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Same-Sex Marriage & 'War' on Judges · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
0:09
Speaker 2: The nearly eight hundred thousand same sex couples in this
0:12
Speaker 2: country can breathe a sigh of relief, at least for now. Today,
0:17
Speaker 2: the Supreme Court rejected an effort to overturn its landmark
0:22
Speaker 2: twenty fifteen decision that legalized same sex marriage. Without any comment.
0:27
Speaker 2: The Justice is left intact a jury verdict against Kim Davis,
0:32
Speaker 2: the former Kentucky court clerk who drew national attention by
0:37
Speaker 2: refusing to issue marriage licenses to same sex couples. Today's
0:42
Speaker 2: order indicates that Davis couldn't get the four votes necessary
0:46
Speaker 2: for the Court to take her case. Although the appeal
0:50
Speaker 2: was a long shot, it due attention because the Supreme
0:52
Speaker 2: Court has shifted to the right since the five to
0:56
Speaker 2: four decision in obergerfelvi hodges Well. My guest is Suzanne Goldberg,
1:01
Speaker 2: a professor at Columbia Law School and director of the
1:04
Speaker 2: school Septuality and Gender Law Clinic. Suzan, this case brings
1:09
Speaker 2: up a name that was in the news ten years ago.
1:12
Speaker 2: Tell us more about Kim Davis's appeal of a three
1:15
Speaker 2: hundred and sixty thousand dollars, damages and attorney's fee award
1:20
Speaker 2: to the couple she refused to give a license to within.
1:26
Speaker 3: Days of the Supreme Court granting same sex couples the
1:30
Speaker 3: right to marry in a case called Obergofell versus Hodges.
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Speaker 3: In twenty fifteen, a couple presented themselves to Kim Davis's
1:39
Speaker 3: office and said, you know, we'd like to get our
1:41
Speaker 3: marriage license. She said no, And in fact, not only
1:47
Speaker 3: did she say no. She's a clerk for Rowan County,
1:50
Speaker 3: Kentucky and her job was to issue marriage licenses. She
1:53
Speaker 3: said she was acting under God's authority to deny this
1:56
Speaker 3: gay couple of marriage licenses. And one of the men
1:59
Speaker 3: actually say to her that she had probably given marriage
2:02
Speaker 3: licenses murderers and rapists and people who had done all
2:04
Speaker 3: sorts of horrible things, and Davis responded by saying it
2:08
Speaker 3: was fine because they're straight. So she was ultimately overridden
2:14
Speaker 3: and required to present the couple with their marriage license.
2:17
Speaker 3: But she's been up and down the change. She's been
2:20
Speaker 3: litigating for many years now, almost a decade, saying that she,
2:24
Speaker 3: as a government employee, had a right to implement her
2:28
Speaker 3: religious views against marriage for same sex couples and based
2:33
Speaker 3: on those views, deny a marriage license in her capacity
2:37
Speaker 3: as a government official. So quite complicated. It goes beyond
2:41
Speaker 3: a basic challenge to the idea of same sex couples
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Speaker 3: marrying and says essentially that somebody working as a government
2:47
Speaker 3: official should have the right to refuse services to a
2:51
Speaker 3: resident or a citizen of that location of that jurisdiction
2:55
Speaker 3: based on their faith. So when she first got up
2:59
Speaker 3: to this court in twenty twenty, Justice Thomas actually when
3:03
Speaker 3: the Court rejected her case, specifically said that her case
3:06
Speaker 3: did not cleanly present questions about Obergefell, the Court's marriage
3:11
Speaker 3: equality ruling to the court. And so this time around,
3:17
Speaker 3: when Kim Davis went up to the court, she brought
3:20
Speaker 3: the same complicated set of facts related to her personal position,
3:24
Speaker 3: but she also argued that the Court should reverse its
3:29
Speaker 3: Obergefell marriage equality ruling based on the same reasoning that
3:33
Speaker 3: the Court had used in Dabbs, the case in which
3:36
Speaker 3: the Court overturned Reversus weighed and said there's not constitutional
3:40
Speaker 3: protection related to abortion. So the question in this case
3:45
Speaker 3: was would the Court take up Kim Davis's challenge to
3:49
Speaker 3: the Obergafell marriage equality ruling the Court denied cert meaning
3:54
Speaker 3: it will not take up her challenge. Most commentators expected
3:59
Speaker 3: this because case is so particular to her situation. I
4:04
Speaker 3: think that her cert petition, her request for Supreme Court review,
4:08
Speaker 3: is best understood not as a realistic shot at getting
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Speaker 3: Supreme Court review of a Burgerfell, but instead as additional
4:18
Speaker 3: publicity for the idea that the Court someday should overturn
4:22
Speaker 3: its marriage equality ruling. And in that sense, even if
4:25
Speaker 3: this cert petition itself wasn't very troubling, the broader effort
4:30
Speaker 3: to call into question marriage equality is concerning.
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Speaker 2: So are you saying that same sex couples shouldn't breathe
4:37
Speaker 2: a sigh of relief that the Supreme Court turned this
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Speaker 2: case down.
4:40
Speaker 3: People can certainly breathe it five of relief that the
4:43
Speaker 3: Supreme Court turned down can Davis's certain petition? That said,
4:47
Speaker 3: I think it would be a mistake to think this
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Speaker 3: is the end of these kinds of cert petitions or
4:53
Speaker 3: the end of these battles. There is an ongoing effort
4:56
Speaker 3: to try to destabilize the idea of marriage equality and
5:02
Speaker 3: ultimately the Supreme Court's ruling on marriage equality. You know
5:06
Speaker 3: whether that will succeed. It doesn't seem to me it
5:08
Speaker 3: will succeed in the near future. But it is also
5:11
Speaker 3: important to keep an eye on this because I think
5:14
Speaker 3: many people would have said Roe versus Weight would not
5:17
Speaker 3: ultimately be overturned, And of course it was many decades
5:20
Speaker 3: after the Court first issued that ruling that was overturned
5:24
Speaker 3: in jobs. But we are in a time when well
5:28
Speaker 3: established precedents are coming into questions. So it's also a
5:33
Speaker 3: time for vigilance for those who care about the right
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Speaker 3: to marry as protected by the Constitution, and.
5:39
Speaker 2: The Supreme Court has shifted significantly to the right since
5:44
Speaker 2: that five to four oh Bergerfeld decision. You have three
5:47
Speaker 2: members of that majority are no longer on the Court
5:50
Speaker 2: and two have been replaced by Trump appointees, so it's
5:55
Speaker 2: a different court.
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Speaker 3: It is a very different court from the court that
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Speaker 3: decided the Obergafell case granting safe sex couples the freedom
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Speaker 3: to marry, and Chief Justice Roberts as well as other
6:08
Speaker 3: members of the Court specifically dissented from that ruling, So
6:11
Speaker 3: we'll have to see. I think the key takeaway is
6:16
Speaker 3: in the marriage equality right is safe at this moment,
6:20
Speaker 3: and certainly it is a good thing in my view.
6:23
Speaker 3: That the Supreme Court denied Kim Davis's petition for lots
6:26
Speaker 3: of reasons, and at the same time, it is important
6:30
Speaker 3: to pay attention to what is going on both societally
6:35
Speaker 3: and in legal challenges to see where this will land.
6:39
Speaker 3: There are a number of state legislators who have introduced
6:43
Speaker 3: various bills to try to cut back on marriage equality.
6:46
Speaker 3: We haven't seen those get a lot of traction at
6:49
Speaker 3: this point, but again, it's something else to pay attention to.
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Speaker 2: It always seems to me that it would be very
6:55
Speaker 2: difficult to take away same sex marriage because you have
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Speaker 2: these new eight hundred thousand couples who've acted in reliance
7:03
Speaker 2: on the right to same sex marriage, getting married, having children,
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Speaker 2: sharing finances, etc. What would happen to all that if
7:12
Speaker 2: the Supreme Court took back the right to same sex marriage.
7:17
Speaker 3: To take away marriage equality would be an administrative disaster
7:23
Speaker 3: in states and at the federal level. So it would
7:26
Speaker 3: be complicated and unfair in addition to in my view, unconstitutional.
7:33
Speaker 3: At the same time, we know there are people who
7:36
Speaker 3: are committed to taking that away. Precisely. Would also say
7:40
Speaker 3: that even though access to abortion presents different issues, access
7:46
Speaker 3: to abortion as a part of reproductive healthcare has certainly
7:51
Speaker 3: been something that women have relied on for decades where
7:55
Speaker 3: they live or in states nearby, and people have ordered
7:58
Speaker 3: their lives around this. Not in the same way as marriage,
8:01
Speaker 3: but it has certainly been an important form of reproductive
8:05
Speaker 3: health care that is now being denied in a number state.
8:08
Speaker 3: So there's a set of challenges to access to healthcare,
8:14
Speaker 3: to access to relationship recognition that are continuing to be
8:20
Speaker 3: debated and have important implications for people who live throughout
8:24
Speaker 3: this country.
8:25
Speaker 2: Something that repeatedly comes up in discussions about same sex
8:29
Speaker 2: marriage is that Conservative Justice Clarence Thomas, in a concurring
8:34
Speaker 2: opinion in the DBS abortion case, so the justices should
8:39
Speaker 2: reconsider all the courts substantive due process precedents, specifically mentioning
8:45
Speaker 2: the cases involving same sex marriage and contraception. Will you
8:50
Speaker 2: explain his position?
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Speaker 3: The idea of substantive due process is that the US
8:57
Speaker 3: Constitution protects Americans in our day to day lives from
9:01
Speaker 3: government interference with certain fundamental rights, including rights that are
9:08
Speaker 3: deeply recognized as part of individual autonomy. Access to contraception,
9:14
Speaker 3: certain parental rights, certain other rights to sexual relationships between
9:20
Speaker 3: consenting adults in private for non commercial purposes, and so
9:25
Speaker 3: Justice Thomas has long taken the position that the Constitution
9:29
Speaker 3: does not protect these rights that have long been considered fundamental.
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Speaker 3: Does not protect marriage equality, does not protect access to contraception,
9:37
Speaker 3: does not protect access to abortion. If there were more
9:41
Speaker 3: justices to take his position that is not only with
9:45
Speaker 3: respect to abortion and marriage, but more generally sweeping off
9:50
Speaker 3: the table any constitutional protections understood in these ways, we
9:54
Speaker 3: would be living in a very different country. And again,
9:57
Speaker 3: it's not to say that everything would change at once,
10:00
Speaker 3: because the absence of a substantive due process protection doesn't
10:05
Speaker 3: mean that states could not grant marriage equality or provide
10:09
Speaker 3: access to abortion. This is why, even in a world
10:12
Speaker 3: where Dobbs exists, we have many states that protect the
10:17
Speaker 3: right of a woman's seek an abortion as part of
10:20
Speaker 3: a reproductive health care. But what it means is that
10:23
Speaker 3: if a state chooses to criminalize abortion or chooses to
10:28
Speaker 3: refuse to recognizing six couples marriages, if Obergerfella were to
10:33
Speaker 3: be overturned, then states could refuse to provide those protections.
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Speaker 2: It's been noted that Thomas didn't mention the case of
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Speaker 2: loving versus Virginia, which struck down interracial marriage. Is there
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Speaker 2: a difference in the legal analysis or a distinction there possibly?
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Speaker 3: You know, when the Supreme Court druck down Virginia's while
10:55
Speaker 3: criminalizing into racial marriages, the court recognized a part of
11:00
Speaker 3: the problem with that law was that it gave effect
11:04
Speaker 3: to white supremacy, gave effect to the view that white
11:07
Speaker 3: people were superior to people of color. So the court
11:11
Speaker 3: did two things. It recognized that the government should not
11:15
Speaker 3: interfere with people's fundamental right to marry by restricting the
11:21
Speaker 3: race of the person who they could marry. But also
11:24
Speaker 3: the language of that ruling was in part tied deeply
11:28
Speaker 3: to the prohibition on race discrimination and a justification for
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Speaker 3: that restriction. So interracial marriage would be analyzed differently somewhat
11:38
Speaker 3: from the right to same sex couples marrying, but the
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Speaker 3: underlying idea is the same in the sense of should
11:45
Speaker 3: the government be able to restrict who you can marry
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Speaker 3: so long as that other person is a consenting adult
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Speaker 3: who is not immediately related to stay.
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Speaker 2: With me, Suzanne. Coming up next, another setback for transgender
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Speaker 2: rights Blomberg.
12:03
Speaker 1: This is Bloomberg Law with June GROSSEO from Bloomberg Radio.
12:09
Speaker 2: It's the twenty fourth win for the Trump administration on
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Speaker 2: the Supreme Court's emergency docket and the second blow to
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Speaker 2: transgender rights from the conservative justices on the so called
12:21
Speaker 2: shadow docket. In a vote down ideological lines, the Court
12:26
Speaker 2: is allowing the Trump administration to go forward with requiring
12:30
Speaker 2: passports to be marked with the sex assigned at birth.
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Speaker 2: This reverses the policy in place since nineteen ninety two,
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Speaker 2: which had allowed passports to reflect a person's gender identity.
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Speaker 2: I've been talking to Professor Suzanne Goldberg of Columbia Law School. Suzanne,
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Speaker 2: will you explain the change in policy by the Trump administration?
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Speaker 3: For nearly thirty years, actually thirty three, and as Justice
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Speaker 3: Jackson points out, across six presidential administrations, transgender Americans have
13:02
Speaker 3: been able to get US passports with their gender marker
13:07
Speaker 3: that accurately matches their gender identity. So transgender man can
13:11
Speaker 3: get M on his passport and a transgender woman can
13:15
Speaker 3: get an F on her passport, which is important for
13:19
Speaker 3: many reasons, including so that the person looks like they
13:22
Speaker 3: match their passport. But from basically nineteen ninety two to
13:26
Speaker 3: twenty ten, there was an eligibility requirement related to a
13:31
Speaker 3: surgical transition that has changed over time, but the point
13:36
Speaker 3: is for thirty three years this has been the same.
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Speaker 3: On the first day of his administration, Donald Trump issued
13:43
Speaker 3: an executive order saying that transgender people are corrosive to
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Speaker 3: the United States. In so many words, he used the
13:50
Speaker 3: word corrosive and directing the State Department to no longer
13:54
Speaker 3: issue passport to people that would be consistent with their
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Speaker 3: gender identity if they're transgender and so, the Trump executive
14:02
Speaker 3: order led the State Department to take two steps, first
14:06
Speaker 3: to stop issuing passports to transgender people consistent with their
14:11
Speaker 3: gender identity, and second to remove the ex gender marker,
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Speaker 3: which was an option for anyone who does not fit
14:19
Speaker 3: the M or the F or someone who doesn't want
14:22
Speaker 3: to share their gender identity with the US government. So,
14:27
Speaker 3: put into simple terms, the Trump administration changed policy on
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Speaker 3: the first day of the administration, and the State Department
14:35
Speaker 3: followed two days later to prevent transgender Americans from obtaining
14:40
Speaker 3: passports consistent with their gender identity.
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Speaker 2: This was an unsigned order, and the Conservative Justice's very
14:47
Speaker 2: short explanation seems to me like it's ignoring the facts
14:51
Speaker 2: that were presented in the case, the Justice has said
14:56
Speaker 2: displaying passport holders sex at births no more offense equal
14:59
Speaker 2: for detection principles than displaying their country of birth. In
15:04
Speaker 2: both cases, the government is merely attesting to historical fact
15:08
Speaker 2: without subjecting anyone to differential treatment.
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Speaker 3: It is stunning because the plaintiffs in the case explained
15:17
Speaker 3: to the district court, which agreed as did the Court
15:20
Speaker 3: of Appeals, that if you are a transgender man and
15:25
Speaker 3: you have a passport that says f on it, it
15:28
Speaker 3: does have real world harmful consequences every time you have
15:33
Speaker 3: to show that passport to someone, because the person receiving
15:36
Speaker 3: the passport may say, as has happened to some of
15:40
Speaker 3: the plaintiffs, you're using fraudulent documents because you don't appear
15:45
Speaker 3: to match your passport gender marker. So this has led
15:48
Speaker 3: to some of the plaintiffs being accused of fraud, one
15:52
Speaker 3: of the plaintiffs being strip searched, other plaintiffs facing all
15:56
Speaker 3: sorts of problems as they've tried to cross borders. So
15:59
Speaker 3: for one and the Supreme Court kind of casual remark
16:02
Speaker 3: that this is as insignificant as somebody's sort of national
16:07
Speaker 3: origin or place of citizenship is just untrue. In addition,
16:12
Speaker 3: the country of birth is not anything that affects somebody
16:17
Speaker 3: when they're using your passport and passing through security, but
16:20
Speaker 3: the gender marker is used to check accuracy, and so
16:23
Speaker 3: even on its face, the Supreme Court's analysis is wrong.
16:28
Speaker 3: The Supreme Court description, I can't really call it analysis.
16:31
Speaker 3: The Supreme Court statement is wrong, and a dissent from
16:34
Speaker 3: Justice Jackson points that out as well.
16:36
Speaker 2: The Court also found that the administration is likely to
16:40
Speaker 2: win on the merits, and the administration faced irreparable injury.
16:45
Speaker 2: I'm not sure where the irreparable injury is, since this
16:48
Speaker 2: policy is a new one that's changing what's been in place,
16:53
Speaker 2: but the conservative justices have found irreparable injury in almost
16:59
Speaker 2: all of present in Trump's emergency requests.
17:04
Speaker 3: There is no irreparable injury in the traditional way that
17:08
Speaker 3: courts look at a reparable harm. To let me explain,
17:12
Speaker 3: when a statute comes over from Congress and is challenged
17:17
Speaker 3: in the court, it is given a presumption of constitutionality, right,
17:21
Speaker 3: so the court assumes it's constitutional. But sometimes plaintiffs can
17:25
Speaker 3: show actually it's on constitutional, and the court will strike
17:29
Speaker 3: it down. And there's understood to be some arguable harm
17:32
Speaker 3: to government when a statute is put on hold, But
17:35
Speaker 3: when a government policy is put on hold, like an
17:39
Speaker 3: executive order or a preference of the president, that's a
17:43
Speaker 3: different situation that is not entitled to the same presumption
17:47
Speaker 3: of constitutionality as a statute that has been passed by Congress.
17:52
Speaker 3: And the upshot is just saying, well, the government is
17:56
Speaker 3: irreparably harmed by not being able to put in place
17:59
Speaker 3: its desire passport policy is akin to saying the government
18:04
Speaker 3: is irreparably harmed whenever it is stopped from doing something
18:08
Speaker 3: that it would like to do, And that is akin
18:11
Speaker 3: to having no judicial review over government actions at all,
18:15
Speaker 3: at least not at this preliminary stage. So that's a
18:19
Speaker 3: very serious problem from a sort of basic approach to
18:24
Speaker 3: constitutional analysis of executive actions.
18:27
Speaker 2: Justice Jackson wrote that the Court has once again paved
18:31
Speaker 2: the way for the immediate infliction of injury without adequate
18:35
Speaker 2: or really any justification. This is also a pattern of
18:40
Speaker 2: the Court at this point basically allowing the Trump administration
18:44
Speaker 2: anything it asked for on the emergency docket and saying, well,
18:47
Speaker 2: this is while litigation is pending.
18:50
Speaker 3: Yes, this is the twenty fourth consecutive grant of emergency
18:54
Speaker 3: relief to the government, and this process of the Supreme
19:00
Speaker 3: Court staining rulings of lower courts finding problems constitutional or
19:05
Speaker 3: other problems with government policies. This phenomenon of the Supreme
19:10
Speaker 3: Court repeatedly saying, oh, we're going to put those lower
19:12
Speaker 3: court rulings on hold has had the effect of basically
19:17
Speaker 3: giving the Trump administration a free pass to continue enforcing
19:23
Speaker 3: policies that and taking actions that lower courts have held
19:28
Speaker 3: to be not only likely unconstitutional, but also causing irreparable
19:33
Speaker 3: harm to the people who have been affected.
19:35
Speaker 2: So this is.
19:37
Speaker 3: Certainly part of a larger trend. The striking thing about
19:40
Speaker 3: this case is that the harm to the individuals who
19:43
Speaker 3: are denied passports that accurately reflect their gender identity is
19:48
Speaker 3: stunningly clear. Another problem here is that the government is
19:52
Speaker 3: obligated anytime it changes a policy that collect information from
19:57
Speaker 3: the American people. The government is obligated under the Paperwork
20:01
Speaker 3: Reduction Act, which was passed by Congress, to spend sixty
20:05
Speaker 3: days collecting information and public comment on whether it can
20:10
Speaker 3: make this sort of a change, and of course, changing
20:12
Speaker 3: its passport rule two days after the president was inaugurated
20:17
Speaker 3: and issued. His executive order is fully out of compliance
20:21
Speaker 3: with this law that is supposed to apply to all
20:23
Speaker 3: of the government's actions.
20:25
Speaker 2: As I mentioned, this order stays in place as a
20:28
Speaker 2: litigation below continues. So how much of a blow is
20:32
Speaker 2: it to the rights of transgender people?
20:36
Speaker 3: This is a tremendous blow in terms of the human cost.
20:41
Speaker 3: One only has to think about the named plaintiff, Ashton Orr,
20:45
Speaker 3: who needed to travel out of the country needed a
20:49
Speaker 3: new passport. Ashton Orders a man. He's a transgender man.
20:53
Speaker 3: The only passport he is able to get to cross
20:56
Speaker 3: borders has an s gender marker on it that reveals
21:01
Speaker 3: Asketon to be transgender, not only as he crosses the
21:04
Speaker 3: border out of the United States, but as he crosses
21:07
Speaker 3: into other countries, possibly putting him in danger of harm
21:11
Speaker 3: from other governments and now as well as our own.
21:15
Speaker 3: The harms are very serious, very painful to individuals, and
21:21
Speaker 3: also are reflective of a broader harm to people who
21:25
Speaker 3: are not transgender, which is that the government can, for
21:29
Speaker 3: irrational reasons, possibly hostile reasons, towards this group of people,
21:34
Speaker 3: or any group of people more generally, choose to withdraw
21:37
Speaker 3: passports right choose to do any number of things that
21:41
Speaker 3: cause harm, and the Supreme Court is unwilling to say
21:45
Speaker 3: hold on government. The lower court has found a problem
21:47
Speaker 3: with this law or this new policy, and we need
21:50
Speaker 3: to hold while this case is being litigated. So there
21:54
Speaker 3: are real world problems, there are constitutional problems, there are
21:57
Speaker 3: traditional separation of power problems that we're seeing.
22:01
Speaker 2: In May, the Supreme Court allowed him to start discharging
22:05
Speaker 2: transgender members of the military at oral arguments. This term,
22:09
Speaker 2: it appears that the Conservatives will allow state laws that
22:13
Speaker 2: ban licensed counselors from using talk therapy to try to
22:18
Speaker 2: change a child sexual orientation or gender identity. And there's
22:22
Speaker 2: another case coming up about whether states can ban transgender
22:26
Speaker 2: girls and women from competing for their schools on female
22:30
Speaker 2: athletic teams. It's hard to ignore that the Court has
22:33
Speaker 2: been consistently ruling against transgender rights.
22:38
Speaker 3: Yeah, I mean, there has been a current of policies,
22:44
Speaker 3: you know, from the Trump administration and laws at the
22:48
Speaker 3: state level that restrict the lives or try to restrict
22:52
Speaker 3: the lives of transgender people in every imaginable way, from
22:56
Speaker 3: getting identity documents to using the bathroom, to participating fully
23:01
Speaker 3: at school, to serving the country in the military, and
23:06
Speaker 3: so far the court when these issues have been presented,
23:09
Speaker 3: the Court has said it's okay to create this legal barrier,
23:14
Speaker 3: really like a legal burden that harms transgender people. In
23:19
Speaker 3: twenty twenty, the court took a different tack. This involved
23:23
Speaker 3: in an employment discrimination case, a transgender woman was fired
23:27
Speaker 3: from a role at a funeral home where she had
23:29
Speaker 3: served for many years, and she sued the employer, saying
23:32
Speaker 3: it was sex discrimination that she was treated differently because
23:37
Speaker 3: of her sex, being fired based on her sex, right
23:40
Speaker 3: based on that she is transgender. And in that case
23:45
Speaker 3: Bosta versus Clayton County, which also involved two other cases
23:50
Speaker 3: with sexual orientation discrimination at issue. In that case, the
23:53
Speaker 3: court said it is sex discrimination to fire a transgender
23:59
Speaker 3: person because if there's no way to understand this other
24:02
Speaker 3: than they're being fired because of their sex. One of
24:05
Speaker 3: the big questions before the court is that case came
24:08
Speaker 3: under Title seven, which is a federal law that prohibits
24:11
Speaker 3: sex discrimination as well as other forms of discrimination and employment,
24:16
Speaker 3: and a question is whether it's a logic of understanding
24:19
Speaker 3: sex discrimination in that boss Stock ruling from twenty twenty
24:23
Speaker 3: is going to carry over into these other areas, or
24:26
Speaker 3: will the Court say as it may appear to be
24:29
Speaker 3: inclined to do. Oh no, that might be sex discrimination,
24:33
Speaker 3: but this isn't.
24:34
Speaker 2: Well, We'll have two cases at least this term that
24:37
Speaker 2: will further illustrate how the Court's dealing with transgender rights.
24:42
Speaker 2: Thanks so much for joining me, Suzanne. That's Professor Suzanne
24:46
Speaker 2: Goldberg of Columbia Law School coming up next. The second
24:50
Speaker 2: in command at the Justice Department talks about its war
24:54
Speaker 2: on judges. This is Bloomberg.
24:57
Speaker 1: What a travesty it is when you have an individual
25:00
Speaker 1: judge be able to stop an entire operation or an
25:04
Speaker 1: entire administrative policy that's constitutional and allowed, just because he
25:11
Speaker 1: or she chooses to do so. So it's a war.
25:14
Speaker 2: That was the second in command at the Justice Department,
25:18
Speaker 2: Todd Blanch, describing the Trump administration's war against federal judges
25:24
Speaker 2: and calling on young conservative lawyers in the audience to
25:28
Speaker 2: join the battle.
25:30
Speaker 1: There has got to be a couple dozen young lawyers
25:35
Speaker 1: who are thirsty and hungry and ready to work because
25:38
Speaker 1: because we need you, Because because it is a war,
25:41
Speaker 1: and it is something that we will not win unless
25:45
Speaker 1: we keep on fighting. And it's a Joining me is.
25:48
Speaker 2: Bloomberg Law reporter Suzanne Monnac. Suzanne, where did Blanche give
25:54
Speaker 2: these remarks?
25:55
Speaker 4: Todd Blanch's the Deputy Attorney General at the Justice Department.
25:59
Speaker 4: I was delivering remarks last week at the Federalist Society convention.
26:02
Speaker 4: That's a legal conservative legal group, and they hold an
26:05
Speaker 4: annual convention over a course of I was three days
26:08
Speaker 4: this year in Washington.
26:10
Speaker 2: It's stunning to hear a Justice Department official describe a
26:14
Speaker 2: war against judges.
26:17
Speaker 4: Yes, it was fairly striking, in fiery language. He referred
26:20
Speaker 4: to it as a war against what he described as
26:23
Speaker 4: activist judges who've been ruling against the administration and in
26:27
Speaker 4: his view, in some of these cases getting reversed by
26:30
Speaker 4: the conservative Supreme Court. And I should say when I
26:32
Speaker 4: say reversed, I mean a lot of these cases are
26:34
Speaker 4: coming up at pretty interim stages. But we've seen some
26:37
Speaker 4: instances where the Supreme Court has paused lower court rulings
26:40
Speaker 4: against the administration while litigation continues. That's on the so
26:43
Speaker 4: called emergency dockets. So I should clarify these are preliminary decisions.
26:47
Speaker 4: But he's pointing to those wins at the Supreme Court
26:50
Speaker 4: and at other appeals courts to say that these are
26:52
Speaker 4: lower court judges that are acting outside their authority and
26:55
Speaker 4: that he just sees it as a battle, as a war,
26:57
Speaker 4: and he put out a call for lawyers even to
27:00
Speaker 4: a joint what he described as a fight.
27:02
Speaker 2: Was this a Q and A. Did anyone challenge him
27:05
Speaker 2: on the fact that the Supreme Court has a super
27:09
Speaker 2: conservative majority and it's that majority that's reversing these lower
27:15
Speaker 2: court decisions against Trump.
27:17
Speaker 4: The conversation was moderated by Gene Hamilton, who's a former
27:20
Speaker 4: Trump White House aid as well as the co founder
27:23
Speaker 4: of a conservative legal group. I would describe it as
27:26
Speaker 4: a fairly friendly discussion. It wasn't so much styled as
27:29
Speaker 4: an adversarial debate.
27:30
Speaker 2: Uh huh, And I mean this is the old refrain
27:33
Speaker 2: of activist judges that conservatives have been making for so
27:37
Speaker 2: many years. He's also talking about activist bar associations.
27:43
Speaker 4: Yes, we saw the bar associations also or a target
27:47
Speaker 4: of his hire at this conversation. Specifically, there have been
27:51
Speaker 4: some misconduct complaints filed against lawyers within the administration for
27:55
Speaker 4: their conduct in court, and we saw Blant say that
27:59
Speaker 4: he's looking to to do something different. He says he
28:01
Speaker 4: wants to have that process be handled in house, as
28:04
Speaker 4: opposed to within the bar associations. He specifically took aim
28:07
Speaker 4: at the DC BAR as being one of the worst,
28:09
Speaker 4: and he called them activist bar association.
28:12
Speaker 2: How would he take that power away from the bar
28:14
Speaker 2: associations and put it in the Justice Department.
28:17
Speaker 4: There was not a ton of detail given, and that
28:19
Speaker 4: that is a person excellent question. He said that they
28:22
Speaker 4: want to have a new system where complaints against trial
28:24
Speaker 4: lawyers and prosecutors are handled in house, within an ethics
28:27
Speaker 4: unit within the Justice Department, and evaded herman that something
28:30
Speaker 4: should be referred to the bar, that they would then
28:32
Speaker 4: do so. But wouldn't, you know, refer all complaints to
28:36
Speaker 4: the bar if they don't think that they have merit.
28:38
Speaker 4: It was interesting. I hadn't heard that from him before,
28:40
Speaker 4: so I think that was an interesting thing to note
28:42
Speaker 4: in something to watch going forward. How they implement it.
28:45
Speaker 2: Bar associations handle the disciplinary proceedings for lawyers and the
28:50
Speaker 2: Justice Department has no part in that. So it makes
28:53
Speaker 2: almost no sense to me that the Justice Department would
28:55
Speaker 2: suddenly start doing that, especially with regard to complaints against
28:59
Speaker 2: its own lawyers.
29:01
Speaker 4: I think we're likely to see concerns like that raise
29:04
Speaker 4: if in when a process like this is rolled out,
29:06
Speaker 4: and I you know, certainly I think it's worth you know,
29:08
Speaker 4: hearing from the bar associations. I'll be curious if they
29:11
Speaker 4: speak out about whether they see this as any kind
29:13
Speaker 4: of use of pation of their authority.
29:15
Speaker 2: He called for young lawyers who are hungry and thirsty
29:19
Speaker 2: to join the Justice Department and the fight. The Justice
29:22
Speaker 2: Department has lost a lot of attorneys since Trump took office.
29:28
Speaker 2: Tell us about that.
29:29
Speaker 4: That's true, and we've seen that really throughout the federal government.
29:32
Speaker 4: I mean, of course, there were a couple of offers
29:34
Speaker 4: for lawyers to take a deferred resignation where they were
29:37
Speaker 4: paid but on leave through the end of last fiscal year,
29:40
Speaker 4: which ended at the end of September. And so you know,
29:43
Speaker 4: many many people think it was over over four thousand.
29:47
Speaker 4: I think maybe even more than that. That was a
29:49
Speaker 4: tally from a couple of months ago. Thousands of lawyers
29:52
Speaker 4: took that deal. And we've also seen people, you know,
29:54
Speaker 4: leaving for other jobs. So we've you know, at the
29:57
Speaker 4: Civil Rights Division, I know, when we've spoken about past
30:01
Speaker 4: that's one where we really saw a major priority shift
30:04
Speaker 4: from away from more traditional civil rights areas toward more
30:09
Speaker 4: conservative priorities like gun rights, for example. So that's a
30:12
Speaker 4: division that saw a huge amount of attrition, both through
30:14
Speaker 4: the different resignation offer but also through people just trying
30:17
Speaker 4: to get different jobs. And so that's just something we've
30:19
Speaker 4: seen throughout the Justice Department as lawyers maybe don't feel
30:22
Speaker 4: like they want to be doing this work anymore. We've
30:24
Speaker 4: certainly seen the administration has been somewhat hostile to the
30:26
Speaker 4: federal workforce, and that's just true across the government. So yes,
30:30
Speaker 4: that's absolutely the Justice Department has been, you know, very
30:33
Speaker 4: much part of that of that movement, and you know,
30:36
Speaker 4: I think the administration is very much looking to the
30:38
Speaker 4: staff backup.
30:40
Speaker 2: This attack on judges. Do you see it as part
30:44
Speaker 2: of the Justice Department's approach now because you had and
30:49
Speaker 2: you wrote about a former Justice Apartment official who criticized
30:53
Speaker 2: Democratic appointed federal trial judges who ruled against the Trump administration.
30:59
Speaker 4: That's right. Chad myself also spoke at the Federalist Society
31:01
Speaker 4: had mentioned and made somewhat similar fiary remarks about his
31:05
Speaker 4: complaints and grievances about federal judges who he also sees
31:09
Speaker 4: as democratic appointees and ruling against the administration and then
31:13
Speaker 4: at times being reversed at higher court. And yes, I
31:16
Speaker 4: do think this is kind of part and parcel of
31:18
Speaker 4: an approach that we're seeing really across the administration that
31:21
Speaker 4: these many of these remarks sort of at a time
31:23
Speaker 4: of significant tension between the administration and the judiciary. I mean,
31:27
Speaker 4: we've seen Trump and other officials and allies have really
31:30
Speaker 4: made a habit of putting judges and even in some
31:32
Speaker 4: cases their family members on blast when court rulings just
31:36
Speaker 4: don't go the administration's way. We've seen judges gold government
31:40
Speaker 4: lawyers for what they say is making false or misleading
31:43
Speaker 4: statements in court or suggesting that maybe they're not fully
31:45
Speaker 4: complying with their court orders. So we're really just seeing
31:49
Speaker 4: a lot of distension as the administration is really expanding
31:52
Speaker 4: executive power and kind of pushing the boundaries, and judges
31:55
Speaker 4: are ruling against that effort. That's just created a lot
31:59
Speaker 4: of bad blas I guess I could say, sort of
32:02
Speaker 4: certainly from the administration towards the judiciary, and maybe arguably
32:06
Speaker 4: both ways.
32:07
Speaker 2: Since the beginning of the Trump administration, threats against judges
32:10
Speaker 2: have skyrocketed, and there seems to be no effort on
32:15
Speaker 2: the part of administration officials to dial down the criticism
32:20
Speaker 2: of judges. In fact, they seem to be amping it up,
32:24
Speaker 2: and it's hard to ignore that as a possible cause
32:27
Speaker 2: of the rising threats against judges.
32:31
Speaker 4: That's certainly a criticism that you might hear when you
32:33
Speaker 4: hear officials day things like we're at war. Of course,
32:36
Speaker 4: if you reach out to the Justice Department, they will
32:39
Speaker 4: tell you that this is a top priority for them
32:41
Speaker 4: to address threats against judges. But you're correct that they
32:44
Speaker 4: are increasing. We've seen hundreds last fiscal year of threats
32:48
Speaker 4: against judges, higher than the year prior, and so this
32:51
Speaker 4: is I think a cause of significant concern really across
32:54
Speaker 4: the judiciary that judges are being subjected to this. And
32:57
Speaker 4: I think many people would say that public officials, you know,
33:01
Speaker 4: publicly criticizing rulings, criticizing the judge by name, and really
33:04
Speaker 4: specifically not necessarily criticizing their legal reasoning, but really going
33:08
Speaker 4: after the judge in more personal capacities, as being biased,
33:11
Speaker 4: as having the cards of stacked against the administration. Making
33:14
Speaker 4: claims like that might put more of a target on judges.
33:17
Speaker 2: Back, going back to the Supreme Court for a moment,
33:20
Speaker 2: some federal judges have been frustrated with having to interpret
33:25
Speaker 2: the Supreme Court decisions on the emergency docket where there
33:29
Speaker 2: is no explanation of why the court reached that conclusion.
33:34
Speaker 4: That's right. There's kind of even another tension within the
33:37
Speaker 4: judiciary that we're seeing between the lower court and the
33:40
Speaker 4: Supreme Court, where we're seeing the Supreme Court handling these
33:43
Speaker 4: challenges to major comp administration policies at early stages in
33:47
Speaker 4: the litigation, and they're putting out emergency orders pausing lower
33:51
Speaker 4: court rulings that had blocked the policies, thus allowing the
33:53
Speaker 4: policies to move forward. Obviously, we saw administration officials, as
33:57
Speaker 4: I mentioned earlier, really celebrating those emergencies state orders from
34:00
Speaker 4: the Supreme Court as big wins for them, and I
34:02
Speaker 4: think it's also just been a challenge for lower courts
34:04
Speaker 4: to then maybe sometimes get the case back on remand
34:07
Speaker 4: and have to kind of decide how to approach it
34:09
Speaker 4: when all they've got is this one page emergency order
34:11
Speaker 4: from the Supreme Court that doesn't really explain its reasoning.
34:14
Speaker 4: And we've seen a couple instances where judges have even
34:17
Speaker 4: expressed some frustration about that and the emergency docket in
34:20
Speaker 4: their written decisions, where they're saying, you know, I had
34:23
Speaker 4: a case that's a little similar to a case the
34:24
Speaker 4: Supreme Court had, but the Supreme Court didn't explain why
34:27
Speaker 4: they made the decision that they did in that case.
34:29
Speaker 4: So I'm not sure how to handle it in this one.
34:32
Speaker 4: Are these the same?
34:32
Speaker 1: Like?
34:32
Speaker 4: How do I apply that reasoning? So I think that's
34:34
Speaker 4: certainly a bit of a challenge for the lower courts,
34:37
Speaker 4: and it's causing consternation.
34:38
Speaker 2: I thought it was very interesting. Now there have been
34:41
Speaker 2: a lot of accusations that the Trump administration has weaponized
34:45
Speaker 2: the Justice Department, and you look at the prosecutions against
34:50
Speaker 2: Trump's perceived enemies, FBI Director James Comy, New York Attorney
34:56
Speaker 2: General Letitia James. How did he defend against that?
35:00
Speaker 4: He really defended himself in the administration against claims of politicization.
35:05
Speaker 4: He really took the time to rattle off charges that
35:07
Speaker 4: were filed under the Biden administration against Donald Trump himself
35:11
Speaker 4: and really said that he saw those as politicized. And
35:13
Speaker 4: you know the fact that there were multiple charges across
35:15
Speaker 4: the country. He specifically said, you know, we have rolled
35:18
Speaker 4: back investigations that we see as being brought for the
35:20
Speaker 4: wrong reasons, and instead we're prosecuting the right people for
35:24
Speaker 4: the rightly reasons. And he even said, sort of citing
35:26
Speaker 4: those charges under the past administration, that when he reads
35:29
Speaker 4: weaponization claims, he says, he feels like he's being quote
35:32
Speaker 4: gas lit because he just feels like it was the
35:34
Speaker 4: Trump administration that was the target, or I should say
35:37
Speaker 4: Trump administration officials during the Biden administration who were the
35:40
Speaker 4: target of a politicized DOJ And that's something we've heard
35:43
Speaker 4: from other right wing officials as well, when they say
35:47
Speaker 4: that they see its politicization as being during the last
35:49
Speaker 4: administration and they're not doing that. So I think that's
35:52
Speaker 4: kind of a common criticism that we have heard before
35:54
Speaker 4: from that side. But yes, I mean, you're corrected to
35:58
Speaker 4: note that a lot of critics have pointed to a
36:00
Speaker 4: lot of the ways that Trump has really directly seems
36:02
Speaker 4: to be communicating with the Justice Department. There's being a
36:04
Speaker 4: bit of a difference that we haven't seen in the past.
36:06
Speaker 4: When he specifically addressed jo Jay and said, hey, can
36:10
Speaker 4: you please look into these people, typically we've seen a
36:12
Speaker 4: little bit more Drug Department is supposed to historically has
36:16
Speaker 4: acted more independently.
36:18
Speaker 2: Yeah, the criticism is that in this second administration there's
36:22
Speaker 2: no daylight between the White House and the Justice Department,
36:26
Speaker 2: and perhaps in the Komi and James cases, we'll see
36:30
Speaker 2: what judges think of the president's apparent direction on truth
36:35
Speaker 2: social to the Attorney General to bring cases against his
36:40
Speaker 2: perceived enemies. Thanks so much, Suzanne. That's Bloomberg Law reporter
36:45
Speaker 2: Suzanne Monyac, and that's it for this edition of the
36:48
Speaker 2: Bloomberg Law Show. Remember you can always get the latest
36:51
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