that as applied equal protection challenges are generally available but fail here because they would require individualized exemptions, even though That is what as applied challenges do. Although the court did say that that's just true in the sports context, at least for now I want to give more of a sampling of Kavanaugh's reasoning here. So just more of a flavor of where we're going. He says, quote Sports are different from, say a typical employment or educational opportunity He then goes on to say in the distinctive sports context, h, sports are so distinctive, the states may treat all biological males the same and treat all biological females the same He then continues, quote, especially in the sports context, moreover, an enormous practical and administriability problem would arise. This is, I guess, the kind of sports are different exception, maybe, but maybe they're not that different and we're just going to ride sports to its inevitable conclusion. I think this is the kind of reasoning that Justice Sotomayor had in mind when she wrote to explain her dissent on the equal protection issue, where she was also joined by Justices Jackson and Kagan. Justice Sotomayor wrote quote, The Majority extends great sympathy to those it favors, the young, cisgender girls and women who play sports, because the majority, however, inflicts a hardship on those it disfavors without giving them the fair and full opportunity the Constitution requires to litigate their contentions. I respectfully dissent, right Of course, this is the guy who coaches his daughter's basketball team coming up with this because sports, because girls sports. because the WNBA Just stepping back here, the state policies here don't subject trans men to the same restrictions only trans women. That is sex discrimination, which helps to see how in their anti trans fervor, the court watered down the prohibition against sex discrimination by making it easier for states to get a pass on sex discrimination. have we should underline that because inevitably when we talk about these cases, we get a load of online stuff from Alleged feminists who argue that we are getting this all wrong, that equality for trans people ultimately undermines women's equality FYI, it's the same set of precedents. So when they undermine sex equality and the juris Pudential foundoundation for sex equality for trans people, it invariably trickles down to women as well. So our faates are linked here. and It's not anti woman to be in favor of rights for trans people. The same foundation undergirds all of our rights And this is not to take the focus away from the horrible effect this decision will have on trans people. It is again, just to underscore to the extent you think this is the issue of one group, you are very, very wrong. And just to give you a flavor, here are some of the things Kavanaugh wrote about sex discrimination ge He said states are not required to conduct an individual by individual comparison again, writing about the classification that was targeted at trans women and trans girls on intermediate scrutiny, the standard applicable to sex discrimination. He wrote, quote, It permits a sex based classification that as here is not invidious, but rather realistically reflects the fact that the sexes are not similarly situated in certain circumstances I personally don't want Brett Kavanaugh deciding how men and women are inherently different and using that to decide what sort of sex discrimination is permissible voting. Exactly exactly. you know, he adds that some sex discrimination is okay because of, quote, those physical differences between men and women that are enduring I'll just say, I mean, it was so on brand for this court for John Roberts to give this opinion to Brett Kavanaugh, like sports, father of daughters, first man to have in all female chambers probably has season tickets to the WNBA. I don't know, but like it was just so on brand. The Kavanaugh Majority opinion also concludes that In addition to the law being a permissible form of sex discrimination, I don't know how it can be sex discrimination and be permissible I'm willing to be enlightened The law does not discriminate on the basis of gender identity And again, this is giving such Mullen versus Doe vibes. Like if we call, Is the discrimination, a different thing? Is it really the discrimination we thought it was probably not like this is the same way the president's racism against Haitians was sort of transmogrified into just rang xenophobia that was permissible, bad, but nonetheless permissible instead of being unconstitutional and impermissible. Justice Kavanaugh writes that the law doesn't discriminate on the basis of gender identity because the laws here simply classify on the basis of biological sex. So biological sex apparently trumps transphobia and is not the same as transphobia. So there you are. so good to know. Can I just note one more thing here Yeah decision think is rightly a more narrow decision than it could have been. Like he could have blown up everything, could have said that Title nine affirmatively requires the inequality of trans people and he stops short of saying that So I guess that's good. But I don't think you can divorce this decision from The larger context that it will occupy. and that broader context is this administration. So this administration has been on a tear with anti trans executive orders, executive orders that will threaten the funding of hospitals that provide gender affirming care to minors, that will rescind federal funding from places provide gender neutral bathrooms or that allow trans people to use the bathroom of their choice. And I just w to point out, we have seen this before where this administration takes a relatively narrow decision of this court, take, for example, SFFA versus Harvard and saddles up and rides it like sea biscuit, pushing the envelope on that very narrow decision to a place that the court did not sanction, endorse or imagine, or maybe they imagined it, but they certainly didn't write it. So we have seen this administration through its executive orders use SFFA versus Harvard to underwrite the dismantling of DEI programs, which were not part of the court's decision in SFA versus Harvard. At no point did the court say that private institutions could not take steps to remedy The under reppresentation of certain groups within their ranks through affinity groups or the like. But this administration has gone on a tear about that and they will do the same thing with this decision. They will take this decision that's very narrow in the context of women's sports and they will push the envelope on it to basically require the marginalization and liminality of trans people in every facet of American life. You heard it here And this is something you and I are writing about, so stay tuned on that I just wanted to give listeners a sense of what Brett Kavanaugh thinks the fourourteenth Amendment does. Apparently, Brett Kavanaugh thinks the founders who made the fourteenth Amendment wanted state officials and schools to inspect kids genitalia, but did not want birthright citizenship, at least for certain individuals. This is a wild take on the. Lyman Trump is surprised I guess this is where we are. And Brett Kavanagh also wanted to make sure that you knew, despite upholding this discrimination against trans people and offering a bunch of reasons about when and why sex discrimination is okay, that he is still a nice guy. So toward the end of his opinion, he writes, quote, We are acutely aware of the difficulties sometimes faced by boys who identify as girls and by girls who identify as boys in middle school, high school and beyond. we greatly agree with the desire of all students, including transgender students such as BPJ who want to participate in sports That's a redo on Skermmetti. Like we're not as bad as we were in SkermMetti. Like we get it. It's a problem But you don't get gender affirming care ennessee Ban You know who doesn't want to be a nice guy though U Do we need to talk about Clarence Thomas again? Let's go. So he wanted you to know he's not a nice guy. He wrote a concurrence to say that, quote, all men and boys who identify as girls Men and boys with gender dysphoria are not women or girls, even if they believe that they are I'm honestly shocked that Justice Alito did not join that concurrence Restraint. Growth It's probably too busy pressing send on his retirement announcement. justust forgotten Yeah R A Just joking. we don't know Anyway, despite Justice Kavanaugh wanting you to know that he really is a nice guy, despite his opinion, which is rife with trans erasing language We have to talk about the trans erasing language. So like Let's go there. So Justice Kavanagh writes, quote In recent years, some biological males who identify as female have sought to play on women's or girls sports teams And then he notes whether schools can quote maintain women's and girls sports for biological females is perhaps in question because of that influx of doneone real non women or whatever he's talking about. So There's definitely some trans erasing stuff and some transphobic stuff going on here. The opinion repeatedly refers to biological males and biological females. Indeed, right after the passage in which he assures us that he is a really, really nice guy, he writes, quote, But in conducting the equal Potion inquiry, we must also account for the effects on girls who are forced to compete against biological males in sport Will no one think of the daughters Such a nice guy. I wanted to briefly give a shout out to our listeners who flagged for us that this morning on the Scotus blog live blog of opinions, a commentator suggested that strict scrutiny was going to have a field day with Coach Kavanaugh having the opinion in West Virginia versus BPJ only for that comment to quickly be erased and taken down. Well, I mean, I'm just going to say whoever was on the Scotis blog They're listen and they know us because we did have a feel day Yes. So one last opinion, we got in the National Republican Senate Committee versus FEC, while birthright came within one vote of nullifying multiracial democracy. In this case, the justices managed to couple together six for undermining democracy The court here struck down what are known as limitations on coordinated expenditures. Federal campaign finance law limits the amount of money that an individual can directly contribute to a candidate At least for now Those limitations are called contribution limits In order to make sure that individuals cannot evade or circumvent those contribution limits, federal campaign finance law, at least before today, limited the amount of money that political parties could effectively directly contribute to a candidate, because federal law allows an individual to donate much more to political parties than to individual candidates. You see the loophole? Yeah. And that limitation is called the anti coordination measure. It prevents parties from coordinating with a candidate how the party spends money given to the party, which in effect prevents the party from handing over the money and decisions about how the money is spent to a candidate. Just to put this more concretely, individuals can give seven thousand dollars to a candidate directly, but they can give more than forty thousand dollars to a national party committee and ten thousand dollars to a state party committee, specifically every state party committee. So if you allow the parties to funnel all of the money that is given to them to the candidate directly then rather than being limited to giving only seven thousand dollars to a candidate directly, a single individual can give five hundred and fifty one thousand three hundred dollars effectively to a candidate directly. Seems like a lot All right, here's a summary of the majority opinion in this case And this is a summary that Justice Kagan offered in her dissent in which she was joined by the other two Democratic appointees. Justice Kagan summarizes it thusly. quote For those who think there's too much of it in this country, for those who would prefer even more money to be pumped even more easily into politics despite the danger of corruption, this overruling is for you KBJ energy. This is like KBJ and Snyder. This is an opinion only this court would love Yeah it. yep. Okaykay The overruling obviously is a reference to the fact that the court had previously upheld coordination limits in a decision known as Colorado two. You know who was ready to strike down the coordination limits all the way back in Colorado to I have an idea. I think you do. Justice Thomas. So yes, this majority It's continuing its trend of making Justice Thomas and Justice Scalia dissents into the actual law. You just have to wait for it. Just hold on folks. You'll make it happen. I think KBJ iss like, this is the energy. this is the energy. One day they're going to come back around to me Yes. Right. ye, one can dream. As Justice Kagan wrote, quote, almost to flaunt the point, the analysis gives pride of place to Justice Thomas's dissent in that case. If only the rest of the majority had been there to join him And then she goes on to add a KBJ like list, where she notes, quote, todayoday's decision thus can join the parade of those recently overruling established law because of a new majority's new outlook on a consequential matter Here the subject is campaign finance law, and then she goes on to list Citizens United McCutchon. Federal Election Commission versus Ted Cruz for Senate Davis versus Federal Election Commission And Justice Kagan described what she called, quote, an important point for the American political system about this decision, which is, quote, that the majority also, again, jettisons a rule needed to protect our democracy's integrity And in the process, it generates a quote, legal regime increasingly unable to stop political corruption and thus to preserve our institution's democratic legitimacy. Basically, shorter Llena Kagan, this is a decision only my emotional support billionaire could love Yep. Just stepping back to consider the context here don't know who's not aware of this, but we do have some upcoming midterm elections. and those midterm elections are going to play out in the face of a broken and hobbled voting rights Act, a broken and hobbled voting rights act that this court broke and hobbled. And we also now can add to the pile the continued demolition of anti corruption campaign finance laws as well as the president having the ability to fire members of the Federal election Commission. So this seems like a perfect storm for the upcoming midterms that was completely generated by a trifecta of this court's decisions. So Mission accomplished, I guess We did it, John No know Again We talked about this in our live show in New York City with Ellie Mistal and I will just say for my own part was never one that was totally on the court reform bandwagon. Like I favored some reforms, but not whol scale. I think this term has broken even me to the point where We have to talk about court reform as a pro democracy measure. Like this court is kind of off the rails and out of control. and needs to be reined in, whether that is through things that Congress can do, like expanding the number of justices or limiting the terms of justices or stripping the court of jurisdiction over certain issues. but All of these questions need to be on the table and for elected officials to sort of poopoo this and just like, we're just going to get better Representatives and senators are going to pass better laws without thinking about where these laws are going when they're challenged is just so one sided and dumb just get real. I mean, in addition to the list, Melissa rattled off The fact that the court came within one vote of voting against the Constitution itself and the foundation of our post civil War multiracial democracy order, I don't know how that wouldn't move you We'll talk about this summer. I'm not going to spoil what we have in the works, but I will just note that I too have changed my mind on some Supreme Court reforms and I look forward to talking about that more this summer. Yeah. You've radicalized us guys. You've radicalized So ye. the swing I have swung. Can we talk about the retirements real quick though? Just the retirements that maybe weren't. So I personally am choosing to believe that Sam Alito will refuse to retire just despite NPR, which was the organization that initially reported his retirement, and that we will retake the Senate and Elizabeth Prelaoger will replace him. As we mentioned, NPR posted a story today about how Alito is retiring few signs that maybe this might have just been a little early rather than premature. So exactly. The interternet's wayay backack machine indicates that the story was supposed to be posted on Friday the day before the holiday weekend And the retraction is specific in that it says, quote, neeither Justice Alito nor the Supreme Court Public Information Office has announced his retirement which is a framing about a lack of announcement And I just know in my bones, this guy is going to retire at the least convenient time for us when we have scattered and are trying to take a vacation. I just know it in my bones. But he does what he does Al the worst Also, several listeners noted, Clarence Thomas was spotted on the hill yesterday and refused to answer any questions about why he was there. Seeparation of powers Right. Exactly. Eactly A. Sping court is' political, though Yeah, I mean Apparently, according to reports, he's incredibly jocular and like seem to be having a great time, as one does when one ventures across the street to the Capitol Imagine how great a time he would have had had they actually gotten five votes for nullifying the Constitution I was wonder if who's down in the Senate basement dialing for dollars. Like guess what, folks New factor' gonna drop. He didn't rule it out. He didn't rule it out Wh we shouldh we end on this note? I think we was great to talk about it with you because I was feeling pretty I was so angry. I cannot even describe the screams I was screaming and you scrumpted. The posters and the commentators on television and otherwise I had some real feels. I did go on Alicia Menendez's show and remind everyone that there are no laurels for this court here I am very glad you did because not everyone was communicating that thought I'm glad that we're here to correct the record. folks. This is not the last you will hear of us, just the last, you'll hear of us today on this podcast. We of course have lots of work to do to recap this hanger of a term and we will do that this week. So stay tuned and we will be back in your ear holes Bright early on Monday to hit all the themes, all the highlights and lowlights of October term twenty twenty five Indeed Maybe will we have an emergency episode if Alito retires? I think TVD, it depends a little bit on where we all are and if we can make it happen Good to know. all right. Well, we'll put this in the group chat. Yeah, and of course, we'll call on all of our favorite Alito clerks to wax lyrical about the good man I laugh. Thanks, Melissa I've got a big rollotx.