Kate, Melissa, and Leah break down United States v. Skrmetti, the Court’s big case on gender-affirming care for minors, with the ACLU’s Chase Strangio. Chase is one of the lawyers who argued the case–as well as the first known transgender lawyer to argue at the Supreme Court. The hosts then make a pit stop at the always-out-there Fifth Circuit before recapping the other cases the Court heard this week.

TRANSCRIPT

 [AD]

Show Intro Mister Chief Justice, may it please the court. It’s an old joke, but when an argued man argues against two beautiful ladies like this. They’re going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.

Melissa Murray Hello and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it where your host. I’m Melissa Murray.

Kate Shaw I’m Kate Shaw.

Leah Litman And I’m Leah Litman. 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. Then we will cover the Supreme Court of the Fifth Circuit. And the Supreme Court of the District of Texas is latest forays into lawlessness. Before we recap the other arguments the Supreme Court heard last week.

Kate Shaw But first, the challenge to bans on gender affirming care. 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. Supreme Court and previous Strict Scrutiny guest, the one, the only Chase Strangio. Welcome back to the show, Chase.

Chase Strangio Thank you, guys. I’ve been very excited to come back on this show and talk to you and he and hear your take on our arguments.

Leah Litman I promise I have better questions. And Sam Alito. Set the bar low and see if we can exceed it.

Kate Shaw Bar in hell, as Melissa always tells us. So. 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. 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. Chase , do you want to first lay the groundwork by telling us about SB one, what it is and what it does?

Chase Strangio Yeah, for sure. So SB one, 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. 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. We went from two states that had previously banned this care in Alabama and 20 to Arkansas in 21. And then 2023 was the explosion. 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. You would go in and leadership was like, whoa, sorry, there’s nothing you can do. Here we are passing these bills. These are our number one priority is. And so I testified against SB one and in Tennessee 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 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. That’s 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. So, Bill Gut comes in. It moves very swiftly through through the legislature. Thankfully, that provision comes out. But in March, the governor signs the bill after it passes. And the ACLU, along with Lambda Legal and our co-counsel at Akin Gump, quickly filed a lawsuit. It was set to go into effect on July 1st. 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 the bills was just unimaginable. These families had spent years with their children suffering only to find release from this medical care and then have it stripped away. So we we quickly filed a lawsuit. And and that’s that that’s the lead up to the litigation that would become United States versus Germany at the U.S. Supreme Court.

Melissa Murray 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. What was animating the interest in passing these bans at that moment? And, you know, why were they doing this and what was health the ostensible reason, or was there some other political rationale?

Chase Strangio I mean, I certainly think there was a political rationale, but I think health was the the reason that they were claiming 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. It’s it’s after. Dobbs It’s the it’s the next legislative session. And these are interconnected issues. These are emboldened legislatures after Dobbs comes down. And so you come into 2023 with this sort of mandate about what is bodily autonomy. We can just, you know, run wild on on people’s rights. 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. 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. And then that is all coalescing in 2023. And the GOP supermajority legislatures across the country are, 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. And here they’re saying, but not these parents.

Kate Shaw Yeah, I feel like we could say a lot more about this. But I do think two things that are super important to what you just said. One, the connection between these bans on trans health care and abortion, right, until. Dobbs There was this backdrop understanding that the Constitution actually protected a zone of autonomy and privacy and liberty and that encompass certain sorts of medical decisions. 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. I think that’s really important context. And then the global context is really important, too. 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. 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. There’s a convergence that this is very much a part of.

Chase Strangio Absolutely.

Kate Shaw 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. 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. 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. 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. And at issue here, right, when laws discriminate against certain groups or draw certain kinds of lines, then judicial review is more searching. 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. So that’s, again, the background check. So what is the debate about whether this law contains a sex classification that would require courts to use intermediate scrutiny in reviewing it?

Chase Strangio 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, 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 in Tennessee.

Melissa Murray Stop what the textualism. If it doesn’t work here, okay, This is the Constitution we’re talking about. Stop it.

Leah Litman Stop trying to make textualism happen. And we’re just not a textualist world. Textualism is for suckers.

Chase Strangio I mean, I’ve. You know, I’ve been learning this the hard way because we thought that inconsistent with sex actually was a sex classification. 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. 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. So we think filing this lawsuit, you know, it’s a pretty straightforward claim and equal protection sex discrimination claim. And the other reason why that’s true is because this is an anti classification court that doesn’t ask.

Melissa Murray Not for this, Chase.

Chase Strangio Right. I know.

Melissa Murray Joke’s on you.

Chase Strangio It’s like the parental rights. It’s not actually. We know. But the idea was that even if they claim a benign purpose, as they tried to do with their appreciate sex language, they just want people to appreciate their sex. And how could you ever know what’s benign or invidious, as this court has told us time and time again? So the question is, and all we were really asking the court to do is reverse the Sixth Circuit, which said that’s not a sex classification. This is just a medical purpose classification, an age classification, which is frankly the dumbest argument that was ever presented.

Leah Litman 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. And it’s like you do realize why not both? And also like, imagine a law that required minors students to attend segregated schools like we wouldn’t be. Saying that’s an age classification, not a race classification.

Melissa Murray The part that Leah is 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.

Chase Strangio And the Supreme Court’s one of their first heightened scrutiny cases is about a sex classification for 18 to 21 year old. So it’s and everyone understands that that was an age and a sex classification and heightened scrutiny still applied. And so the sixth Circuit says no, no, no rational basis, nothing to see here. Constitution is neutral. Go forth, ban everyone’s health care. And the other thing that’s important about this age point, that this age classification argument is that none none of this actually hinges on the restriction being for minors only. And that’s actually one of the scariest part of 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, that argument, their argument would be the same. This is a sex neutral line that just gets rational basis review. 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. 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. Vacate that judgment, remand for the lower courts to apply the right standard in the first instance.

Leah Litman 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. 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. So basically the idea is any time a law explicitly takes account of race or sex, then it triggers heightened scrutiny. 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 x x x x x x, right. Like all over the place. 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.

Clip 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. The whole 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 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.

Melissa Murray 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. SB one, is not rationally related to the state’s purported interest in safeguarding children’s health. 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. 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 Seven’s prohibition on discrimination based on sex to prohibit discrimination on the basis of both sex and gender identity. And we wanted to give you a little flavor of where his head was at because it was somewhere else. Here we go.

Clip But your primary argument in the in our oral presentation this morning is based on Bostock like reasoning. Is that not correct?

Clip I think that’s incorrect. Our primary argument is that this statute on its face says you can’t have medications inconsistent with sex. And no matter what you think about transgender discrimination generally, that’s a sex baseline. It’s no different than saying you can’t dress inconsistent with your sex. My friends concede on page 25 of their brief. That’s obviously a facial sex classification. But our primary argument is SB one is worded exactly the same way and it works exactly the same way.

Clip Well, you have a Bostock like argument and you say that a a girl who wants to live like boy cannot be administered testosterone, but a boy who wants to live like a boy can be administered testosterone. So and that and that’s one of your major arguments. I take that to be a a Bostock like argument. So my question is, why should we look to Bostock here? Bostock involved the interpretation of particular language in a particular statute, and this is not a question of statutory interpretation. It’s a question of the application of the equal protection clause of the 14th Amendment.

Melissa Murray All right. Chase, there is so much shadowboxing with Bostock, even though that is a statutory case, a completely different case. This is a constitutional case and could stand on its own bottom as a constitutional case. Under the extent precedents dealing with sex based discrimination for purposes of the equal protection clause. But everyone seemed to be shadowboxing 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 Gorsuch, who wrote the 6 to 3 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 as the cat got his tongue. What’s going on here?

Chase Strangio This was really the surprise of the argument. You know.

Melissa Murray I just think he was silent. I was definitely surprised.

Chase Strangio That he I think the one thing coming out of argument that really shocked everyone was was Justice Gorsuch is silence because this was not an accidental silence, especially I mean, this Justice Gorsuch is an active questioner and he obviously has feelings about this. We know he does. Big feelings. Big feelings, thoughts. Some you know.

Leah Litman Men don’t have feelings. They have.

Chase Strangio This idea. That is a good clarification. 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. So it’s one thing in the solicitor general’s time up and then in this area. Adam Still nothing then? Still nothing. So by the time I got up, there was clear that this was a choice either. He had laryngitis, as Chris Gardner said to me, or, you know, he decided he was just going to wait and see how this played out. Obviously, I have no idea what was going on, what Justice Gorsuch thinks. But but that was the the biggest surprise of the argument, I think.

Leah Litman I have a question that I’m going to put to my co-hosts and not to chase. Given that Chase as an advocate appearing before the court. So feel free to back out of this one case. 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?

Kate Shaw Devastatingly difficult.

Leah Litman Right. Exactly. That had to be like the hardest few hours of his life.

Kate Shaw He deserves an award for it, actually.

Leah Litman Great. Great job, Neil. We know you can do hard things.

Leah Litman [AD]

Chase Strangio Yeah. And so in just to clarify, we had the argument that it was a sex based classification and we also had the additional argument that the law classify based on transgender status, which in and of itself would warrant heightened scrutiny, They should consider it a quasi suspect classification in its own right. So that was 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. So so that’s sort of one additional point here. And then, you know, there are lots of different ways that they could say that rational basis applies and they have sort of escalating levels of concerning ness. They you know, I think the the first one is that this is a law that just classifies based on medical purpose and 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. The problem with that is that it does actually classify based on on sex. And I think everyone knows that. And so what 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. And that’s sort of in the backdrop here, because what kept coming up is and this is where, you know, the argument was going at at different times is, isn’t this just about real differences between males and females? How could we apply heightened scrutiny to laws that classify based on real differences as well? It will often be true in medicine. This is very concerning because the entire purpose of heightened scrutiny and why it was developed is because every distinction based on sex for hundreds of years was justified based on biology. 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.

Leah Litman Well, and also imagine this in a post jobs landscape, right? It’s already scary enough, right, that the court allowed states to restrict a form of health care that is primarily used by women. 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. That would be really terrifying.

Chase Strangio Yeah. And also it’s like and then like, why that police power? You could see a different one. And then 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, framework of tiers of scrutiny. 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 that’s also lingering. 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 to say Alito says, you know, he really invigorates good old age, which had been basically gone for 50 years and says that,.

Leah Litman Yeah, stare decisis is for suckers unless it’s an opinion taking away people’s rights.

Chase Strangio And it’s very important.

Melissa Murray Yes, exactly. Sticking it to women specifically to 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. We haven’t talked about why we why you think the court didn’t take up the parental rights argument that was argued below. So I want to sort of bracket that. And then secondarily, you just brought up the fact that you also brief this question about considering transgender status as a suspect or quasi suspect classification entitled in its own right to intermediate review. 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 Cliburn around when we consider certain groups, quasi or suspect classes, and it usually turns on political powerlessness, a history of jury discrimination and immutability. And she really hammered on whether or not you could identify instances. Of what she called juror segregation or discrimination against transgendered individuals. And what did you make of that argument? And then just sort of broadly, if you could go back and 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?

Leah Litman Read a fucking book, Amy. Like you say, you’re an originalist and a historian, right? Like, look at some history. Sorry, sorry Chase.

Melissa Murray Originalism requires reading. It’s the first step.

Chase Strangio 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 their version of this bill in 2021. And I’m always like, we’re debating the history of discrimination prong of this. It’s like so baffling to me and the political powerlessness. I mean.

Melissa Murray That’s just is it baffling? 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, and you’re showing them, like you talked about the bans in the military, you talked about cross-dressing bands and you’re like, no, no, no. Show me a water fountain.

Chase Strangio Yeah, yeah, you’re right. You’re right. And then, of course, it’s like but then also, that’s not enough because yeah, you know, you can actually tell what is benign and what’s invidious. So I think that you’re right that it’s not surprising. 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. And it’s like, I can’t believe someone wrote that sentence because like and as Justice Sotomayor says in the argument, like it’s a little hard to protect yourself in the short term process when you’re like less than 1% of the population. 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?

Leah Litman Melissa, I honest to goodness thought when you were saying there paradigmatic quasi or suspect classification, I thought you were going to say, well, it’s going to be white conservative religious men.

Melissa Murray Like that’s the new minority. That’s the new one. But historically, the whole equal protection paradigm has hinged thank you and been organized around race. But yes, you’re right. There’s a new oppressed minority in town.

Kate Shaw Definitely not trans kids.

Chase Strangio No. No. Who wield extraordinary political power as we are witnessing every day. I mean, if the election told us anything, it’s that trans people are politically powerful.

Melissa Murray You’re definitely going to have a voter referendum in Tennessee after this. I guarantee it.

Chase Strangio Yeah, I think I think so. I think we’re winning. I think we’re winning. And then on the parental rights piece of it, So so in addition to this equal protection claim, we represented, you know, 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. And the court did not take up that question, which, you know, in in a curious turn of events, only granted the United States petition, which also nobody knows why. I guess we may find out after January 20th, but why didn’t they take it? I think, one, there wasn’t a clear circuit split. It could be just as simple as that. Or they, you know, didn’t want to. You have to say something limiting about parental rights since they generally love them, just not for these parents. And so I think that there would have been some tension there if they had to.

Melissa Murray Imagine being forced to be consistent in your principles. Imagine, what would that look like?

Kate Shaw Also. 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 side 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. We do not foreclose those sort of try to blunt the public reaction to the ruling by purporting to leave open this other avenue. But in the short term, obviously kids and families are totally out of luck. Like I thought possibly she’s laying the groundwork for.

Melissa Murray That’s totally what she was doing.

Chase Strangio Yeah, that was my unfortunate read of that, you know, series of questions from Justice Barrett to both sides is like, yes, you may think this is sad. 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, is asking these questions. 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 I think that that that is possible. I will say just about the overall I’m not an optimistic person in general. I think there’s no real reason to be at this point. But I. Welcome to the club say yes. I think that I didn’t come in thinking, you know, this is this is going to be easy. I also I don’t think we came out of the argument thinking it was any different than going in other than the confusion of the silence of Justice Gorsuch. So, you know, I think all of the the Post argument reporting is is really just projecting all of the things we know about the justices on to their 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, you know, how they think about these various questions.

Kate Shaw 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. But I actually don’t know that some of the headlines Justices poised to rule against transgender adolescents seemed overblown to me based on what actually transpired during the argument.

Chase Strangio I will say I came out of Bostock thinking I think there was a chance we would lose nine zero because what did not happen in Bostock that did happen here is we didn’t have a passionate defender of our side. It was there was a lot of confusion all around, you know, I think it was we, I knew we weren’t going to lose nine zero. In my heart, I hoped at least and the court has changed in 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. Because we have the live streaming arguments the way they happened, But we did not have the the sort of vigorous defense of trans life in Bostock. And it was a statutory case. There’s reasons for that that we did from from Jackson, Kagan and Sotomayor in this in this case.

Kate Shaw 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. So. One, the justices floating the possibility of regret from transitioning 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 Gonzales versus Carhart. 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 Dobbs cases like Gonzales. And you know that Kavanaugh alluded to multiple times during the Dobbs oral argument and in his separate writing in Dobbs Also, as we’ve talked about, the court invoking the idea that laws are about biological differences rather than sex classifications. So I guess a anything else to say about that? And then, B. The CAS report is something that came up during the oral argument. And I didn’t know if you wanted to sort of clarify the relevance of the case report, which as I understood, wasn’t in the record at all, but sort of what the Castro board had to say about any of this.

Chase Strangio Yes. So starting with the abortion connection and Gonzales v Carhart comes up in all of our litigation because of the language in that decision that says that states are given a significant amount of latitude where the government is given a significant amount of latitude when there’s medical or scientific uncertainty. And that language is quoted all the time in this litigation. And so I have had the good fortune of going back and reading Gonzales regularly. And I think the other thing that the graphic ways in which Justice Kennedy describes the medical procedures also is a parallel here. This is 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. And that is some that is a rhetorical device that is deployed here as well. The states and there are Miki. Often we’ll talk about the physical effects of this medication on people’s bodies as in sort of a way to have this, you know, sort of gruesome, visceral reaction for the reader. And that is very much present in Gonzalez. And so that is something that I always think about when I’m rereading that opinion in 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 certainty. 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 met, you know, medically needing this care somehow their regret or has become the people who the only people who we care about. And that isn’t to say that regret is in itself a upsetting. Thing. It certainly is. It’s just also part of life. And so to sort of say that we’re going to 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 that sense regret. We don’t have, you know, randomized controlled trials. They really care about certain types of scientific evidence sometimes. And that, you know, there’s 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. And then the ways in which sort of biology, again, figure so prominently into this conversation to justify 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. And then the tasks of 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 laws. Yes and yes in 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.

Leah Litman Sam Alito It’s like socialized health care is my passion.

Chase Strangio You know, I mean, he was reading from the Kass Review, which was published in April of 2024, like, over a year after the record closed. In this case, it’s a preliminary injunction. They can go back and introduce it on at trial. And of course, the court cared not at all about the Trump appointed judges, many, many factual findings that they, of course, ignored. So the CAS review is is it comes out of the UK and is part of the UK shift against trans people to it can’t be sort of thought of as this neutral thing and 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 does not recommend banning this care. Hillary Cas herself says that, yes, for some people this will be medically necessary. And so and also it is not the policy of the NHS. It is an it is a recommendation and it is not a legislative enactment of any kind. So it’s so incredibly irrelevant as a 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.

Leah Litman We are. You mentioned chase the justices discovering their passion for foreign law. One other thing that seems to have caused the justices to turn a new leaf over is recognizing courts limitations in assessing medical evidence. 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. 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 Tall, a case in which he literally second guessed maternal medicine’s views that abortions are medically recommended and necessary care for miscarriages like ObGyn say one thing, but Sam Alito isn’t so sure. And then you 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.

Clip I think I lost track of the discussion you were having about Covid. What was the point you were trying to make? I thought. Somebody was trying to make. Yes, I think it was me. And that the the point about about Covid and the question of whether or not this court has ever considered applying heightened scrutiny to a context in which states are grappling with evolving medical evidence. And I would point to Justice Gorsuch, his statement in in south south united Pentecostal, in which the the purpose of heightened scrutiny, even when the government is grappling with experts of of a medical 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. It’s not exempt simply because it is in the context of public health or. Medicine. Well, I don’t want to relive. The Covid cases. You and me both. Yeah.

Leah Litman Chase, we could go on. We love having you here. We wanted to congratulate you on an absolutely terrific argument. 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. We really appreciate you, you know, taking the time to talk with us about the case.

Chase Strangio Well, thank you for having me. And I just will have you know that I wore the special title seven shirt that you guys sent me the night before the argument for good luck. So I was channeling the Strict Scrutiny vibes. So thank you. And thank you for everything you do.

Melissa Murray I thought you’re going to say you were to oral argument. And I’m like, That is a boss bitch move. Right there. Forget a suit.

Chase Strangio So I did not go that far. I still wanted to win the case. Yes. And I think we want that. I think that out of it was the right that was the right energy. So thank you. Thank you, guys. And good to see you.

Kate Shaw We’re so touched. Thank you so much for being with us, Chase.

Melissa Murray Congratulations !

Leah Litman [AD]

Melissa Murray A few additional thoughts about the oral argument. Just generally at bottom, I actually saw this as kind of an existential question for the court, and there were three different factions among the justices.

Kate Shaw Melissa with the unexpected. Three, three, three.

Melissa Murray I know, I know.

Leah Litman It’s a three, three, three court. Wait until you hear her divisions tho.

Melissa Murray No, no. Wait wait.

Kate Shaw I know, I’m joking. I know.

Melissa Murray 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 There are maybe we call them the weirdos. I don’t know what we’re calling them. The conservatives definitely, too, Mostly because our little stop clock was so silent and we don’t know where Neil Gorsuch is. 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. 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? And so Thomas and Alito definitely think that the court’s role is to let state legislatures do whatever they want whenever.

Leah Litman Red state legislatures.

Melissa Murray Red state legislatures. Correct. Correct. But yes, 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. And that came out very, very clearly in this interjection from Justice Sotomayor, who was in conversation with the solicitor general from Tennessee. So let’s hear her.

Clip So when you’re 1% of the population or less, very hard to see how the democratic process is going to protect you.

Melissa Murray 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 Is this sex based discrimination that triggers heightened scrutiny? So here she is.

Clip 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, that it’s a constitutional question that is being raised when that is happening as a threshold matter. And then you may get into why is it happening, what is the justification? And then you’ve said here at the podium today that the different levels of scrutiny account for how strong the government’s evidence has to be for doing that. And we really the court really holds them to it in certain 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. And is that 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?

Leah Litman And her point was this isn’t about whether trans kids can play sports or not. 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. 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. And here is our favorite father of daughters articulating his new theory of judicial review slash one. He floated in his Dobbs concurrence.

Clip And you put forth forceful policy arguments to allow these medical treatments. And Justice Sotomayor’s questions elaborated on on that. But the 20 plus states on the other side put forth very forceful arguments against allowing these medical treatments for minors. So it seems to me that we look to 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, which that’s one way to look at it. I want to get your reaction to that. You know, if the Constitution doesn’t take sides, if they’re strong, forceful scientific policy arguments on both sides in a situation like this, why isn’t it best to leave it to the democratic process?

Melissa Murray So this to me is the most. Interesting kind of it’s not interesting because you said it. 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, the court cannot get involved. Which reminded me of your article with Dan Deacon lead the new major questions doctrine, where the court and advocates and regulated industries can basically gin up questions that are major just by making them controversial. And here is a similar kind of thing Just make something controversial on the court and say, you know what, We don’t actually care if you’re discriminating against protected groups, 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, like he just literally could not leave that on the table.

Leah Litman And so just this idea that he thinks it was so profound for him to write his concurrence and. Dobbs In which he said the Constitution is neither pro-life nor pro-choice, that he had to reprise that again. I mean, I would have been so embarrassed to say that, like much less publicly, I certainly would never repeated again. Like Brett Kavanaugh doing Karma and Carne theory is like Lisa Barlow singing Taylor Swift, Fortnite. Like it’s. It’s just egregious.

Melissa Murray It was egregious to Ketanji 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 as controversial. 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. So here’s her discussing this question and the ramifications for equal protection theory.

Clip And I guess my real concern and maybe I’ll just ask you to react to my loving parallel because I’m getting kind of nervous is that in loving those same kinds of scientific arguments were made. 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 state to treat interracial marriages differently from other marriages. On this question, the state argues the scientific evidence is substantially in doubt, and consequently the court should defer to the wisdom of the state legislature in adopting its policy of discouraging interracial marriages. 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. If instead we’re just sort of doing what the state is encouraging here and loving where you just sort of say, well, there are lots of good reasons for this policy and who are we at the court to say otherwise? I’m worried that we’re undermining the foundations of some of our bedrock equal protection cases.

Kate Shaw It didn’t just feel like she was giving him a little con law 101 Like, yeah, really? Just like Brett. Here’s the foundational stuff you’re missing.

Leah Litman Con Law for Dummies.

Melissa Murray Right? I know you went to Yale. I know there’s no grades in the first semester, Right? You know.

Kate Shaw Basketball court, you know, played your way through and. And maybe you miss this stuff, but let me remind you what it is we are doing here.

Why are we here, Brett? Why are we here.

Kate Shaw We also wanted to play a clip of an exchange between Justice Alito and Solicitor General Prelogar in which Justice Alito really tried to insist that Dobbs resolved this case and just talk about it some more. So first, when Prelogar attempted to explain to him why this case was different from Dobbs and Geduldig, because it involves a challenge to a law that explicitly and repeatedly says sex. He responded with this.

Clip Well, I’m sure I’m not sure that’s anything more than a play on words.

Kate Shaw And then there was this longer colloquy.

Clip Well, let me ask one final question that addresses Geduldig and Dobbs. Let’s take Geduldig first. One could make the same argument in Geduldig that you’ve made here. A man cannot, which concerned whether a pregnant woman was entitled to disability benefits from for time missed at work when a man would be entitled to benefits for time missed at work. So in that situation, a man cannot work due to a medical condition that prevents him from working. He gets benefits. The 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. Well, 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 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. So you can make exactly the same argument that you make here under Geduldig and under Dobbs. And yet there was no equal protection problem either of those cases.

Clip 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. But here there’s a facial sex classification. No one can take these medications if it would be inconsistent with their sex. And that’s imposing on the face of the statute two parallel rules, rules on classes of people according to their sex, all adolescent males who want to take these medications to feminize their bodies and all adolescent females who want to take these medications for masculine izing purposes. That’s a facial sex classification through and through. And I don’t think it’s controlled by Dobbs or Geduldig.

Kate Shaw God SG Prelogar. She’s got. Let’s see, one more week talking to Sam Alito.

Melissa Murray You know what? She may be the only person who’s ready for this term to and who’s ready to be out of office because I don’t like she was a little short with him. It was like subtle but perceptible nonetheless. Like, I think she’s like, stop talking. Like, just just stop. Stop.

Leah Litman Yeah. Like we all know, this is a charade, right? Like, just shut the fuck up. And you know I’m sick of you.

Melissa Murray Where is my anger translator? Where is she? Like right? Just looking around.

Leah Litman 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. It’s like you could hear the sound of him, like slapping it, like it’s a used car and being like, this bad boy can veto more like rolling back rights in here. And it’s just.

Melissa Murray Like I wrote this opinion for speed. Let’s go.

Leah Litman Yeah.

Kate Shaw Before we get on to the other recaps that the U.S. 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 lala 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. So starting with the Fifth Circuit. 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? 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. The Supreme Court, by a frighteningly slim majority, said no. Actually, federal supremacy is a real thing, including at the border. And it paused the injunction while the litigation in the case continued.

Leah Litman 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 so. By a vote of 2 to 1. 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. 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.

Melissa Murray Well, we do know federal supremacy. Is there just a little primer might be in order. I remember McCulloch versus Maryland sort of stock case and first year of constitutional law when Maryland tax the national bank the Supreme Court weighed in and said, hey, the power to tax also entails the power to destroy. You can’t do that to something. The federal government creates states. So, no, you cannot tax a national bank. 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. To that power to destroy apparently does not extend to these fences. But anyway, what’s going on here? This is insane.

Leah Litman 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. 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.

Melissa Murray That’s the Obama principle. The Obama doctrine.

Leah Litman Right. Exactly. Exactly. My guess is these courts will rediscover federal supremacy and executive power over immigration once Trump is back in office. 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. The Constitution gives the president discretion to harshly enforce immigration law, but not to treat migrants humanely, to restrict reproductive rights, to do some crimes, but not to forgive student loans.

Kate Shaw So that’s those are that’s the important set of answers to give on your con law exams, for example, this spring. I just broke it right down for you. So back to this case. What is going to happen in it? 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 and the Trump DOJ is likely to take a different position than the Biden administration with respect to border policy in general. 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 1252 F. 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. So it’s possible the Trump administration might ask the court to what’s called among some were the case. So vacate the opinion below. If they change their position. And that would essentially again mean asking the court to vacate the decision as moot. So we will see what develops with this case.

Melissa Murray 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. 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, and they regulate them in part by restricting anonymous incorporation and by discouraging shell corporations. And again, this generally requires the companies to disclose their private stakeholder information to the Financial Crimes Enforcement Network within the Department of Treasury. And all of this is intended to combat money laundering, corruption and more by making all of this transparent. Well, listeners, a district court in Texas has decided that Congress lacks authority under the Commerce Clause to regulate corporations in this way. So Congress lacks the authority under the Constitution to regulate corporations doing commerce under the Commerce Clause. Yeah. Yeah. Makes sense. Checks out. What?

Leah Litman 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 while it’s.

Melissa Murray Actually doing business. I mean, this is like the court has like, rolled back some of the Commerce clause jurisprudence, like has to be economic in nature as be sort of commercial in nature. All of this seems commercial and economics. So I’m not really understanding the problem here except that Congress did something.

Leah Litman Yeah.

Kate Shaw That might be enough.

Leah Litman Right? 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 Florid-uh. In this case a Trump appointee denied Target’s motion to dismiss a class action case filed by Target shareholders. The shareholders brought suit saying that the company lied about the risk of consumer backlash to Target’s 2023 Pride Week marketing campaign. So I wanted to spotlight this ruling because I worry it is really at the intersection of right wingers using extralegal outside of government tactics like the agitation about Pride week. Right. Just from private actors. And they’re using the law to enforce their preferences here, imposing liability on a company for essentially not predicting their batty reactions and heckler’s veto attempt over acknowledging pride.

Melissa Murray Never change Florida. Just never change. We did get one very encouraging lower court decision that we should highlight. Listeners, you’ll remember in 2023, the court dismantled affirmative action in higher education in SFA versus Harvard. But in that decision, it’s a question of the question of whether military service academies were also prohibited from considering race in their admissions calculus as well. Ed Blum, the architect of the FFA challenge, took that personally, and he filed a series of legal challenges against the military academies consideration of race. And there was one case in Maryland involving the Naval Academy, and there was an extensive bench trial before Judge Richard Bennett, who was a Republican appointee who served over 20 years in the U.S. Army Reserve and the Maryland National Guard. And Judge Bennett wrote a 179 page ruling weighing this evidence and concluding that the Naval Academy has established a compelling national security interest in a diverse officer corps in the Navy and Marine Corps. 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 who are all trained under the Naval Academy. So this is a very important victory for affirmative action. Ed Blum has vowed to challenge this ruling to the Fourth Circuit and if necessary, to the Supreme Court. We should also note there is 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.

Kate Shaw Yeah. But we will keep our eye on that case or those cases as they proceed. But for now, back to Scotus. We have a handful of other recaps to bring you. And the first is the oral argument in FDR versus White Lion, which is the case challenging the administration’s denial of an application to market e-cigarettes with certain flavors. 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. 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.

Melissa Murray Well, we all know that the court loves to second guess agencies, especially when it involves questions of science. And if you don’t believe me, go back and consider Ohio versus EPA, where the court said all over the good neighbor rule. But here we were really expecting the court to continue in its trend of just questioning science because they all have PhDs in chemistry or whatnot. 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. So we are ready to admit when we get things wrong and we’ll say we might have underestimated them. Here, the arguments seem 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. So that’s progress, too, I think.

Leah Litman Yes. Although it allows us to get to the same outcome.

Melissa Murray So one of the places we have to be more positive, 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.

Leah Litman Until I get to see more have shows in my near future, it’s going to be in the doldrums for me. So one alleged procedural error here was the FDA’s change and whether companies were required to submit certain kinds of evidence to the agency. Justice Kagan spent a lot of her time during the argument debunking that claim. You know, she pretty persuasively pointed out there wasn’t a notice problem because the companies knew what was expected of them. The company’s knew the FDA had already taken the position that certain flavors made products especially appealing to kids. 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 that. Use regular cigarets. And as Justice Kagan pointed out, the company did provide that kind of evidence. It’s just the agency wasn’t convinced by it.

Melissa Murray The bulk of the argument time, however, seemed to turn on an issue that we actually flagged in our preview. And. Issue is whether one of the agency’s errors, which the government concedes was an error, was in fact harmless. 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. 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. 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. That is, whether it was a harmless error.

Kate Shaw 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. 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. And also the EPA 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. But, you know, foolish FDA, I suppose that’s not the kind of textualism that the court has in mind.

Leah Litman Once again, like whether textualism textualism applies when you’re ruling against an agency. It doesn’t apply like when textualism suggests a law hurting trans kids triggers heightened scrutiny or right that a court should affirm an agency’s ruling.

Kate Shaw It’s it’s okay to actually it does apply if it’s a Trump administration agency. Right. Helping employers not give their employees contraceptives. That is the one and only occasion in which this rule can read down to the benefit of the federal government. So it’s important.

Leah Litman To keep track of these decision tree is just so we all can understand what’s happening here. 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.

Melissa Murray Which gave it back to him, gave it back to me.

Leah Litman And Neil used his voice to suggest maybe the court should tear down entire chunks of the FDA while they’re at it, even though that wasn’t presented here. So you can hear him making this bold suggestion in what follows.

Clip And let me just turn back real quickly to the enforcement action question. Are those conducted before ail trace the civil enforcement actions? I’m not sure, to tell you the truth, but I’m wondering, does a company ever have a chance to get before a judge and a jury? I think the answer is yes, But I’m but I’m not sure about the details because we haven’t really been engaging in those with respect to the category, the products that are at issue in these cases. I mean, after Dark QC, perhaps the answer is yes, we will certainly comply with what the law requires. Justice Thank you, Mr. Guinn.

Melissa Murray 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. 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. The question is whether the U.S. 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.

Kate Shaw 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, whether textualism, 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. is immunity from suit.

Leah Litman The court also heard Republic of Hungary versus Simon.

Melissa Murray 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, Some of the case focused on the language in the statute, what it means for the property to be, quote unquote exchanged for property that ends up in the United States. So again, more textualism that we can just forget except when we’re not.

Leah Litman But here to a lot of the case focused on less textual considerations. There were concerns about a visa and the prospect that foreign states could get away with expropriation as long as they maintained a separate bank account for expropriated money. There was also concern about foreign policy. A. Implications of the different interpretations as well as what the rest of the world does in cases like this. There was also attention to the legislative history and what Congress was trying to get at through certain amendments.

Kate Shaw And once again, it wasn’t totally clear where the court was leaning. In this case, it seemed like maybe it was leaning against allowing suit, at least on this particular theory or these particular facts. And that, again, is the idea that a foreign sovereign co-mingled profits from expropriated property with its national wealth and then issued bonds in the United States.

Leah Litman [AD]

Melissa Murray Y’all, I just love that this court was so problematic we couldn’t even talk about Kash Patel like the court, like literally eclipse Kash Patel as.

Leah Litman Director of the US. We had we had a great culture, a segment lined up. I really did just had to spend more time on their abandonment of textualism and trans kids. You know, we also wanted to talk about Mitch McConnell all of a sudden becoming concerned about courts being partizan in the sense that some judges might withdraw their retirement announcements and not allow Republican presidents to replace them. Apparently, that’s what’s going to politicize the courts.

Melissa Murray He didn’t even talk about pardons. I mean, like the court just takes over everything.

Leah Litman Yeah, I know. They they just suck up everything.

Melissa Murray But that’s why we’re here. Like that sucking sound. That’s the court And that’s us sucking it up and explaining it to you. That’s why we’re here. Anyway. Strict Scrutiny is a Crooked Media production hosted an executive produced by Leah Litman, Me, Melissa Murray and Kate Shaw. Produced and edited by Melody Rowell. Michael Goldsmith is our associate producer. We get audio support from Kyle Seglin and Charlotte Landes. Our music is by Eddie Cooper. We get production support from Madelyn Herringer and Ari Schwartz, and Matt DeGroot is our head of production and we are very grateful for our digital team Phoebe Bradford and Joe Matusky. You can subscribe to Strict Scrutiny on YouTube where you can also catch full episodes if you haven’t already. Be sure to subscribe to Strict Scrutiny in your favorite podcast app so you never miss an episode. And if you want to help other people find the show, please rate and review us. It really helps.

[AD]