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Leah, Melissa and Kate roll up their sleeves and unpack last Friday’s huge day at the Court, starting with Mahmoud v. Taylor, the case that tested Sam Alito’s ability to comprehend picture books. They also break down the outcomes of cases involving age verification for adult entertainment and the nondelegation doctrine. If you missed last Friday’s emergency episode on the birthright citizenship case, you can find it here. 

Hosts’ favorite things:

• Melissa: Jackson and Sotomayor dissents (Mahmoud v. Taylor, Trump v. CASA, Inc.); Outrageous (BritBox); Dream Count, Chimamanda Ngozi Adichie
• Kate: Green-Wood Cemetery’s Living Dead, Paige Williams (New Yorker); Dying for Sex (FX on Hulu); Chris Hayes’ lecture at the Chautauqua Institution
• Leah: KBJ and Sotomayor dissents; The 21 Best Croissants in New York City Right Now, Mahira Rivers (NYT); YELLOW, Washington, D.C.

TRANSCRIPT

Leah Litman [AD]

Show Intro Mr. Chief Justice, may it please the court. It’s an old joke, but when a 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. We’re your hosts. I’m Melissa Murray.

Leah Litman I’m Leah Litman.

Kate Shaw And I’m Kate Shaw. On today’s episode, we’re going to do deeper dives on the big First Amendment decisions that we got at the end of the term. That’s Mahmoud versus Taylor and Free Speech Coalition versus Paxton. We’ll also talk briefly about some of the other cases we got on the last day of the terms. But the upshot of the two big First amendment cases, Mahmood and Free speech coalition, are basically that speech that Project 2025 doesn’t like isn’t entitled to so much First Amendment protection. In fact, you have a First Amendment right to object to such.

Melissa Murray With that lead in, let’s start with Mahmood versus Taylor. This is the case about the Maryland School District’s decision to include LGBTQ plus inclusive reading material in their curriculum. After reviewing their curriculum with experts and consulting with parents, the Montgomery County Public Schools decided that they wanted to expand their curriculum a little, maybe include some books that featured families like the families in Montgomery County, which is to say, gay families, maybe kids who were going through gender dysphoria, things of that nature. And some parents took that personally. They wanted to opt their children out of the instruction on the grounds that they had religious objections to the material. But the school concluded that allowing opt-outs, which they initially provided, was ultimately unworkable because they couldn’t actually, especially in the elementary schools, create separate time and space and curricula for groups of students whose parents didn’t want them to participate in these particular lessons in the Elementary School level. Plus, giving parents the ability to opt out of instruction touching on LGBTQ families made kids from LGBTQ families feel stigmatized like their friends didn’t want to learn about their families and homes.

Leah Litman As we noted on Friday’s emergency episode, Justice Alito’s 6 to 3 opinion for the Republican appointees concluded that the instructions substantially burdened the parents’ religion, and that the school district did not have a sufficiently compelling reason for not offering opt-outs. So we’ll start with Justice Alita’s assessments of the reading material and why they burden parents’ religion. TLDR here is going to be, maybe he can read, but not well. So, Justice Alito believes… All of the storybooks carry a normative message that same-sex marriage and being transgender are OK. So he writes, quote, for example, the book Prince and Knight clearly conveys the message that same-sex marriage should be accepted by all as a cause for celebration, end quote. And while, quote high school students may understand that widespread approval of a practice does not necessarily mean that everyone should accept it, but very young children are most unlikely to appreciate that fine point, end-quote.

Kate Shaw The opinion also engages in some pretty B minus level college freshman literary analysis of said elementary school storybooks, kind of of the same sort that he and Neil did during the oral argument, if you listen to that or our episode about it. So as to one storybook, he says, quote, when the main character’s brother says, quote, you can’t become a boy, you have to be born one. His mother corrects him by saying, quote not everything needs to make sense. This is about love. The upshot is that it is hurtful, perhaps even hateful, to hold the view that gender is inextricably bound up with biological sex.

Melissa Murray Question, why is Justice Alito so sensitive? And why does he think that children’s books are literally coming for his worldview? I mean, it’s basically what it boils down to. We are literally going to use children’s literature to change hearts and minds about gay people, gay families, transgender people. And when that happens, all religious conservatives are going to be shut out of society. That’s the basic TLDR. I don’t get it. He also insists, to Kate’s point about misreading, on doubling down on his very misguided reading of Uncle Bobby’s wedding, which was a particular focus at the oral argument. Here’s what he had to say in the opinion. Quote, Uncle Bobby’s Wedding, the only book that The Descent is willing to discuss in any detail, conveys the same message more subtly. The atmosphere is jubilant after Uncle Bobby and his boyfriend announce their engagement. The book’s main character, Chloe, He does not share this excitement. I don’t understand, she exclaims. Why is Uncle Bobby getting married? The book is coy about the precise reason for Chloe’s question, but the question is used to tee up a direct message to young readers. Bobby and Jamie love each other, said Mummy. When grown-up people love each that much, sometimes they get married. The book, therefore, presents a specific, if subtle, message about marriage. It asserts that two people can get married, regardless of whether they are of the same or the opposite sex, so long as they love eachother. It is significant that this book presents acceptance of same-sex marriage as a perspective that should be celebrated. The book’s narrative arc reaches its peak with the actual event of Uncle Bobby’s wedding, which is presented as a joyous event that is met with universal approval. Oh, now insert an aardvark clenching fist here.

Leah Litman This this is C plus literary analysis like freshman lit literary analysis at best i mean he’s not reading these storybooks he is rewriting the storybooks again his imagination is that little chloe has a sincere religious objection to marriage equality that she’s communicating to her Mom? And her mom turns back and is like, no, Chloe, you have to love the gay because that’s the future liberals want. And it’s like, why is he so offended when people are happy that gays, lesbians and bisexuals find love?

Melissa Murray The universal approval. I mean, like Uncle Bobby’s wedding was attended by their friends and family. Like nobody can afford to invite everybody to their wedding. Like just can’t Justice Alito. Universal injunctions. No one’s making Sam come to these weddings.

Leah Litman Yes. Like, given the delicate sensibilities that are on display in this opinion and the Republican justices willingness to say that mere exposure to objectionable content burdens religion, there are obviously real concerns about what parents are going to be allowed to assert is the next infringement of their religious freedom. So, during the oral argument… The then acting Solicitor General had suggested that allowing trans kids to exist and to use pronouns that reflected their gender identity could be objectionable content that parents could require opt-outs from. So Justice Jackson asked, is it a burden on the parent to have their child in a classroom with a transgender student and the teacher is referring to them by pronouns that the parent thinks is inappropriate? But the acting Solicitor General said, I mean, I think even under respondents view. That would in fact constitute a burden on religious exercise.

Kate Shaw I had forgotten about that moment. Oh my God.

Melissa Murray Also, this is the question I had when that colloquy happened. Like, what about a book about, I don’t know, a mom who works outside of the home, which some religions have real objections to. Like, are we going to take that off the table, too? Like, maybe you can’t have a lady teacher. Or actually, maybe lady teachers are exactly what you should have. I don’t know. Yes. But like, all of these things, this basically allows parents to fly specks.

Kate Shaw The whole curriculum. Yep. And just totally destabilize public education, which again is maybe kind of the point. Seems so. So we also wanted to highlight Justice Odomayor’s dissent, which took the opinion to the woodshed for the kind of stuff it suggested was objectionable content. So quote, to the extent students make comments that may be hurtful to classmates in the room, the guidance recommends teachers discourage such behavior. If a student says that’s so gay, The guidance suggests a teacher may respond. Regardless of how it is intended, using gay to describe something negative reflects a long history of prejudice against LGBTQ plus people, so please don’t use it in that way. You may not have meant to be hurtful, but when you use the word gay in any way outside of its definition, it’s disrespectful. Similarly, if a child says, that’s weird, he can’t be a boy if he was born a girl, the guidance just encourages teachers to respond. That comment is hurtful. We shouldn’t use negative words to talk about people’s identities. The majority reads these portions of the guidance to direct teachers to quote, accuse students of being hurtful when they express confusion based on their religious views. So like two things, one, the majority here and when it’s reading story books, like is engaging in willful misreading and uncharitable misreading of the documents at issue in the case. And also I just, it is impossible for me to get my head around the worldview of this majority. This stuff is so mild and inoffensive and has baked into it. The conflicting imperatives of coexistence in pluralism. Like that is what they have tried to do and I don’t know if it has been done perfectly in the guidance or with the selection of the particular storybooks, but the idea that this court knows best and is going to impose its views about one set of values reigning supreme over all others is fucking outrageous.

Leah Litman Well, also the idea that it burdens your religion to tell someone, don’t use the word gay as a slur. This idea that homophobia is constitutionally protected, it is gross. Strict scrutiny is brought to you by Smalls. It’s kind of funny being a person promoting cat food when I don’t even have a cat, but so many people in my life have awesome cats that I’m super into that it actually makes total sense. There’s my colleague’s cat, Leo, who I’ve actually become a godmother to. I named myself godmother. Leo will literally come on command even though Leo is a cat. And he’ll sit on my lap and take pictures with me, like selfies, and you know what Leo deserves? Smalls! Smalls cat food is protein packed recipes made with preservative free ingredients you’d find in your fridge and it’s delivered right to your door. That’s why Cats.com named Smalls their best overall cat food. To get 60% off your first order plus free shipping, head to Smalls.com and use our promo code STRIKT for a limited time only. Here’s a review from a real Smalls customer. Elizabeth C said, quote, “‘My cat was always so-so with her usual food, “‘but she is very enthusiastic about Smalls.'” Her breath is much better and she poops much less frequently and it doesn’t smell disgusting like it used to.” Plus, Smalls works with Humane World for Animals. They’ve donated over a million dollars worth of food to help cats through the Humane world for animals. And they even give you a chance to donate at checkout, whether you donate $5 for flea and tick medications or $7 for vaccines. I’m a fan of Smalls because the divas of the world that are cats deserve food made from the good ingredients, only the best for the diva’s. After switching to Smalls, 88% of cat owners reported overall health improvements. That’s a big deal. The team at Smalls is so confident your cat will love their product that you can try it risk-free. That means they will refund you if your cat won’t eat their food. What are you waiting for? Give your cat the food they deserve for a limited time only because you are a strict scrutiny listener. You can get 60% off your first Smalls order plus free shipping by using my code STRIPT. That’s 60% of when you head to smalls.com and use promo code STRIX. Again, that’s promo code strict for 60% off your first order plus free shipping at Smalls.com. So that’s, you know, the reading of the relevant record materials, to the extent there are any, and the books. And then on a legal level, the opinion is just bananas and all over the place. So it takes a very expansive view of an earlier decision of the Supreme Court, Yoder versus Wisconsin. That was a 1972 challenge to a Wisconsin law requiring high school attendance. And the court ruled in that case that the Amish parents’ fundamental right to free exercise of religion together with other rights outweighed slash prevailed over the state’s interests in educating their children. Yoder is typically cited for the view that parents have a right to be exempt from laws that require traditional education that is compel individuals to attend particular practices when that conflicts with their religious beliefs. So Yoder allowed religious believers to opt out. Of traditional education, but here it seems like the court is taking a much broader view of Yoder, that it allows parents to object to and be heard to as to how their children are educated even in the public school system, so it gives them a right to commandeer public education rather than.

Melissa Murray The court also emphasized in its discussion of Yoder that schools can be sites where children are exposed to ideas that conflict with their parents’ belief. And honestly, if we’re doing a history and tradition kind of thing, that’s kind of the whole point of the common school movement. The idea here was that students in public schools would be inculcated with a core set of common values Might not necessarily be the values inculcated at home, but were a set of civic values necessary to be part of a democratic society. And you can take that in whatever way you want. But this idea that students can never come into any ideas that are in conflict with what is said in the home has never been part of public education. In the same vein, we also got some big news with this discussion of Yoder. Apparently. Justice Sam Alito cares a lot about respecting 1970s precedent, and he is big mad that the lower courts here quote, breezily dismissed Yoder, a quote, important precedent of this court. Well, sir, you’re going to be shocked to find out that someone else breezilly dismissed another 1970s precedent not so long ago.

Kate Shaw Roe versus Wade would like a word, as would Abood . I mean, I’m not sure what other 70s precedent Sam Alito has personally bulldozed, but I’m sure it’s United States. He didn’t write the opinion, but fair enough. I’m mean, the one thing is good dull dig is getting proper respect. So I guess there is that if we’re talking about 1970s precedents, but I mean, even for Sam, not all precedent is entitled to respect because newsflash, these guys are just wildly inconsistent in all the ways. But here specifically, I mean reading this opinion, did the court sort of sub-celentio overrule Smith, the 1990 decision that held the government?

Leah Litman I mean maybe at some points like

Melissa Murray I mean, is this him sticking it to Amy, who in Fulton was like, we can’t overrule Smith. We don’t have any other sort of framework to put in its place.

Kate Shaw And he was like just watch me. Yeah.

Melissa Murray So yes, please continue. I do think they overruled Smith.

Kate Shaw Or at least like blew a hole inside of it and allowed lower court judges to wiggle out from under it any time they want, right?

Leah Litman That’s the point, right? They can wiggle out of it selectively, so they’re unwilling to actually announce a new general rule. They just replace it with a standard that allows them to recognize the religious claims they like and reject the ones they don’t.

Melissa Murray We’re getting too excited. Listeners, Smith is the 1990 decision that held that the government can place incidental burdens on a religious exercise so long as it does so through a neutral policy that is generally applicable, like, say, for example, a school policy or something like that that applies to everyone. Our point here is that the court seems to have blown up Smith in a way that perhaps allows The court and other conservative Republican judges to wiggle out from under its mandate any time they want to. Here’s a quote from Justice Alito. In most circumstances, the government is generally free to place incidental burdens on religious exercise so long as it does so pursuant to a neutral policy that is generally applicable, that’s Smith. But when a law imposes a burden of the same character as that in Yoder, a compulsory high school attendance law. As does the challenge board policy here, not a compulsory high school attendance policy, strict scrutiny is appropriate, regardless of whether the law is neutral or generally applicable. That to me is real different from Smith.

Leah Litman Yeah, like the burden of the same character, that is just this free-floating standard that allows them to decide what are burdens of the the same characters? What are burdens that give them pause? And that’s going to enable the kind of selectivity that we were just hypothesizing. And the opinion is just all over the place messy. I mean, at times it seems to say, Well, you have to show a burden. At other times, it’s a substantial burden. I don’t know what he means. He can’t even be consistent. And what burdens are they gonna say are serious? It’s clear it’s going to be burdens experienced by conservative Christians. Another summary that Justice Alito gives of the legal standards slash legal tests, that’s all in air quotes. This is not law that he adopts in this case is quote, A government burdens the religious exercise of parents when it requires them to submit their children to instruction that poses, quote, a very real threat of undermining the religious beliefs and practices that the parents wish to instill, end quote. The very real THREAT of Uncle Bobby’s wedding, of a kid’s storybook, like, that is what you are threatened by?

Kate Shaw Yeah, I just cannot. I think Sotomayor rightly does see the existential threat to public education here. So we’ve already mentioned her dissent. I mean, she basically does say that the court is handing at least a subset of parents this right to veto the curricular choices that have long been left to local, again, elected school boards, right? Because the court is very, very concerned about democracy in the context of presidential elections and executive orders. Lawlessly implementing the will of the people through the president. But when it’s a school board making choices about curriculum, democracy is of no concern to the majority. And let me just read a somewhat long quote from Sotomayor, but I think it’s really

Leah Litman Well, unless they’re adopting don’t say gay, then the school board’s choices are good.

Kate Shaw Absolutely, because that is democracy, but this kind. This is not. This is actually anti-democratic. Or at least democracy is unimportant because the first, if the kind of religious liberty vision of the court undergirds the democratic action, it’s great. If there is tension, the Constitution, as they see it, trumps democracy. So here’s what she says, Demeyer says kind of broadly about the effects on public education. Quote, today’s ruling threatens the very essence of public education, the court in effect. Constitutionalizes a parental veto power over curricular choices, long left the democratic process, and local administrators. The decision guts our free exercise precedent strikes at the core premise of public schools that children may come together to learn not the teachings of a particular faith, but a range of concepts and views that reflect our entire society. The reverberations of the court’s error will be felt, I fear, for generations.” I mean, this is, yeah, this a serious blow. It is, I mean, obviously the storybooks are like, it’s ridiculous that the court is this incensed about storybooks, but she is right to say the story books don’t, you know, it’s wrong to suggest the court, this is a case about story books. This is a about pluralism and education.

Melissa Murray That’s what this case is about, learning to live in a diverse society where not everyone thinks like you.

Leah Litman Well, and we should understand, I think, the court’s attacks on public education in the broader context of the Republican Party and Trump administration’s attacks on education, attacking the Department of Education, trying to control higher education, threatening funds for teacher trainings and other support for public schools. It is a war on education.

Melissa Murray It’s also just deeply selective because we are being inundated with these claims that we all have to learn to live with people who don’t think like that. They’re always looking at progressives and liberals. You have to talk to conservatives. This is the same thing. FYI, I went to the University of Virginia in the 1990s. I definitely learned to live around people who did not think like me, people who said things like, maybe slavery was good for the blacks, literally said things like that, and I learned to live with it. And now we’re in this world where we’re all living together, but sometimes you can say, you know what? I actually don’t agree that slavery was good for the blacks and people are having a fucking hissy fit. I don’t understand.

Leah Litman Right, like you can’t say that, but you can say the other thing. And yeah, that’s what’s so gross, or one of the things that’s so gross about the Mahmoud opinion is it makes these again, very homophobic claims, this idea that LGBT storybooks are a real threat to religious beliefs and practices and religious individuals. And you can Say that, and that has to be received. Claws and a civilized response and being treated as this very reasonable position. But the soonest you say that’s bigoted or homophobic, you’re engaged in cancel culture and attacking. I think it’s just the double standards are very revealing.

Melissa Murray Their actual views are. I mean, again, this whole idea that conservatives are silenced in public schools or universities. I just remember sitting in an advanced English seminar being like, is this the day when I’m going to risk it all and be like, you know what? I don’t think slavery was good for the blacks. And instead, I just went to the bathroom because I knew that saying something to this kid would result in me getting a rash of shit that I didn’t feel like dealing with in 1996.

Leah Litman Or many women who sit in law school classes when sexual assault and rape are taught. And there is always the comment about, aren’t we over-policing this? Aren’t these women being too sensitive? False accusations are the real problem. Dude process means sexual assault. Convictions and prosecutions need to be undone. And that too is just something that has to be greeted with, and this is part of reasonable debate.

Melissa Murray And rant, it’s time for our recurring segment. We need to talk about Justice Thomas’s concurrence. Predictably, Justice Thomas agreed with the majority that the Montgomery County public schools violated the religious liberty of religious parents by assigning books. But predictably, justice Thomas would go further. To conclude that sex education, and here woke lessons about sexuality and gender Are not part of the history and tradition of public education and thus are not critical to the civic values that public schools should be inculcating. He also hilariously tried to equate the Montgomery County’s efforts to create a more inclusive curriculum to the effort rejected in the 1925 case Pierce v. Society of Sisters to, as he put it, save the child from his parents’ religious beliefs. This warrants a little unpacking because I think it might be unfamiliar, but listeners settle in for some history and tradition. In the 1920s, nativists and racists joined forces against the rising tide of immigration in the United States and in Oregon. Oregonians proposed a ballot measure that required all parents to send their children to public schools so that they could be inculcated with so-called American values. And they were especially concerned with shutting down. Parochial schools and other private schools where immigrant parents might turn to, to educate their kids in a more diverse curriculum. The measure was supported by, wait for it, the Ku Klux Klan, and it was understood to be aimed specifically at the immigrant population in Oregon. The measure passed by a wide majority and was challenged by a parochal school and a military academy. And the Supreme Court in 1925 issued an opinion saying that the measure violated the fundamental right of parents to raise their children in the manner of their choosing. And I’m just flagging this because it is kind of wild that Justice Thomas is equating an effort to include a more representative cross-section of families in a school curriculum with a 1920s nativist ballot initiative supported by the KKK. To essentially homogenize children altogether. But we are in a cursed timeline where inclusion is the same as homogenization and it’s all bad.

Kate Shaw Basically, there is nothing that these ghouls will not cynically press into the service of their own radical agenda. And we are seeing countless instances of that.

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Kate Shaw All right, second big First Amendment case of the end of the term that we’re gonna cover is Free Speech Coalition versus Paxton. This is a case involving a statute that requires covered websites to verify that an individual attempting to access the material is 18 years of age or older. The act permits various forms of verification, including digital IDs, government-issued IDs, and other commercially reasonable methods, although the precise methods that are permissible is actually kind of unclear. All that kind of ID requirement removes people’s anonymity and also makes it harder to access the materials. And the question is whether this Texas verification requirement for accessing certain adult websites is subject to strict scrutiny, which is usually the standard of review that applies to content-based restrictions applicable to adults, which this law is.

Leah Litman So we should clarify a little bit about how the First Amendment works in this area, or maybe worked past tense in this era, because yeah, this case has big stare decisises for suckers energy. So there are some materials, this is the way the law works, there are materials that are considered obscene. And the Supreme Court has said those materials, obscene materials, can be restricted even as to adults. But there is also a category of pornography that is not obscene, and therefore cannot be restricted as to adults, but can be restricted as to children, to minors. And the question is, what kind of scrutiny do laws that burden adults access to pornographic materials that are not obscene but can restricted as two minors? What kind of scrutinies do those laws warrant? In the past, the court has closely scrutinized, subjected to strict scrutiny. Laws that burden adults’ access to non-obscene materials even when the laws are designed to protect minors from, again, materials that states can restrict as to the minors. In at least four cases, which Justice Sotomayor recounted during the oral argument, or as as Kagan wrote in her epic descent in this case, four times, one result.

Melissa Murray Let’s just quickly tick through those four times, one result, and this will basically be like a graveyard of precedent, if you will. So the first case is called Sable, and it involved a federal law that prohibited dial-up porn telephone services containing constitutionally protected materials for adults, but materials that were viewed as inappropriate for minors. The court held that strict scrutiny applied, even though the government was seeking to protect minors In Ashcroft, there was a federal law that prohibited the online transmission of content that was obscene for minors absent age verification. The court held there that strict scrutiny was required and it enjoined the law. In Reno, there a federal that prohibited the transmission of indecent messages online to any minor unless certain age verification measures were employed. Again, the court said that strict certainty applied because it also burdened adults protected speech. And finally, in Playboy, there is a federal law that required cable TV operators offering channels that provided explicit but not obscene material to block those channels or only broadcast them late at night in order to protect kids. And again, the court said that law was subject to strict scrutiny. Four cases, one result.

Leah Litman Naturally, the Supreme Court here said, no, thank you, not going to do that. We’re going to to do intermediate scrutiny on this one because porn. So already invoked the Justice Kagan dissent, we’re going do that a lot here. But as Justice Kagon wrote in her dissent quote, the majority’s attempts to distinguish are for precedent saying just that rounds out the list of its errors. According to the majority, all of those decisions involve prohibiting rather than merely burdening adults’ access to obscene for-children speech. But that is not true, and in any event, it would not matter. The First Amendment prevents making speech hard as well as banning it outright.

Kate Shaw This, remember, is the case where in the oral argument, Barrett expressed concern about kids and devices and the easy availability of content, including porn. And there are kind of flashes in the opinion of the Project 2025-esque idea that maybe porn just doesn’t get any constitutional protection at all. The foreword to Project 2025 said, quote, pornography manifested today in the omnipresent propagation of transgender ideology and sexualization of children. Which by the way is not the definition of pornography, but okay, is not a political Gordian knot inextricably binding up disparate claims about free speech, property rights, sexual liberation, and child welfare. It has no claim to First Amendment protection and telecommunications and technology firms that facilitate its spread should be shuttered.

Melissa Murray This seems to be a good point to remind readers of Josh Hawley’s manhood, the masculine virtues that America needs, where Josh Hawle is really on one about pornography. He hates pornography. He thinks that pornography is one of the reasons why American men are failed and failing. And this seems like the courts like doing them a real solid on this one. So yes, pornography bad, masculinity, manhood good.

Leah Litman So who wrote this Hawley-Manhood Project 2025 forward anti-porn opinion? Justice Clarence Thomas, who one might think might have enlightened views. Some self-awareness. Or at least views about how the First Amendment guarantees access to porn. Is this like a time to re-mention Lillian? Let’s just say that if you know, you know and if you want to know, maybe Google Clarence Thomas, Lillian Slowburn and see what comes up.

Kate Shaw We’re referencing here Lillian McEwen, an ex-girlfriend of Justice Thomas’ who spoke both to filmmakers at PBS and to then Slate’s Joel Anderson, the host of the fantastic season of Slow Burn about Justice Thomas, I think called Becoming Justice Thomas. Anyway, let me just say that if we had had time to really brainstorm a good guest for this episode, how do you feel about Justice Tomas’ opinion about basically the lack of constitutional protections or at least the minimal constitutional protections for porn. Lillian would have been an incredible guest. Maybe next time. For sure. In any event, on the suggestion that porn maybe doesn’t get any First Amendment protection at all, we actually can’t really improve on this paragraph from Justice Kagan’s dissent in the case, so I’m just going to read it. Quote, the majority tries to escape the conclusion with a maneuver and found nowhere in the world of First Amendment doctrine. And interlude, Justice Kagen knows where if she speaks this was a key area of expertise of hers when she was a law professor returning to the dissent. It turns out, the majority says, that the First Amendment only partially protects the speech in question. The, quote, speech is unprotected to the extent the state seeks only to verify age. Quote, back to Kagan, meaning the speech is unprotected to the extend that the state is imposing the very burden under review. Or said another way, the right of adults to view the speech has the burden of age verification built right in. That is convenient, if altogether circular. In the end, the majority’s analysis reduces to this. Requiring age verification does not directly burden adult speech rights because adults have no right to be free from the burden of age verification. Gerrymander the right to incorporate the burden and the critical conclusion follows if only other First Amendment cases were so easy.

Leah Litman ASMR, ASMR.

Melissa Murray The majority’s choice of a standard review in this case is significant. It affects whether laws will be upheld. And the difference between intermediate scrutiny and strict scrutiny is pretty significant and very well articulated by Justice Kagan in her dissent. She says, quote, but what if Texas could do better? What if Texas can achieve its interests without so interfering with adults’ constitutionally protected rights in viewing the speech HB 1181 covers? That is the ultimate question on which court and I disagree. The majority says that Texas may enforce its statute regardless because only intermediate scrutiny applies. And that test does not ask whether a state has adopted the least speech restrictive means available. I disagree. Based on conventional First Amendment rules and the way we’ve consistently applied them in this very context, the state should be foreclosed from restricting adults access to protected speech if that is not in fact necessary.

Leah Litman So applying that less demanding standard of intermediate scrutiny, the Republican justices in the majority concluded that the law satisfied that standard and was therefore constitutional. But now for more of my weekly ASMR, by which I mean really sick Elena Kagan burns, I’m just going to read three quick ones. Quote, the majority’s opinion concluding to the contrary is, to be frank, confused. The opinion to start with is at war with itself, end quote. Quote. The majority’s analysis is as unnecessary as it is unfaithful to the law. Finally, quote, the majority does and then does not accept this simple fact, end quote. So nominally, this is a case about pornography, but I think porn cases are often just a stocking horse for the First Amendment. And the open question is what other laws that burden adults access to constitutionally protected material are going to now trigger intermediate scrutiny because the Republican justices. Think the First Amendment only kind of protects that speech, we don’t know. Political speech by Democrats.

Kate Shaw Maybe, maybe that’s intermediate scrutiny. Yeah, yeah. A podcast hosted by women. Yep, also intermediate, yep, yep. Yeah, okay. Maybe even rational basis. Possibly even rational-basis review. Cool, all right. Well, yeah, so that’s the point is like, even if it seems like it’s not unreasonable to offer, to require some kind of age verification, the standard has always been strict scrutiny, and maybe a state can satisfy it. Like, maybe there’s a really good reason to burden the speech this way, or we’re not saying that the state would necessarily lose under strict scrutiny.

Leah Litman And maybe there’s no other way again like the state could restrict minors’ access to the material.

Kate Shaw Yeah, and if that’s the case, then they should win, but the point is the court won’t even be faithful to the test that it has set forth, and it does, I think, raise really alarming questions about what else the court disfavors. We’ll be next in line for getting lessened constitutional protection.

Leah Litman So in that case, Free Speech Coalition versus Paxton came out of the Fifth Circuit. The Fifth Circuit got a W. They too declined to apply governing law. And the Supreme Court said, yeah, guys, great idea. You were right. So W for the Fifth circuit, L for the First Amendment and the law. But the Supreme court did decide some other cases on Friday that fell into the category of clean up on aisle Fifth Circuit, so let’s talk about those ones

Kate Shaw So first, Kennedy versus Braidwood management, the case about the structure of the Preventative Services Task Force at HHS. That’s the entity that determines which kinds of healthcare are considered preventative services, and thus must be covered by insurance. So the task force is composed of experts. They are not full-time government officials. These are part-time volunteer positions. And the question in the case is whether these part- time task force members are what are called principal officers under the Constitution. And if they are, they have to be nominated by the president and confirmed by the Senate. But under the statute, they are instead appointed by the secretary of HHS. And actually after the argument, SCOTUS requested briefing on a separate question, which is whether the secretary even had this power under the statue to make these appointments. But back to the kind of core question in the case, the Fifth Circuit had concluded that these part-time volunteer experts were principal officers. And if that’s right, then boom, basically there goes preventative care because… They were not appointed the way principal officers have to be appointed. And if they were unconstitutionally appointed, then arguably all of their designations of preventative care have been invalid. And so that means definitely going forward and maybe even retroactively, there just isn’t a mechanism for insurance companies to cover certain kinds of preventive care. So that would have been the case unless and until these task force members were appointed as principal officers.

Melissa Murray The opinion here was a 6 to 3 opinion written by Justice Kavanaugh that held that the task force officers are inferior officers who can be appointed by the Secretary of Health and Human Services. They’re inferior mostly because they can be removed at will by Secretary raw milk whale juice bear carcass and there you have it. The opinion also gives secretary raw milk bear carcass whale juice more power over the taskforce. It says, quote. The secretary also has statutory power to directly review and block task force recommendations before they take effect. Did not realize that was actually on the table, but thank you, Justice Kavanaugh. This reinforces the politicization and political control that the Department of Health and Human Services now has over medical, scientific, and public health professionals. Not to say that there hasn’t always been this kind of oversight, but it Concerning that it is now being used by Secretary Whale Juice, raw milk, bear carcass, to effectively end science-based, evidence-based health protocols and research.

Leah Litman And I think this is another way in which the Republican justices and the Supreme Court are enabling what the Trump administration is trying to do, which again is to exert their political ideology to interfere with scientific research, medical research and whatnot.

Melissa Murray Well, this case was kind of interesting because it was brought by Jonathan Mitchell, who is the architect of SB 8, the Texas Bounty Hunter Abortion Law. And he’s essentially trying to sort of allow for a kind of conscious exemption to the coverage of these preventative services. But he’s doing it through this sort of structural appointment clause method. But you also had the Secretary of HHS saying, like, no, I actually want to be able to do this kind of thing. And so you have the court, I think. Kind of conflicted, like this conservative or this conservative? Like which conservative do I want to side with here? And they ultimately sided with Secretary Whalejuice.

Leah Litman Because this was a Kavanaugh opinion, we were subjected to a fucking listicle of reasons that replaced actual reasoning. I will not subject you all to that here because the end of the term was difficult enough. The dissent was written by Justice Thomas, joined by Justices Alito and Gorsuch. So we also got cleanup on the aisle Fifth Circuit in the Supreme Court’s decision in Federal Communications Commission versus Consumers Research Services. So this is the case about whether to revive the non-delegation doctrine, which the Supreme court hasn’t whipped out since 1935 when it was invalidating New Deal programs. The non- delegation doctrine is the idea that the constitution limits Congress’s authority to empower administrative agencies to write rules and regulations. The specific scheme at issue in this case is the FCC’s Universal Services Fund. Congress required the FCC to operate a subsidy program funded by mandatory contributions from telecom carriers and their customers. The FCC appointed a private company as the program’s administrator, and the administrator sends out bills, collects contributions, and disperses funds. And they also provide the FCC with projections for how much each entity should contribute to the fund in order to carry out the statutory objectives of the fund and the program that Congress wrote in the law.

Melissa Murray The Fifth Circuit invalidated this as an unconstitutional and impermissible delegation, suggesting that the private administrator was actually running the show and was unconstrained by any principles or anything for that matter. In a 6 to 3 opinion, Justice Kagan upheld the delegation, so newsflash, there is no revival of the non-delegation doctrine, at least for now. But it did prompt a spirited dissent from that vanquisher of the administrative state, one Neil M. Gorsuch, who was joined by Justices Thomas and Alito.

Kate Shaw Although we should also mention that there is a Kavanaugh concurrence, a calf currents, not he doesn’t join the dissent. Kind of interesting. Um, and there is this he’s a good guy. He’s a good guy, probably why. Yeah. Capital G, capital G. Um. But it’s kind of buried in it. I just wanted to flag something. So he says, quote, when interpreting a statute and determining the limits of the statutory text, courts presume that Congress in the domestic sphere, has not delegated authority to the president to issue major rules, that is rules of great political and economic significance, unless Congress clearly says as much, and he cites West Virginia versus EPA. So he is talking about the major questions doctrine closely related to the non-delegation doctrine, and he just casually slides in this aside that this is a doctrine that applies in, quote, the domestic sphere. Let me ask you, Leah, you wrote a great article about the Major Questions Doctrine with Dan Deacon. Does West Virginia versus EPA in fact say this is a doctrine that is limited to the domestic sphere?

Leah Litman Fuck no.

Kate Shaw I didn’t think so.

Leah Litman It says no such thing, right? The cases about climate regulation and the clean power plan It certainly did not decide that the doctrine has no applicability Outside of the domestic context, but it’s this perfect example of the Republican justices Love for gerrymandered rules, you know rules that just so happen to track what Republican presidents want to do That’s legal. But what Democratic presidents want do that presumptively? And since Republican presidents want to exercise all of this power in the name of foreign affairs and national security, this gerrymandered rule would give them a free pass or freer hand to do so. And it calls to mind Justice Kagan’s dissent from the free speech case that we were just talking about, where she accused the majority of gerrymandering the right to incorporate the burden that they thought was permissible. I think another example of this is the Planned Parenthood case we talked about last Where there, Justice Gorsuch’s opinion says, well, spending power legislation, that’s not like real legislation. And of course spending power, spending power of legislation is how public benefits work. And that so happens to be the type of projects that the Republican party is attacking and hostile to. So of course, that’s what the Republican justices say. You can’t enforce. It’s just ridiculous.

Kate Shaw So this is yeah, so even the cases that are not like headline grabbing sort of outrage generating opinions like birthright citizenship, these are outrageous to not the majority in this case is Kagan. So we sort of dodged a bullet, but the kind of core commitments of these Republican appointees, which is let’s devise rules that are basically to quote Leah lawless in in order to shore up the power of Republican presidents and to disempower. Progressive legislation and any potential future democratic president is just completely outrageous. So Gorsuch dissents, I have to say, we’re recording this only a couple of hours after this slew of last day opinions. So I haven’t had a chance to closely parse the Gorsich dissent, but on a very quick skim, it almost felt to me like his heart wasn’t totally in it. Like the kind of non-delegation doctrine idea is that Congress has all the power. It does, like Congress has the power and there are all these limits on what the executive can do. And I just, I wonder whether it starts to ring hollow this like these peons to Congress as like the kind of policy maker that has the primacy in our constitutional scheme when they are shoring up executive power in the way that they are. So I don’t know, I need to spend a little bit more time puzzling it over. But, but this guy did not really bring the fire to a non delegation doctrine and dissent that I expected. I mean, in part, because he says that the majority is using this kind of watered down version of this long standing intelligible principle test anyway. But he basically says, he writes the sentence, I can imagine worse outcomes than those small steps toward home. He basically says like, you know, so we’re doing something better with the way we enforce this, you now, non-delegation principle, even if we’re not invalidating acts of Congress based on it. But he says, we have found manageable ways to honor the Constitution’s design and like other aspects of the separation of powers. This one requires no less of us. So he still is on the revival train. I just don’t know that it’s like his kind of big passion project anymore.

Leah Litman [AD]

Melissa Murray Okay, let’s move on to some assorted news and culture. So last week we got a report that Big Balls was no longer working for the United States federal government. And that sent us into paroxysms of fear because we were like, do we have to come up with a new summer cocktail? But don’t worry, Big Ball’s is the gift that continues to keep on giving. He doesn’t work for Doge anymore because now. Big Balls is a special government employee with the Social Security Administration. So the Big Baller is now a Big Ball-er old fashioned and we can continue with the summer drinking.

Leah Litman I feel like the odds of all of our personal data just being left at some club as the result or as part of a bender just went up.

Melissa Murray Or at a gym somewhere on a weight rack.

Leah Litman Yeah, yeah, yeah. With some protein powder, just sift it all over it.

Kate Shaw But just the upper body machines, right? This is the kind of guy who does not do leg day, clearly.

Leah Litman So, in the intervening 24 hours where we were unsure whether he reverted to small ball, we did pause to think about some new summer drink names, which I guess we’ll just share with you since it feels like we are all really going to need additional drinks after this term. So one possibility was fire and fuck ice. I don’t know. It had a nice, nice ring to it. Another was amylito sour or amyletto sour or a little bit of a sour puss sour. Category two both very good unicherry mochito i don’t know kind of yeah okay getting middling reviews that’s fine uh the pineapple hackery spelled H-A-Q-U-I-R-I.

Kate Shaw Wait, but why, any reason pineapple and not strawberry or why just any any hackery would do I would think?

Leah Litman I had already suggested the Unicherry Mochito, and so wanted to go pineapple beer. Make up the fruits. Yeah, exactly. Not all berry flavors. And then finally.

Melissa Murray Penis colada was right there.

Leah Litman Thanks for that addendum, M.M. So another one really on the heels of birthright citizenship, Gin and Barrett. Yeah. Okay. So on Newswatch, we had an utterly bizarre update in our unitary slash not so unitary executive watch, this time in the case of Kilmar Abrego Garcia, the man who was wrongfully expelled to El Salvador. So Abrego Garcia was returned to the United States where the Trump administration has indicted him on some pretty legally dubious charges and they are seeking to have him remain in detention, in custody on those charges. After a magistrate judge rejected their argument, they filed this odd brief in support of their request for a stay of the release order. And the brief is odd because in it, the Department of Justice says they don’t want Abrega Garcia to be released because if he is released, then ICE, Immigrations and Customs Enforcement might deport him, and DOJ doesn’t want him to be deported because that would interfere with their criminal case against him. So just to be clear, one arm of this singular entity doesn’t the other arm of the singular entity that is exercising the same person’s will to do something. Like it’s almost as if the entire executive branch isn’t merely just executing the will of a singular person, the president, but that cannot be right.

Melissa Murray We also have some new developments in the proceedings challenging the president’s federalization of the National Guard. Judge Charles Breyer of the Northern District of California concluded that he still had jurisdiction over the case, and specifically had room to consider whether the National Guard was violating the Posse Comitatus Act, that is the federal law that prohibits the military from engaging in ordinary domestic law enforcement. Judge Breyer granted requests for discovery on that issue, so there will be some factual development to figure out. What is going on on the ground and then Judge Breyer will use that information to determine whether the National Guard is conducting ordinary law enforcement in California in violation of the See you next time.

Kate Shaw And on the heels of the Supreme Court saying that states can boot Planned Parenthood from their Medicaid program in violation of federal law, and that patients and providers cannot enforce that law or challenge those unlawful removals of funds to Planned Parenthhood, the Fifth Circuit granted on-bank re-hearing that had halted the case seeking to bankrupt Planned Plannedhood. A Fifth Circuit panel had actually reversed a Judge Kacsmaryk decision that had allowed some of the false claims act theories to proceed. So again, this grant on bank. By the full Fifth Circuit is a very ominous development. Okay, so this term has been a lot. We are going to take a little bit of time to digest and we will have your term recap episode for you next week. We also may be neglected to say at the beginning of this episode, but if you didn’t have a chance to listen, we did a same day emergency episode about the birthright citizenship decision, probably the biggest decision that we got on the last day of the term. So scroll up in your feed and find that and listen to it if you did not have a change to do that. And before we go, should we mention some favorite things? I mean, it’s a little hard at the moment to find joy anywhere, but let’s try, shall we?

Melissa Murray Sure. I’ll start. I know that this context is absolutely hideous, but I really enjoyed these Sotomayor and Jackson dissents. I love that Justice Jackson continues to bring real history to the table, reminding people of what civil rights was initially about, who was excluded and was meant to be brought back into the fold and why we have them in the first place. So yeah, I’ve been loving them. Good for them. I also am really enjoying the new series Outrageous on Brit Box, which is about the Mitford sisters from the 1930s. Really, really interesting, very famous family in London in the 1930’s. All of the sisters went on to do some really interesting things. Some of them became fascists, some of them become communists. Super fun and I’m enjoying it. And I just bought Chimamanda Ngozi Adichie’s new book, Dream Count. It is her first new work of fiction in some time. And I’m really excited because I loved her last book, Americana. So there it is.

Kate Shaw I will mention a couple of things, one totally off topic of law or politics. I loved a piece in a recent issue of The New Yorker, I think it’s a couple of issues ago, about Greenwood Cemetery in Brooklyn, which is not too far from where I live. And it just was like an incredible story of urban planning and life and death coexisting in this like little pocket of Brooklyn. And Greenwood cemetery is a totally stunning place to visit if you haven’t been. And I don’t know, it was like a weird escapist half an hour to like really flee the news cycle and I loved it. Two other things, I’m finally watching the series Dying for Sex with Michelle Williams and Jenny Slade and Rob Delaney. I don’t know if you guys have watched it. It’s so beautiful and moving and hilarious and yeah, I really love it. And then finally, I am at the Chautauqua Institution right now and Melissa has given a talk here. I gave a talk last year. It’s just like a really special place in Western New York and. My husband, slash, our roadie, Chris Hayes, gave an amazing talk this morning that I think is gonna be up on YouTube about his book, The Siren’s Call, which we are actually also gonna have him on the pod to talk about in an upcoming episode. So, I don’t know, find that if you feel like thinking about something other than the Supreme Court.

Leah Litman So I kind of struggled with stuff to come up with here. I would also say that Justice Jackson and Justice Sotomayor descends, particularly in the birthright citizenship case. I just think they really meet the moment and are very clear in calling out the grave problems that the Republican justices are creating. And in that sense are empowering and affirming to people who are trying to sound the alarm about the Supreme Court and I appreciated that. The second category of things are, so whenever I travel, I basically try to come up with a list of the very best food and pastries I can obtain on trips and basically I am most interested in traveling to places with good pastries. So the New York Times just published the list of the best croissants in New York. And since I will be returning to New York twice over the next two months, I loved that piece. Also, I am finally going to get to see the Cowboy Carter tour in D.C., and to prayer for that, I reread the menu at Yellow, my absolute favorite bakery in D,C., and I’m really fucking excited for those jammy egg croissants and the lemon cruffin. So that would be the second category of things that I am interested in. And then Third, I don’t really know. Honestly, probably the different memes and pictures people sent me about the birthright citizenship case. I liked those.

Kate Shaw I like expanding our favorite things to include menus as reading material.

Leah Litman I do that to prepare for trips.

Melissa Murray It’s like we’re on the Supreme Court.

Kate Shaw I like it. Alright, well we will be back with term recap thoughts shortly.

As well as apparently all of these fucking shadow docket orders in which the Supreme Court is going to be deciding all of those questions about class actions and states necessity for nationwide wide relief that they’re going to be ordering, issuing all summer.

Kate Shaw But nice guy, Brett Kavanaugh is going to do a very humane job. Oh yeah. It’s going to be great. Looking forward to that. Really did not want a couple of months without having to constantly think about these people. Great.

Melissa Murray You all know that Planned Parenthood’s loss in the Supreme Court last week has the potential to harm millions of people. And our friends at Vote Save America have a fund to support those impacted Planned Parenthood Health Centers and their patients. Just go to www.votesaveamerica.com forward slash support to make a donation right now. This has been paid for by Vote Save America. You can learn more at votesaveamerica.com. This ad has not been authorized by any candidate or candidates committee.

Leah Litman Strict Scrutiny is a Crooked Media production hosted and executive produced by me, Leah Litman, 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. Production support comes from Madeleine Herringer, Katie Long, and Ari Schwartz. Matt DeGroot is our head of production, and thanks to our digital team, Ben Hethcote and Joe Matosky. Our production staff is proudly unionized with the Writers Guild of America East. Subscribe to Strict Scrutiny on YouTube to catch full episodes. You can find us at youtube.com slash at Strict Scrutiny podcast. If you haven’t already, be sure to subscribe to Stric Scrutiny in your favorite podcast apps. You never miss an episode. And if you want to help other people find the show, please rate and review us. It really helps.