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Strict Scrutiny on the Supreme Court’s Student Debt Relief and Gay Rights Decisions · Pod Save America

0:00
Speaker 1: Hey everyone, we got a bonus pod for you today
0:02
Speaker 1: from our friends at Strict Scrutiny. As you probably heard,
0:06
Speaker 1: in the past 48 hours, the Supreme Court struck down
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Speaker 1: affirmative action for college admissions, halted President Biden's student loan
0:12
Speaker 1: relief plan, and allowed a business to refuse services for
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Speaker 1: same-sex marriages. So in this episode, the hosts break down
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Speaker 1: all of these decisions, what they mean, how were they decided,
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Speaker 1: and what comes next. And on that note, after they recorded,
0:27
Speaker 1: the president announced a new path to provide student relief
0:30
Speaker 1: to as many borrowers as possible, as quickly as possible,
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Speaker 1: through the Higher Education Act. He's also creating a 12-month
0:37
Speaker 1: on-ramp to loan repayment so that borrowers won't be penalized
0:40
Speaker 1: if they miss any payments during that period. So give
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Speaker 1: this episode of Strict Scrutiny a listen. It's fantastic. And
0:47
Speaker 1: then on Monday, Strict will release a full recap of
0:50
Speaker 1: Supreme Court decisions from this term. So be sure to subscribe.
0:54
Speaker 1: Here's the episode.
0:55
Speaker 2: All I ask of our brethren.
1:00
Speaker 3: Is that they take their feet.
1:39
Speaker 4: Hello, and welcome back to Strict Scrutiny, your podcast about
1:42
Speaker 4: that very normal, very moderate, very institutionalist, very restrained Supreme
1:48
Speaker 4: Court we've all been hearing about, and the legal culture
1:51
Speaker 4: that surrounds it.
1:53
Speaker 5: Psych!
1:54
Speaker 6: The court is back on its bullshit, per usual, and
1:56
Speaker 6: as expected, issuing decisions that, in Justice Sotomayor's words, quote,
2:00
Speaker 6: for the first time in history, grant a business open
2:02
Speaker 6: to the public a constitutional right to refuse to serve
2:05
Speaker 6: members of a protected class, creating a constitutional right to
2:08
Speaker 6: refuse service to a disfavored group.
2:10
Speaker 3: But it didn't stop there. The court also invalidated the
2:13
Speaker 3: president's student debt relief program, basically because the justices have
2:17
Speaker 3: a lot of feelings about it. It essentially came down
2:20
Speaker 3: to that. So those are the decisions we will be
2:22
Speaker 3: recapping today. And stay tuned. We will have a full
2:25
Speaker 3: term recap episode to follow on Monday.
2:28
Speaker 7: Meantime, we are your hosts. I'm Kate Shaw.
2:30
Speaker 8: I'm Alyssa Murray.
2:32
Speaker 6: And I'm Leah Lippman, and the reason why I might
2:34
Speaker 6: sound unhinged today, which is different than the reason I
2:36
Speaker 6: may have sounded unhinged yesterday, is that Neil Gorsuch took
2:39
Speaker 6: a big fucking dump all over Pride as I'm sitting
2:42
Speaker 6: here in my rainbow argumentative antithetical dream girl tank with
2:45
Speaker 6: rainbow nails waiting to hear Taylor Swift perform It's Different
2:48
Speaker 6: as a surprise song here in Cincinnati tonight, which I
2:51
Speaker 6: have been begging her to do for weeks, and stressing
2:53
Speaker 6: about whether inclement weather, like the giant clouds of smoke
2:55
Speaker 6: from the Canada fires or thunderstorms, will interfere with my ability.
2:58
Speaker 5: To hear that.
2:59
Speaker 6: If the Supreme Court's contribution to climate problems interfere with
3:03
Speaker 6: any of this, there is going to be hell to pay.
3:05
Speaker 6: And you bitches haven't seen anything yet. Other caveat is
3:09
Speaker 6: we are literally recording this episode less than an hour after.
3:13
Speaker 5: We've received all of the opinions.
3:15
Speaker 6: So we are still processing them and working them out,
3:18
Speaker 6: much like Clarence Thomas is processing all of his issues
3:21
Speaker 6: in the pages of the U.S. reports.
3:22
Speaker 5: So you will hear us working it.
3:24
Speaker 7: Out in real time.
3:25
Speaker 3: Unlike Justice Thomas, I don't think the fact that we
3:27
Speaker 3: are still working through these issues should disqualify us from
3:30
Speaker 3: service as your podcast hosts.
3:32
Speaker 4: Because we're actually doing a service to the country.
3:35
Speaker 7: And we're doing the work. We are working through this.
3:37
Speaker 8: We are doing the work.
3:40
Speaker 3: Thank you for joining us as we do. Today's decisions
3:43
Speaker 3: were brutal, both in really important and different ways. So
3:46
Speaker 3: this is going to be pretty raw, probably. And we're
3:48
Speaker 3: just going to dive right in discussing the two opinions
3:50
Speaker 3: in the order the court released them on Friday morning,
3:53
Speaker 3: which is when we're recording today. So we're going to
3:54
Speaker 3: start with 303 Creative versus Alanis. Leah already gave you
3:58
Speaker 3: a little sneak preview of Justice Sotomayor's distillation in her
4:01
Speaker 3: incredibly powerful dissent, which we will talk about. But as
4:04
Speaker 3: a reminder, that's the hypothetical case about whether a hypothetical
4:07
Speaker 3: wedding website designer might hypothetically be asked to design a
4:10
Speaker 3: hypothetical wedding website for a hypothetical same-sex wedding.
4:13
Speaker 7: And hypothetically, would that violate her First Amendment rights.
4:16
Speaker 3: If, hypothetically, Colorado told her she couldn't refuse to design
4:19
Speaker 3: that hypothetical website for a hypothetical wedding? And in a 6-3,
4:25
Speaker 3: happy last day of pride opinion by Justice Gorsuch, the
4:28
Speaker 3: court said, yes, that not at all hypothetical situation would
4:32
Speaker 3: definitely violate her First Amendment rights. The court wrote that
4:36
Speaker 3: the First Amendment bars Colorado from, quote, forcing a website
4:40
Speaker 3: designer to create expressive designs speaking messages with which the
4:43
Speaker 3: designer disagrees.
4:45
Speaker 6: So we will break down the opinion in a second,
4:47
Speaker 6: but really to understand what the case is about, you
4:50
Speaker 6: just kind of need to go directly to Justice Sotomayor's
4:53
Speaker 6: exceptionally moving and powerful dissent, which I already kind of
4:56
Speaker 6: read from at the outset. So in that dissent, you know,
4:59
Speaker 6: she said the court had for the first time in
5:01
Speaker 6: history recognized a constitutional right to refuse to serve a
5:04
Speaker 6: protected group. And I think the opening to her dissent
5:07
Speaker 6: is also worth highlighting, and it's a little long, so
5:09
Speaker 6: bear with me. But she writes that five years ago,
5:12
Speaker 6: this court recognized the general rule that religious and philosophical
5:15
Speaker 6: objections to gay marriage do not allow business owners and
5:18
Speaker 6: other actors in the economy and in society to deny
5:21
Speaker 6: protected persons equal access to goods and services under a
5:25
Speaker 6: neutral and generally applicable public accommodations law. what a difference
5:29
Speaker 6: five years makes. That's a literal direct quote. And she continues,
5:33
Speaker 6: not just at the court. So she writes here, as
5:36
Speaker 6: well as later in the opinion, about the backlash to
5:38
Speaker 6: the movement for liberty and equality for gender and sexual minorities,
5:42
Speaker 6: and how heartbreaking it is, but also how familiar it is.
5:45
Speaker 6: Because whenever civil rights have advanced principles of equality and
5:49
Speaker 6: liberty in public life, there has always been backlash. And
5:53
Speaker 6: In the past, she says, the brave justices who once
5:56
Speaker 6: sat on this court decisively rejected those claims. Alas, not
6:00
Speaker 6: so brave anymore, I guess.
6:03
Speaker 4: We're going to try and figure out what exactly Justice
6:06
Speaker 4: Gorsuch's opinion for the majority held and what exactly it means,
6:09
Speaker 4: both for this case as well as for other civil
6:11
Speaker 4: rights statutes, for other groups that are protected from discrimination
6:15
Speaker 4: by public accommodation statutes like the one at issue in
6:18
Speaker 4: 303 Creative and more. So first, it's important to recognize
6:23
Speaker 4: that Justice Gorsuch understands the decision to only be creating
6:27
Speaker 4: a First Amendment exception where a goods or service provider
6:30
Speaker 4: is engaged in, quote unquote, pure speech and would be
6:34
Speaker 4: required to do something that constitutes pure speech. And he
6:37
Speaker 4: says this is such a case because the parties basically
6:40
Speaker 4: stipulated to that, writing that Smith would be asked to
6:44
Speaker 4: create websites that, quote, celebrate and promote the the couple's
6:47
Speaker 4: wedding and unique love story and to celebrate and promote
6:50
Speaker 4: certain marriages. And that the resulting websites doing this would
6:54
Speaker 4: be Smith's speech, right?
6:57
Speaker 8: So that's really important.
6:58
Speaker 4: So this turns on the question of whether the business
7:01
Speaker 4: activity is speechy, right? But who gets to decide what's speechy?
7:07
Speaker 4: It seems that that's one Neil Gorsuch who has decided
7:11
Speaker 4: that websites are speechy. And in the future, it's the
7:14
Speaker 4: six to three court that will decide what else is speechy.
7:17
Speaker 4: And I just want to take a moment here to
7:20
Speaker 4: really rebuke all of you Neil Gorsuch stans from the
7:23
Speaker 4: Bostock days. I haven't forgotten you. I remember when you
7:27
Speaker 4: were like, that Neil Gorsuch, he seems really.
7:30
Speaker 5: Let's make him the leader of the pride parade. Yes, yes.
7:33
Speaker 4: People said that. People said that. And I was like,
7:37
Speaker 4: I don't know about that. I mean, this is textual-ish.
7:41
Speaker 4: Bostock was textual-ish. And more importantly- Neil Gorsuch dropped some
7:45
Speaker 4: major fucking breadcrumbs at the back where he was like,
7:47
Speaker 4: religious liberty might trump all of this.
7:49
Speaker 8: And also RFRA is a super statute.
7:51
Speaker 4: And he told us who he was. And so all
7:54
Speaker 4: the folks were like, you know, Neil Gorsuch wrote Bostock.
7:56
Speaker 4: I just don't know. And I'm just like, I do know.
7:58
Speaker 4: And I've known for a long time. So I just
8:00
Speaker 4: want to say, you're welcome. Like I said this.
8:04
Speaker 3: Can I just say something about the pure speech issue?
8:05
Speaker 6: I'm sorry.
8:06
Speaker 3: I think it's definitely right that in the opinion, there's
8:09
Speaker 3: a mention of the fact that the lower court held
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Speaker 3: that this website would be pure speech. But I actually
8:14
Speaker 3: don't read anything in the opinion to say this is
8:16
Speaker 3: an exclusive, like, get out of public accommodation laws free
8:20
Speaker 3: card only for businesses that are engaging in what we
8:23
Speaker 3: might characterize as pure speech. He just says that's one
8:25
Speaker 3: of the many stipulations, I think, that was made here,
8:27
Speaker 3: including also the fact that this was an expressive product
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Speaker 3: as opposed to, like, you know, a pre-made sandwich or something,
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Speaker 3: which I don't know, maybe we'll be litigating whether those
8:35
Speaker 3: are expressive too, at least like custom sandwiches.
8:37
Speaker 8: I think that's exactly right.
8:38
Speaker 3: I think that's really hard to figure out, like what
8:40
Speaker 3: exactly the limiting principle or principles in this case.
8:42
Speaker 8: Because there is no limiting principle. There is no limiting principle.
8:45
Speaker 6: I mean, the limiting principle is, as you said, Melissa,
8:48
Speaker 6: like what things this 6-3 court will recognize as speechy.
8:52
Speaker 6: And I am personally very much looking forward to the
8:55
Speaker 6: next 30 years of civil rights and public accommodations litigation
8:58
Speaker 6: where about what goods and services are pure speech, something
9:01
Speaker 6: that I'm sure this court will resolve in very principled
9:04
Speaker 6: and sensible ways. Once again, reminding everyone of what you've
9:07
Speaker 6: been saying, Melissa, it's not like this court resolves issues.
9:10
Speaker 6: It just creates new ones that give it more power
9:14
Speaker 6: to set the rules we all have to live by.
9:16
Speaker 6: So just for example, what if the wedding websites here
9:19
Speaker 6: just said, here's the date of the wedding?
9:22
Speaker 5: Would that be pure speech?
9:23
Speaker 6: I don't know. Or how about some words on a cake?
9:26
Speaker 6: Or what about a counselor's words? Or what about some
9:29
Speaker 6: custom-made shirts from Etsy where you can pick the phrase?
9:32
Speaker 6: I mean, we don't even know what kind of websites
9:34
Speaker 6: Smith might make since she hasn't ever been.
9:36
Speaker 5: Asked to make one.
9:39
Speaker 8: I was just transfixed, Leah.
9:41
Speaker 6: I allowed myself a little bit too much caffeine this
9:44
Speaker 6: morning already, both for the concert and for the hand-down.
9:47
Speaker 5: As someone who never drinks caffeine... I should have.
9:50
Speaker 6: Stopped myself at the half-calf caramel macchiato. Instead, I had
9:55
Speaker 6: the full calf, and I am on like 200% full
9:59
Speaker 6: send already, basically shaking from caffeine and rage.
10:02
Speaker 5: She ready.
10:03
Speaker 3: So I like this, but I wonder whether we should
10:05
Speaker 3: put a little like Moscato in your mug for the
10:07
Speaker 3: second episode we're going to record today.
10:09
Speaker 7: Maybe a little downer.
10:10
Speaker 5: Drunk term recap.
10:13
Speaker 4: To go with their drunk history.
10:15
Speaker 8: But I like this, Leah. I like that you're ready. Okay.
10:17
Speaker 4: So To Leah's point, Justice Sotomayor also raised this in
10:21
Speaker 4: her dissent. She noted that Colorado does not require the
10:26
Speaker 4: company to speak the state's preferred message. The company could,
10:29
Speaker 4: for example. offer only wedding websites with biblical quotations describing
10:33
Speaker 4: marriage as between one man and one woman. The company
10:36
Speaker 4: could also refuse to include the words love is love
10:38
Speaker 4: if it would not provide those words to any customer. Basically,
10:42
Speaker 4: her point is the state doesn't regulate the kind of
10:45
Speaker 4: business that you are. It just says when you decide
10:49
Speaker 4: what kind of business you're going to have and you
10:50
Speaker 4: go into.
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Speaker 8: The public space and public sphere, you have.
10:54
Speaker 4: To serve all comers in accordance with the Colorado anti-discrimination law.
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Speaker 8: So That's her point.
11:00
Speaker 4: It's also worth noting here that we have no fucking
11:03
Speaker 4: idea what kind of website business Lori Smith is running
11:07
Speaker 4: because Lori Smith's entire dispute is completely hypothetical and should
11:11
Speaker 4: not have been heard.
11:12
Speaker 8: And I will literally die on that hill.
11:15
Speaker 6: Yeah. And here we should just renote the reporting done
11:17
Speaker 6: by Melissa Guerra-Grant at The New Republic that we discussed
11:20
Speaker 6: on yesterday's episode. pointing out how, right, this website submission
11:24
Speaker 6: that the website designer's lawyers pointed to from a guy
11:27
Speaker 6: named Stewart allegedly requesting a same-sex wedding is falling apart
11:32
Speaker 6: on even the quickest inspections because Stewart, right, is a
11:37
Speaker 6: straight man married to a woman and maintains he never
11:39
Speaker 6: requested such a wedding website from Lori Smith. But I
11:43
Speaker 6: guess standing like, yeah, sure, whatever, you can accomplish it
11:47
Speaker 6: via iffy website submissions now.
11:49
Speaker 8: So that's cool.
11:49
Speaker 4: And remember, the oral arguments in this case were absolutely
11:54
Speaker 4: unhinged with Justice Alito having a very normal one, just
11:59
Speaker 4: with bonkers hypotheticals about Black Santa, suggesting that his colleague,
12:04
Speaker 4: Justice Kagan, might be frequenting an adultery website. I mean,
12:08
Speaker 4: it was truly, truly, truly off the wall. And it
12:12
Speaker 4: was pretty much off the wall because there were no
12:15
Speaker 4: actual facts here to ground this case and the oral argument.
12:19
Speaker 4: But leaving that to the side, this court decided to
12:22
Speaker 4: wade in and pretend as though this were a settled
12:25
Speaker 4: case with a settled claim and a settled injury. And
12:29
Speaker 4: picking up on these truly deranged hypotheticals from the oral
12:32
Speaker 4: argument in this very hypothetical case, Justice Gorsuch, in this opinion,
12:36
Speaker 4: says that if Lori Smith did not prevail here, then, quote,
12:40
Speaker 4: The government could force all manner of artists, speechwriters, and
12:43
Speaker 4: others whose services involve speech to speak what they do
12:46
Speaker 4: not believe on pain of penalty. The government could require
12:50
Speaker 4: an unwilling Muslim movie director to make a film with
12:52
Speaker 4: a Zionist message or an atheist muralist to accept a
12:56
Speaker 4: commission celebrating evangelical zeal. Equally, the government could force a
13:01
Speaker 4: male website designer married to another man to design websites
13:03
Speaker 4: for an organization called that advocates against same-sex marriage.
13:08
Speaker 8: This was in the brief for the petitioners.
13:10
Speaker 4: So again, all of this sort of underscores Neil Gorsuch's
13:15
Speaker 4: libertarian streak. It also raises, earlier in the term, I
13:19
Speaker 4: forget which case it was in, but an oral argument
13:21
Speaker 4: he talked about Maoist camps, like the indoctrination.
13:24
Speaker 8: Oh, that was this one.
13:25
Speaker 6: He referred to Colorado's anti-discrimination statutes and the Jack Phillips
13:31
Speaker 6: case as subjecting the baker, who Colorado said couldn't refuse
13:35
Speaker 6: to make a cake for a same-sex wedding, as subjecting
13:38
Speaker 6: the baker to, quote, a re-education camp.
13:40
Speaker 8: All very much in the worldview of Neil Gorsuch.
13:43
Speaker 4: I think this is what passes for libertarianism, but definitely anti-statist,
13:48
Speaker 4: definitely a In favor of the individual and basically allowing
13:52
Speaker 4: each individual to prosecute his or her personal views on
13:57
Speaker 4: all of the rest of us.
13:58
Speaker 6: Well, only some individuals, right? Since, of course, the gay
14:03
Speaker 6: couple can't actually go into a good or service provider
14:07
Speaker 6: and ask to be served.
14:08
Speaker 8: Well, they're not people, Leah. They're not individuals, Leah.
14:11
Speaker 5: You know, this was from the discussion of yesterday.
14:14
Speaker 8: Why do you keep forgetting that part?
14:17
Speaker 6: But also all of the hypotheticals that Gorsuch trots out
14:20
Speaker 6: here about the film director and whatnot are completely wrong
14:25
Speaker 6: and insane because that's not how public accommodations law works.
14:29
Speaker 6: Directors don't hold themselves out as directing every movie that
14:34
Speaker 6: comes before them. Steven Spielberg is not a public accommodation.
14:38
Speaker 6: I can't go to him and say, I would.
14:41
Speaker 7: Like- Demand a leading role. No, you can't.
14:43
Speaker 9: Yes.
14:44
Speaker 8: Fill my wedding. Fill my wedding.
14:47
Speaker 5: You hold yourself out as serving all comers.
14:49
Speaker 8: Cast me in your movie.
14:50
Speaker 6: Here's my movie about how I'm BFFs with Katonji Brown Jackson,
14:54
Speaker 6: and we go to all the Taylor Swift concerts together.
14:57
Speaker 5: Make that movie, bitch. I'm like, it's not going to happen.
15:00
Speaker 8: Crossroads 2, Katonji and Leah.
15:05
Speaker 7: Okay, Spielberg should make this.
15:07
Speaker 3: But the point is like public accommodation laws are about
15:10
Speaker 3: individuals who provide broadly available goods and services in the
15:14
Speaker 3: commercial marketplace and serve all comers. And that does not
15:17
Speaker 3: encompass every commercial transaction, every professional interaction, and many of
15:22
Speaker 3: the hypotheticals seem quite deliberately obtuse about the actual definition
15:27
Speaker 3: of a public accommodation. And I think it's really clear
15:29
Speaker 3: that the more likely implications from this decision are what
15:34
Speaker 3: will follow from the court having recognized for the first
15:37
Speaker 3: time a constitutional right to refuse service in the context
15:40
Speaker 3: of ordinary public accommodations? And Justice Sotomayor's dissent says really
15:44
Speaker 3: clearly that, you know, we were talking before about limiting principles.
15:47
Speaker 3: There's nothing in the majority opinion that says there is
15:50
Speaker 3: only a First Amendment right to refuse service to gay
15:53
Speaker 3: people or LGBTQ people or same-sex weddings. There will be
15:56
Speaker 3: lots of questions about what other services can be refused
16:00
Speaker 3: to what other members of protected groups. I mean, She
16:03
Speaker 3: says very explicitly in her dissent that the decision's logic
16:07
Speaker 3: cannot be limited to discrimination on the basis of sexual
16:09
Speaker 3: orientation or gender identity. The decision threatens to balkanize the
16:13
Speaker 3: market to allow the exclusion of other groups from many services.
16:16
Speaker 3: And she says really clearly a website designer could equally
16:18
Speaker 3: refuse to create a wedding website for an interracial couple,
16:20
Speaker 3: for example. references historical objection to interracial marriage, specifically on
16:27
Speaker 3: the grounds of religion.
16:29
Speaker 7: So she is, I think, right.
16:31
Speaker 3: And there's not really any attempt on the part of
16:33
Speaker 3: the Gorsuch majority to suggest that there is such a limitation.
16:37
Speaker 3: I don't think nor could there be. There's also, I think,
16:40
Speaker 3: this very big problem in the Gorsuch opinion, which is like,
16:44
Speaker 3: there's this tonal quality to the opinion, which is like,
16:47
Speaker 3: The real problem here is people asking for their civil
16:50
Speaker 3: rights when everybody just wants to be left alone in
16:53
Speaker 3: this libertarian vision of, I don't know, our collective existence
16:57
Speaker 3: that Gorsuch has. And he basically says, look, the reason
17:00
Speaker 3: we even have a problem here is because states are
17:01
Speaker 3: trying to expand public accommodation. And he discusses many states,
17:05
Speaker 3: including Colorado, having expanded the reach of non-discrimination rules in
17:08
Speaker 3: recent years to cover, he says, virtually every place have
17:11
Speaker 3: been disengaged in any sales to the public and also
17:14
Speaker 3: to include other forms of discrimination in including discrimination on
17:18
Speaker 3: the basis of sexual orientation and gender identity. I will say,
17:21
Speaker 3: I actually, even though there's this incredibly kind of grudging
17:25
Speaker 3: quality to this overall narrative, I do think he seems
17:28
Speaker 3: to be suggesting that as a general matter, expansion of
17:33
Speaker 3: non-discrimination provisions to include sexual orientation are constitutionally sound.
17:37
Speaker 7: Well, sure.
17:38
Speaker 6: It's just that, like, they can't be enforced against anyone
17:40
Speaker 6: who objects to them because why? I mean, because the
17:44
Speaker 6: problem is, like, gay people actually asking to be able
17:47
Speaker 6: to participate in public life.
17:49
Speaker 5: He's like, stay in the closet, gays, right?
17:52
Speaker 8: Right.
17:54
Speaker 3: And the protections on the books are totally fine. We
17:56
Speaker 3: are happy for them to exist.
17:58
Speaker 7: Yeah, but, like, you just can't enforce them.
17:59
Speaker 1: Right, right, right.
18:00
Speaker 8: This is basically an Ayn Rand fever dream.
18:04
Speaker 5: Like, it's what it is.
18:06
Speaker 6: And because, you know, there's almost nothing more that the
18:08
Speaker 6: Republican-appointed justices love to do than to deny doing what.
18:12
Speaker 5: It is, in fact, they are doing.
18:15
Speaker 6: Here, Justice Gorsuch insists that this case, 303 Creative, is
18:19
Speaker 6: not actually about status discrimination. That it's not actually about
18:23
Speaker 6: discriminating against people because of who they are and who
18:27
Speaker 6: they love. rather than, say, the message of a particular wedding. Which,
18:32
Speaker 6: of course, is horseshit because we all know how many
18:35
Speaker 6: gay couples go to wedding website designers asking for wedding
18:38
Speaker 6: websites for straight couples and how many straight couples go
18:40
Speaker 6: to wedding website designers asking for wedding websites for gay couples.
18:44
Speaker 3: Although, actually, we should say that Melissa Guerra-Grant's reporting suggests
18:48
Speaker 3: that this case may involve the sole instance that.
18:51
Speaker 7: We know of.
18:52
Speaker 8: That's true.
18:53
Speaker 3: This individual, who seems to be a straight man, maybe was,
18:57
Speaker 3: at least according to the filings earlier in this case...
19:00
Speaker 3: did ask for a same-sex wedding website.
19:02
Speaker 6: But then that, too, takes up this hypothetical about we
19:05
Speaker 6: don't actually know whether Laurie Smith would make this website
19:09
Speaker 6: if it was actually a straight man married to a
19:12
Speaker 6: woman asking for it. Because recall the exchange between her
19:16
Speaker 6: lawyer and Justice Barrett from the oral argument when Justice
19:19
Speaker 6: Barrett is like, well, of course she also wouldn't make
19:22
Speaker 6: a wedding website for a straight couple wanting to celebrate
19:25
Speaker 6: gay marriage. And the lawyer was like, oh, no, she'd
19:28
Speaker 6: make that, Your Honor. And then Justice Barrett came.
19:30
Speaker 8: Back around and was like, no, no, no, no.
19:31
Speaker 3: And then Barrett was like, she slipped her a note
19:33
Speaker 3: and was like, no, no, you meant to say the opposite.
19:35
Speaker 8: It's like, Kristen, stop reading Ayn Rand. Just focus, girl. Focus.
19:40
Speaker 7: Get with the program.
19:41
Speaker 6: And Justice Sotomayor, of course, calls out the majority's distinction
19:44
Speaker 6: between status and message as, quote, embarrassing, which it is.
19:49
Speaker 6: And then Justice Gorsuch responds to her dissent and Justice
19:53
Speaker 6: Sotomayor responds back, in kind, saying that petitioners' contrivance that
19:59
Speaker 6: a prohibition on status-based discrimination can be avoided by asserting
20:02
Speaker 6: that a group can always buy services on behalf of
20:04
Speaker 6: others or else that the group can access a separate
20:07
Speaker 6: but equal subset of the services made available to everyone
20:11
Speaker 6: is what's embarrassing.
20:12
Speaker 4: Well, also, I will just say this morning on MSNBC,
20:16
Speaker 4: Kerry Severino, who is the head of the Judicial Crisis Network,
20:19
Speaker 4: one of the many organizations in the Leonard Leo universe, multiverse,
20:24
Speaker 4: as you will, basically made the same argument, like trying
20:28
Speaker 4: to explain to people, you know, ain't no thing here.
20:31
Speaker 4: You can just get your straight friends to buy this
20:34
Speaker 4: website for you or buy a cake for you, or
20:36
Speaker 4: you can just go somewhere else.
20:37
Speaker 8: And it's 1954 all over again.
20:40
Speaker 3: And the fact that anyone would think that like the
20:42
Speaker 3: stigmatic harm and just being like you have to go
20:44
Speaker 3: searching for someone who will serve you or you need
20:46
Speaker 3: to contrive some kind of intermediary to get you a
20:50
Speaker 3: good or service that your straight friends can get without
20:53
Speaker 3: thinking twice. Literally the constitutional jurisprudence of like middleman website
20:57
Speaker 3: acquisition is just like it's so deranged.
21:00
Speaker 7: I cannot believe anyone takes that position with a straight face.
21:03
Speaker 6: And Justice Sotomayor really called this out. So maybe we
21:07
Speaker 6: can turn a little bit more to her dissent.
21:10
Speaker 4: So she writes, the legal duty of a business open
21:13
Speaker 4: to the public is to serve the public without unjust
21:16
Speaker 4: discrimination and is deeply rooted in our history. And so
21:20
Speaker 4: Justice Gorsuch chastises Justice Sotomayor's use of history in her dissent.
21:26
Speaker 4: And again, there's this history of public accommodations law that
21:30
Speaker 4: she canvases, and it's relevant here because she talks about
21:33
Speaker 4: the history of sex and gender discrimination in And how
21:36
Speaker 4: the introduction of public accommodations law changed a lot of that,
21:39
Speaker 4: making the public sphere essentially available to women and minorities
21:43
Speaker 4: who previously had been foreclosed. And she says, yet for
21:46
Speaker 4: as long as public accommodations laws have been around, businesses
21:49
Speaker 4: have sought exemptions from them. And this goes back to
21:52
Speaker 4: this whole idea, like one step forward, there's always two
21:55
Speaker 4: steps back because of this backlash and reaction. The civil
21:58
Speaker 4: rights and women's liberation eras are prominent examples of this.
22:01
Speaker 4: Backlashes to race and sex equality gave rise to legal
22:04
Speaker 4: claims of rights to discriminate, including claims based on First
22:08
Speaker 4: Amendment freedoms of expression and association.
22:10
Speaker 8: So this isn't new.
22:12
Speaker 4: It's just the first time this court has actually given
22:15
Speaker 4: quarter to these arguments. Basically, people have been trying to
22:19
Speaker 4: limit the scope of anti-discrimination law for years by resort
22:22
Speaker 4: to the First Amendment, either through religious freedom or through
22:25
Speaker 4: speech and They've always been rejected.
22:28
Speaker 8: See Piggy Park. See Bob Jones.
22:31
Speaker 3: Whatever.
22:31
Speaker 4: But now the court is like, all of that. Here,
22:36
Speaker 4: the court's like, nope, we're open for business.
22:38
Speaker 8: Let's do it.
22:40
Speaker 6: Speaking of being open for business, Justice Sotomayor really dug
22:44
Speaker 6: into the point that you and Kate were talking about,
22:47
Speaker 6: which is there is a real dignitary harm of refusals
22:52
Speaker 6: to service, even if hypothetically you could obtain the service
22:56
Speaker 6: from another provider or ask a friend to help you
22:59
Speaker 6: obtain the service or good from a particular provider. So
23:02
Speaker 6: Justice Sotomayor's dissent has long extended passages writing about how
23:06
Speaker 6: LGBT people no less than anyone else deserve dignity and
23:09
Speaker 6: freedom and explaining how state-sponsored discrimination is compounded by discrimination
23:15
Speaker 6: in public accommodations and how that combines to create an
23:18
Speaker 6: environment in which LGBT people are unsafe. The closing of
23:23
Speaker 6: her dissent, like the final section, I think is really remarkable.
23:27
Speaker 6: So She says today is a sad day in American
23:31
Speaker 6: constitutional law and in the lives of LGBT people. Talking
23:35
Speaker 6: about the message that recognizing a constitutional right to refuse
23:41
Speaker 6: and allowing businesses to hold up signs saying no service
23:44
Speaker 6: for same-sex weddings sends. And she ties this reasoning to
23:50
Speaker 6: the current moment we are in. writing that LGBT rights
23:54
Speaker 6: have made historic strides and that she is proud of
23:56
Speaker 6: the role this court has recently played, but that the
24:00
Speaker 6: court is taking a step backward at a time when
24:02
Speaker 6: a slew of anti-LGBT laws have been passed throughout the country,
24:07
Speaker 6: raising the specter of a bare desire to harm a
24:10
Speaker 6: politically unpopular group.
24:12
Speaker 3: And she not only suggests that the court is blessing
24:15
Speaker 3: businesses literally putting up signs that say things like, you know,
24:18
Speaker 3: we're not going to provide services that attach to same-sex weddings.
24:22
Speaker 3: She actually says the opinion of the court is itself
24:26
Speaker 3: a notice that reads something like some services may be
24:29
Speaker 3: denied to same-sex couples. Like that's what the court has
24:31
Speaker 3: penned in this opinion. And she strikes this note at
24:35
Speaker 3: the end that I thought was really important that underscores
24:39
Speaker 3: that the court does not have a monopoly on the
24:42
Speaker 3: meaning of the Constitution.
24:43
Speaker 7: And so she writes this really explicitly.
24:44
Speaker 3: She says, I fear that the symbolic damage of the
24:47
Speaker 3: court's opinion is done, but that does not mean that
24:49
Speaker 3: we are powerless in the face of the decision. The
24:52
Speaker 3: meaning of our Constitution is not found in any law volume,
24:55
Speaker 3: but in the spirit of the people who live under it.
24:57
Speaker 3: Every business owner in America has a choice whether to
25:00
Speaker 3: live out the values in the Constitution. Make no mistake,
25:02
Speaker 3: invidious discrimination is not one of them. So it is
25:06
Speaker 3: this kind of clarion call. We don't have to be
25:08
Speaker 3: constrained by what this group of six super conservative justices
25:12
Speaker 3: decide the Constitution means. We get to decide for ourselves.
25:15
Speaker 3: And as much as they seem determined to kind of
25:17
Speaker 3: tear us apart from each other, like the values of
25:20
Speaker 3: inclusivity and pluralism are ones that like we can decide
25:23
Speaker 3: the Constitution contains and live under them. Again, it would
25:25
Speaker 3: be better if the Constitution, as interpreted by the Supreme Court,
25:28
Speaker 3: commanded it as it has until today. But I think
25:31
Speaker 3: it's important that she strikes this tone that we are
25:33
Speaker 3: not powerless.
25:35
Speaker 4: She also, again, as she did in the earlier affirmative
25:38
Speaker 4: action case, made clear that her dissent was offered as
25:42
Speaker 4: a dissent without any respectfully attached to it. So she's
25:46
Speaker 4: not playing the game here. Our Constitution contains no right
25:49
Speaker 4: to refuse service to a disfavored group.
25:51
Speaker 8: I dissent. So Sotomayor out. I think it's worth mentioning.
25:56
Speaker 4: Coming back to Obergefell here, like we've been talking about,
26:00
Speaker 4: you know, what the fallout from Dobbs would mean for
26:04
Speaker 4: groups like the LGBTQ community. And lots of people have
26:07
Speaker 4: pointed to Justice Thomas's concurrence in which he identified Obergefell
26:11
Speaker 4: as one of the decisions that he was eager to
26:14
Speaker 4: reconsider and possibly overrule as the court had done with
26:17
Speaker 4: Roe and Casey. we haven't seen any opening salvos against Obergefell,
26:23
Speaker 4: like no frontal efforts to roll back Obergefell. But I
26:27
Speaker 4: think you could understand this case as perhaps the beginning
26:31
Speaker 4: of that project or the seeds of that project.
26:33
Speaker 8: And I say it in this way, like this is
26:36
Speaker 8: not about.
26:37
Speaker 4: Whether the government should recognize same-sex marriages or not.
26:41
Speaker 8: Like it's not about that at all.
26:42
Speaker 4: But It is a case about whether we can normalize
26:46
Speaker 4: the prospect that certain groups can expect discriminatory treatment when
26:51
Speaker 4: they are interacting with the public. And once you begin
26:54
Speaker 4: the project of normalizing discrimination, I don't think you're that
26:58
Speaker 4: far down the road from then making the leap to
27:02
Speaker 4: invalidating same-sex marriages or refusing to recognize same-sex marriages. And again,
27:06
Speaker 4: it may be a very long road, but so was Roe,
27:09
Speaker 4: and it began there. with chipping away at access to abortion.
27:12
Speaker 4: This is the beginning of the chipping away. Once you
27:15
Speaker 4: start deciding that same-sex weddings just don't have the expectation
27:20
Speaker 4: of the same treatment as straight weddings, then we're already
27:25
Speaker 4: down that road.
27:26
Speaker 8: So again, constant vigilance.
27:29
Speaker 6: And just to echo what you were saying about this
27:31
Speaker 6: paving the way to future rollbacks of civil rights, I
27:34
Speaker 6: wanted to highlight some research done on social psychology and
27:38
Speaker 6: experimental jurisprudence by Sarah Emily Burke and my colleague Rosanna
27:42
Speaker 6: Summers in the Chicago Law Review. It's a piece on
27:44
Speaker 6: reducing prejudice through law, evidence from experimental psychology.
27:49
Speaker 5: And they ran experiments.
27:51
Speaker 6: And what they found is when people learn that certain
27:56
Speaker 6: kinds of discrimination is prohibited by law, it leads some
28:01
Speaker 6: people to report less prejudicial attitudes and greater feelings of
28:06
Speaker 6: interpersonal warmth toward members of the group who the law
28:10
Speaker 6: prohibits you from discriminating against. And conversely, they also find
28:15
Speaker 6: that when people learn that the law permits discrimination against
28:18
Speaker 6: a group, it facilitates and enables more prejudicial attitudes. So
28:23
Speaker 6: that's one thing I just wanted to highlight by way
28:26
Speaker 6: of implications. And then the other is another study, this
28:30
Speaker 6: one more empirical by Stephen Choi, Mito Gulati, and Eric Posner.
28:34
Speaker 6: a paper on Trump's lower court judges and religion. And
28:37
Speaker 6: what they did is they studied First Amendment free exercise claims,
28:41
Speaker 6: you know, as they were ruled upon by Court of
28:43
Speaker 6: Appeals judges and found that President Trump's appointments to the
28:46
Speaker 6: circuit court more frequently vote in favor of Christian plaintiffs
28:49
Speaker 6: and less frequently vote in favor of Muslim plaintiffs in
28:52
Speaker 6: free exercise cases as compared to other appointees by other
28:55
Speaker 6: Republican presidents, as well as by Democratic presidents.
29:07
Speaker 3: Because everything is fakakta, we also got the same morning,
29:11
Speaker 3: the student debt relief opinions. And let's start with the
29:14
Speaker 3: bottom lines in those opinions. Justice Alito first wrote a
29:17
Speaker 3: unanimous opinion finding that private borrowers who were just mad
29:21
Speaker 3: they didn't get more debt relief don't have standing. So
29:24
Speaker 3: like a glimmer of sanity from this truly deranged court.
29:27
Speaker 7: But don't worry.
29:28
Speaker 3: In the other case, the chief justice wrote for the
29:31
Speaker 3: six Republican appointees to conclude that the states whose standing
29:35
Speaker 3: claim to my mind was basically as weak as the
29:38
Speaker 3: standing claim of the individual plaintiffs. But never mind. Those states,
29:41
Speaker 3: according to the majority, did have standing. And when the
29:44
Speaker 3: court reached the merits, it struck down the administration's program
29:47
Speaker 3: of student debt relief that would have benefited 43 million Americans.
29:52
Speaker 7: That's these justices. They did that. They took away the
29:55
Speaker 7: debt relief for 43 million people.
29:57
Speaker 3: There then was a really powerful Justice Kagan dissent, really powerful,
30:02
Speaker 3: but with one really kind of conspicuous shortcoming, which is
30:06
Speaker 3: that it should have cited some award-winning recent scholarship criticizing
30:10
Speaker 3: the major questions doctrine by one of the hosts of
30:13
Speaker 3: an award-winning podcast. Justice Kagan cite Leah's major questions doctrine
30:17
Speaker 3: article challenge.
30:18
Speaker 6: This is why Steven Spielberg is making the movie about
30:20
Speaker 6: me and Justice Jackson right now.
30:24
Speaker 4: Elena Kagan is not allowed in the convertible after this light.
30:30
Speaker 8: Let's start with standing. So I think it's obvious.
30:33
Speaker 4: Not only is stare decisis for suckers, it seems like
30:36
Speaker 4: standing is also for suckers. But as Kate noted, in
30:40
Speaker 4: the case involving the two student borrowers, the.
30:43
Speaker 8: Court found that there wasn't standing.
30:45
Speaker 4: But I just want to emphasize, like, that was like
30:47
Speaker 4: the Captain Obvious of standing cases. Like, if they hadn't
30:51
Speaker 4: found that there was no standing, we might as well–
30:54
Speaker 4: take the Constitution and light it on fire because it
30:58
Speaker 4: would have been just so egregious. It was the most
31:01
Speaker 4: obvious case that there was no standing there.
31:04
Speaker 8: And so, yes, they came out the right way on
31:06
Speaker 8: that one.
31:07
Speaker 4: But for the other case involving the states, I think
31:10
Speaker 4: standing was a much tougher question. And the court found
31:15
Speaker 4: this really narrow sliver of an opening by determining that Missouri,
31:20
Speaker 4: which operates this nonprofit, Mojila, which has.
31:23
Speaker 8: Some business in the administration of student.
31:25
Speaker 4: Loans, like the fact that Mojila existed gave Missouri sufficient
31:30
Speaker 4: ties to an injury to allow it to have standing.
31:33
Speaker 8: And I think That is just a more tenuous claim.
31:37
Speaker 3: Oh, let me just say, Missouri doesn't operate Mojila.
31:40
Speaker 4: Mojila existed.
31:43
Speaker 5: The funds are separate.
31:45
Speaker 8: Mojila existed.
31:46
Speaker 4: The court says that Missouri operates Mojila. Whether, in fact,
31:50
Speaker 4: Mojila is operated by Missouri is apparently an open question.
31:54
Speaker 6: This is part of the challenge of teaching constitutional law
31:58
Speaker 6: and trying to teach opinions because it turns out you
32:01
Speaker 6: can't actually teach the facts as they are recited in
32:05
Speaker 6: the court's opinions because they might be wrong.
32:08
Speaker 4: So again, that's the sliver, like by reframing Mojila as
32:13
Speaker 4: an entity operated by the state of Missouri, which it
32:16
Speaker 4: is not, the court finds that Missouri at least has
32:19
Speaker 4: standing and that apparently opens the door for this case
32:22
Speaker 4: to actually be reviewed, right? So If you think about
32:25
Speaker 4: this case in tandem with 303 Creative, who the fuck
32:28
Speaker 4: cares about standing? Like, I mean, you'll either ignore it
32:30
Speaker 4: entirely or make up facts that give you standing so
32:34
Speaker 4: that you can get to it. If you want to
32:36
Speaker 4: get to this merits question, you're the YOLO court. You're
32:39
Speaker 4: going to do it. And apparently, when you have six,
32:42
Speaker 4: they let you do what you want. And I think
32:44
Speaker 4: some people thought that a different ruling on standing might
32:47
Speaker 4: have been possible in light of the court's decisions in
32:50
Speaker 4: Holland versus Burkine, the ICWA case, or United States versus Texas.
32:54
Speaker 8: But nope. YOLO court's going to YOLO.
32:56
Speaker 6: And I would like to take this moment to accept
32:58
Speaker 6: the apologies from all of the people who were telling
33:01
Speaker 6: me it was time to retire the phrase YOLO court
33:04
Speaker 6: because of the rulings over the last few weeks.
33:07
Speaker 1: Who said that?
33:07
Speaker 5: I'm not going to name names. This is a sub-tweet.
33:09
Speaker 8: Put it in the chat. Put it on the, ooh.
33:11
Speaker 3: I want to know.
33:12
Speaker 5: It's going in the chat. Sorry, listeners.
33:14
Speaker 3: Okay. Oh! What?
33:19
Speaker 6: What?
33:22
Speaker 2: Oh, yeah.
33:23
Speaker 8: Yeah, you're right.
33:24
Speaker 3: This is restraint and not dunking on those individuals.
33:27
Speaker 5: It's so hard.
33:28
Speaker 9: Oh, my God.
33:30
Speaker 5: It's so fucking hard. This is a struggle that is
33:34
Speaker 5: my life.
33:36
Speaker 8: The struggle is real.
33:37
Speaker 3: Melody is screaming in the chat, literally screaming in the chat.
33:40
Speaker 6: People think I'm unfiltered on this podcast.
33:44
Speaker 5: The things I don't say, you have no idea.
33:47
Speaker 3: You occasionally say them and then Melody takes them out.
33:49
Speaker 4: I mean, like, Leah, if you ever get nominated and
33:51
Speaker 4: someone is like, she has no restraint, I'm going to
33:53
Speaker 4: be like, there was.
33:54
Speaker 9: This one episode. Au contraire.
33:55
Speaker 5: Let me tell you about someone who said she also said.
33:58
Speaker 7: Oh, the most judicial temperament.
33:59
Speaker 8: Such, I mean, such restraint here. If I had Moscato,
34:03
Speaker 8: everyone would know who this person is.
34:07
Speaker 7: All right. All right. Back to the program, ladies.
34:11
Speaker 6: Okay.
34:11
Speaker 7: So let's, returning to Mojila.
34:13
Speaker 3: So what the majority reasons is that essentially under the
34:18
Speaker 3: Secretary of Education's plan, roughly half of all federal borrowers
34:21
Speaker 3: would have their loans completely discharged. And Mojila, this loan
34:24
Speaker 3: servicing entity, could no longer service closed accounts. And that
34:28
Speaker 3: would cost it, by Missouri's estimate, some $ 44 million a
34:32
Speaker 3: year in fees that it would otherwise have earned.
34:34
Speaker 6: Okay.
34:34
Speaker 7: That's what Missouri says. Mojila would like a word.
34:39
Speaker 3: Because it says that's actually not true at all. The
34:42
Speaker 3: American Prospect had some great reporting suggesting that Mojila basically
34:48
Speaker 3: did not get into this litigation, was not even aware
34:51
Speaker 3: of the lawsuit until it was filed, and very explicitly
34:55
Speaker 3: didn't want anything to do with it. So there was
34:58
Speaker 3: some public records requests for documents inside Mojila, and those
35:03
Speaker 3: records revealed employees reacting to news about the litigation and
35:09
Speaker 3: basically saying.
35:11
Speaker 8: Why do these states care about us?
35:14
Speaker 3: And one of them saying to the other, I think
35:15
Speaker 3: Mojila was opposed to this move, meaning the lawsuit, but
35:17
Speaker 3: couldn't do anything about it. And then says the Missouri
35:21
Speaker 3: attorney general needed to claim that our borrowers were harmed
35:24
Speaker 3: for standing. So they're making us look bad by filing this.
35:28
Speaker 3: Not only with Missouri on it, but especially bad because
35:31
Speaker 3: they filed it in Missouri. So basically like Mojila knows
35:34
Speaker 3: that they are a pawn in Missouri's effort just to
35:37
Speaker 3: gin up a standing case. And there's also indication that
35:41
Speaker 3: Mojila is actually going to make more money as opposed
35:43
Speaker 3: to less as a result of this federal plan. But
35:47
Speaker 3: of course, none of that seems to stop a court
35:50
Speaker 3: determined to get to the merits because YOLO.
35:52
Speaker 5: This is like Missouri's take on Dr.
35:53
Speaker 6: Seuss.
35:54
Speaker 5: Like, I am the Lorax. I speak for the trees
35:57
Speaker 5: because the trees.
35:58
Speaker 8: Have no tongue. They speak for Mojila.
36:00
Speaker 5: Mojila has no tongue, only it turns out they do
36:02
Speaker 5: and they want them to get their fucking name out
36:04
Speaker 5: of your mouth.
36:05
Speaker 7: Missouri is the Lorax. Yeah.
36:07
Speaker 4: So having dispensed with standing and Mojila as an independent entity,
36:12
Speaker 4: the court proceeds to the merits of this case because,
36:15
Speaker 4: of course, so This case turns on a question about
36:18
Speaker 4: the HEROES Act. So the HEROES Act is a statute
36:21
Speaker 4: that was passed in the wake of 9-11, and it
36:23
Speaker 4: authorizes the Secretary of Education to waive or modify any
36:28
Speaker 4: statutory or regulatory provision applicable to the student financial assistance
36:32
Speaker 4: programs under Title IV of the Education Act, authorizing waivers
36:36
Speaker 4: or modification as the Secretary deems necessary in connection with
36:40
Speaker 4: a war.
36:40
Speaker 8: Or other military operation or national emergency.
36:46
Speaker 4: As the Chief Justice framed this, the question here is
36:48
Speaker 4: not whether something should have been done, but rather who
36:52
Speaker 4: had the.
36:53
Speaker 8: Authority to do this. And this is where he drops
36:56
Speaker 8: his big tell.
36:57
Speaker 4: Our recent decision in West Virginia versus EPA involves similar
37:00
Speaker 4: concerns over the exercise of administrative power. So one, we
37:05
Speaker 4: hate the administrative state. Two, we love the major questions doctrine.
37:10
Speaker 4: And three, anytime we say West Virginia versus EPA, we're
37:13
Speaker 4: about to go ham on the made up major questions doctrine.
37:17
Speaker 7: And everyone has to drink.
37:18
Speaker 8: Everyone drink.
37:19
Speaker 6: This is like the spirit fingers of judicial interpretation. You
37:24
Speaker 6: say it and it's magic and things happen.
37:26
Speaker 3: I mean, so when Robert says the question is who
37:28
Speaker 3: has the authority, the next thing he's going to say
37:30
Speaker 3: is it's not the agency. The next thing he's going
37:32
Speaker 3: to say is it's Congress. But what he really means
37:34
Speaker 3: is it's us. Like we have the authority.
37:37
Speaker 7: It's me.
37:38
Speaker 8: I'm the problem.
37:39
Speaker 7: It's me.
37:39
Speaker 8: Yes.
37:41
Speaker 7: Thank you, Melissa.
37:43
Speaker 3: He just thinks this was the vibe from the oral
37:45
Speaker 3: argument and the vibe of the opinion that this is
37:48
Speaker 3: just too big and too much. This is essentially too
37:51
Speaker 3: much justice redux, different contexts, different doctrines, basically same thrust
37:55
Speaker 3: like we don't like.
37:56
Speaker 7: Too much justice.
37:58
Speaker 3: And so we're going to invalidate what the administration has done.
38:01
Speaker 3: And as Kagan shows in the dissent, has done pursuant
38:04
Speaker 3: to a statute that very clearly gives authority to take
38:07
Speaker 3: action in the face of national emergencies, which COVID 100% was.
38:12
Speaker 3: And all this really falls within, I think, the authority
38:14
Speaker 3: of the Secretary of Education. But that's really not giving
38:16
Speaker 3: the majority much pause. They just decide to throw it out.
38:19
Speaker 4: So again, just sort of to reiterate the major questions doctrine,
38:22
Speaker 4: the court has said in West Virginia versus EPA that
38:25
Speaker 4: in cases involving a major question— Congress has to be
38:29
Speaker 4: very specific about what the executive through the administrative state
38:34
Speaker 4: may do. Now, what constitutes a major question? Well, if
38:38
Speaker 4: you were confused, don't be. What constitutes a major question
38:41
Speaker 4: is whatever this court says is a major question. And
38:45
Speaker 4: as they've defined it, it's a matter of major political salience.
38:49
Speaker 4: So that's not really helpful either. They basically get to decide.
38:53
Speaker 4: And in determining that the major questions doctrine limits the
38:56
Speaker 4: scope of congressional authority and the administrative state's ability to
39:00
Speaker 4: act on these statutes, the person in the driver's seat
39:03
Speaker 4: is really the court. And so, I mean, this is
39:05
Speaker 4: just a continued theme from this term and from last
39:08
Speaker 4: term to some degree. I mean, Its discussion of democracy
39:11
Speaker 4: and salient issues that were removed from the people and
39:14
Speaker 4: decided by judicial fiat and Dobbs is basically saying, like,
39:18
Speaker 4: we get to decide what cases go to the people
39:20
Speaker 4: and what cases stay with us. And we decide what's
39:23
Speaker 4: of political salience. And they're just doing that again here.
39:31
Speaker 3: So Leah, you're a big expert on the major questions doctrine.
39:34
Speaker 3: Can I ask, do they add an additional element? So
39:36
Speaker 3: previously the court has said issues of political and economic
39:39
Speaker 3: significance will presumptively or often raise major questions. Here, the
39:44
Speaker 3: court uses this formulation like questions that are personal and
39:47
Speaker 3: emotionally charged.
39:49
Speaker 8: Is that the new fucking test?
39:51
Speaker 5: Feelings. Exactly, right.
39:53
Speaker 6: Like they have a lot of big feelings about this case.
39:56
Speaker 6: So the personal and emotionally charged quote comes from a
40:01
Speaker 6: secondary source that they are quoting to describe the state
40:05
Speaker 6: of the debate about student debt relief.
40:08
Speaker 5: But I take it.
40:09
Speaker 6: That they think that that's some evidence that the program
40:13
Speaker 6: is politically controversial. And lest you think we're kind of
40:16
Speaker 6: making this up, recall back to the oral argument where
40:21
Speaker 6: both John Roberts and Sam Alito were basically like, this
40:24
Speaker 6: program triggers me because I think it's unfair, and therefore
40:27
Speaker 6: it's a major question and presumptively illegal.
40:29
Speaker 5: So let's play those clips here.
40:32
Speaker 2: I think it... appropriate to consider some of the fairness arguments.
40:38
Speaker 2: You know, you have two situations. Both two kids come
40:41
Speaker 2: out of high school. They can't afford college. One takes
40:44
Speaker 2: a loan. The other says, well, I'm going to, you know,
40:47
Speaker 2: try my hand at setting up a lawn care service.
40:52
Speaker 2: And he takes out a bank loan for that. At
40:56
Speaker 2: the end of four years, we know statistically that the
41:00
Speaker 2: a person with the college degree is going to do
41:03
Speaker 2: significantly financially better over the course of life than the
41:07
Speaker 2: person without. And then along comes the government and tells
41:11
Speaker 2: that person, you don't have to pay your loan. Nobody's
41:14
Speaker 2: telling the person who is trying to set up the
41:17
Speaker 2: lawn service business that he doesn't have to pay his loan.
41:19
Speaker 2: He still does, even though his tax dollars are going
41:23
Speaker 2: to support the forgiveness of the loan for the college
41:27
Speaker 2: graduate who's now going to make a lot more than
41:29
Speaker 2: him over the course of his lifetime. Now, it seems
41:32
Speaker 2: to me you may have views on fairness of that,
41:35
Speaker 2: and they don't count. I may have views on the
41:37
Speaker 2: fairness of that, and mine don't count.
41:39
Speaker 9: And therefore, I think it's a fair question to say,
41:42
Speaker 9: what is your client's view about the fairness question that
41:48
Speaker 9: some people have posed and that was reiterated for you
41:52
Speaker 9: by the Chief Justice?
41:55
Speaker 8: The view of the department is that this is warranted.
41:57
Speaker 2: Why is it fair?
41:59
Speaker 6: Again, as Kate was alluding to, like the statute in
42:02
Speaker 6: this case pretty clearly authorizes this. As Justice Kagan noted
42:06
Speaker 6: in her dissent, the statute allows the secretary to waive
42:09
Speaker 6: or modify a requirement, which means to lessen its effect
42:12
Speaker 6: or eliminate it altogether. And so instead, the majority just
42:16
Speaker 6: invokes the major question doctrine after doing this kind of
42:20
Speaker 6: interpretation of the statute. And then it says the major
42:22
Speaker 6: questions doctrine also supports this result, leading Justice Kagan to say, like,
42:26
Speaker 6: usually when a court is confident in its interpretation of
42:29
Speaker 6: a statute's text, it spells out its reading and hits
42:31
Speaker 6: the send button. But that's not what the court did.
42:35
Speaker 6: It resorted to, as is becoming the norm, the so-called
42:37
Speaker 6: major questions doctrine. And she writes, you know, that the
42:40
Speaker 6: court is once again revealing this doctrine for what it is,
42:42
Speaker 6: a way for the court to negate Congress's choices.
42:46
Speaker 3: So the budding friendship that we had identified in earlier
42:48
Speaker 3: opinions this term between the chief justice and Justice Kagan,
42:51
Speaker 3: I'm not sure it's in great shape based on the
42:53
Speaker 3: exchange in this opinion.
42:54
Speaker 7: So the chief kind.
42:56
Speaker 3: Of like does this tone policing thing with Justice Kagan's
42:59
Speaker 3: dissent in which and she does say respectfully, which I'm
43:01
Speaker 3: not sure she had to do. And obviously, as we've
43:03
Speaker 3: pointed out, not every dissent happens.
43:05
Speaker 4: The women of color on the court are no longer
43:08
Speaker 4: doing this respectfully.
43:09
Speaker 8: And I'm there for them.
43:11
Speaker 7: Kagan is hanging on to it. Yes, totally.
43:13
Speaker 3: Kagan here does append the respectfully. That is a forceful dissent.
43:17
Speaker 3: And the majority says it has become a disturbing feature
43:21
Speaker 3: of some recent opinions to criticize the decisions with which
43:23
Speaker 3: they disagree as going beyond the proper role of the judiciary.
43:28
Speaker 6: But Kagan, of course, I mean, like, you know, what's
43:30
Speaker 6: disturbing is judicial opinions going beyond the proper role of
43:35
Speaker 6: the judiciary. Right.
43:36
Speaker 5: Like you're you're so close to getting it, John.
43:39
Speaker 6: I mean, this opinion, again, the court ends a program
43:43
Speaker 6: that would have provided relief for something like 43 million
43:47
Speaker 6: student borrowers. And the people who were benefited from this
43:51
Speaker 6: program are disproportionately lower income. The program disproportionately benefited women,
43:57
Speaker 6: communities of color. And the court's just like, no, I've
44:00
Speaker 6: got some feelings. So we're going to work it out
44:02
Speaker 6: in the US reports. And we're going to work it
44:05
Speaker 6: out by withdrawing.
44:06
Speaker 5: Student debt relief. That's going to make my feebies feel better.
44:09
Speaker 4: It would be so much cheaper for the American public
44:11
Speaker 4: if we just sent every member of the conservative supermajority
44:14
Speaker 4: a copy of Dr.
44:15
Speaker 8: Becky's book. to work out their big feelings.
44:18
Speaker 5: That would help.
44:19
Speaker 6: What also might help is if the majority really internalized
44:25
Speaker 6: the words of Taylor Swift's song, Dear John, in which
44:31
Speaker 6: she writes, and I lived in your chess game, but
44:35
Speaker 6: you changed the rules every day. I think instead of
44:39
Speaker 6: Swifties going after John Mayer, they should refocus their attention
44:42
Speaker 6: on John Roberts because he is the problem. You know,
44:47
Speaker 6: Justice Kagan, as Kate noted, did respond saying justices throughout
44:50
Speaker 6: history have raised the alarm when the court has overreached,
44:54
Speaker 6: when it has exceeded its proper role. It would have
44:57
Speaker 6: been disturbing and indeed damaging if they had not. The
45:01
Speaker 6: same is true in our own day.
45:05
Speaker 2: Indeed. Indeed.
45:06
Speaker 3: Do you think these last two days of opinions are
45:08
Speaker 3: going to, in turn, the moderate institutionalist court takes?
45:11
Speaker 7: No, no.
45:12
Speaker 2: People are so.
45:13
Speaker 5: Committed to it. They will bring it.
45:15
Speaker 6: Back every term before the end of the term whenever
45:20
Speaker 6: the court does something that is short of completely fucking deranged.
45:26
Speaker 8: No, like there's just a cottage industry. There's a cottage
45:29
Speaker 8: industry in it.
45:30
Speaker 4: And it's just like, you're just like, OK, this is
45:33
Speaker 4: not a normal one. And I want to just point
45:35
Speaker 4: out something that Kate's plus one, Chris Hayes, said on
45:39
Speaker 4: Twitter that I thought.
45:40
Speaker 1: Was- Mr.
45:41
Speaker 5: Kate Shaw. Did he have a thought?
45:42
Speaker 6: Mr.
45:42
Speaker 8: Kate Shaw.
45:43
Speaker 2: Yeah. Mr.
45:44
Speaker 7: Kate- This morning?
45:45
Speaker 8: This morning. He had a really good point on Twitter.
45:47
Speaker 4: He was just sort of like, you went to bed
45:48
Speaker 4: last night thinking you were.
45:51
Speaker 8: $ 10, 000 richer, so to speak.
45:53
Speaker 4: And now you woke up and you're $ 10, 000 in the
45:56
Speaker 4: hole because the Supreme Court decided that this was a
45:59
Speaker 4: major question about which they have major feelings. And The
46:03
Speaker 4: HEROES Act does not authorize the president to respond to
46:06
Speaker 4: this kind of emergency.
46:08
Speaker 8: And waving doesn't mean what you thought it meant. And
46:11
Speaker 8: here we are.
46:12
Speaker 4: Six people decided that you could just like eke it
46:15
Speaker 4: out and pay your loans.
46:17
Speaker 6: And maybe that $ 10, 000 isn't significant to a group of
46:20
Speaker 6: people who are coddled by billionaire benefactors and flown around
46:24
Speaker 6: the world on private jets and have their children's tuition
46:27
Speaker 6: or grandnephew's tuition paid for. right, and their credit card
46:31
Speaker 6: debts paid off, right, before they actually go through the
46:34
Speaker 6: Supreme Court confirmation process. But it actually is significant for
46:38
Speaker 6: real people.
46:39
Speaker 4: There are lots of people who have paid their student loans.
46:43
Speaker 8: I'm one of them.
46:43
Speaker 4: But I don't begrudge anybody this relief because those, like, student.
46:48
Speaker 8: Loans are, like, crushing. Like, it's expensive.
46:51
Speaker 4: Like, this is a means of social mobility. Again, I
46:54
Speaker 4: think you have to read this case in tandem because
46:56
Speaker 4: with yesterday's decision and the affirmative action cases, with the
46:59
Speaker 4: court essentially foreclosing the doors that were open to minorities,
47:05
Speaker 4: like limiting the opportunities and access to higher education, and
47:09
Speaker 4: now today saying, and if you do get through the doors,
47:12
Speaker 4: if you're able, and you're not like the scion of
47:14
Speaker 4: a family that can buy a building, and you get
47:17
Speaker 4: through the doors, when you take out the loans to
47:20
Speaker 4: be able to fund your education, you're on the hook
47:22
Speaker 4: for them.
47:23
Speaker 8: Like there's no government relief.
47:24
Speaker 4: And again, there's so many people who are talking this
47:27
Speaker 4: morning on all of the news shows about, well, you know,
47:30
Speaker 4: you know.
47:30
Speaker 8: The government never forgives loans. That's a fucking lie.
47:33
Speaker 4: The government funded PPP relief during COVID and many Congress
47:39
Speaker 4: people took advantage of that.
47:40
Speaker 8: And those loans were forgiven.
47:42
Speaker 4: And business loans are dischargeable in bankruptcy, whereas student loans
47:47
Speaker 4: are not. Like this was sort of a modest intervention
47:51
Speaker 4: to help a particular group of borrowers. And it's not
47:55
Speaker 4: out of step with other efforts on the part of
47:58
Speaker 4: the government to forgive loans and to accelerate or catalyze
48:03
Speaker 4: economic activity and development.
48:05
Speaker 6: Well, but Democrats can't make economic policy, so, you know,
48:09
Speaker 6: economic justice bad.
48:10
Speaker 5: Well, when a.
48:10
Speaker 4: Democratic president wins an election by promising student loan debt,
48:14
Speaker 4: you've got to basically cut it off at the knees.
48:16
Speaker 6: Yeah. I mean, and, you know, in the issue of, like,
48:20
Speaker 6: what happens next, it is, of course, possible that the
48:22
Speaker 6: administration could respond by adopting a different, right, student debt
48:27
Speaker 6: relief policy. Some people have speculated that maybe instead of
48:32
Speaker 6: announcing a broad policy that says anyone who meets certain
48:35
Speaker 6: criteria could have their debt forgiven, the administration would instead
48:39
Speaker 6: try to do a more individualized application process in which
48:43
Speaker 6: it would eliminate student debt for individuals on a case-by-case
48:47
Speaker 6: basis if individuals point to hardship. But that's more administratively difficult, right?
48:53
Speaker 6: And it's more difficult to implement because people might not know, like,
48:55
Speaker 6: would I be eligible?
48:56
Speaker 5: How do I apply? And so that program might.
48:59
Speaker 6: Not end up being as effective, even if the administration
49:02
Speaker 6: were to attempt to implement it.
49:04
Speaker 3: They could also decide to try to revive kind of pauses, which,
49:07
Speaker 3: of course, like there were those basically three years of pauses.
49:09
Speaker 3: This was supposed to be the end of the pauses.
49:11
Speaker 3: basically like wiping away a small percentage of, or for
49:14
Speaker 3: some people a large percentage, but.
49:16
Speaker 7: $ 10, 000 and in some.
49:17
Speaker 3: Cases $ 20, 000 of debt for eligible borrowers, and then kind
49:20
Speaker 3: of the restoration of normal repayment beyond that. But rather
49:23
Speaker 3: they could try to kind of revert to some additional
49:26
Speaker 3: kind of extension or pause. But I think, Leah, you're right,
49:29
Speaker 3: like the administrative burdens and kind of the magnitude of
49:33
Speaker 3: the impact are going to make anything else the administration
49:37
Speaker 3: tries to do less effective across the board than this.
49:40
Speaker 3: This was the most effective and straightforward way to provide
49:42
Speaker 3: targeted relief to a group of people who really, really
49:44
Speaker 3: need it. And the Supreme Court is responsible. These six
49:48
Speaker 3: justices decided like, nope, we're not going to let that stand.
49:51
Speaker 3: And people should really bear in mind who did this
49:53
Speaker 3: and who's responsible.
49:55
Speaker 6: So yeah, that's probably it for today's opinions. We will
50:00
Speaker 6: be back on Monday for a term recap episode that
50:03
Speaker 6: is going to be a banger. We are Strict Scrutiny,
50:11
Speaker 6: a Crooked Media production hosted and executive produced by me,
50:14
Speaker 6: Leo Littman, Melissa Murray, and Kate Shaw. Produced and edited
50:17
Speaker 6: by Melody Rowell. Ashley Mizuo is our associate producer. Audio
50:21
Speaker 6: support from Kyle Seglin and Veronica Simonetti. Music by Eddie Cooper.
50:24
Speaker 6: Production support from Michael Martinez, Leo Duran, and Ari Schwartz.
50:27
Speaker 6: And digital support from Amelia Montooth.