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The MAGA Supreme Court's Assault on America · Pod Save America

0:03
Speaker 1: Welcome to Pod Save America.
0:21
Speaker 2: I'm Dan Pfeiffer. You're about to hear a great conversation
0:23
Speaker 2: I just had with Leah Lippman, a law professor, co-host
0:25
Speaker 2: of Perky Media's Strict Scrutiny, and author of Lawless, How
0:27
Speaker 2: the Supreme Court Runs on Conservative Grievances, and Lawless, How
0:28
Speaker 2: the Supreme Court Runs on Conservative Grievances. fringe theories, and
0:31
Speaker 2: bad vibes. We talked about this week's monumental Supreme Court
0:34
Speaker 2: decisions on the Trump administration's immigration policy, what's making Leah
0:37
Speaker 2: anxious about the upcoming decision on birthright citizenship, and the
0:40
Speaker 2: legacy of Roe v. Wade, including how it's playing in
0:42
Speaker 2: the race to unseat Susan Collins in Maine. We also
0:45
Speaker 2: talked about some of the other decisions we're expecting to
0:46
Speaker 2: come out of the court soon, including decisions on mail ballots,
0:49
Speaker 2: trans participation in sports, and the independence of the Federal Reserve.
0:53
Speaker 2: It was a great conversation, and we'll get to it
0:54
Speaker 2: in a minute. But before we do, please consider becoming
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Speaker 2: subscription for an entire year. That's crooked.com slash yeswedan. All right,
1:32
Speaker 2: here's my conversation with Leah Lippman. Leah Lippman, welcome back
1:35
Speaker 2: to Pod Save America.
1:36
Speaker 3: Thanks for having me.
1:38
Speaker 2: Under these great circumstances. So originally when we scheduled this,
1:42
Speaker 2: we thought there was a chance the Supreme Court would
1:44
Speaker 2: have released all of its big monumental decisions at the
1:46
Speaker 2: end of this quarter. Per usual, Sam Alito, John Roberts
1:50
Speaker 2: have screwed up our best laid plans. But they have
1:52
Speaker 2: released a number of very important decisions that I want
1:55
Speaker 2: to talk to you about. And then I want to
1:55
Speaker 2: talk about the decisions that are looming, that are doomed
1:59
Speaker 2: to possibly ruin many people's 4th of July break. Let
2:02
Speaker 2: us start with a case that I think has the
2:04
Speaker 2: most impact for the most people.
2:06
Speaker 3: Can I just start with the timing point?
2:08
Speaker 2: Yes, please do, please.
2:09
Speaker 3: Okay, because it's not just that you thought they would
2:13
Speaker 3: finish by the end of this week. It's that traditionally
2:16
Speaker 3: and historically– the court has finished releasing opinions and argued
2:20
Speaker 3: cases before the holiday week. And these guys have one
2:26
Speaker 3: fucking job. And they're not even doing that, right? Like
2:30
Speaker 3: they cannot bother to do law. And yet they can't
2:33
Speaker 3: finish according to schedule. Despite loving history and tradition, they
2:37
Speaker 3: cannot conform to this most basic tradition about how the
2:40
Speaker 3: Supreme Court works.
2:41
Speaker 2: Which is important for many reasons, but- Primarily for podcast recording.
2:46
Speaker 4: Exactly.
2:46
Speaker 5: Yes.
2:47
Speaker 3: Exactly. Super inconvenient.
2:49
Speaker 2: Okay. So this is an important point to make. I'm
2:51
Speaker 2: glad you made that point. I want to start with
2:53
Speaker 2: the case that I think has the most impact on
2:55
Speaker 2: the most people. This is the 6-3 decision. Everyone listening
2:58
Speaker 2: can guess who the six and who the three are
3:00
Speaker 2: that will allow the Trump administration to rescind temporary protective
3:05
Speaker 2: status for 350,000 Haitian immigrants and This case is about
3:10
Speaker 2: a lot of things. It's a big deal. Talk to
3:12
Speaker 2: me about what was at stake in this case and
3:13
Speaker 2: what the ruling says.
3:15
Speaker 3: Oh, my gosh. This case is so maddening. I have
3:18
Speaker 3: just become angrier about it with every passing hour. So
3:23
Speaker 3: the case involved actually two different revocations of the temporary
3:27
Speaker 3: protected status program. And TPS is a method where the
3:31
Speaker 3: executive branch can offer immigration relief to individuals who undergo
3:36
Speaker 3: a rigorous vetting process who are from certain countries when
3:41
Speaker 3: returning them to those countries. would be horrific because of
3:45
Speaker 3: conditions in those countries. And so Haiti was one such
3:48
Speaker 3: country after devastating natural disasters coupled with the basic failure
3:56
Speaker 3: of the government. It's super dangerous to be in Haiti.
3:59
Speaker 3: And so temporary protected status was offered, so too with
4:03
Speaker 3: respect to Syrian nationals. And so early on in the
4:06
Speaker 3: Trump administration, fall 2025, Christine Ohm says, we are just
4:10
Speaker 3: going to end these TPS programs for individuals from several
4:14
Speaker 3: different countries. And those decisions to end the program were challenged.
4:20
Speaker 3: And these cases involve challenges to the end of TPS
4:23
Speaker 3: for Haitian nationals and Syrian nationals. By statute, Congress, because
4:27
Speaker 3: of the importance of the TPS program to people's lives,
4:30
Speaker 3: you know, they structure their lives around being able to
4:33
Speaker 3: live and work in the United States, required the executive
4:37
Speaker 3: branch to undergo... fairly rigorous process before deciding to end TPS.
4:43
Speaker 3: And specifically, the executive branch had to consult among different
4:47
Speaker 3: agencies to determine that conditions in that country were indeed
4:50
Speaker 3: sufficiently different, that ending TPS was justified. And there's almost
4:56
Speaker 3: no question that the Trump administration didn't do that. With
4:59
Speaker 3: respect to Haiti in particular, Emails suggest that the Department
5:03
Speaker 3: of Homeland Security asked the State Department to weigh in
5:06
Speaker 3: about conditions in Haiti and then went ahead and canceled
5:08
Speaker 3: TBS before State Department even weighed in. That's not actually consultation.
5:14
Speaker 3: And I don't think there's any argument on that point.
5:18
Speaker 3: You add to that the fact that the president said vile,
5:22
Speaker 3: horrible things. grotesque things about Haitian nationals. And it sure
5:26
Speaker 3: looks like they decided to end TPS not because conditions
5:29
Speaker 3: in Haiti had changed, but because the president just wanted
5:31
Speaker 3: to fulfill Stephen Miller's white supremacist immigration dreams. And so
5:37
Speaker 3: those were the challenges that the Trump administration violated statutes
5:41
Speaker 3: by not following the required processes and violated the Constitution
5:44
Speaker 3: by implementing this policy out of racial animus, discriminating on
5:48
Speaker 3: the basis of race. And in the 6-3 opinion, Sam
5:52
Speaker 3: Alito was like, I don't care.
5:53
Speaker 6: Do you?
5:54
Speaker 3: On the statutory arguments, he said, who cares whether or
5:58
Speaker 3: not they complied with a statute courts can't review, whether
6:02
Speaker 3: they violated the statute or not.
6:05
Speaker 2: That's a new finding, right?
6:06
Speaker 3: That is a new, entirely new rule. For decades, it
6:10
Speaker 3: has been understood that even though the statutes don't allow
6:15
Speaker 3: courts to second guess the secretary's determination, ultimate determination— about
6:20
Speaker 3: whether to end TPS, they do allow courts to ensure
6:23
Speaker 3: that the secretary followed the required process to ensure sound decision-making.
6:29
Speaker 3: And Sam Alito and co. wipe away all of those
6:32
Speaker 3: rules and render all of these statutes unenforceable. They're basically
6:38
Speaker 3: guidelines at this point. The executive branch faces no consequences
6:42
Speaker 3: for openly flouting them. Donald Trump, Mark Wayne Mullen could
6:46
Speaker 3: stand up tomorrow and say, we're not gonna follow these
6:48
Speaker 3: statutes and there's not a thing. courts could do about
6:52
Speaker 3: it in light of that ruling.
6:53
Speaker 2: I want to get to the comments in a minute
6:55
Speaker 2: and the racial animus points. I think that's very important
6:57
Speaker 2: and really plays a big role in why the decision
6:59
Speaker 2: is so maddening and the opinion by a leader is
7:01
Speaker 2: so maddening. But what is the reason– it seems like
7:05
Speaker 2: a pretty basic thing. Congress writes laws. The executive must
7:08
Speaker 2: follow said laws. If the executive does not follow those laws,
7:11
Speaker 2: someone who is standing sues and the courts come in
7:14
Speaker 2: and say, you did not follow those laws. You must
7:16
Speaker 2: do something different. Is there something that they find an
7:18
Speaker 2: inherent authority of the president of immigration? What is the
7:21
Speaker 2: basis for saying the laws don't apply on this particular issue?
7:25
Speaker 3: It's so wild to hear you say that because this
7:27
Speaker 3: unfortunately was a theme of almost all of the court's
7:30
Speaker 3: decisions from this last week, saying that people whose rights
7:33
Speaker 3: were violated can't do a thing about it, can't sue
7:36
Speaker 3: to challenge in federal court. So here their rationale was
7:40
Speaker 3: Congress had actually decided to impose these rules on the
7:45
Speaker 3: executive branch. And to foreclose the possibility that courts could
7:50
Speaker 3: review whether the executive branch complied with those rules. So
7:54
Speaker 3: they put the decision at Congress's feet rather than saying
8:00
Speaker 3: the Constitution doesn't allow courts to review those determinations.
8:04
Speaker 2: So now let's get to the racial animus point and
8:06
Speaker 2: why that matters here. Because I think for people who
8:09
Speaker 2: have been following this saga for a long time, the
8:11
Speaker 2: Haitian immigrants are the ones that Trump denies. And J.D.
8:14
Speaker 2: Vance and the entire American media accused her in the
8:17
Speaker 2: 2024 campaign of eating the pets in Ohio.
8:19
Speaker 5: Yes.
8:19
Speaker 2: That's what we're talking about here, right?
8:21
Speaker 3: Well, and it wasn't just that. It is the president
8:25
Speaker 3: said people from Haiti have AIDS. He called it a
8:28
Speaker 3: shithole country. He said they were Haitian nationals poisoning the
8:32
Speaker 3: blood of the country. Bunch of racist, vile remarks. And
8:37
Speaker 3: Sam Alito does not even have the backbone to recite
8:43
Speaker 3: those remarks. in his opinion. He just declares they're not
8:47
Speaker 3: overtly racial. I have no idea what that means, given
8:52
Speaker 3: that the president also said he wanted to admit more
8:55
Speaker 3: people from Sweden and Norway. Again, he tried to say,
9:01
Speaker 3: I guess they're xenophobic and really about opposition to immigration policy,
9:06
Speaker 3: which makes no sense. And also, in any case, I
9:09
Speaker 3: don't understand why that would be constitutional. And if he
9:12
Speaker 3: cannot bring himself to recite the remarks of the person
9:16
Speaker 3: who he's saying isn't racist, I think that's a pretty
9:18
Speaker 3: big indication that maybe the person is racist and saying
9:22
Speaker 3: racist things. But he just kind of said nothing to
9:27
Speaker 3: see here and legalized what the president did and said.
9:33
Speaker 2: And so this means for Haitians, about there are 350,000
9:37
Speaker 2: of them, I believe, who many of them in this
9:38
Speaker 2: country for quite a while now, I think TPS has
9:41
Speaker 2: been around for almost a decade, right?
9:42
Speaker 3: Yeah, more than a decade.
9:43
Speaker 2: And so these people can all be deported now either
9:47
Speaker 2: in their– when they go to– because you have to
9:49
Speaker 2: go to a regular check-in, right? And so they go
9:51
Speaker 2: to– the next time they encounter an ICE officer or
9:52
Speaker 2: CBP officer, they could be deported. Same is true of Syrians. Now,
9:57
Speaker 2: I know Stephen Miller was on Fox News minimizing. the
10:01
Speaker 2: dangers in Haiti and comparing it to Chicago, St. Louis,
10:06
Speaker 2: Los Angeles. But Syria seems like a harder case to
10:10
Speaker 2: make that this is a totally safe and fine place
10:12
Speaker 2: to go back to.
10:13
Speaker 3: I mean, I think Haiti is a really tough place.
10:17
Speaker 2: Maybe even tougher than Syria, actually.
10:18
Speaker 3: Yes, exactly. And so this would be the largest delegalization
10:26
Speaker 3: in United States history. So while these cases specifically are
10:30
Speaker 3: about Haitian nationals and Syrian nationals, the Trump administration has
10:33
Speaker 3: attempted to end temporary protected status for individuals from other countries,
10:37
Speaker 3: including Venezuela, Nicaragua, El Salvador, and more. When Trump took office,
10:43
Speaker 3: there were more than a million people living in the
10:45
Speaker 3: United States with temporary protected status. And suddenly all of
10:49
Speaker 3: those people potentially lose their legal authorization to remain in
10:52
Speaker 3: the United States. And your point about check-ins just drives
10:55
Speaker 3: home that people they are penalizing are the people who
10:58
Speaker 3: followed the immigration rules. They underwent this vetting process. They
11:04
Speaker 3: do check-ins with immigration officers. And so now the federal
11:07
Speaker 3: government knows who they are, where they are, and could
11:11
Speaker 3: be poised to effectuate these mass deportations. In her dissent,
11:14
Speaker 3: Justice Kagan says, as a result of the court's order,
11:17
Speaker 3: they're basically telling the executive branch, you can put these
11:20
Speaker 3: people on the next plane and send them off. And
11:23
Speaker 3: it's just cruel what the Supreme Court is potentially allowing
11:29
Speaker 3: and inviting the Trump administration to do.
11:30
Speaker 2: So for the non-Syrians, non-Haitians who have protective status, like
11:34
Speaker 2: you mentioned, Venezuelans, are we also talking about people from Afghanistan,
11:37
Speaker 2: many of whom fled after the fall of the Afghani government,
11:40
Speaker 2: people who helped the American military and diplomats there, talking
11:44
Speaker 2: about Ukrainian refugees, all these other groups, can the Trump
11:49
Speaker 2: administration now just sign a piece of paper and remove
11:51
Speaker 2: their TPS or go through the fake process that they
11:54
Speaker 2: don't even have to go through anymore? Like, Are we
11:55
Speaker 2: just like one Stephen Miller email away from 1.2 million
11:59
Speaker 2: or whatever it is people potentially being deported?
12:01
Speaker 3: Potentially, yes. And there have been cases challenging the rescissions
12:05
Speaker 3: of the other temporary protected status programs as well. But
12:09
Speaker 3: in light of this decision telling courts they can't review
12:12
Speaker 3: any of the statutory claims and excusing the president's gutter racism,
12:16
Speaker 3: it's going to be really hard for any court to
12:19
Speaker 3: pause those rescissions.
12:21
Speaker 5: Great.
12:21
Speaker 2: So this is truly terrible. And so then we had
12:26
Speaker 2: a second immigration decision that came down. Now, this one
12:30
Speaker 2: is less immediate in its consequences and hinges, as I
12:33
Speaker 2: understand it, on the meaning of the word arrive in
12:36
Speaker 2: immigration law. Can you explain? This is another 6-3 with
12:40
Speaker 2: the typical six and the typical three decision. Can you
12:43
Speaker 2: explain what's going on in this case?
12:44
Speaker 3: Yeah, so this case is about the meaning of asylum law.
12:47
Speaker 3: Under international law and statutes that Congress has passed, individuals
12:52
Speaker 3: who arrive in the United States are entitled to claim asylum,
12:56
Speaker 3: and they are entitled to have their asylum claim assessed
12:59
Speaker 3: in a legitimate process and procedure. What the Supreme Court
13:05
Speaker 3: said is an individual doesn't arrive in the United States,
13:08
Speaker 3: and therefore they aren't entitled to claim asylum or have
13:11
Speaker 3: their asylum claim assessed in if they are stopped outside
13:15
Speaker 3: of the physical borders of the United States. As Justice
13:19
Speaker 3: Sotomayor pointed out in her dissent, this creates a giant loophole.
13:24
Speaker 3: It tells the executive branch, so long as you physically
13:26
Speaker 3: block people from entering the United States, you do not
13:30
Speaker 3: have to consider their asylum applications. You can just turn
13:34
Speaker 3: them away wholesale. And that decision is was entirely unnecessary.
13:42
Speaker 3: Part of what is so, I think, heinous, both about
13:45
Speaker 3: the asylum case and the TPS case, is that the
13:48
Speaker 3: Supreme Court did not have to reach them. On this
13:50
Speaker 3: asylum case, the case originated as a challenge to a
13:54
Speaker 3: policy that isn't in existence. It was a challenge to
13:58
Speaker 3: the so-called metering policy that began almost a decade ago.
14:02
Speaker 3: And under that policy, immigration officials would turn away people
14:06
Speaker 3: and say, we can't process your asylum applications. If the
14:09
Speaker 3: quota for the number of individuals who could be processed
14:14
Speaker 3: at the border had been met, that policy was ended.
14:18
Speaker 3: There was not in effect any policy that presented this question.
14:23
Speaker 3: about whether the Trump administration could refuse to process asylum
14:26
Speaker 3: applications from people who they stopped outside the border. Instead,
14:30
Speaker 3: the Supreme Court went ahead and just told them, well,
14:34
Speaker 3: we've decided you could do this thing that you may
14:36
Speaker 3: want to do, and therefore paved the way for them
14:41
Speaker 3: to implement another callous immigration policy.
14:45
Speaker 2: And so in the original metering policy, which began at
14:47
Speaker 2: the end of the Obama administration, you would show up
14:50
Speaker 2: and they would say, there are too many people today.
14:52
Speaker 2: We're not going to be able to get to your case.
14:53
Speaker 2: Come back tomorrow.
14:55
Speaker 5: Yes.
14:55
Speaker 2: And we will look at your case. And so at
14:57
Speaker 2: that point, it wasn't an attempt to deny them. It
14:59
Speaker 2: was essentially recognizing, you've shown up at the door. We
15:02
Speaker 2: can't let you in the door. We're acknowledging you have
15:05
Speaker 2: the right to make your asylum case. And we are
15:06
Speaker 2: going to allow you to do that on a different
15:09
Speaker 2: day when there is an actual someone who can hear it, basically, right?
15:12
Speaker 5: Yes.
15:13
Speaker 3: That was the ostensible.
15:14
Speaker 2: And so now this seems like such an insanely stupid
15:18
Speaker 2: decision on so many levels because doesn't it seem to
15:20
Speaker 2: argue that if you are someone who has a– you
15:24
Speaker 2: believe you have a legitimate asylum case. You're coming to
15:25
Speaker 2: the United States to avail yourself of your human right
15:28
Speaker 2: to seek asylum consistent with our laws and traditions. You
15:33
Speaker 2: are better off sneaking across the border.
15:36
Speaker 5: Exactly.
15:36
Speaker 2: And getting caught and then claiming an asylum case than
15:39
Speaker 2: showing up at the front door and asking to present
15:42
Speaker 2: your case.
15:43
Speaker 3: This decision is unhinged. As Justice Sotomayor wrote in her dissent,
15:47
Speaker 3: the consequences are predictable. More people will die. And among
15:51
Speaker 3: the reasons is it creates this incentive for people to
15:54
Speaker 3: try to sneak across the border because only if they
15:57
Speaker 3: manage to get into the United States borders would they
16:01
Speaker 3: be able to claim asylum. This is another example of
16:04
Speaker 3: the Supreme Court adopting a rule that penalizes people. who
16:08
Speaker 3: are trying to comply with immigration law by presenting themselves
16:12
Speaker 3: at the border and trying to assert an asylum claim.
16:15
Speaker 2: It's basically funneling them into these trafficking organizations that are
16:19
Speaker 2: making money to get them into the country. To me,
16:23
Speaker 2: that's what it seems so insane about. And so the
16:25
Speaker 2: net result of this, other than the consequence of the
16:27
Speaker 2: people who then now get injured, get hurt, get killed,
16:31
Speaker 2: are trafficked, young women and children who go to these
16:34
Speaker 2: groups end up in very bad places often in an
16:36
Speaker 2: attempt to get the United States. What is going to
16:38
Speaker 2: happen is Stephen Miller could just tell the CBP, don't
16:42
Speaker 2: let anyone– Exactly. No one gets in. So we will
16:45
Speaker 2: not recognize any legitimate asylum claims that come in through
16:48
Speaker 2: the normal process.
16:50
Speaker 3: Yes. It does not matter if someone could prove beyond
16:54
Speaker 3: a reasonable doubt that they would be persecuted, tortured, killed
16:59
Speaker 3: in their home country. The administration can just refuse to
17:03
Speaker 3: consider that.
17:04
Speaker 2: Now– I learned from the very excellent Emergency Strict Scrutiny
17:09
Speaker 2: podcast you guys did that came out today? Yesterday?
17:12
Speaker 3: What is today? Time has no meaning anymore.
17:14
Speaker 2: It's June. Friday. I listened to it this morning. But
17:21
Speaker 2: during the release of this decision, that something very dramatic
17:25
Speaker 2: and perhaps unprecedented in the history of the Supreme Court happened.
17:28
Speaker 2: Could you lay that out for us?
17:30
Speaker 3: So it's not entirely unprecedented, although it's deeply rare. By tradition,
17:34
Speaker 3: what happens is when the Supreme Court releases an opinion,
17:37
Speaker 3: the author of the majority opinion will provide some remarks
17:41
Speaker 3: and offer a brief summary of their case. Occasionally, but
17:44
Speaker 3: only in rare circumstances, will the author of the dissent
17:47
Speaker 3: then proceed to summarize their dissent. And reading portions of
17:51
Speaker 3: your dissent from the bench is reserved for very strongly
17:57
Speaker 3: held dissents where you want to signal a very obvious,
18:02
Speaker 3: strong objection to what the majority has done. So in
18:04
Speaker 3: the asylum case, Justice Sotomayor read portions of her dissent.
18:09
Speaker 3: And then Sam Alito proceeded to respond. And having the
18:14
Speaker 3: author of the majority opinion respond after the author of
18:17
Speaker 3: the dissent summarizes their dissent has happened maybe once or twice.
18:23
Speaker 3: twice before. And Justice Alito also intimated that, well, had
18:29
Speaker 3: he known, Justice Sotomayor would have summarized more of her dissent.
18:33
Speaker 3: He definitely had additional things he would have said because
18:36
Speaker 3: he could totally rebut all of her arguments. And it's
18:39
Speaker 3: just so petulant and, yeah, unbefitting of justice.
18:46
Speaker 2: Well, I mean, this is a long– pattern of behavior
18:49
Speaker 2: for Samuel Alito going back to the 2010 state of
18:52
Speaker 2: the union where he was so upset that Barack Obama
18:55
Speaker 2: deigned disagree with the decision to allow corporations, billionaires to
18:58
Speaker 2: buy our political system that he had to react viscerally
19:03
Speaker 2: And loudly during this, he had basically had to heckle
19:05
Speaker 2: the president of the United States.
19:06
Speaker 6: Exactly.
19:07
Speaker 3: Exactly. You think, right, the Tea Party or whoever else
19:11
Speaker 3: invented heckling at the State of the Union?
19:12
Speaker 6: No, no, no, no, no, no.
19:13
Speaker 3: Sweet summer child. It was Sam Alito.
19:15
Speaker 2: Yes. A man who clearly has impulse control problems.
19:19
Speaker 3: Yes.
19:20
Speaker 2: Particularly when criticized, perhaps, by coincidence.
19:21
Speaker 3: Definition of a judicial temperament. Yes.
19:24
Speaker 2: When criticized by people who, by coincidence, have to be
19:25
Speaker 2: people of color.
19:26
Speaker 5: Right.
19:26
Speaker 2: To bother him, particularly.
19:27
Speaker 3: Yes.
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Speaker 2: Boy, will they.
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Speaker 6: You might as well wake up ready for them.
22:50
Speaker 2: Okay, another big case happened here. And this one... caused
22:54
Speaker 2: a different corner of the internet to be aflame. The
22:56
Speaker 2: Maha corner of the internet is very upset about a
23:00
Speaker 2: case where the Supreme Court tossed out a suit against
23:04
Speaker 2: Monsanto's parent company involving claims that the weed killer Roundup
23:11
Speaker 2: caused cancer. And this one is interesting because this is
23:13
Speaker 2: not our traditional 6-3 group of the three we know
23:18
Speaker 2: and love and the six we have come to detest
23:21
Speaker 2: in many cases. Um, this is a seven, two decision
23:24
Speaker 2: where Kagan and Sotomayor actually were with the majority and
23:28
Speaker 2: Ketanji Brown Jackson and Neil Korsuch, I believe were with,
23:31
Speaker 2: were the ones who dissented. Talk to me about this
23:33
Speaker 2: case and did the majority get it right in this one?
23:36
Speaker 3: So the case is about the Federal Insecticide, Fungicide, and
23:41
Speaker 3: Rodenticide Act, or FIFRA.
23:45
Speaker 2: FIFRA as we call it, yes.
23:47
Speaker 3: Keisha has called this one of her favorite statutes. I
23:50
Speaker 3: don't know why, but it's a federal law that gives
23:54
Speaker 3: the EPA, the Environmental Protection Agency, the authority to regulate pesticides,
23:59
Speaker 3: et cetera. And what happens is companies submit their proposed
24:03
Speaker 3: label for their pesticide to the EPA, and then the
24:06
Speaker 3: EPA signs off on them. And the question in this
24:09
Speaker 3: case is whether an individual could sue a pesticide manufacturer
24:14
Speaker 3: saying that the label that the EPA had approved did
24:18
Speaker 3: not contain enough information to adequately warn them about the
24:23
Speaker 3: danger of the product. And so here the allegation was
24:27
Speaker 3: Monsanto's product Roundup contains an ingredient that causes cancer. And
24:33
Speaker 3: that's not disclosed on the EPA warning label. And so
24:36
Speaker 3: what the Supreme Court said here is this statute gives
24:40
Speaker 3: the EPA and the EPA alone the authority to determine
24:44
Speaker 3: what goes on a label. And the label can only
24:48
Speaker 3: be changed if the EPA orders a change or if
24:51
Speaker 3: the EPA approves a change. Private parties, states, they can't
24:57
Speaker 3: impose additional requirements beyond what the EPA has decided is warranted.
25:04
Speaker 2: And so where do you come down on this as
25:06
Speaker 2: a law professor and legal scholar yourself? Yeah.
25:10
Speaker 3: So I think the court probably got it right here,
25:14
Speaker 3: in part because the agency has a lot of authority
25:18
Speaker 3: over how these labels are made and what goes on them.
25:23
Speaker 3: And I think there was a congressional choice to prioritize
25:28
Speaker 3: uniformity over other considerations and wanting a single process, a
25:32
Speaker 3: single decision maker to determine what goes on these labels
25:35
Speaker 3: and valuing the EPA's expertise over the expertise of, say,
25:39
Speaker 3: state juries or state decision makers. And that's a choice.
25:44
Speaker 3: Congress considered the pluses and minuses. And I think the
25:47
Speaker 3: court was probably right to say we need to respect
25:51
Speaker 3: the choice that Congress has made. Now, I have other
25:55
Speaker 3: issues with the Monsanto decision. Just considered in light of
25:59
Speaker 3: some of the other cases that the court made. But
26:01
Speaker 3: I think standing alone, the court probably got it right.
26:03
Speaker 2: And now this was about one specific case in Missouri,
26:06
Speaker 2: but there are other suits against Monsanto out there that
26:08
Speaker 2: will be tossed out because of this. Exactly.
26:10
Speaker 6: Yes.
26:11
Speaker 1: Yep.
26:11
Speaker 2: And does this have an impact broadly on corporate liability
26:16
Speaker 2: or the ability of individuals to sue companies along lines?
26:21
Speaker 2: Or is it pretty specific to this one FIFRA, if
26:24
Speaker 2: I'm saying that correctly?
26:24
Speaker 5: Exactly.
26:25
Speaker 3: Yes.
26:25
Speaker 2: FIFRA-related rulings.
26:27
Speaker 3: It's pretty specific to the FIFRA statute itself because the
26:30
Speaker 3: court focused on the fact that Congress in that statute
26:33
Speaker 3: has a provision labeled uniformity. And in the statute gave
26:36
Speaker 3: the EPA a bunch of authority over all stages of
26:40
Speaker 3: the labeling process. And that's not necessarily going to be
26:43
Speaker 3: true in other statutes. And so, yes, it's going to
26:46
Speaker 3: insulate this set of corporations from this particular type of lawsuit,
26:50
Speaker 3: but not beyond that.
26:52
Speaker 2: And could these individuals sue the EPA for the law?
26:56
Speaker 2: for the label not being, you know, fully fulsome enough
26:59
Speaker 2: to give them what they needed to know to make
27:01
Speaker 2: the right decisions here? Or are these people just kind
27:03
Speaker 2: of screwed?
27:04
Speaker 3: Yeah, so they can file Administrative Procedure Act lawsuits against
27:07
Speaker 3: the EPA and challenge the agency's actions with respect to
27:11
Speaker 3: these labels. That is not going to get them damages,
27:15
Speaker 3: you know, for any harm that they might have experienced
27:19
Speaker 3: because of a failure of these warning labels, but they
27:21
Speaker 3: could try to get the EPA to change them going forward.
27:24
Speaker 2: And you said that you– well, this in a vacuum
27:28
Speaker 2: maybe was the right decision. You have concerns more broadly.
27:30
Speaker 2: I take it that is the fact that corporations are
27:32
Speaker 2: like 1 million and 0 in the Roberts Court over
27:35
Speaker 2: the last 22 years or whatever it is.
27:37
Speaker 3: That would be the general flavor of the objection. And
27:42
Speaker 3: even if you just look at the decisions from this
27:45
Speaker 3: past week. So Monsanto, corporations can't be sued for labels anymore.
27:50
Speaker 3: that allegedly contain insufficient warnings that cause people to get cancer.
27:56
Speaker 3: Earlier this week, the court said you can't sue corporations
27:59
Speaker 3: for abetting human rights abuses that foreign governments commit. They
28:05
Speaker 3: said corporations, however, can sue foreign governments, namely Cuba, for
28:11
Speaker 3: taking their oil. They said individuals who are incarcerated, they
28:15
Speaker 3: cannot sue state officials who violate their religious freedom rights.
28:19
Speaker 3: They said TPS recipients can't sue to challenge the executive
28:22
Speaker 3: branch for violating their rights under the statute. In another
28:26
Speaker 3: immigration case, they said effectively lawful permanent residents can't enforce
28:33
Speaker 3: this statute protecting their right to reenter the United States
28:35
Speaker 3: at the border. So who gets to sue to enforce
28:38
Speaker 3: their rights? Corporations. You can't sue corporations for violating international law,
28:43
Speaker 3: for potentially violating state tort law. You can't sue state
28:47
Speaker 3: officials for violating federal law. You can't sue federal officials
28:50
Speaker 3: for violating federal law. And so if you just aggregate
28:53
Speaker 3: all of these decisions together, it's like, okay, who has rights,
28:56
Speaker 3: who doesn't? Corporations, everyone else.
28:59
Speaker 2: You're bringing up the TPS thing. I was going to
29:01
Speaker 2: go back to something I meant to ask you before.
29:03
Speaker 2: Given this decision, what would stop a president, AOC, Gavin Newsom,
29:09
Speaker 2: Kamala Harris, whoever else from just deciding– on day one
29:14
Speaker 2: that they wanted to grant TPS to everyone from, say, Mexico.
29:19
Speaker 3: It's so funny you say that, Dan, because that was
29:21
Speaker 3: actually an argument in the case that the challengers said, look,
29:24
Speaker 3: if you completely insulate these decisions from review, they can
29:27
Speaker 3: be abused in either direction. So in one of the
29:30
Speaker 3: final passages of the opinion, Sam Alito suggests, well, look,
29:34
Speaker 3: the plaintiffs in these cases, they throw out these hypotheticals.
29:38
Speaker 3: We're not going to necessarily say those would be unreviewable,
29:45
Speaker 3: but maybe Congress could fix them. And so there was
29:47
Speaker 3: this narrow potential caveat that the court reserved for itself
29:51
Speaker 3: because they view themselves as the ultimate decision maker to
29:55
Speaker 3: potentially say maybe some Wholesale abdications might be reviewable, but
30:01
Speaker 3: who knows?
30:01
Speaker 2: So just if perchance, say, a Democratic president wanted to
30:05
Speaker 2: unveil themselves of the executive authority that they found inherited
30:08
Speaker 2: Donald Trump's actions, there is a way for them to
30:11
Speaker 2: stop that from happening.
30:12
Speaker 6: Ding, ding, ding, ding, ding.
30:14
Speaker 2: Perfect. Perfect, perfect, perfect. Good. I didn't go to law school,
30:17
Speaker 2: but I'm picking up what's happening here.
30:19
Speaker 3: I mean, from these decisions, it's not clear Sam Alito
30:21
Speaker 3: did either.
30:22
Speaker 2: Fair enough. Fair enough.
30:23
Speaker 5: Okay.
30:23
Speaker 3: Okay.
30:24
Speaker 2: Let's get to the cases that have not yet been
30:26
Speaker 2: released and will maybe release Monday or Tuesday of next week.
30:29
Speaker 2: We think, we hope, who knows?
30:31
Speaker 3: Um, do we hope honestly, like they're bad things.
30:34
Speaker 2: I mean, I hope, I hope for you as someone
30:37
Speaker 2: who has a podcast schedule, you have to get to that, uh,
30:40
Speaker 2: that happens earlier in the week, rather better. I would
30:42
Speaker 2: say for everyone, Monday and Tuesday, then Thursday, perhaps.
30:46
Speaker 5: Okay.
30:46
Speaker 2: All right. The biggest one is that everyone's waiting for
30:50
Speaker 2: is the one on birthright citizenship. Um, Everyone seems to
30:55
Speaker 2: think that since the Constitution is quite explicit on this,
30:59
Speaker 2: that it would be seemingly impossible for the Supreme Court
31:02
Speaker 2: to do this. You had a piece of the contrarian
31:04
Speaker 2: where you raised some real questions. You have some worries
31:06
Speaker 2: about this. I'd like to hear what those worries are.
31:09
Speaker 2: And I think it also raises some measure of concern
31:11
Speaker 2: that they've been sitting on this. This is something they
31:13
Speaker 2: could have done in a one-sentence order a year ago.
31:15
Speaker 2: And we've been waiting and waiting and waiting. And just
31:19
Speaker 2: based on What I've read in reserve, the fact that
31:21
Speaker 2: they're waiting so long on this, at least suggests that
31:23
Speaker 2: there's something going on. So what is going on here?
31:26
Speaker 2: Tell me about the case. Tell me about why specifically
31:28
Speaker 2: you have worries about what this decision might say.
31:30
Speaker 6: Yeah.
31:31
Speaker 3: So the case is a challenge to the president's executive
31:33
Speaker 3: order that purports to deny birthright citizenship to some people
31:36
Speaker 3: who are born in the United States, even though the
31:38
Speaker 3: first sentence of the 14th Amendment says all persons born
31:41
Speaker 3: and naturalized in the United States and subject to the
31:44
Speaker 3: jurisdiction thereof shall be citizens. So it's a wildly illegal
31:48
Speaker 3: executive order. And I think most people, even after the
31:52
Speaker 3: oral argument and even now, think it's more likely than
31:55
Speaker 3: not that the Supreme Court will say that order can't
31:57
Speaker 3: be enforced and it's unconstitutional. But, and this is a
32:02
Speaker 3: big but, the recent immigration decisions are really concerning. The
32:07
Speaker 3: fact that the court adopted such broad reasoning in cases
32:12
Speaker 3: where they didn't have to do so at all, I
32:15
Speaker 3: think is causing some people to rethink their confidence in
32:18
Speaker 3: what the court might do on birthright. I think the
32:20
Speaker 3: delay could also signal that the decision isn't going to
32:23
Speaker 3: be unanimous. And if it's not unanimous, that's going to
32:26
Speaker 3: meaningfully alter the Overton window as far as what people's
32:29
Speaker 3: understanding of our constitutional multiracial democracy is. If you have
32:34
Speaker 3: dissents by Justice Thomas and Alito, is birthright citizenship going
32:38
Speaker 3: to become a new litmus test for Republican appointees where
32:40
Speaker 3: the expectation is? you will only be selected for a
32:45
Speaker 3: judicial seat if you would overrule birthright citizenship, just like
32:48
Speaker 3: you could only be selected for a judicial seat if
32:52
Speaker 3: you would overrule Roe versus Wade. It would also invite,
32:55
Speaker 3: you know, future challenges to birthright down the road. So
32:58
Speaker 3: I think Those are some of the things that are
33:01
Speaker 3: on people's mind. But then there's this additional consideration for me,
33:06
Speaker 3: which is even if the court does the right thing,
33:08
Speaker 3: I mean, they just cannot get all of the credit
33:11
Speaker 3: and all of the plaudits that are inevitably going to
33:14
Speaker 3: be heaped on them for standing up to the president when,
33:17
Speaker 3: as we were just talking about, they bent over backwards
33:20
Speaker 3: to greenlight some of the more xenophobic white nationalist elements
33:24
Speaker 3: of his immigration agenda when they didn't have to do so.
33:28
Speaker 3: They are the ones that created the need for this
33:31
Speaker 3: case on birthright citizenship and indeed demanded that the federal
33:35
Speaker 3: government bring the case to them when last year in
33:38
Speaker 3: the nationwide injunction case, they refused to just come out
33:41
Speaker 3: and say, even if lower courts can't block this policy
33:44
Speaker 3: on a nationwide basis, we Supreme Court can because it's
33:47
Speaker 3: wildly unconstitutional. And instead, they made the Solicitor General promise
33:52
Speaker 3: that he would appeal any unfavorable ruling against back to them,
33:56
Speaker 3: to give them the opportunity to be the hero. And
33:59
Speaker 3: so they were the ones that created this potential opportunity
34:04
Speaker 3: for great PR for themselves that will give them cover
34:06
Speaker 3: for who knows what else they might do in addition
34:09
Speaker 3: to all of the terrible things they've already done.
34:11
Speaker 2: Yeah, it's interesting because John Roberts is a very political individual,
34:16
Speaker 2: and he's not a very good political individual, but he
34:19
Speaker 2: tries to be one. And so I can see in
34:21
Speaker 2: his simple-minded view where he's like, we're going to do
34:24
Speaker 2: all these terrible things. Then we're going to head into
34:26
Speaker 2: 4th of July break with this decision that will cause
34:29
Speaker 2: everyone to say, see all those liberals who want to
34:31
Speaker 2: expand the court and do term limits and say we're
34:34
Speaker 2: a bunch of MAGA shills are wrong. And then there'll
34:37
Speaker 2: be a series of legal pundits who will then applaud
34:40
Speaker 2: John Roberts and he will ride off into the sunset
34:42
Speaker 2: as a hero, right?
34:43
Speaker 3: I mean, you say he's simple-minded and not that great,
34:46
Speaker 3: but the end of your sentence, I just think is correct.
34:48
Speaker 3: When the court– if and when the court rules against
34:51
Speaker 3: birthright citizenship, there will be all of those takes and
34:56
Speaker 3: people talking about how the court has stood up to
34:59
Speaker 3: the president and isn't just in the bag for MAGA
35:02
Speaker 3: and isn't on board with all of Trump's agenda. And therefore,
35:06
Speaker 3: you libs and you progressives who want to reform the court,
35:09
Speaker 3: what would you do if Donald Trump could reform the
35:12
Speaker 3: court when he disagreed with it? There's going to be
35:15
Speaker 3: so much of that.
35:16
Speaker 2: But those takes are why America's most popular and influential
35:20
Speaker 2: Supreme Court podcast exists, right?
35:23
Speaker 1: You, Kate and Melissa, will be on.
35:26
Speaker 2: That wall fighting back against that. I know that, yes.
35:29
Speaker 3: I mean, we have been screaming about this for over
35:31
Speaker 3: a year.
35:32
Speaker 6: At this point.
35:32
Speaker 2: And trust in the Supreme Court is at an all-time low.
35:35
Speaker 2: So don't think you have not put your shoulder to
35:37
Speaker 2: the wheel of history.
35:39
Speaker 1: Yes.
35:39
Speaker 3: Yeah, send strict scrutiny to more friends challenge. But no,
35:44
Speaker 3: I mean– It's not to say it's going to work,
35:47
Speaker 3: but it is going to generate some of the coverage
35:50
Speaker 3: that they want. And it's just going to be annoying
35:54
Speaker 3: as fuck when it does.
35:56
Speaker 5: Yes.
35:56
Speaker 2: So let's say, hypothetically, this is a 7-2 decision and
36:01
Speaker 2: Alito and Thomas or whoever else, they are against it.
36:05
Speaker 2: Can you fathom in your brain what that argument would be?
36:09
Speaker 2: It is hard to find something as plain text as
36:13
Speaker 2: this in the with as a simple and specific application
36:19
Speaker 2: as this. Obviously, freedom of speech is in there, but
36:21
Speaker 2: then there are all kinds of different applications you can
36:22
Speaker 2: take on it. This is basically like, if this happens,
36:25
Speaker 2: you are a citizen. And Trump administration is arguing, if
36:29
Speaker 2: this happens, you are not a citizen. What is the
36:33
Speaker 2: legal argument someone could muster, as bullshit and fake as
36:36
Speaker 2: it would be, that would say that birthright citizenship is
36:39
Speaker 2: not allowed? They could be curtailed or stopped by an administration.
36:44
Speaker 5: Yes.
36:45
Speaker 3: So having ventured into the dark recesses of right-wing legal circles,
36:48
Speaker 3: I can offer you at least two. Please, please. Canada
37:06
Speaker 3: decided to invade the United States and officers who participated
37:11
Speaker 3: in that invasion had children born in the United States
37:14
Speaker 3: while they did so, then those children would not be
37:17
Speaker 3: citizens of the United States. And some on the right
37:20
Speaker 3: have argued that unauthorized immigration is the equivalent of an
37:25
Speaker 3: invasion of the United States, borrowing on great replacement theory
37:29
Speaker 3: and other white nationalist tropes. And so one possible legal
37:32
Speaker 3: theory is the justices could equate unlawful, unauthorized immigration with
37:38
Speaker 3: an invasion and say children who are born to individuals
37:41
Speaker 3: without legal status in the United States are the equivalent
37:43
Speaker 3: of the children of invading armies. That's one possibility. Another
37:47
Speaker 3: possibility is the court basically reads the exceptions to be
37:51
Speaker 3: the rule. So the phrase, as we were talking about
37:55
Speaker 3: in the 14th Amendment, is all persons born and naturalized
37:58
Speaker 3: in the United States and subject to the jurisdiction thereof
38:02
Speaker 3: are citizens. And in part of that exception recognizes that
38:08
Speaker 3: children of foreign diplomats, for example, they are not born
38:11
Speaker 3: as United States citizens, just like children of invading armies
38:15
Speaker 3: aren't United States citizens. And so part of the federal
38:18
Speaker 3: government's argument is to basically take those quite narrow exceptions
38:23
Speaker 3: and generalize them into a rule that basically swallows the
38:28
Speaker 3: rule of birthright that says, well, individuals whose parents don't
38:32
Speaker 3: have an allegiance to the United States, their children can't
38:38
Speaker 3: be citizens. And so those are two possible avenues. Both
38:44
Speaker 3: are ridiculous and I think rest on underlying racist tropes
38:49
Speaker 3: about who is sufficiently American that birthright citizenship was intended
38:53
Speaker 3: to rebut. That's exactly what Dred Scott versus Sanford did
38:57
Speaker 3: when it concluded that individuals who were descendants of enslaved
39:00
Speaker 3: persons couldn't be citizens because they too weren't American enough right,
39:03
Speaker 3: and didn't have allegiance to the United States, et cetera,
39:05
Speaker 3: et cetera. But I think that those are two of
39:09
Speaker 3: the theories that are on hand.
39:11
Speaker 2: That's very dark and very disturbing. And thank you for
39:13
Speaker 2: visiting the dark side to share that with us. I
39:18
Speaker 2: think it's also notable that maybe this decision will come
39:20
Speaker 2: out right about the time the United States World Cup
39:22
Speaker 2: team is playing in the knockout round, where the leading
39:25
Speaker 2: scorer of the World Cup team is someone who has
39:27
Speaker 2: their citizenship through birthright citizenship, which Just a fact for that. Now, obviously,
39:33
Speaker 2: if they were to rule this, I know we're in
39:34
Speaker 2: a dark, hypothetical place here, would they make it retroactive,
39:39
Speaker 2: like So this.
39:41
Speaker 3: Is part of the uncertainty. You know, the administration developed
39:44
Speaker 3: guidance about how they would implement the birthright order, but
39:47
Speaker 3: courts blocked that before the order would take effect. So
39:52
Speaker 3: we don't know whether the Supreme Court would say those
39:56
Speaker 3: injunctions vacated individuals who were born in the United States
40:00
Speaker 3: after this executive order was promulgated or They are not citizens.
40:05
Speaker 3: We don't know whether the court would say, no, this
40:07
Speaker 3: just applies prospectively now that we have said it can
40:10
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40:15
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42:53
Speaker 2: So looking at the other cases that are out there,
42:56
Speaker 2: and there's also some pretty big ones. So there is
42:57
Speaker 2: one involving a ban on trans participation in youth sports.
43:03
Speaker 2: There is one about whether the president was able to
43:05
Speaker 2: fire Lisa Cook from the Fed board.
43:07
Speaker 6: Mm-hmm.
43:09
Speaker 2: And then there were two election cases. Am I missing
43:11
Speaker 2: any other big ones out there? Are those the ones?
43:14
Speaker 3: Those are the ones that I would say are the
43:16
Speaker 3: big ones. Well, so when you said Lisa Cook, it's
43:19
Speaker 3: not just a case about Lisa Cook. There's also a
43:22
Speaker 3: case about whether Trump can fire the head of the
43:25
Speaker 3: Federal Trade Commission and.
43:27
Speaker 2: All other independent agencies. Are those cases joint or are
43:29
Speaker 2: they two separate cases?
43:30
Speaker 3: They're not joint. They're two separate cases. Okay.
43:32
Speaker 5: Okay.
43:32
Speaker 2: Can you maybe explain those two cases for us?
43:34
Speaker 6: Sure.
43:35
Speaker 3: Yeah. So one case involves whether Donald Trump can fire
43:39
Speaker 3: a commissioner of the Federal Trade Commission and all other
43:43
Speaker 3: independent agencies that are led by these independent multi-member commissions,
43:48
Speaker 3: like the Securities and Exchange Commission or the Equal Employment
43:51
Speaker 3: Opportunity Commission or you name it, National Labor Relations Board,
43:56
Speaker 3: et cetera.
43:57
Speaker 2: The Federal Reserve or is that separate?
43:59
Speaker 3: Well, the Federal Reserve is that separate case because what
44:03
Speaker 3: happened is earlier in the Trump administration, Trump fired a
44:06
Speaker 3: bunch of these heads of multi-member commissions, even though the
44:10
Speaker 3: Supreme Court has a case that's nearly a century's old
44:13
Speaker 3: that says Congress can limit the president's ability to fire
44:17
Speaker 3: the heads of these multi-member commissions, specifically the Federal Trade Commission.
44:21
Speaker 3: So Donald Trump fired people in violation of these laws
44:24
Speaker 3: and the Supreme Court said, Actually, we'll let him do
44:29
Speaker 3: that while the litigation is ongoing, because we, Supreme Court,
44:31
Speaker 3: have decided to adopt this great new rule. It's called
44:34
Speaker 3: the unitary executive theory. And it means the president gets
44:37
Speaker 3: to have near plenary power to fire people who exercise
44:42
Speaker 3: significant executive power. But then they added a sentence, accept
44:47
Speaker 3: the Federal Reserve Board, because that has a distinct historical
44:50
Speaker 3: tradition in the tradition of the Bank of the United States.
44:55
Speaker 3: That bespoke Fed exception, of course, illustrated that their new
44:58
Speaker 3: unitary executive rule was catastrophic immediately once it would be
45:02
Speaker 3: unleashed onto the world because it would give the president
45:05
Speaker 3: the power to effectively blow up the United States and
45:07
Speaker 3: global economy. But that didn't give them pause. Instead, they
45:11
Speaker 3: just created that bespoke exception. And so what did Donald
45:14
Speaker 3: Trump do? He went ahead and tried to fire a
45:16
Speaker 3: governor of the Federal Reserve Board because when you give
45:18
Speaker 3: a fascist a cookie, what happens, right? They try to
45:20
Speaker 3: take another cookie. So- Then the Supreme Court ended up
45:24
Speaker 3: with these pair of cases. And one set of cases asks,
45:28
Speaker 3: is it constitutional for Congress to attempt to limit the
45:32
Speaker 3: president's ability to fire the heads of these multi-member commissions?
45:35
Speaker 3: That's a hugely important case because if the court hands
45:39
Speaker 3: the president that power, they will be giving him the
45:42
Speaker 3: power to control these agencies that exercise such sweeping powers
45:47
Speaker 3: over our lives, over government contracts, over whether corporations have
45:52
Speaker 3: to comply with the law. Federal Trade Commission, for example,
45:56
Speaker 3: they police Amazon. They police antitrust law. If you tell
45:59
Speaker 3: the president, you can fire people who don't enforce antitrust
46:02
Speaker 3: law the way you want them to, that's allowing him
46:05
Speaker 3: to give murders to his friends and penalize his enemies.
46:10
Speaker 3: So that case is super consequential. But they also have
46:14
Speaker 3: that case about Lisa Cook. And that case asks, well,
46:18
Speaker 3: given that this statute does limit the president's ability to
46:21
Speaker 3: fire Lisa Cook, did the president comply with those limitations?
46:26
Speaker 3: So I don't want the Cook case to kind of
46:27
Speaker 3: obscure the significance of The other case will– which will
46:33
Speaker 3: affect every other independent agency.
46:35
Speaker 2: Let me ask a question on the independent agency case. Now,
46:36
Speaker 2: the president gets to appoint the heads of all of
46:39
Speaker 2: these jobs, right? And they are approved by the Senate.
46:46
Speaker 2: And the reason the president can't just fire them like
46:49
Speaker 2: he could fire his secretary of homeland security or whatever else.
46:53
Speaker 2: It's because the way the law was written says they
46:55
Speaker 2: can only fire him for cause?
46:56
Speaker 6: Exactly.
46:57
Speaker 2: Is that what it is?
46:57
Speaker 5: Yep.
46:58
Speaker 3: Because Congress decided these agencies would just run better if
47:00
Speaker 3: they were somewhat insulated from politics and relied more on expertise.
47:05
Speaker 2: And then the question before the court is whether the
47:07
Speaker 2: president's inherent executive authority override that, whether the Congress does
47:12
Speaker 2: not have the constitutional authority to hem in that specific
47:16
Speaker 2: executive authority, right?
47:17
Speaker 3: Exactly. Whether the Constitution entitles the president to say you're fired,
47:20
Speaker 3: no matter what Congress says.
47:22
Speaker 2: Okay. And then the possible exception of the Fed because
47:25
Speaker 2: of its unique tradition.
47:27
Speaker 3: Because the justices have stock portfolios.
47:29
Speaker 2: Yes, exactly. They're all quite wealthy. And Clarence Thomas has
47:35
Speaker 2: several very close friends who need that money to send
47:40
Speaker 2: him on vacation and elsewhere.
47:41
Speaker 4: Exactly.
47:42
Speaker 3: Private jet fuel. Don't pay for itself, Dan.
47:45
Speaker 2: Okay, sorry, let's get to the trans sports case. This one,
47:47
Speaker 2: if I remember correctly from the oral arguments earlier this year,
47:51
Speaker 2: seemed quite dire in what we thought the court would read,
47:54
Speaker 2: but maybe talk about that case and if you see
47:57
Speaker 2: any hope here.
47:58
Speaker 3: Yeah, so this case is about whether state laws that
48:01
Speaker 3: effectively ban transgender athletes from participating in sports violate either
48:05
Speaker 3: Title IX, which prohibits discrimination on the basis of sex
48:10
Speaker 3: in educational programs or educational institutions, and also whether these
48:17
Speaker 3: state laws violate the federal constitution's guarantee of equal protection.
48:22
Speaker 3: The oral argument in the cases was awful. The lawyer
48:26
Speaker 3: for the federal government, who of course was arguing in
48:28
Speaker 3: support of these state law bans and against trans athletes,
48:33
Speaker 3: said one of the more grotesque things I think that
48:35
Speaker 3: has ever been said at the Supreme Court lectern when
48:37
Speaker 3: he referred to trans athletes as males who take performance-enhancing drugs.
48:44
Speaker 3: And I just don't think there's any question that the
48:48
Speaker 3: six Republican appointees are going to say these state laws
48:51
Speaker 3: are consistent with Title IX. The only lingering question is
48:57
Speaker 3: whether they're also going to say these state laws are
48:59
Speaker 3: constitutional or whether they will instead send the case back
49:03
Speaker 3: to the lower court to decide that constitutional question, perhaps
49:07
Speaker 3: with some additional fact finding. I honestly think that is
49:10
Speaker 3: the best we can hope for at this point. And
49:15
Speaker 3: the other thing to watch for is whether you get
49:17
Speaker 3: separate writings that say not only does title IX permit
49:21
Speaker 3: states to ban trans athletes from participating in sports, potentially
49:26
Speaker 3: it requires states and schools to ban trans athletes from
49:31
Speaker 3: participating in sports. So that's kind of the spectrum of possibilities.
49:35
Speaker 3: It's very bleak. Yeah.
49:37
Speaker 2: So we have two sort of major things that I
49:40
Speaker 2: guess go beyond sports participation, right? One is suggesting that
49:45
Speaker 2: Title IX would require some measure of discrimination against trans people,
49:50
Speaker 2: whether that could be in anything involving education, right? Funding,
49:55
Speaker 2: scholarships across the board, right? So that's one. That seems
49:59
Speaker 2: quite bad. And then even worse, I would imagine, is
50:03
Speaker 2: making some case that, I mean, Am I overreading this,
50:07
Speaker 2: that the net result of an equal protection finding here
50:10
Speaker 2: would be that trans people have no equal protection rights?
50:15
Speaker 2: That being trans would not guarantee equal protection rights in
50:19
Speaker 2: the way that being black or a woman or of
50:22
Speaker 2: a certain religious group?
50:23
Speaker 5: Yeah.
50:23
Speaker 3: The danger is the Supreme Court says laws that discriminate
50:26
Speaker 3: against trans people do not trigger any kind of meaningful
50:31
Speaker 3: judicial scrutiny. So courts should just defer to governments that
50:34
Speaker 3: discriminate on the basis of gender identity and give those
50:37
Speaker 3: laws a pass. Given the extent to which states and
50:41
Speaker 3: the federal government have been trying to erase trans people
50:45
Speaker 3: and strip trans people of their rights, that would be
50:48
Speaker 3: a really concerning development because it would make challenging all
50:54
Speaker 3: of those laws or policies that are anti-trans in court.
51:00
Speaker 2: Could Congress then, in a different world with a different
51:03
Speaker 2: Congress and a different president, do something to address that
51:07
Speaker 2: by passing laws that would guarantee like either amending Title
51:10
Speaker 2: IX or like what would a Congress do that would
51:13
Speaker 2: solve that problem?
51:15
Speaker 3: Potentially, yes. So Congress could enact a statute. Maybe the
51:20
Speaker 3: statute itself just prohibited discrimination on the basis of gender identity,
51:24
Speaker 3: no matter the context in school and elsewhere. Maybe Congress
51:28
Speaker 3: creates a spending program that says, look, if you receive
51:31
Speaker 3: any federal funds, you have to promise not to discriminate
51:34
Speaker 3: on the basis of gender identity. Those are two possibilities.
51:38
Speaker 3: And yet I am left with but the Supreme Court.
51:41
Speaker 3: I cannot rule out the possibility that this court would
51:43
Speaker 3: invalidate those laws, maybe saying, well, they exceed Congress's powers.
51:49
Speaker 3: Maybe the court would say, well, those laws actually discriminate
51:52
Speaker 3: on the basis of sex in violation of the federal constitution.
51:57
Speaker 3: Maybe the court would say they had another spending clause decision.
52:00
Speaker 3: This is one of the other awful decisions from this
52:02
Speaker 3: week where they basically said spending programs can't be enforced
52:05
Speaker 3: without against the state officials who are carrying them out.
52:08
Speaker 3: So maybe they would make those spending conditions effectively toothless.
52:13
Speaker 3: But there are things Congress could do. But basically, anything
52:16
Speaker 3: Congress could do that is good requires a different Supreme Court.
52:22
Speaker 2: Yeah, which is true. That's true of all.
52:24
Speaker 3: That is true of all things.
52:25
Speaker 2: All things.
52:25
Speaker 5: Yes.
52:26
Speaker 2: Stipulated, agreed to. We have to deal with that.
52:29
Speaker 7: Yeah.
52:30
Speaker 2: The Supreme Court is also considering a Mississippi law that
52:32
Speaker 2: allows the five-day grace period for mail-in ballots received after
52:35
Speaker 2: Election Day to be counted. This law is, of course,
52:37
Speaker 2: being challenged by the RNC. And this has implications both
52:41
Speaker 2: for Mississippi and perhaps more broadly, like in California now,
52:44
Speaker 2: where Spencer Pratt, who is a MAGA favorite, his chance
52:50
Speaker 2: spot in the runoff went away as more votes came in.
52:53
Speaker 2: And so talk a little bit about this case and
52:54
Speaker 2: if it has broader implications for this grace period for
52:57
Speaker 2: mail-in balloting, which is Trump's tried to, wrote an executive
53:01
Speaker 2: order to try to stop the Postal Service from delivering
53:04
Speaker 2: mail-in ballots, although that was stopped by federal courts. Let's
53:07
Speaker 2: talk a little bit about what's going on there.
53:09
Speaker 3: Yeah. So the challenge here, the Republican National Committee says
53:13
Speaker 3: this federal law that creates Election Day as this first
53:17
Speaker 3: Tuesday in November, that prohibits states from counting ballots that
53:20
Speaker 3: are received after Election Day, even if they were postmarked
53:24
Speaker 3: on or by Election Day. If the how votes are
53:30
Speaker 3: counted in 29 some states. And of course, we are
53:34
Speaker 3: a few months away from the midterms. I think there's
53:37
Speaker 3: a real concern that changing the rules of the election
53:40
Speaker 3: at this point would put state and local election officials
53:43
Speaker 3: in a really tough spot because they have already begun
53:47
Speaker 3: to prepare to administer the election in accordance with what
53:50
Speaker 3: their state rules are now, and requiring them to all
53:53
Speaker 3: of a sudden change on a dime because the Supreme
53:55
Speaker 3: Court Like red election day to be this magical unicorn
54:01
Speaker 3: of a date on which everything but only some things
54:04
Speaker 3: have to be completed by would be hugely destabilizing. I
54:08
Speaker 3: also think it would create a lot of voter confusion
54:10
Speaker 3: and chaos that could potentially lead to voter suppression and
54:13
Speaker 3: people not actually returning their votes. So I am very
54:20
Speaker 3: concerned about that case just because of its potential destabilizing
54:26
Speaker 3: and sweeping implications and also because of what it might
54:30
Speaker 3: invite next if the Supreme Court says states can't count
54:33
Speaker 3: ballots that are received. after Election Day, why can states
54:37
Speaker 3: count ballots that are received before Election Day if Election
54:40
Speaker 3: Day is this magical day that everything is supposed to
54:43
Speaker 3: happen by? Why can they count ballots after Election Day
54:45
Speaker 3: even if the ballots were received before Election Day? So
54:49
Speaker 3: part of what is so concerning about this case is
54:51
Speaker 3: it could call into question so many established voting practices
54:55
Speaker 3: that we have just taken for granted in addition to
54:57
Speaker 3: fucking with the midterms.
54:59
Speaker 2: And the sea change here potentially is that the courts
55:04
Speaker 2: to date, have given states, because of the Constitution, wide
55:08
Speaker 2: latitude in how they conduct their elections. And many of
55:12
Speaker 2: the cases that have been thrown out, even some Trump
55:16
Speaker 2: cases in 2020, are based on that principle that The
55:19
Speaker 2: Constitution grants the states to do it. They have to
55:21
Speaker 2: do it in accordance with the Constitution. But beyond that,
55:23
Speaker 2: you want to do your election all by mail, you
55:26
Speaker 2: can do that. You want to count ones that arrive
55:30
Speaker 2: after Election Day but are postmarked before, you can do that.
55:33
Speaker 2: But that could open the door to other things going
55:36
Speaker 2: forward here.
55:37
Speaker 3: Potentially. So even though states, of course, have the general
55:40
Speaker 3: authority to run elections, Congress can establish rules regarding federal elections. Now,
55:46
Speaker 3: the president can't. So all of his unhinged theories about
55:50
Speaker 3: what he can and can't do and what he does
55:53
Speaker 3: and doesn't want, right, I think are still wildly illegal
55:55
Speaker 3: no matter what the Supreme Court says in this absentee
55:58
Speaker 3: ballot case. But this federal law that just, again, creates
56:03
Speaker 3: an election day in no way displaces how states have
56:07
Speaker 3: conducted elections for years. And so I think the challenge
56:14
Speaker 3: is What other challenges to other state laws, you know,
56:17
Speaker 3: this theory would invite in addition to the position it
56:19
Speaker 3: would put state and local election officials in the lead
56:22
Speaker 3: up to the midterm elections.
56:24
Speaker 2: And it probably is worth noting that the people who
56:26
Speaker 2: will probably be most disenfranchised with this are military members
56:28
Speaker 2: serving overseas, which are where a lot of the ballots
56:31
Speaker 2: come from that show up after Election Day.
56:34
Speaker 3: That is indeed true. Indeed, the practice of, you know,
56:38
Speaker 3: voting outside of Election Day partially originated during the Civil
56:40
Speaker 3: War to ensure that Union soldiers would not be disenfranchised.
56:45
Speaker 3: There is always a possibility that the Republican appointees announced
56:49
Speaker 3: no ballots can be counted after Election Day if they're
56:52
Speaker 3: received after Election Day, except for overseas uniformed officers. Now,
56:57
Speaker 3: that might not protect the families of people who are
57:00
Speaker 3: stationed overseas and whatnot. And that would also create its
57:03
Speaker 3: own form of chaos. But who knows?
57:13
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58:20
Speaker 2: The other case is actually one that has gotten very
58:22
Speaker 2: little attention but actually has potentially dramatic impacts. In fact,
58:27
Speaker 2: some have said that this case, which involves how whether
58:33
Speaker 2: parties can coordinate with candidates.
58:34
Speaker 6: Yeah.
58:35
Speaker 2: Would be the biggest campaign finance decision since Citizens United,
58:38
Speaker 2: which is saying a lot because we've had cases like
58:39
Speaker 2: McCutcheon and others in the middle here. Also in the
58:44
Speaker 2: oral arguments here did not seem particularly encouraging. So maybe
58:48
Speaker 2: you could try to explain this case to people and
58:50
Speaker 2: why they should care about it.
58:52
Speaker 5: Yeah.
58:52
Speaker 3: So it sounds technical because it's a challenge to what's
58:56
Speaker 3: called a coordination limit, as you were saying, which is
58:59
Speaker 3: a political party's ability to coordinate how they spend their
59:04
Speaker 3: money with a candidate. It effectively amounts to a ban
59:09
Speaker 3: on political parties donating money to a candidate because if
59:14
Speaker 3: they coordinate, they're effectively giving the money to the candidate
59:18
Speaker 3: to decide how it could be spent. And there is
59:23
Speaker 3: a concern that if you say, well, contribution limits, actually
59:28
Speaker 3: those might be unconstitutional, that is like the last remaining
59:32
Speaker 3: vestige of campaign finance law. Because even as the Supreme
59:37
Speaker 3: Court has opened up these pathways for corporations, super PACs
59:42
Speaker 3: to spend an unlimited amount of their own money doing
59:46
Speaker 3: their own advertising, they have not yet struck down limitations
59:52
Speaker 3: on billionaires and corporations' ability to give money directly to candidates.
59:57
Speaker 3: And once you start saying actually contribution limits, those are
1:00:02
Speaker 3: no good either, then that invites individuals giving directly money
1:00:07
Speaker 3: to candidates. And I think that's one of the big
1:00:11
Speaker 3: concerns about this case.
1:00:12
Speaker 2: Yeah, like in practical consideration, right? So there's two things.
1:00:15
Speaker 2: There's what this case would mean right now and how
1:00:18
Speaker 2: elections are conducted today. And then there is the larger
1:00:19
Speaker 2: question about whether contribution limits at all are now a
1:00:24
Speaker 2: violation of free speech, which leads to, instead of Elon
1:00:27
Speaker 2: Musk spending $ 132 million or whatever it was to, in
1:00:31
Speaker 2: a series of outside groups to elect Donald Trump, he
1:00:33
Speaker 2: just gives Donald Trump $ 132 million.
1:00:35
Speaker 3: Exactly, cut out the middleman.
1:00:36
Speaker 2: Yes, that seems bad. But just like as you think
1:00:39
Speaker 2: about it now, You can give about $ 7, 000 to a candidate,
1:00:46
Speaker 2: half in the primary, half in the general, as an individual,
1:00:48
Speaker 2: whether you are you or me or Elon Musk. That's
1:00:51
Speaker 2: the most we can give directly to Graham Plattner, John Ossoff,
1:00:56
Speaker 2: Roy Cooper, whoever else. You can give– an individual can
1:01:00
Speaker 2: give $ 132, 900 to the DNC or the RNC. And so now,
1:01:02
Speaker 2: instead of giving my– $ 7, 000, my little over $ 7, 000 to
1:01:13
Speaker 2: Grand Platinum. I just give $ 132, 000 to the DNC and
1:01:17
Speaker 2: then they spend that on behalf of– this matters more
1:01:19
Speaker 2: in presidential campaigns than it does anything else because that's
1:01:21
Speaker 2: where it would be spent directly. But it does have
1:01:24
Speaker 2: big implications and just once again gives more power to
1:01:27
Speaker 2: rich people. This is almost certainly going to– the court
1:01:30
Speaker 2: will approve this. This is in line with every other
1:01:32
Speaker 2: decision they've made since John Roberts became the the Chief Justice.
1:01:37
Speaker 2: And the Trump administration isn't even defending the law here.
1:01:40
Speaker 2: They are on the other side of it because it's
1:01:43
Speaker 2: the NRSC, the National Republican Senatorial Committee, is the plaintiff
1:01:46
Speaker 2: in the case. So this one is a big mess.
1:01:51
Speaker 2: This is one for election nerds are paying a lot
1:01:53
Speaker 2: of attention to and people who work on elections, but
1:01:55
Speaker 2: they get some pretty big implications for what else is
1:01:58
Speaker 2: to come in our politics.
1:01:59
Speaker 3: Yeah, completely. Because in the short term, it would just
1:02:02
Speaker 3: rapidly increase the amount of money that rich individuals can
1:02:04
Speaker 3: give directly to candidates. But then in the longer term,
1:02:07
Speaker 3: it potentially opens up a pathway for no limits at all.
1:02:11
Speaker 3: There is a small outside chance that the court says
1:02:14
Speaker 3: there's no actual controversy here and the case is moot
1:02:16
Speaker 3: and they don't decide it. But that is the best scenario.
1:02:20
Speaker 2: I mean, look, I mean, this Supreme Court, there's always hope, right? Like, yeah,
1:02:24
Speaker 2: give them that. One thing they've earned is the benefit
1:02:26
Speaker 2: of the doubt.
1:02:27
Speaker 5: Yeah.
1:02:28
Speaker 2: All right. Before we go, I want to hit on
1:02:30
Speaker 2: Roe v.
1:02:30
Speaker 5: Wade.
1:02:30
Speaker 2: This past week was the four-year anniversary of the Dobbs decision,
1:02:35
Speaker 2: which overturned the Roe v. Wade decision. The legacy of
1:02:39
Speaker 2: that decision continues to live in our lives, in our politics, everywhere.
1:02:44
Speaker 2: It is coming up in this main Senate race where
1:02:48
Speaker 2: Susan Collins is running against Grant Plattner. And she got
1:02:51
Speaker 2: asked about it on Fox News. I wanted to play
1:02:53
Speaker 2: the clip and get your reaction to it.
1:02:55
Speaker 4: You held up for quite some time on your vote
1:02:57
Speaker 4: of support for just now Justice Kavanaugh. Is this an
1:03:01
Speaker 4: issue that you think is troublesome for you in this
1:03:04
Speaker 4: race now that Roe v. Wade was overturned in Maine.
1:03:07
Speaker 6: Across the country?
1:03:09
Speaker 5: Well, first of all, let me make clear that I
1:03:12
Speaker 5: disagreed with the Supreme Court's 6-3 decision overturning Roe v. Wade.
1:03:21
Speaker 5: But the fact is that whether Justice Kavanaugh were confirmed
1:03:27
Speaker 5: or not, Roe v. Wade would have been overturned given
1:03:32
Speaker 5: the 6-3 vote.
1:03:34
Speaker 3: Not true, Sam Alito says.
1:03:36
Speaker 6: Right.
1:03:37
Speaker 2: Could you maybe explain where Susan Collins has her facts
1:03:41
Speaker 2: wrong on this one?
1:03:42
Speaker 3: Where to start? There's so much to potentially say about
1:03:45
Speaker 3: this clip.
1:03:45
Speaker 2: I am going to step out of the way and
1:03:47
Speaker 2: let you go.
1:03:48
Speaker 3: Okay, we'll start with the factual inaccuracies. Had Justice Kavanaugh
1:03:52
Speaker 3: not been confirmed, there were not five votes to overrule
1:03:55
Speaker 3: Roe v.
1:03:55
Speaker 7: Wade.
1:03:57
Speaker 3: Chief Justice Roberts did not vote to overrule Roe v.
1:04:00
Speaker 6: Wade.
1:04:00
Speaker 3: He instead voted to... changed the legal test in a
1:04:04
Speaker 3: way that would have expanded states' ability to restrict abortion
1:04:08
Speaker 3: more so than they could have done before the decision,
1:04:11
Speaker 3: but not to the point of overruling Roe versus Wade.
1:04:13
Speaker 3: So that's just factually inaccurate. There were just five justices
1:04:16
Speaker 3: who voted to overrule Roe.
1:04:18
Speaker 2: And just to be clear, she confirmed the fifth justice.
1:04:21
Speaker 3: And she confirmed Brett Kavanaugh, exactly, who was one of
1:04:24
Speaker 3: those five. So facts, not so great. Second, I absolutely
1:04:30
Speaker 3: just despise this framing of I disagree with the court's decision.
1:04:34
Speaker 3: I don't regret my vote because it just makes me
1:04:36
Speaker 3: wonder what great things has Brett Kavanaugh done that make.
1:04:41
Speaker 3: the loss of women's lives, their fertility, their health worth it?
1:04:47
Speaker 3: Like how many women have to lose their lives for
1:04:50
Speaker 3: you to conclude that actually maybe you do regret your vote?
1:04:56
Speaker 3: So that is just horrifying. And then there's this sense
1:05:01
Speaker 3: that maybe she, you know, made this decision, but it
1:05:06
Speaker 3: didn't really affect Mainers, which is also wrong. Because, you know,
1:05:10
Speaker 3: people who live in Maine, which still has abortion access,
1:05:14
Speaker 3: might travel. And sometimes people experience medical emergencies that might
1:05:17
Speaker 3: require medical care, including abortion care. And if you're traveling
1:05:21
Speaker 3: in a state where after Roe abortion is banned, you
1:05:23
Speaker 3: are potentially in a circumstance where you could not receive
1:05:25
Speaker 3: medical care. Add to that the fact that the medication
1:05:28
Speaker 3: abortion rulings potentially jeopardize access to medication abortion, even in
1:05:32
Speaker 3: states like Maine that want to protect abortion. And I
1:05:35
Speaker 3: just think she is really papering over so many of
1:05:40
Speaker 3: the horrific consequences that her vote to confirm the fifth
1:05:44
Speaker 3: vote to overrule Roe have had. And it just– one
1:05:49
Speaker 3: of the more tragic things about the 2024 presidential election
1:05:52
Speaker 3: is I think people came away from it thinking– well, actually,
1:05:56
Speaker 3: the Republican Party isn't going to bear any consequences for
1:05:59
Speaker 3: overruling Roe. And the public has just decided not to
1:06:02
Speaker 3: force them to pay a price for, again, the loss
1:06:05
Speaker 3: of lives, health, fertility, more that we have seen in
1:06:10
Speaker 3: the wake of Roe being overruled. And I hope that
1:06:15
Speaker 3: is not the case. I hope that in 2026, people
1:06:18
Speaker 3: who enable this post-Roe landscape are held accountable and But
1:06:24
Speaker 3: it is just very depressing. I think any time I
1:06:30
Speaker 3: think about the fact that people just decided to give
1:06:35
Speaker 3: a bunch of politicians a pass for what they have
1:06:38
Speaker 3: unleashed on people in this country.
1:06:41
Speaker 2: So let me– can I give the counterpoint to that? Yeah,
1:06:45
Speaker 2: let's do it. Because I talked about this on Polar
1:06:47
Speaker 2: Coaster this past week because of the anniversary of Dobbs.
1:06:52
Speaker 2: And what is really interesting about the polling on this
1:06:54
Speaker 2: is abortion was a very divisive issue in this country
1:06:57
Speaker 2: up until the moment of Dobbs. And the number of
1:07:00
Speaker 2: Americans who consider themselves pro-choice reached an all-time high right
1:07:03
Speaker 2: after Dobbs. And four years later has stayed the same.
1:07:06
Speaker 2: It has not gone down. As obviously in that immediate
1:07:09
Speaker 2: aftermath and in that election year 2022, as these Republican
1:07:12
Speaker 2: states are rushing to pass their bills, abortion was the
1:07:15
Speaker 2: number one issue in politics. It was discussed everywhere. People
1:07:18
Speaker 2: were dealing with it. It was just a topic of conversation.
1:07:20
Speaker 2: As it's dropped in salience, it has not changed the
1:07:23
Speaker 2: politics of it, which I think is very, very positive
1:07:27
Speaker 2: and creates the path for accountability for these people. And
1:07:30
Speaker 2: there are opportunities in 2026 to hold these people accountable.
1:07:34
Speaker 2: You have Susan Collins.
1:07:35
Speaker 3: Yes.
1:07:35
Speaker 2: You have Ken Paxton. Yep. You have an array of
1:07:38
Speaker 2: officials in Ohio, right, and a whole bunch of other
1:07:43
Speaker 2: states that passed some of the most, the cruelest and
1:07:47
Speaker 2: most retrograde reproductive rights laws in this country can all
1:07:51
Speaker 2: pay the price. Everyone should go to votesaveamerica.com to figure
1:07:54
Speaker 2: out how to do that. But I really do believe
1:07:56
Speaker 2: Donald Trump was this unicorn figure because even though he
1:07:59
Speaker 2: is the person, other than Susan Collins, most responsible for
1:08:02
Speaker 2: Roe being overturned, no one actually believed that he truly
1:08:07
Speaker 2: was anti-choice. Like I remember in focus groups, people would say, people,
1:08:11
Speaker 2: if you asked in a focus group if Donald Trump
1:08:14
Speaker 2: was anti-abortion or anti-choice, they would laugh. They would say he, uh,
1:08:19
Speaker 2: that he, Donald Trump probably paid for abortions. He believes
1:08:22
Speaker 2: in nothing.
1:08:22
Speaker 6: Yeah.
1:08:22
Speaker 2: And he probably like, I mean, here's a guy who
1:08:25
Speaker 2: cheated on all his wives, sleeps around, like he's a
1:08:27
Speaker 2: disgusting cat. He's from Manhattan. He probably like, obviously he
1:08:31
Speaker 2: doesn't care about abortion. That is not true of the
1:08:33
Speaker 2: rest of this republic. It's certainly not true of Ken Paxton,
1:08:35
Speaker 2: who is a principal architect of that law and the
1:08:38
Speaker 2: enforcement of that law. And so there are opportunities to
1:08:40
Speaker 2: hold people accountable here. And I do believe that Dobbs
1:08:45
Speaker 2: was a– it did not bear fruit in 2024 because
1:08:49
Speaker 2: of a long list of unique circumstances that bedeviled that
1:08:53
Speaker 2: election that we don't have to get into, but was
1:08:55
Speaker 2: a fundamental signature moment that changed politics in this country
1:08:59
Speaker 2: in ways that will in those people are held accountable
1:09:02
Speaker 2: and more and more states will elect the right people
1:09:05
Speaker 2: to put in place laws. And maybe one day we'll
1:09:07
Speaker 2: have a Supreme Court that can undo the damage that
1:09:09
Speaker 2: was done there.
1:09:11
Speaker 3: I very much hope you are correct. And I just
1:09:14
Speaker 3: worry that I have rarely gone wrong in estimating the
1:09:22
Speaker 3: amount of misogyny that Americans will tolerate in their politics.
1:09:27
Speaker 3: And again, I very much hope you are right. May
1:09:30
Speaker 3: it be the case.
1:09:33
Speaker 2: And we have the ability to impact that ourselves right now.
1:09:37
Speaker 2: Everyone has the ability to impact that.
1:09:38
Speaker 3: In many different ways.
1:09:40
Speaker 5: Yes.
1:09:40
Speaker 3: Whether that is like calling your officials to remind them
1:09:43
Speaker 3: that actually you do care about abortion access and reproductive rights.
1:09:46
Speaker 3: Are your senators confirming nominees, giving blue slips to nominees, right,
1:09:50
Speaker 3: who you don't think will protect reproductive freedom?
1:09:52
Speaker 2: John Ketterman, for instance, yes.
1:09:54
Speaker 3: You know, not naming names, but.
1:09:58
Speaker 2: Someone who was on the ballot in 2028 will face
1:10:01
Speaker 2: a primary challenge.
1:10:01
Speaker 5: Yes.
1:10:02
Speaker 6: Yes.
1:10:03
Speaker 3: Or, again, electing officials, helping to get out the vote
1:10:07
Speaker 3: to help elect officials who will protect reproductive freedom and
1:10:10
Speaker 3: to vote against people who didn't. All of those are
1:10:12
Speaker 3: ways to make this happen. And I think we kind
1:10:16
Speaker 3: of need to make reproductive freedom a salient issue. I
1:10:20
Speaker 3: think it's part of protecting democracy. Like you can't really
1:10:22
Speaker 3: separate these two things.
1:10:23
Speaker 2: Nope.
1:10:25
Speaker 6: So, yeah.
1:10:26
Speaker 3: Fingers crossed.
1:10:26
Speaker 2: See, that seems– On what was perhaps not the most
1:10:29
Speaker 2: optimistic and hopeful pod that we've done at Pod Save
1:10:31
Speaker 2: America for the last many years, although quite insightful, interesting,
1:10:34
Speaker 2: and entertaining, I would say. Maybe we can end on
1:10:37
Speaker 2: that positive-ish note. Leah Libman, thanks so much for joining us.
1:10:41
Speaker 2: And everyone, check out Strict Scrutiny. You guys can have
1:10:44
Speaker 2: another podcast out this week on Monday. We'll be talking
1:10:46
Speaker 2: about some of these decisions and then maybe more, depending
1:10:48
Speaker 2: on what we hear from the rest of the court.
1:10:49
Speaker 2: Is that right?
1:10:50
Speaker 3: That is all correct. New episode on Monday and then
1:10:53
Speaker 3: likely additional episodes whenever the Supreme Court does fuck knows what. Yeah.
1:10:58
Speaker 2: Leah, thank you so much.
1:10:59
Speaker 3: Thanks.
1:11:00
Speaker 2: Thanks, Aaliyah, for stopping by. John, John, and Tommy will
1:11:02
Speaker 2: be backing your feed with a new episode on Tuesday. Bye, everyone.
1:11:05
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