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

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. Get tickets for STRICT SCRUTINY LIVE – The Bad Decisions Tour 2025! 3/6/26 – San Francisco 3/7/26 – Los Angeles Learn more: http://crooked.com/events Order your copy of Leah's book, Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes https://www.simonandschuster.com/books/Lawless/Leah-Litman/9781668054628 Follow us on Instagram https://www.instagram.com/strictscrutinypodcast/?hl=en, Threads https://www.threads.net/@strictscrutinypodcast, and Bluesky https://bsky.app/profile/strictscrutiny.bsky.social

Speaker names marked ? are inferred from speaking time and the show’s known hosts — they are not voice-verified.

• 0:02Speaker 00

  Mr. Chief Justice, may it please be poured. It's an old joke, but when a man argues against two beautiful ladies like this, they're going to have the last word.

• 0:13Speaker 01

  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."

• 0:44Melissa 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.

• 0:53Kate Shaw?

  I'm Kate Shaw.

• 0:54Leah Litman?

  And I'm Leah Litman. We have a big episode in store for you today. We are going to recap the US 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's latest berets into lawlessness before we recap the other arguments the Supreme Court heard last week.

• 1:14Kate 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 US Supreme Court, and previous Strict Scrutiny guest, the one, the only Chase Strangio. Welcome back to the show, Chase.

• 1:33Speaker 05

  Thank you, guys. I've been very excited to come back on the show and talk to you and hear your take on our argument.

• 1:41Melissa Murray?

  I promise I have better questions than San Alito. Set the bar low and see if we can exceed it.

• 1:48Kate Shaw?

  Far 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 1, what it is and what it does?

• 2:19Speaker 05

  Yeah, for sure. So SB 1, 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 in '22, Arkansas in '21, and then 2023 was the explosion. And I'll say, as someone who's been lobbying in state legislatures

• 2:59Speaker 05

  for a long time, it was wild to see what was happening in 2023. You would go in and leadership was like, whoops, sorry, there's nothing you can do here. We are passing these bills. These are our number one priorities. And so I testified against SB 1 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 medical need and strips people of the care they have been receiving, but the originally filed version had a child abuse provision. So also would have deemed the parents who consent to this treatment on behalf of their children, child abusers, thus allowing the state to come in and investigate families, as they have done in Texas pursuant

• 3:44Speaker 05

  to an order from our favorite Attorney General, Ken Paxton. So bill comes in, moves very swiftly through the legislature. Thankfully, that provision comes out, but in March, the governor signs the bill after it passes. And the ACLU Along with Lamb, illegal and our co counsel at Aiken 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 pass across the country, block it before it went into effect because in our minds, the idea of these 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.

• 4:27Speaker 05

  So we quickly filed the lawsuit and that's the lead up to the litigation that would become United States versus Skerrmety at the US Supreme Court.

• 4:35Melissa Murray?

  So Chase, you said that there's 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 was health the ostensible reason or was there some other political rationale?

• 4:57Speaker 05

  I mean, I certainly think there was a political rationales, but I think health was 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 after Dobbs. 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 people's rights. And so that's sort of one thing that's happening, obviously in the US. And then the escalation of anti-trans rhetoric is also happening.

• 5:39Speaker 05

  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 super majority 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.

• 6:07Kate Shaw?

  Yeah, I feel like we could say a lot more about this, but I do think two things that are super important in what you just said. One, the connection between these bans on trans healthcare 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 encompassed 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 healthcare, per se, but it's obviously animated by the same spark, is modeled on a very similar

• 6:52Kate Shaw?

  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.

• 7:08Speaker 05

  Absolutely.

• 7:09Kate 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

• 7:51Kate Shaw?

  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. So what is the debate about whether this law contains a sex classification that would require courts to use intermediate scrutiny in reviewing it?

• 8:20Speaker 05

  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.

• 8:38Melissa Murray?

  You know, Chase, stop with the textualism. It doesn't work here. Okay, this is the Constitution we're talking about. Stop it.

• 8:47Leah Litman?

  Stop trying to make textualism happen.

• 8:49Melissa Murray?

  It's not happening.

• 8:50Leah Litman?

  We're in a sexual world. Textualism is for suckers.

• 8:53Speaker 05

  I mean, I, 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, an 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-

• 9:35Melissa Murray?

  Not for this, Chase. Joke's on you.

• 9:38Speaker 05

  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. 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 had held this is not a sex classification, this is just a medical purpose classification, an age classification, which is frankly, the dumbest argument that was ever presented.

• 10:19Leah 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 minor students to attend segregated schools. Like, we wouldn't be saying that's an age classification, not a race classification.

• 10:43Melissa Murray?

  The part that Lee 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.

• 10:55Speaker 05

  And the Supreme Court's, one of their first heightened scrutiny cases is about a sex classification for 18 to 21-year-olds. So it's, and everyone understands that that was an age and a sex classification. Heightened scrutiny still applied. And so the Sixth Circuit says, no, no, no, rational basis, nothing to see here. Constitution is neutral, go forth, ban everyone's healthcare. And the other thing that's important about this age point, that this age classification argument is that none of this actually hinges on the restriction being for minors only. And that's actually one of the scariest parts of this is, take out the minor part, just say, no medical treatment inconsistent with sex. And the Solicitor General of Tennessee admitted this at argument, their argument would be the same. This is a sex-neutral line that just gets rational basis review.

• 11:40Speaker 05

  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.

• 12:01Leah 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.

• 12:47Speaker 06

  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.

• 13:22Melissa 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 1, 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,

• 14:07Melissa Murray?

  which of course is the 2020 case that interpreted Title VII's prohibition on discrimination based on sex to prohibit discrimination on the basis of both sex and gender identity. And we wanted to give you a little flavor of where his head was at, because it was somewhere else. Here we go.

• 14:26Speaker 07

  Your primary argument in your oral presentation this morning is based on Bostock-like reasoning. Is that not correct? 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-based line. 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 1 is worded exactly the same way, and it works exactly the same way. Well, you have a Bostock-like argument.

• 15:03Kate Shaw?

  You say that a girl who wants to live like a boy cannot be administered testosterone, but a boy who wants to live like a boy can be administered testosterone. And that's one of your major arguments. I take that to be a Bostock-like argument. So my question is, why should we look to Bostock here? 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.

• 15:39Melissa Murray?

  All right. Chase, there was so much shadow boxing 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 extant precedents dealing with sex-based discrimination for purposes of the equal protection clause. But everyone seemed to be shadow boxing with Bostock, except one person who remained studiously silent in all of that, which was very curious, because that studiously silent person was none other than Neil M. Gorsuch, who wrote the six to three opinion in Bostock. So what's going on there? Does he have anything to say? It seemed he had a lot to say in 2020.

• 16:22Melissa Murray?

  Has the cat got his tongue? What's going on here?

• 16:26Speaker 05

  This was really the surprise of the argument. You know, it's you.

• 16:29Melissa Murray?

  Surprise, yes, that he was silent. I was definitely surprised that he had nothing to say.

• 16:33Speaker 05

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

• 16:50Melissa Murray?

  Big feelings.

• 16:51Speaker 05

  Big feelings, thoughts, some, you know.

• 16:53Melissa Murray?

  Men don't have feelings. They have ideas.

• 16:55Speaker 05

  Ideas. 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 the Suri Adam, still nothing, then still nothing. So by the time I got up there, it was clear that this was a choice. Either he had laryngitis, as Chris Guadner 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 that was the biggest surprise of the argument, I think.

• 17:37Leah Litman?

  I have a question that I'm going to put to my co-host and not to Chase, given that Chase is an advocate appearing before the court. So feel free to bow out of this one, Chase. 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?

• 17:52Kate Shaw?

  Devastatingly difficult.

• 17:54Leah Litman?

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

• 17:57Kate Shaw?

  He deserves an award for it, actually.

• 17:59Leah Litman?

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

• 18:08Leah Litman?

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• 18:52Leah Litman?

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• 19:13Leah Litman?

  So in the decision below, the Sixth Circuit decision that the Supreme Court is reviewing, the Sixth Circuit ruled quite broadly that this law did not classify people on the basis of sex, and seemingly that any laws distinguishing between transgender and cisgender people are subject only to rational basis review. Now, there are different ways that the Supreme Court might say this law is or isn't subject to heightened review. It might say, well, it's just in the context of medical uncertainty, or just in the context of regulation of medicine, that heightened scrutiny does or doesn't apply. So I guess, could you run through, Chase, what some of those different possibilities are and why they might potentially matter?

• 19:57Speaker 05

  Yeah, and just to clarify, we had the argument that it was a sex-based classification. And we also had the additional argument that the law classified 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 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 concernings.

• 20:36Speaker 05

  They, you know, I think the first one is that this is a law that just classifies based on medical purpose and sort of just ignore the text of the statute itself and do a little bit, you know, without locking in, in a, I would say doctrinally incoherent way, just say, it's rational basis, nothing to see here, it's age and medical purpose. The problem with that is that it does actually classify based on sex. And I think everyone knows that. And so what's a little bit scary about what they could do is they could exempt medicine more broadly from heightened scrutiny when, you know, medical regulations classify based on sex.

• 21:20Speaker 05

  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 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 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.

• 22:02Leah Litman?

  Well, and also imagine this in a post-Dobbs 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.

• 22:24Speaker 05

  Yeah. And also, it's like, and then, like, why that police power? You could see a different one. And then 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'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 reinvigorates Goodoldig, which had been basically gone for 50 years,

• 23:08Speaker 05

  and says that, yeah.

• 23:10Leah Litman?

  Story decides this is for suckers unless it's an opinion taking away people's rights.

• 23:15Speaker 05

  That is very important, yes.

• 23:16Melissa Murray?

  Well, sticking it to women specifically, two questions, Chase, and they're sort of not necessarily in the same vein, although they are in the same vein of like possible arguments that could have been made. 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 briefed 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 Cleburne around when we consider certain groups quasi or suspect classes.

• 24:00Melissa Murray?

  And it usually turns on political powerlessness, a history of de jure discrimination and immutability. And she really hammered on whether or not you could identify instances of what she called de jure 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 like, just let us know why you think the court was at such great pains to avoid the parental rights question, which also could have decided this case.

• 24:32Leah Litman?

  Read a fucking book, Amy. Like, you say you're an originalist and a historian, right? Like, look at some history. Sorry.

• 24:38Melissa Murray?

  Originalism requires reading. It's the first step.

• 24:43Speaker 05

  I mean, you know, this, I have to say, so I've, I've litigated these cases across the country for, you know, the, 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,

• 25:05Melissa Murray?

  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 bands in the military, you talked about crossdressing bands, and she's like, no, no, no. Show me a water fountain.

• 25:31Speaker 05

  Yeah. Yeah. You're right. You're right. And then, of course, it's like, but then also that's not enough, because then, you know, you can't actually tell what is benign and what's invidious. So I think that you're, 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

• 26:16Speaker 05

  a little hard to protect yourself in a majoritarian 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?

• 26:29Leah Litman?

  Melissa, I honest to goodness thought, when you were saying there paradigmatic quasi or suspect classification, I thought you were going to say was going to be white conservative religious men, but like,

• 26:39Melissa Murray?

  That's the new paradigmatic minority. That's the new one. But historically, the whole equal protection paradigm has hinged and been organized around race. But yes, you're right. There's a new oppressed minority in town.

• 26:54Kate Shaw?

  Definitely not trans kids.

• 26:56Speaker 05

  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.

• 27:04Melissa Murray?

  You're definitely going to have a voter referendum in Tennessee after this, I guarantee.

• 27:08Speaker 05

  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 a curious turn of events, only granted the United States's petition, which also, nobody knows why. I guess we may find out after January 20th. But why didn't

• 27:49Speaker 05

  they take it? I, I, 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 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.

• 28:11Melissa Murray?

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

• 28:16Kate Shaw?

  There also, there also was Barrett, who I, I don't want to write off, actually genuinely don't totally know where she is on this, but she had one aside that I found sort of chilling, which is that I could see her voting against your clients, but then writing something that says, but, there is a separate set of arguments around parental rights. 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, I, I thought possibly she's laying the groundwork for that.

• 28:48Melissa Murray?

  I thought that's totally what she was doing.

• 28:49Speaker 05

  Yeah. That was my unfortunate read of that, you know, series of questions from Justice Barrett to both sides. It's 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, 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, 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

• 29:31Leah Litman?

  Welcome to the club, Chase.

• 29:32Speaker 05

  Yes, I think that I didn't come in thinking, oh, 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 onto the analysis. But I don't actually think anything came out of the argument that would suggest anything more definitive than just our assumptions about where they would be leaning based on, you know, how they think about these various questions.

• 30:11Kate 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.

• 30:31Speaker 05

  I will say, I came out of Bostock thinking, like, 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, I knew we weren't going to lose nine zero, in my heart, I hoped at least. And the court has changed, and the country has changed dramatically in terms of the tenor and the various ways in which the justices feel they have to show up in these spaces, and also the way in which, because we have the live streaming arguments, the way they happen. 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 Jackson, Kagan, and Sotomayor in this in this case.

• 31:13Kate 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 detransitioning really seemed to call to mind Justice Kennedy invoking the prospect that women Would come to regret abortions and to use that regret as a justification for abortion restrictions in Gonzalez versus Carhartt. And then separately, the kind of insistence that there was medical uncertainty about when gender-affirming care or certain kinds of it are warranted, and that that uncertainty meant that states should get more latitude, which is also what the court said in pre-Dobbs

• 31:55Kate Shaw?

  cases like Gonzalez 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 Cass report is something that came up during the oral argument and didn't know if you wanted to sort of clarify the relevance of the Cass report, which is, like, understood wasn't in the record at all, but sort of what the Cass report had to say about any of this.

• 32:31Speaker 05

  Yes. So, starting with the abortion connection, and Gonzalez v. Carhartt comes up in all of our litigation because of the language in that decision that says that states, you know, are given a significant amount of latitude, 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 Gonzalez 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 idea, like, you could describe any medical procedure in detail, and it sounds gruesome, especially, you know, that, you know, if you're talking about body parts and you're talking about what's happening, that's just the nature of it. And that is some, that is a rhetorical device that is deployed here as well.

• 33:16Speaker 05

  The states and their amici often will talk about the physical effects of this medication on people's bodies in sort of a way to have this, you know, sort of gruesome visceral reaction for the reader. And that is very much present in Gonzalez. And so that is something that I always think about when I'm rereading that opinion, and this idea that they can just throw up their hands and say, "medical and scientific uncertainty, we therefore defer to the legislature even if we're using a sex classification," is A significant parallel to the abortion cases. And of course, in both cases, there wasn't medical and scientific uncertainty. And that, of course, is deeply frustrating. And then this idea that the very, very, you know, sort of infinitesimally small percentage

• 33:58Speaker 05

  of regret when compared to the people who are benefiting from or medically needing this care, somehow the regretters become the people who, the only people who we care about. And that isn't to say that regret isn't itself an upsetting thing. It certainly is. It's just also part of life. And so to sort of say that we're gonna have all of our constitutional analysis be framed around the small number of people who regret something is one of the ways that we try to say this law just cannot survive heightened scrutiny because any justification or any, you know, sort of explanation that the state puts forth is really true of all of Mexican regret. We don't have, you know, randomized control trials. They really care about certain types of scientific evidence sometimes.

• 34:42Speaker 05

  And that, you know, there's not, you can't predict what's gonna 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, figures 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 CAS, so the CAS review is this, it's a report from the UK, and I'm sure everyone is surprised to know that all of a sudden, all of our justices care about socialized health systems in Europe.

• 35:24Leah Litman?

  Foreign law, yes.

• 35:25Speaker 05

  And, yes, international law and medical systems that actually pay for healthcare for individuals. It is a new area of interest, once again, principally inconsistent with other positions.

• 35:38Leah Litman?

  Sam Alito is like, socialized healthcare is my passion.

• 35:44Speaker 05

  You know, I mean, he was reading from the Cass review, which was published in April of 2024, like over a year after the record closed in this case to preliminary injunction, they can go back and introduce it on to add 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 Cass review is, is it comes out of the UK and is part of the UK shift against trans people, too. It can't be sort of thought of as this neutral thing. And, and even the Cass review, which is, you know, in theory, this review of the evidence supporting the prescription of puberty delaying medication

• 36:26Speaker 05

  and hormones to adolescents who are trans under the age of 18, does not recommend banning this care. Hillary Cass herself says that, yes, for some people, this will be medically necessary. And so, and also, it is not the policy of the NHS. It is, 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 we are.

• 37:08Leah Litman?

  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.

• 37:52Leah Litman?

  Or Sam Alito's own writing in the M. Tala case in which he literally second guessed maternal medicine's views that abortions are medically recommended and necessary care for miscarriages, like OBGYNs say one thing, but Sam Alito isn't so sure. And then you Chase 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. I think I lost track of the discussion you were having about COVID. What was the point you were trying to make?

• 38:28Speaker 05

  I think.

• 38:30Leah Litman?

  Somebody was trying to make.

• 38:32Speaker 05

  Yes, I think it was me. And the point about COVID and the question of whether or not this court has ever considered applying heightened scrutiny to contexts in which states are grappling with evolving medical evidence. And I would point to Justice Gorsuch's statement in South Bay United Pentecostal, in which the purpose of heightened scrutiny, even when the government is grappling with experts of 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.

• 39:13Leah Litman?

  Well, I don't want to relive the COVID cases. 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.

• 39:43Speaker 05

  Well, thank you for having me. And I just will have you know that I wore the special Title VII shirt that you guys sent me the night before the argument for good luck. So I was channeling the strict scrutiny vibes. So thank you and thank you for everything you do.

• 39:59Leah Litman?

  I thought you were going to say you wore it to our argument. And I'm like, that is a boss.

• 40:02Kate Shaw?

  Bitch, move.

• 40:03Melissa Murray?

  Right there.

• 40:04Kate Shaw?

  Forget it, suit.

• 40:06Speaker 05

  I was, I was like, yes, that would have been a definite decision.

• 40:10Kate Shaw?

  Awesome, awesome.

• 40:11Speaker 05

  So I did not go that far.

• 40:13Kate Shaw?

  I'm glad you didn't, actually.

• 40:15Speaker 05

  Yes, I still wanted to win the case.

• 40:17Kate Shaw?

  Yes, we want that too.

• 40:19Speaker 05

  I think that that would have, it was the right, it was the right energy. So thank you, thank you, guys, and good to see you.

• 40:26Kate Shaw?

  We're so touched. Thank you so much for being with us, Chase.

• 40:41Melissa 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, so.

• 40:54Kate Shaw?

  Oh, no, Melissa with the unexpected 333.

• 40:56Melissa Murray?

  I know, I know, I know. It's a 333 court. Wait until you hear her division.

• 41:00Kate Shaw?

  I know, I'm joking.

• 41:02Melissa Murray?

  Wait, it's still a 63 court, but there's a big, there's a big 6 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 two, 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.

• 41:47Melissa Murray?

  Red state legislatures. 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.

• 42:20Speaker 06

  When you're 1% of the population or less, very hard.

• 42:24Melissa Murray?

  Hard to see how the democratic process is going to protect you.

• 42:28Leah Litman?

  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.

• 42:47Speaker 06

  So I guess I'm suddenly quite worried about the role of the court questions and the constitutional allocation of authority concerns because I had 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

• 43:32Speaker 06

  is the justification? And 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. 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?

• 44:12Leah 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 in 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.

• 44:49Kate Shaw?

  Forceful policy arguments to allow these medical treatments and Justice Sotomayor's questions elaborated 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. At least that's one way to look at it and want to get your reaction to that. If the Constitution doesn't take sides, if there are strong, forceful, scientific, policy

• 45:30Kate Shaw?

  arguments on both sides in a situation like this, why isn't it best to leave it to the democratic process?

• 45:38Melissa Murray?

  See, this to me is the most interesting kind of, it's not interesting because he said it, it's not interesting substantively, but it is interesting as sort of this question of what is the court's role here because he seems to be saying and articulating, I think, a new rule, which is where anything is controversial, the court cannot get involved, which reminded me of your article with Dan Deacon, Leah, 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's a similar kind of thing. Just make something controversial and the court can say, you know what, we don't actually care if you're discriminating against protected groups. We're out because the Constitution

• 46:18Melissa Murray?

  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.

• 46:29Leah Litman?

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

• 47:00Melissa Murray?

  It was egregious to Katanji Brown Jackson as well. And she really does not like this whole idea that like the court has no role to play because Brett Kavanaugh thinks something is controversial. 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.

• 47:26Speaker 06

  And I guess my real concern, and I maybe I'll just ask you to react to my loving parallel because I'm getting kind of nervous, is that in Loving, those same kinds of scientific arguments were made. So I'm, I'm reading here where the court says, the argument is that if the equal protection clause does not outlaw miscegenation statutes because of their reliance on racial classifications, the question of constitutionality would thus become whether there was any rational basis for a state to treat interracial marriages differently from other marriages. 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

• 48:09Speaker 06

  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, if instead, we're just sort of doing what the state is encouraging here in Loving, where you just sort of say, well, there are lots of good reasons for this policy and who are we as the court to say otherwise? I'm worried that we're undermining the foundations of some of our bedrock equal protection cases.

• 48:44Kate Shaw?

  Didn't it just feel like she was giving him a little Con Law 101?

• 48:47Melissa Murray?

  Yes.

• 48:48Kate Shaw?

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

• 48:52Melissa Murray?

  Con Law for Dummies, right? I know you went to Yale. I know there's no grades in the first semester.

• 48:57Kate Shaw?

  Your basketball court, you know, played your way through and, and maybe you missed this stuff, but let me remind you what it is we are doing here.

• 49:06Speaker 06

  Why are we here?

• 49:07Kate Shaw?

  Anyway.

• 49:07Melissa Murray?

  Why are we here?

• 49:08Kate 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 Gudaldig, because it involves a challenge to a law that explicitly and repeatedly says sex, he responded with this.

• 49:34Speaker 07

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

• 49:38Kate Shaw?

  And then there was this longer colloquy.

• 49:41Speaker 07

  Well, let me ask one final question that addresses Gudaldig and Dobbs. Let's take Gudaldig first. One could make the same argument in Gudaldig that you've made here. A man cannot, which concerned whether a pregnant woman was entitled to disability benefits for time missed at work when a man would be entitled to benefits for time missed at work. 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

• 50:23Speaker 07

  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 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 Gudaldig and under Dobbs. And yet, there was no equal protection problem in either of those cases. And that's because the court said that there was no facial sex classification

• 51:06Speaker 07

  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 to parallel 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 masculinizing purposes. That's a facial sex classification through and through. All right. And I don't think it's controlled by Dobbs or Galdy.

• 51:37Kate Shaw?

  God, SG prelogger, she's got, let's see, one more week?

• 51:41Melissa Murray?

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

• 51:59Leah Litman?

  Yeah, like, we all know this is a shrod, right? Like, just shut the fuck up. And, you know, I'm, I'm sick of you.

• 52:07Melissa Murray?

  Where is my anger translator? Where is she? Like, just looking around.

• 52:11Leah Litman?

  Exactly. But, you know, the, 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 can hear the sound of him like slapping it like it's a used car and being like this bad boy I can vet a more like rolling back rights in here. And it's just, it's like, I wrote this opinion for speed. Let's go.

• 52:39Kate Shaw?

  Yeah. Before we get on to the other recaps that the US Supreme Court heard last week, we wanted to cover a few developments from the Supreme Court of the Fifth Circuit, which is obviously in its own la la land. And also the Supreme Court, another one you may not have heard of, of the District of Texas, which had a real one as well. 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.

• 53:23Kate Shaw?

  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.

• 53:36Leah 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 two to one, Judges Duncan and Willett 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 don't know her.

• 54:12Melissa Murray?

  Well, we do know what federal supremacy is. So just a little primer might be in order. Remember McCullough versus Maryland, sort of stock case in first year of constitutional law? When Maryland taxed 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. The power to destroy apparently does not extend to these fences. But anyway, what's going on here? This is insane.

• 54:53Leah 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.

• 55:12Melissa Murray?

  That's the Obama principle, the Obama doctrine.

• 55:15Leah 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 criming, but not to forgive student loans. So.

• 55:46Melissa Murray?

  That's the important set of answers to give on your con law exams for when they take con law this spring. Leah just broke it right down for you.

• 55:53Kate Shaw?

  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 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.

• 56:36Kate Shaw?

  So it's possible the Trump administration might ask the court to what's called "mong singware" 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.

• 56:53Melissa 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.

• 57:35Melissa Murray?

  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.

• 57:55Melissa Murray?

  Yeah, makes sense. Checks out. What?

• 57:59Leah 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 wild.

• 58:09Melissa Murray?

  It's 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, has to be sort of commercial in nature. All of this seems commercial and economic, so I'm not really understanding the problem here, except that Congress did something.

• 58:25Leah Litman?

  Yeah.

• 58:25Kate Shaw?

  That might be enough.

• 58:26Leah 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 Florida. 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.

• 59:08Leah Litman?

  And they're using the law to enforce their preferences, here imposing liability on a company for essentially not predicting their batty reactions and hecklers veto attempt over acknowledging pride.

• 59:22Melissa 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 SFFA versus Harvard. But in that decision, it sequestered the question of whether military service academies were also prohibited from considering race in their admissions calculuses. Well, Ed Bloom, the architect of the SFFA 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 is a Republican appointee who served over 20 years in the U.S. Army Reserve and the Maryland National Guard.

• 1:00:07Melissa Murray?

  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.

• 1:00:52Kate 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 FDA 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.

• 1:01:36Melissa 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 shit 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 argument seemed more focused on the supposed procedural errors that the agency had made

• 1:02:20Melissa Murray?

  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.

• 1:02:28Leah Litman?

  Yes, although it allows them to get to the same outcome. So one alleged procedural error.

• 1:02:33Melissa Murray?

  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.

• 1:02:42Leah Litman?

  Until I get to see more Taylor Swift 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 in 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 companies 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 then use regular cigarettes.

• 1:03:26Leah Litman?

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

• 1:03:31Melissa Murray?

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

• 1:04:15Kate 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 APA has an explicit provision in it requiring courts to be mindful of the rule of harmless error. And the government seems to have relied on that textual requirement. But. You know, foolish FDA. I suppose that's not the kind of textualism that the court has in mind.

• 1:05:00Leah Litman?

  But once again, like wither 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. It's

• 1:05:15Kate Shaw?

  It's okay, though. Actually, it does apply if it's a Trump administration agency

• 1:05:18Leah Litman?

  Right.

• 1:05:19Kate Shaw?

  helping employers not give their employees contraceptives. That is the one and only occasion in which this rule can redound to the benefit of the federal government. Sorry.

• 1:05:28Leah Litman?

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

• 1:05:33Kate Shaw?

  Totally, yeah.

• 1:05:34Leah Litman?

  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.

• 1:05:43Kate Shaw?

  He found his voice.

• 1:05:44Leah Litman?

  He found his voice. Oh, did he ever? C, which gave it back to him. Gave it back to him. Yeah. 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.

• 1:06:01Kate Shaw?

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

• 1:06:09Speaker 00

  The civil enforcement actions, I'm not sure, to tell you the truth. But

• 1:06:14Kate Shaw?

  I'm just wondering, does a company ever have a chance to get before a judge and a jury?

• 1:06:20Speaker 00

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

• 1:06:28Kate Shaw?

  I mean, after charkacity, perhaps the answer is yes.

• 1:06:33Speaker 00

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

• 1:06:36Kate Shaw?

  Thank you, Mr. Ginn.

• 1:06:38Leah Litman?

  He'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 US 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.

• 1:07:07Kate Shaw?

  Although this is a statutory interpretation case, a lot of the argument was devoted to figuring out what work substantively the provision was doing, whether one side's interpretation would mean the provision had no effect, and what Congress might have been trying to achieve through the measures. Once again, wither textualism. 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 US's immunity from suit.

• 1:07:40Leah Litman?

  The court also heard Republic of Hungary versus Simon.

• 1:07:43Melissa 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 "exchanged" for property that ends up in the United States. So again, more textualism that we can just forget, except when we're not.

• 1:08:10Leah Litman?

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

• 1:08:35Kate 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 commingled profits from expropriated property with its national wealth and then issued bonds in the United States.

• 1:08:54Leah Litman?

  So, one last thing before we go. The election results have sparked plenty of conversations, and the latest episode of Hysteria is diving into the biggest ones. Erin and Alyssa are joined by editor at The 19th News, Erin Haines, to break down how racism and misogyny paved the way for Trump's win. And if you can't look away from Trump's problematic cabinet picks, they're breaking down the latest on disgraced Secretary of Defense nominee Pete Hegseth. Tune into Hysteria every Thursday, wherever you get your podcasts.

• 1:09:23Melissa Murray?

  Y'all, I just love that this court was so problematic. We couldn't even talk about Cash Patel. Like, the court, like, literally eclipsed Cash Patel as director of the FBI.

• 1:09:30Leah Litman?

  We had, we had a great culture segment lined up.

• 1:09:33Melissa Murray?

  We really did.

• 1:09:33Leah Litman?

  But we 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 partisan 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.

• 1:09:53Melissa Murray?

  We didn't even talk about pardons. I mean, like, the court just takes over everything.

• 1:09:57Leah Litman?

  I know. They, they just suck up everything.

• 1:10:01Melissa 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 and executive produced by Leah Litman, me, Melissa Murray, and Kate Shaw. Produced and edited by Melody Rauel. Michael Goldsmith is our associate producer. We get audio support from Kyle Seglan and Charlotte Landis. Our music is by Eddie Cooper. We get production support from Madeline Heringer and Ari Schwartz. And Matt DeGroot is our head of production. And we are very grateful for our digital team, Phoebe Bradford and Joe Motowski. 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.

• 1:10:59Melissa Murray?

  In business, there's the easy way with Staples or the hard way. Hard means- Jen, did you get the weekend specials menus from the printer by any chance? No, they said they'll be done on Monday.

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  But they're weekend specials. Easy means Staples same-day custom printing, where same day means same day. Hard means- Our new brochures are back from the print place. So how do they look? Well, our logo is brown. But our logo isn't brown. It is now. Easy means custom prints, perfectly printed. Don't choose hard, choose Staples. That was easy. Shop Staples online in-store in the app. Relax and get ready for bed with Dr. Teal's magnesium spray. Made from a proprietary blend of topical minerals powered by pure Epsom salt and natural Dead Sea salt, Dr. Teal's magnesium spray is designed to help you unwind and get in a nighttime state of mind. Dr. Teal's magnesium spray is wellness you can feel, and you can find it in your local-

• 1:11:52Kate Shaw?

  Bath Isle. Dr. Teals. Yep. You needed that.