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Win for Transgender Troops & Midterm Maps · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grosseo from Bloomberg Radio.
0:08
Speaker 2: Defense Secretary Pete Hegseth has made no secret of his
0:12
Speaker 2: disdain of transgender people serving in the military.
0:17
Speaker 3: No more pronouns, no more climate change obsession, no more
0:24
Speaker 3: emergency vaccine mandates, no more dudes in dresses. We're done
0:30
Speaker 3: with that.
0:31
Speaker 2: But now a federal appeals court has found that the
0:34
Speaker 2: administration's order banning transgender people in the military was based
0:40
Speaker 2: on unconstitutional animis and the bare desire to harm a
0:44
Speaker 2: politically unpopular group, and the DC's Circuit Court affirmed a
0:49
Speaker 2: district court's order blocking the administration from expelling the transgender
0:54
Speaker 2: plaintiffs from the military. My guest is Shannon Mittner, the
0:58
Speaker 2: legal director of the National Senate Or for LGBTQ Rights.
1:02
Speaker 2: He argued for the transgender troops at the DC Appellate Court. Shannon,
1:07
Speaker 2: will you start by explaining President Trump's executive order, which
1:12
Speaker 2: didn't specifically mention the word transgender, but I mean explain
1:16
Speaker 2: what that order did.
1:17
Speaker 4: Almost immediately upon taking off, as one of the very
1:20
Speaker 4: first things that President Trump did was once again, as
1:23
Speaker 4: he had done during his first term, ban transgender people
1:27
Speaker 4: from serving in the military, and it's an order that
1:29
Speaker 4: doesn't use the word transgender for the nefarious reason that
1:33
Speaker 4: this administration takes the view that transgender people aren't real,
1:37
Speaker 4: that they don't exist, that the belief that your transgender
1:39
Speaker 4: is some kind of delusion or something like that. So
1:42
Speaker 4: it uses terms like people who assert a false gender
1:45
Speaker 4: identity or who have attempted to change their sex. The
1:49
Speaker 4: terminology is just reflective of this administration's animus towards transgender people.
1:55
Speaker 2: Your arguments at the court below and at the DC
1:58
Speaker 2: circuit were they based on equal protection? Tell us about
2:01
Speaker 2: your arguments.
2:02
Speaker 4: Yes, they were based upon a very long standing, well
2:06
Speaker 4: established equal protection doctrine, which is really simple, is that
2:11
Speaker 4: when a government policy is based on disapproval or dislike
2:15
Speaker 4: of a particular group of people rather than some legitimate
2:18
Speaker 4: governmental interest, that violates the most basic precept of equal
2:23
Speaker 4: protection that the line has to treat everyone equally. And
2:27
Speaker 4: obviously a policy or a law that is premised on, well,
2:30
Speaker 4: we just don't like your kind of person just fails
2:33
Speaker 4: that test in the most elemental way.
2:35
Speaker 2: And the administration never presented any evidence that transgender troops
2:41
Speaker 2: failed to meet military standards or perform poorly compared to
2:46
Speaker 2: other service members. I mean, was there any evidence supporting
2:50
Speaker 2: the administration's reasons for kicking out transgender troops.
2:55
Speaker 5: No.
2:55
Speaker 4: And it was really just such an extraordinary experience to
2:59
Speaker 4: be in you know, there room before the Federal District Judge,
3:03
Speaker 4: Judge Rayes and have her asking the representatives for the military.
3:08
Speaker 4: So are these assertions that you're making that are made
3:11
Speaker 4: in this executive order that transgender people are just simply
3:14
Speaker 4: by definition, you know, undisciplined, selfish, lack the moral character
3:20
Speaker 4: to serve? Do you have any evidence to back that up?
3:23
Speaker 4: And you know, the attorney had to answer honestly again
3:25
Speaker 4: and again, no, No, this is an opinion. We don't
3:29
Speaker 4: have evidence to support it.
3:31
Speaker 2: What was their argument?
3:32
Speaker 4: They'd fall back on something called, you know, the military
3:36
Speaker 4: difference doctrine, just that the military can do whatever it likes.
3:40
Speaker 4: They are taking the very extreme position that courts don't
3:42
Speaker 4: have any role to play in scrutinizing military decisions. And
3:46
Speaker 4: I think we hear a lot of rhetoric like that
3:48
Speaker 4: from Secretary Headseeth. I mean, that's this administration's view that
3:52
Speaker 4: the military should be you know, above and beyond the law.
3:56
Speaker 2: The decision was two to one, with an Obama pointing
4:00
Speaker 2: Clinton appointing the majority a Trump appointee in descent.
4:03
Speaker 4: Tell us about the majority opinion, Well, the majority opinion
4:06
Speaker 4: just took a real careful look at what Judge Reyes
4:09
Speaker 4: had written and found in her decision. I mean, you know,
4:12
Speaker 4: there was extensive evidence presented below in front of her.
4:16
Speaker 4: I mean, we put on for the planeoffs, just so
4:19
Speaker 4: much evidence about their service records, which are exemplary, you know,
4:23
Speaker 4: the awards they've received, many of them been deployed in
4:26
Speaker 4: combat situations. We also put on declarations from former secretaries
4:32
Speaker 4: of the Army, Navy, Air Force, who remarkably stepped forward.
4:37
Speaker 4: You know, those folks don't really like to get involved
4:39
Speaker 4: in litigation, but I think they were so concerned by
4:42
Speaker 4: this policy. They provided us with statements that there was,
4:45
Speaker 4: to their knowledge, having been in office when transuring people
4:48
Speaker 4: were serving in the military, like no reason to discharge them,
4:53
Speaker 4: that they're meeting the same standards as everyone else. And
4:55
Speaker 4: then the government just put on effectively no evidence. So
4:59
Speaker 4: based on that, the majority opinion affirmed Judge Reis's preliminary
5:03
Speaker 4: injunction stopping the government from kicking transgender people out of
5:08
Speaker 4: the military.
5:09
Speaker 2: So they said that hegsa's policy was arbitrary and fueled
5:13
Speaker 2: by unconstitutional animists and the bear desire to harm a
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Speaker 2: politically unpopular group. Can you point to where the court
5:21
Speaker 2: found that. Were there statements from heg Seth or was
5:25
Speaker 2: it just the general policy?
5:27
Speaker 4: Well, sadly, yeah, there's plenty of statements from Heagseth. They're
5:31
Speaker 4: painful to repeat, you know, but one of them, for example,
5:35
Speaker 4: was he was speaking to a group of service members
5:38
Speaker 4: and a public speech and said, you know, no more
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Speaker 4: dudes in dresses. Just a lot of really disparaging language
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Speaker 4: about transgender people, and a lot of statements that made
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Speaker 4: it very clear that this is a politically motivated policy
5:54
Speaker 4: that's just openly based on dislike of transgender people, and
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Speaker 4: it's got nothing to do with whether these individuals can
6:02
Speaker 4: meet the same standards as everyone else, which undisputedly they
6:06
Speaker 4: have been doing and can do.
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Speaker 2: Justin Walker wrote a descent. He's the Trump appointee, he said,
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Speaker 2: but because the plaintiffs are service members, not civilians, and
6:15
Speaker 2: because we are judges not generals, I respectfully dissent.
6:20
Speaker 4: He is falling back on that military difference doctrine and saying, look,
6:24
Speaker 4: I believe it's not my role as a judge to
6:26
Speaker 4: scrutinize what the military is doing. You know. The problem
6:30
Speaker 4: with that is that you just can't reconcile that with
6:33
Speaker 4: the Supreme Court cases on this. I mean, the Supreme
6:37
Speaker 4: Court has over and over again very much scrutinize what
6:40
Speaker 4: the military does and has affirmed and reaffirmed the importance
6:44
Speaker 4: of doing that. And I'll tell you on one of
6:46
Speaker 4: the justices who's been most vocal about the need to
6:49
Speaker 4: do that is Justice Thomas. Clarence Thomas has been probably
6:54
Speaker 4: the most vehement proponent on the Court of why it's
6:57
Speaker 4: so important for the Court to stand up for the
6:59
Speaker 4: content institutional rights of individual service members when they are
7:02
Speaker 4: violated by a military policy.
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Speaker 2: And the decision is sort of a split decision. It
7:08
Speaker 2: distinguishes between transgender people who are currently serving in the
7:13
Speaker 2: military and those who want to join the military.
7:17
Speaker 4: Yes, that is true. The decision addresses, you know, what
7:22
Speaker 4: really is the primary and overwhelming injustice here, which is
7:27
Speaker 4: kicking out people who have served in many cases for years,
7:31
Speaker 4: who've served honorably, who've served ably, been recognized, promoted, awarded
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Speaker 4: like just arbitrarily summarily expelling those folks for no reason
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Speaker 4: and with no kind of serious process or anything like that.
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Speaker 4: They're just like, you're out because your transgender, We're going
7:47
Speaker 4: to kick you out. That is the core injustice here
7:50
Speaker 4: and that's what this appellate decision focused on. There is
7:53
Speaker 4: another issue about whether transgender people should be able to
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Speaker 4: join the military and have the same opportunity to apply
8:00
Speaker 4: and join, and on that one, they sent that back.
8:04
Speaker 4: They sent that issue back to Judge Reyes with the
8:06
Speaker 4: instruction that she should do an independent analysis of the
8:11
Speaker 4: harms imposed by that part of the policy. She'd kind
8:15
Speaker 4: of folded them all into just one category when she
8:19
Speaker 4: was looking at the harms. So during disagreeing with her
8:22
Speaker 4: ultimate conclusion that that policy also violates the Constitution, but
8:26
Speaker 4: they're saying, hey, you need to go back and go
8:29
Speaker 4: through the process the step of independently analyzing the harms
8:33
Speaker 4: imposed by not allowing transgender people to join the military.
8:38
Speaker 2: The government could ask the full Circuit to hear the
8:41
Speaker 2: case on bank. But do you think it might skip
8:44
Speaker 2: that step? Considering that Democrats outnumber Republicans on the DC Circuit.
8:50
Speaker 4: Parties are always given that opportunity to ask the entire
8:52
Speaker 4: court to rehear a case if they wish to. You know,
8:55
Speaker 4: I don't know if the government will do that or not.
8:57
Speaker 4: I do expect they will. Where or the other you know,
9:01
Speaker 4: asked the US Supreme Court to step in here and
9:05
Speaker 4: issue an emergency stay on that shadowed docket, They've already
9:09
Speaker 4: indicated in fact, that that's what they intend to do.
9:12
Speaker 4: I will say, though, that I am very optimistic that
9:16
Speaker 4: the Supreme Court will not do that. It would be
9:18
Speaker 4: pretty extraordinary if they did it in this situation, because
9:23
Speaker 4: this ruling applies just to the twenty eight planoffs, who
9:26
Speaker 4: are current transgender service members in this case, and it
9:30
Speaker 4: relies on a very well established principle of law that
9:33
Speaker 4: a policy based on disapproval of a group of people
9:37
Speaker 4: is unconstitutional. So, unlike some of the other cases where
9:40
Speaker 4: the Court has stepped in and posed an emergency stay,
9:43
Speaker 4: there really is no basis to do that here.
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Speaker 2: So it only applies to the twenty eight service members.
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Speaker 2: I mean, there are about a thousand estimated transgender people
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Speaker 2: in the military. What about them?
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Speaker 4: Yeah, that maybe even a bit larger than that. Well,
9:58
Speaker 4: right now, this rule applies only to the twenty eight
10:01
Speaker 4: named plaintiffs in this case. Two points about that, though
10:05
Speaker 4: it does set a legal precedent, so other transgender service
10:09
Speaker 4: members can bring their own case and rely on that precedent.
10:13
Speaker 4: And also, we are asking Judge Reyes to turn our
10:17
Speaker 4: action into a class action, and if she agrees to
10:20
Speaker 4: do that, then that will provide an opportunity for her
10:23
Speaker 4: ruling to apply to every other transgender service member. And
10:27
Speaker 4: that's penning in front of her. We have a hearing
10:29
Speaker 4: on our motion to do that. She'll be hearing that
10:31
Speaker 4: at the end of the month June thirtieth.
10:33
Speaker 2: You mentioned the Supreme Court. So the Supreme Court did
10:38
Speaker 2: lift an order from a federal judge in Washington State
10:41
Speaker 2: that blocked the military from enforcing the ban. And the
10:45
Speaker 2: Supreme Court has been hostile let's say to transgender rights,
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Speaker 2: LGBTQ rights in general. Why are you so confident that
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Speaker 2: they won't reverse here?
10:56
Speaker 4: Well, you know, I would say they haven't friendly to
10:59
Speaker 4: LGBT people lately. I will say that, although let's not
11:03
Speaker 4: forget as recently as twenty twenty, this is the court
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Speaker 4: that ruled that federal sex discrimination law categorically protects transgender
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Speaker 4: people from discrimination. It's support that did recently uphold Tennessee's
11:15
Speaker 4: ban on medical care for transgender young people. But I
11:18
Speaker 4: will also note that the way the majority decision talked
11:21
Speaker 4: about those young people was very respectful. The Shilling decisions,
11:26
Speaker 4: the one you're talking about, where the Court stepped in
11:28
Speaker 4: and did on its shadow docket, issued an emergency stay
11:31
Speaker 4: of a similar preliminary in junction coming out of a
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Speaker 4: federal district court in the state of Washington. There are
11:37
Speaker 4: two important differences, though. That emergency stay was issued just
11:41
Speaker 4: days before the Court issued a very important decision disapproving
11:45
Speaker 4: of the so called nationwide injunctions, and the injunction in
11:49
Speaker 4: that case was a nationwide injunction. One of the judges
11:52
Speaker 4: on the panel that just decided the Talbot opinion that
11:55
Speaker 4: we're discussing today, Judge Rogers, voiced her opinion that that
12:00
Speaker 4: and it is why the Supreme Court issued that stay
12:02
Speaker 4: in Chilling is because it was a nationwide injunction. It
12:05
Speaker 4: also rested on a different equal protection theory that is
12:09
Speaker 4: more novel and has not yet been addressed by the
12:12
Speaker 4: US Supreme Court, which is the level of scrutiny that
12:15
Speaker 4: should apply to discrimination against transgender people. The decision here.
12:19
Speaker 4: It's not a nationwide injunction, and it doesn't rest on
12:22
Speaker 4: any open question of equal protection law. It rests on
12:25
Speaker 4: a very settled principle again that government can't just do
12:28
Speaker 4: something because it doesn't lack a group of people.
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Speaker 2: Coming up, we'll talk about the other cases challenging the
12:34
Speaker 2: transgender military ban and the Trump administration's attempt to get
12:39
Speaker 2: the medical records of transgender kids. I'm June Grosso and
12:44
Speaker 2: you're listening to Bloomberg. A federal appeals court has found
12:48
Speaker 2: that the administration's order banning transgender people in the military
12:53
Speaker 2: was based on unconstitutional animis and the baar desire to
12:58
Speaker 2: harm a politically unpopular and the DC Circuit Court affirmed
13:03
Speaker 2: a district court's order blocking the administration from expelling the
13:07
Speaker 2: transgender plaintiffs from the military. I've been talking to Shannon Mittner,
13:13
Speaker 2: the legal director of the National Center for LGBTQ Rights.
13:17
Speaker 2: He argued for the transgender plaintiffs at the DC Appellate Court. Shannon,
13:22
Speaker 2: were there any questions that you were asked during the
13:25
Speaker 2: arguments that stumped you?
13:28
Speaker 4: No, nothing that's stump me. But one thing that was
13:30
Speaker 4: very frustrating at the time is one of our key
13:33
Speaker 4: arguments is that the government sometimes says, oh, this is
13:36
Speaker 4: about transgender people, this is about people with a particular
13:39
Speaker 4: medical condition. But one of our key points is that
13:42
Speaker 4: that cannot possibly be the case because for every single
13:47
Speaker 4: other medical condition, if somebody who's already in the military
13:51
Speaker 4: has a particular medical condition, there is not one single
13:55
Speaker 4: other medical condition that results in automatic discharge. In every
13:58
Speaker 4: single other case, the military will go through an individualized
14:02
Speaker 4: assessment to see if that person can still do the job.
14:05
Speaker 4: That's just the ordinary process. So if this is really
14:08
Speaker 4: about transgener people having a medical condition, and why not
14:11
Speaker 4: follow that same process here. But at the argument, the
14:15
Speaker 4: attorney for the military kept trying to assert that that
14:18
Speaker 4: wasn't true, that there are other conditions that result in
14:21
Speaker 4: automatic discharge, and we were like, no, your honors, there
14:24
Speaker 4: are not. And that really became quite a heated debate,
14:28
Speaker 4: you know, at that oral arguments so frustrating, because the
14:31
Speaker 4: record on this is crystal clear. So I was so
14:34
Speaker 4: gratified to see that in the opinion, the judges obviously
14:38
Speaker 4: confirmed that, did their own research and confirmed that what
14:41
Speaker 4: we were saying was one hundred percent correct. And that
14:43
Speaker 4: is one of the primary foundations of the decision that
14:46
Speaker 4: you can see this is based on bias and prejudice,
14:49
Speaker 4: because the military doesn't treat any other medical condition this way.
14:54
Speaker 2: What was the reaction of your clients when you told
14:58
Speaker 2: them about this victim.
15:00
Speaker 4: You know, of course, they feel very vindicated. They have
15:05
Speaker 4: already suffered so much harm. They and their families have
15:08
Speaker 4: suffered so much harm. This has been humiliating, incredibly stressful ordeal.
15:15
Speaker 4: I mean, these are folks who are have devoted their
15:17
Speaker 4: entire professional lives to military service, and it's more than
15:21
Speaker 4: just a job, it's an entire way of life. Many
15:23
Speaker 4: of them come from military families. Having their ability to
15:28
Speaker 4: needs to serve just cut off in the way that
15:31
Speaker 4: it has been has been excruciating for them, and it
15:35
Speaker 4: has also of course left them and just you know,
15:38
Speaker 4: incredibly financially precarious situation. I mean, they feel very vindicated,
15:44
Speaker 4: and they think they know at this point it's going
15:46
Speaker 4: to be very difficult to undo the practical and financial
15:50
Speaker 4: harm that they have suffered. But the principle here is
15:54
Speaker 4: very very important to them, and it means a lot
15:57
Speaker 4: to have a federal appellate court, you know, say to
16:00
Speaker 4: the world what's happened to these people is extremely unfair.
16:05
Speaker 4: I mean, this is just a very important change in
16:07
Speaker 4: the status quo. You know, we've been in kind of
16:09
Speaker 4: limbo for a year and a half now after winning
16:12
Speaker 4: the victory and the District Corps then having it stayed,
16:15
Speaker 4: So to have this decision come down and really change
16:18
Speaker 4: that status quo and once again tell the government you
16:22
Speaker 4: cannot enforce this band against these plaintiffs who are who
16:26
Speaker 4: have served so courageously, that means a lot. It's a
16:30
Speaker 4: very big turn of events with this litiation.
16:33
Speaker 2: And I was somewhat following these cases on transgender people
16:38
Speaker 2: in the military, but I wasn't clear on whether or
16:41
Speaker 2: not they were actually thrown out of the military while
16:44
Speaker 2: the case was pending.
16:46
Speaker 4: They are still in the military. Yes, I think it's
16:48
Speaker 4: been confusing for a lot of people because of those
16:50
Speaker 4: early victories and then you know, the news was, hey,
16:52
Speaker 4: you know, these courts have held this band is unconstitutional.
16:55
Speaker 4: But then of course the Supreme Court stepped in and
16:57
Speaker 4: state it issued to stay, and then that we had
17:00
Speaker 4: stay in our case as well. So yeah, we've been
17:02
Speaker 4: in limbo and the military has been able to move forward,
17:05
Speaker 4: but they have been so disorganized. This whole process has
17:08
Speaker 4: been so chaotic, it's been very unclear what is going
17:11
Speaker 4: to be the process for kicking these people out. They've
17:13
Speaker 4: just sort of held them in this torturous state of uncertainty,
17:17
Speaker 4: and they are just now, I mean, here's the irony.
17:20
Speaker 4: They're just now starting to take very active steps to
17:24
Speaker 4: initiate separation proceedings. So this decision came at a very
17:28
Speaker 4: timely moment to put a stop to that, at least
17:31
Speaker 4: right now for these twenty eight plaintiffs and hopefully soon
17:34
Speaker 4: for other transgender service members as well.
17:37
Speaker 2: There are other challenges by transgender service members now that
17:41
Speaker 2: this decision is on the books. Are those cases unnecessary?
17:45
Speaker 3: No?
17:45
Speaker 4: I mean really, right now, the only two that are
17:47
Speaker 4: still going are the one in Washington State, and that
17:49
Speaker 4: one is proceeding to trial, and there's discovery happening there,
17:53
Speaker 4: and the planets in that case are seeking a permanent injunction.
17:57
Speaker 4: They're a preliminary injunction has stayed. There's the Talbot case
18:00
Speaker 4: proceeding in Washington DC. Those are the only two cases.
18:03
Speaker 4: There was another case in New Jersey that was dismissed,
18:07
Speaker 4: and then there's another case challenging the denial of retirement
18:11
Speaker 4: benefits to some of these transgender service members. That is
18:14
Speaker 4: a separate case. It's actually a separate legal issue, but
18:17
Speaker 4: it's just another indication of how much hostility the government
18:22
Speaker 4: is directing it these folks. I mean, there's a group
18:25
Speaker 4: of transgender service members who were awarded retirement benefits because
18:30
Speaker 4: they earned them. They earned them, and then in just
18:33
Speaker 4: a completely inexplicable punitive act, the military took those away
18:38
Speaker 4: for no reason. They can't even offer a reason. So
18:42
Speaker 4: there's a separate case that is challenging that denial of
18:45
Speaker 4: retirement benefits.
18:46
Speaker 2: And Jenan, I wanted to ask you about a different issue,
18:50
Speaker 2: and that is the Trump administration's demands for confidential information
18:56
Speaker 2: about minors that have gotten gender affirming care. And they're
19:00
Speaker 2: asking hospitals to hand over patient records, including birth dates,
19:05
Speaker 2: social Security numbers, and addresses. And the Justice Department has
19:10
Speaker 2: argued that the information is being sought to investigate possible
19:14
Speaker 2: fraud or unlawful off label promotion of drugs. And last month,
19:21
Speaker 2: a federal judge quashed the Trump administration subpoenas for confidential
19:27
Speaker 2: patient information from Rhode Island's largest hospital that provides gender
19:32
Speaker 2: firming care to minors, and they were looking for birth date,
19:37
Speaker 2: social security numbers, and addresses of every patient who receive
19:41
Speaker 2: transgender care over the past five years.
19:45
Speaker 4: One thing's happening there that is just so outrageous, and
19:48
Speaker 4: I don't think people realize it is that, to my knowledge,
19:51
Speaker 4: the federal government has never before, I mean, in the
19:54
Speaker 4: entire history of our country, tried to use the criminal
19:57
Speaker 4: subpoena process to get people's private medical records, and that
20:02
Speaker 4: is what they are now doing. They got shut down.
20:04
Speaker 4: They were using civil subpoenas and like, we had eight
20:07
Speaker 4: different federal district courts say no, you have no legitimate
20:12
Speaker 4: reason to be going after these private medical records. You
20:15
Speaker 4: cannot do that. And they're like, fine, we'll drop the
20:18
Speaker 4: civil subpoenas. And then they popped up with criminal subpoenas
20:22
Speaker 4: and they secured in Texas and you know, went to
20:27
Speaker 4: a very conservative district in the state of Texas, blatant
20:31
Speaker 4: form shopping to get criminal subpoenas against hospitals that have
20:35
Speaker 4: no connection with Texas what soever. Everything about it is
20:40
Speaker 4: so outrageous that it's obviously in running around those eight
20:44
Speaker 4: court decisions that they're going to Texas when that has
20:47
Speaker 4: no connection with any of these hospitals, and that they're
20:50
Speaker 4: using criminal, criminal subpoenas. And I mean part of that
20:54
Speaker 4: is those are completely shrouded in secrecy. That's the grand
20:57
Speaker 4: jury process. It is notoriously super secret. These families don't
21:02
Speaker 4: even have a way to know that their children's medical
21:07
Speaker 4: records are being seized by the federal government, and then
21:09
Speaker 4: there's no limits on what the federal government can do
21:12
Speaker 4: with that information once it gets it. I mean, it's
21:14
Speaker 4: really a big deal.
21:15
Speaker 2: Why do you think they're looking for the medical records,
21:18
Speaker 2: I mean, to get the doctors who perform these procedures.
21:22
Speaker 4: They want to scare the hell out of people. They
21:25
Speaker 4: know there's no there there there's no criminal law that's
21:28
Speaker 4: being violated here. They know that this is like mafia
21:32
Speaker 4: like tactics. I mean, this is just an attempt to
21:34
Speaker 4: scare the hell out of people, scare hospitals away from
21:37
Speaker 4: providing the care, scare doctors away from providing the care,
21:40
Speaker 4: and scare parents away from, you know, protecting their own
21:44
Speaker 4: children and supporting their own children. They want to make
21:46
Speaker 4: all of those groups, including parents, feel like they are
21:49
Speaker 4: in serious dread of being criminally prosecuted if they do
21:54
Speaker 4: anything to support a transgender child. I mean, really, I
21:57
Speaker 4: just speechless with the level of use of power here.
22:01
Speaker 4: It's really out of control.
22:03
Speaker 2: Thanks so much for joining me, Shannon. It's your first
22:06
Speaker 2: time on the show, but I hope it won't be
22:07
Speaker 2: your last. That's Shannon Mittner, the legal director of the
22:11
Speaker 2: National Center for LGBTQ Rights. The Supreme Court's conservatives have
22:17
Speaker 2: made another decision favoring Republicans in the redistricting frenzy. The
22:22
Speaker 2: Court sent off with its decision last month, eviscerating the
22:26
Speaker 2: Voting Rights Act in a six to three vote, with
22:29
Speaker 2: Republican appointees in the majority and Democratic appointees in descent.
22:34
Speaker 2: The Court reinstated a Republican friendly congressional map in Alabama
22:39
Speaker 2: that allows the state to eliminate a majority black House
22:43
Speaker 2: district in the midterms, despite the fact that a three
22:47
Speaker 2: judge panel found that the state had intentionally discriminated against
22:51
Speaker 2: black people when drawing that map. The ruling caps a
22:55
Speaker 2: run of redistricting decisions that collectively have boyd Republican Shays
23:00
Speaker 2: to retain their narrow majority in the House. Joining me
23:04
Speaker 2: is Bloomberg, Supreme Court reporter Greg Store. Greg, I'm not
23:08
Speaker 2: going to make you go back all the way through
23:10
Speaker 2: all the times the Alabama legislature has been at the
23:15
Speaker 2: Supreme Court and this, that, and the other. Just go
23:17
Speaker 2: back to the latest decision by the three judge panel.
23:22
Speaker 5: The three judge panel said that Alabama needed to keep
23:26
Speaker 5: a second majority black district, and it said that for
23:29
Speaker 5: two reasons. First of all, the court said Alabama had
23:33
Speaker 5: previously engaged in intentional discrimination and defied earlier court rulings
23:38
Speaker 5: by trying to draw a key district that had just
23:42
Speaker 5: a little bit less than a majority of black voters.
23:45
Speaker 5: And secondly, the lower court said, the primary election is
23:51
Speaker 5: on August the eleventh, and there's just not enough time
23:55
Speaker 5: for the state to shift everybody to different districts in
23:59
Speaker 5: time for that election.
24:00
Speaker 1: And so by keeping the existing map.
24:02
Speaker 5: Which has the two majority black districts, we're actually reducing
24:06
Speaker 5: the amount of confusion that would occur over the next
24:08
Speaker 5: few weeks.
24:10
Speaker 2: And I just want to point out that that three
24:12
Speaker 2: judge panel consisted of two Trump appointees and Clinton appointees.
24:18
Speaker 2: So now tell us about this unsigned Supreme Court decision
24:23
Speaker 2: of just a little over three pages rejecting the findings
24:27
Speaker 2: of a three judge panel that Alabama had intentionally discriminated
24:32
Speaker 2: against black voters, and that panel consisted of two Trump
24:36
Speaker 2: appointees and a Clinton appointee.
24:39
Speaker 5: It was an unsigned opinion, but it was basically a
24:41
Speaker 5: six 's three ruling with the six conservative justices the
24:44
Speaker 5: six Republican appointees in the majority. And what they said
24:48
Speaker 5: is that the lower court got it wrong in multiple respects.
24:51
Speaker 5: It said, among other things, this big ruling the Supreme
24:54
Speaker 5: Court issue on April twenty ninth that really scaled back
24:58
Speaker 5: the use of the Voting Rights Act and districting, that
25:01
Speaker 5: that undercut the claim against Alabama. It also said that
25:05
Speaker 5: the lower court was too quick to presume that Alabama
25:09
Speaker 5: legislators were acting with racial animus, that they should have
25:13
Speaker 5: accorded more of a presumption of good faith for the legislature.
25:17
Speaker 1: And finally, the Supreme Court.
25:19
Speaker 5: Said the sixth and the majority said that if there's
25:22
Speaker 5: going to be chaos leading up to the election, that's.
25:25
Speaker 1: The state's choice.
25:26
Speaker 5: It's not for a lower court to intervene and say
25:30
Speaker 5: we're going to do something because it's going to reduce
25:32
Speaker 5: the confusion that's on Alabama, and that they want to
25:36
Speaker 5: proceed this way they can.
25:37
Speaker 2: Liberal Justice Sonya Sotomayor wrote the dissent for the liberals,
25:43
Speaker 2: and she said that the decision corrodes the rule of law.
25:48
Speaker 1: Well, she didn't hold back.
25:50
Speaker 5: She wrote for all three of the court's liberals, and
25:52
Speaker 5: she said that the Court is disregarding both democratic values
25:56
Speaker 5: and the rule of law. She said that when the
25:59
Speaker 5: Supreme Court issued that Voting Rights Act decision a few
26:02
Speaker 5: weeks ago, it explicitly left open the possibility that there
26:08
Speaker 5: could be a showing of intentional discrimination by a state
26:12
Speaker 5: against minority voters, and she said that's exactly what the
26:15
Speaker 5: lower court found in this case. She also pointed out
26:19
Speaker 5: that this Alabama case has a really long, entangled history
26:23
Speaker 5: that I won't walk all the way through, but the
26:26
Speaker 5: Supreme Court has actually ruled in this very case after
26:30
Speaker 5: hearing arguments before, and what it said in that case was,
26:33
Speaker 5: we're going to uphold this lower court decision that says
26:37
Speaker 5: that there has to be a second district where black
26:40
Speaker 5: voters can select the candidate of their choice. And Sodavirus
26:44
Speaker 5: says that the Supreme Court has effectively ignored that. And finally,
26:48
Speaker 5: she pointed out what the lower court pointed out.
26:50
Speaker 1: Which is that this is going to invite chaos.
26:53
Speaker 5: The Director of Elections has suggested it's going to be
26:56
Speaker 5: near impossible to shift everybody into the proper districts in
27:00
Speaker 5: time for the August eleventh primary election, and so we
27:05
Speaker 5: will see how that works out in Alabama, but she
27:07
Speaker 5: at least is skeptical that it will be a smooth process.
27:11
Speaker 2: So this is the first test since the Justice's weekend
27:16
Speaker 2: I say, eviscerated the Voting Rights Act. Is this sending
27:20
Speaker 2: a message that even findings of intentional discrimination are not enough?
27:24
Speaker 2: I mean, what's the message here?
27:26
Speaker 5: It certainly suggests that that might be the case. That
27:29
Speaker 5: was the area that the Court said it was leaving
27:32
Speaker 5: open when it ruled in the Footing Rights Act case.
27:35
Speaker 1: On April twenty ninth.
27:37
Speaker 5: But in this case, a lower court, as you pointed
27:40
Speaker 5: out in a lot of detail, explain why in its view,
27:44
Speaker 5: this was different from that case because it involved that
27:46
Speaker 5: intentional discrimination, because they said Alabama legislators were trying to
27:51
Speaker 5: limit black voting power, and the Supreme Court said and
27:56
Speaker 5: even was willing to do it in this emergency posture
27:59
Speaker 5: where it didn't have all lot of time to hear
28:01
Speaker 5: arguments and that sort of thing.
28:02
Speaker 1: It was willing to say.
28:03
Speaker 5: We're sure enough that the lower court got it wrong
28:06
Speaker 5: that we are going to block that ruling and allow
28:09
Speaker 5: this district that the lower court thinks is the product
28:12
Speaker 5: of intentional discrimination. We're going to allow that map to
28:15
Speaker 5: be in place for the November election.
28:18
Speaker 2: Greg when you look at the redistricting decisions from the
28:20
Speaker 2: Court since December, they've overwhelmingly favored Republicans, and like in
28:26
Speaker 2: this case, it's always by six to three votes, with
28:30
Speaker 2: the Republican appointees in the majority and the Democratic appointees
28:35
Speaker 2: in dessent. So it's hard to look at these decisions
28:38
Speaker 2: as anything but political, despite how much the Chief protests
28:43
Speaker 2: that they're not political actors.
28:46
Speaker 5: But it is certainly having a big effect, and that
28:48
Speaker 5: effect is to help the Republican Party, in particular for
28:52
Speaker 5: the November election. So there are basically five states in
28:57
Speaker 5: the cycle where the Supreme Court has acted.
28:59
Speaker 1: In read discting cases.
29:01
Speaker 5: They are not all the same, but Republicans have won
29:04
Speaker 5: four of them. So there was the big Voting Rights
29:06
Speaker 5: Act case, which was a Louisiana case, There's this one.
29:10
Speaker 5: There's a case where they blocked the Lower Court ruling
29:13
Speaker 5: that would have required a new map in New York.
29:16
Speaker 5: And then there was Texas where they intervened to let
29:19
Speaker 5: Texas Republicans change the map there. Now, the Texas case
29:22
Speaker 5: was very similar to a California case later on that
29:25
Speaker 5: ended up helping Democrats, letting them put a new map
29:28
Speaker 5: in place. Then the Big Voting Rights Act decision also
29:31
Speaker 5: spawned some redistricting in states like Tennessee, eliminating some majority
29:35
Speaker 5: black and Democratic leaning districts. And the upshot of that
29:39
Speaker 5: will be that there will be a number of districts
29:42
Speaker 5: that used to be fairly safe.
29:43
Speaker 1: Democratic districts that are now going.
29:45
Speaker 5: To be fairly safe Republican districts in November. And we
29:48
Speaker 5: haven't even talked about other types of cases election cases
29:51
Speaker 5: the Supreme Court has that might also affect the election
29:54
Speaker 5: in November.
29:55
Speaker 2: The per sale principle. I've been discussing that a lot lately,
29:59
Speaker 2: and I'm confused about what the Supreme Court considers the
30:04
Speaker 2: percel principle to be.
30:06
Speaker 1: You joined Justice Soda Mayora.
30:08
Speaker 5: There the percel principle, and it's named after the two
30:12
Speaker 5: thousand and six case that invoked the idea in the
30:14
Speaker 5: first place.
30:15
Speaker 1: The idea is.
30:15
Speaker 5: That federal judges shouldn't intervene at kind of the last
30:19
Speaker 5: minute to change the rules of a state run election.
30:23
Speaker 5: And the Supreme Court over the years has started to
30:27
Speaker 5: make pretty clear that while that restricts lower court.
30:31
Speaker 1: Federal judges, it doesn't restrict them.
30:34
Speaker 5: So in this case, one of the things the Supreme
30:36
Speaker 5: Court said it didn't use the word percel, but that
30:39
Speaker 5: was the principle it used, was that when this three
30:42
Speaker 5: judge panel reinstated the earlier.
30:45
Speaker 1: Map and a ruling that came down just a week
30:48
Speaker 1: or two ago.
30:49
Speaker 5: That that was interjecting itself improperly in the way the
30:55
Speaker 5: state wanted to conduct the election with this other map,
30:58
Speaker 5: and it didn't matter to the Supreme Court that the
31:01
Speaker 5: only reason the lower court had to act again was
31:04
Speaker 5: because the Supreme Court itself had previously vacated a decision
31:09
Speaker 5: that everybody thought up until a month ago was going
31:12
Speaker 5: to govern the fall election.
31:14
Speaker 1: So the Supreme Court is restricting.
31:16
Speaker 5: Federal courts, It is giving a lot of leeway to
31:20
Speaker 5: states that want a redistrict, particularly for partisan purposes, and
31:25
Speaker 5: it is leaving open the possibility that it itself might
31:29
Speaker 5: cause some confusion as long as it is moving in
31:34
Speaker 5: support of those principles of letting states craft their own
31:38
Speaker 5: maps and keeping lower court.
31:40
Speaker 1: Judges from overstepping their authority.
31:42
Speaker 2: It's nice to be able to exempt yourself from a rule.
31:45
Speaker 2: Tell us about the cases that are yet to be
31:48
Speaker 2: decided that we're waiting for decisions and that might also
31:51
Speaker 2: affect elections.
31:53
Speaker 5: There are two significant election decisions that we're expecting the
31:56
Speaker 5: Court to decide sometime in the next month.
31:58
Speaker 1: One is a campaign finance case.
32:00
Speaker 5: It involves what right now is a limit on the
32:04
Speaker 5: course so called coordinated party expenditures, in other words, money
32:08
Speaker 5: that political parties can spend in coordination with their candidates,
32:13
Speaker 5: and the Supreme Court sure seems like it's.
32:16
Speaker 1: Going to overturn those limits.
32:17
Speaker 5: This is a court that very much sees campaign finance
32:20
Speaker 5: restrictions as a problem for free speech, and if they
32:23
Speaker 5: do that, it will give parties a lot more power,
32:26
Speaker 5: and at least for November, will probably help the Republican
32:29
Speaker 5: Party because they have a lot more cash on hand
32:32
Speaker 5: right now than the Democratic Party does, and they will
32:36
Speaker 5: also be able to use this money. When you spend
32:38
Speaker 5: money in coordination with a candidate, you can get these
32:41
Speaker 5: discounted rates that candidates can get, so that's one that
32:45
Speaker 5: the Republican Party is almost certain to win. The second
32:48
Speaker 5: case has to do with the deadlines for mail in ballots.
32:52
Speaker 5: There's a case in which the argument is that the
32:55
Speaker 5: federal government Congress has set election day for a particular
32:59
Speaker 5: date in November, and all ballots have to be received.
33:05
Speaker 1: By that day. A number of states right now have
33:08
Speaker 1: laws that.
33:09
Speaker 5: Say as long as you mail them, as long as
33:11
Speaker 5: the ballots are postmarked by that day, will give you
33:14
Speaker 5: a few extra days for them to actually arrive. The
33:17
Speaker 5: Supreme Court could might knock out those laws. There's about
33:22
Speaker 5: fourteen of those laws, plus another fifteen that apply only
33:25
Speaker 5: to military and overseas votes. And again, this is the
33:28
Speaker 5: case that has divided the litigants by party. Republicans are
33:32
Speaker 5: the ones who are arguing for those strict limits, and
33:35
Speaker 5: Democrats are the ones who say that grace periods are appropriate.
33:39
Speaker 5: Remains to be seen exactly how much effect that has,
33:43
Speaker 5: but certainly to the extent you can read something from
33:46
Speaker 5: what side everybody's on, it's a case where if the
33:49
Speaker 5: Supreme Court adopts that strict limit, it could help Republicans.
33:52
Speaker 2: They're announcing decisions again tomorrow morning, so we'll see if
33:55
Speaker 2: those two cases are among them. Thanks so much, Greg.
33:59
Speaker 2: That's Bloomberg Supreme Court Reporter Greg Store and that's it
34:03
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