Transcript:
Colin Seeberger: Hey everyone, welcome back to “The Tent,” your place for politics, policy, and progress. I’m Colin Seeberger.
Erin Phillips: And I’m lead producer Erin Phillips, filling in for Daniella Gibbs Léger. Colin, the Fourth of July is coming up, if you can believe it.
Seeberger: Well, it’s sure starting to feel like it, because boy oh boy is it hot outside.
Phillips: So hot outside.
Seeberger: Yeah.
Phillips: Do you have any big plans for the Fourth?
Seeberger: So, my mom is actually coming in town to visit, which will be great to see her. We recently moved a couple of months ago, and our neighborhood has a big Fourth of July parade. So, definitely going to check that out. I think there will be lots of time eating hot dogs, doing all of the best of Americana life, maybe having a Bud Light or two. Yeah, it should be good.
How about you?
Phillips: That sounds awesome. My mom is actually also coming to town to visit.
Seeberger: Oh, nice.
Phillips: Yeah, and we’re going to go over to a friend’s house, have a cookout. Our dogs will play together in the yard. It’ll be really cute.
Seeberger: Oh, that’s great.
Phillips: Yeah. Well, on that note, listeners should be aware that we will not be releasing an episode next week. We will be, as mentioned, enjoying hot dogs, but we will be back again on July 11th. In the meantime, though, I heard you had a great conversation on the Supreme Court this week.
Seeberger: I did, and it was very timely. I spoke with Chris Geidner, AKA the Law Dork, about some of the decisions we’ve gotten from the court thus far, as well as what we can expect from the court in this last week of the Supreme Court’s term and how it’s going to affect Americans’ rights and freedoms.
Phillips: I love Chris’ insights on Twitter, so I’m really excited to hear this conversation. But first, we have to get to some news.
Seeberger: We do, because there’s a big event happening this week, Erin.
Phillips: Is there? I’m not sure what you’re talking about, Colin.
Seeberger: Yeah, well, you may have heard about it. There’s this thing called a presidential debate.
Phillips: Woah.
Seeberger: I know. It is coming a few months earlier than we have ever had a presidential debate, and so it is really throwing the country right into the thick of presidential politics. And so we wanted to give our listeners kind of a debate primer, like, what can we expect to come up, what do we see as points of contrast between the candidates, and what to listen for.
So, an issue that obviously is really top of mind for voters coming two years after the Supreme Court’s Dobbs decision is marked this week: We know that ripping away reproductive freedom and the future of abortion rights in America—after the Supreme Court saying, “Here, we’re going to take your rights away that you have enjoyed for nearly half a century”—is absolutely something that’s top of mind for Americans.
Donald Trump has bragged about paving the way for his right-wing Supreme Court justices to do just that. That said, I am under no illusion that Donald Trump is not going to try to distance himself from that record, given the fact that he knows just how unpopular his position on abortion and reproductive freedom really is.
He’s repeatedly endorsed abortion bans that have sprung up in states all across the country since Roe was overturned, including those that have no exceptions for rape, incest, or the life of the mother. He’s even given a green light to states to monitor women’s pregnancies. It’s so disturbing.
He also refused to say that he would not move forward with his allies’ plot to resurrect a 150-year-old zombie law called the Comstock Act, which could in essence effectuate a backdoor national abortion ban by banning the shipment of medication abortion, which is utilized in the majority of abortion cases in this country.
All of these threats are possible, let’s just be really clear, because of one person, and that’s Donald Trump. Nonetheless, he’s tried to publicly distance himself from the unpopular notion of a national abortion ban in order to try to sow confusion. And that stands in stark contrast with what we see from President Biden, who has been very clear on this issue.
His administration has championed reproductive freedom. They named Judge Ketanji Brown Jackson, now Justice Brown Jackson, to the Supreme Court—a judge with a track record of protecting our fundamental freedoms. They’ve strengthened contraception access and affordability; worked to strengthen access to safe and legal medication abortion; and they’re fighting in court to protect the rights of pregnant people who are experiencing medical emergencies to be able to receive the abortion care that they need.
And now with MAGA Republicans going after IVF, Biden has vowed to protect access to this important form of health care. I hope that President Biden calls Trump out on Thursday night. If he tries to muddy the waters or pull the wool over Americans’ eyes, I hope he calls him out and holds him responsible. Because again, there’s one person responsible for abortion rights and reproductive freedom in this country having been thrown into complete and utter chaos, and that’s Donald Trump.
Phillips: Yeah, the debate is really the time for the candidates to say where they stand on these issues, so he really needs to come clean about his stances, whether they’re politically popular or not—and, in this case, not.
Seeberger: Yeah.
Phillips: Because the American people deserve straight answers. Another issue, though, that we’ll be watching for is which candidate supports our democracy and the rule of law. Trump, of course, is notorious for trying to manipulate our democratic processes to serve his political goals, whether that’s advancing the “big lie” or saying he’ll use his Department of Justice for revenge against political enemies.
He said he would be “a dictator on day one”—his own words—in order to seek revenge and enact extreme far-right policies. He hasn’t ruled out stoking political violence if he loses the 2024 election, and he won’t say whether he’ll accept the results if he loses. A core part of his platform is a plan to reclassify career civil servants as political appointees, thereby allowing him to install political loyalists in critical government positions like scientists, medical experts, and lawyers who serve the public interest. He’s made it very clear his goal is for them to carry out his destructive partisan goals, without regard for the law. He’s also said he’d be willing to invoke the Insurrection Act and use the military to squash Americans’ ability to peacefully protest against his administration. It’s unbelievable.
President Biden has been furiously calling out these threats in recent weeks, and I expect we’ll hear him double down on the important contrast between him and Donald Trump around their respect for free and fair elections, as well as the checks and balances that make up the foundations of our government.
Seeberger: For sure, for sure. It really is horrifying. You obviously can’t have a presidential debate and not talk about the economy. Pocketbook issues are a huge thing for so many Americans. There’s no doubt that Trump is going to talk about his plans to cut taxes for the wealthy and big corporations. But what he won’t tell you is that everyday Americans are going to be the ones footing the bill. You may hear him talk about his plan to impose a 10 percent across-the-board tariff. Well, guess what, folks? We did the accounting here, and that, in combination with his recent proposal to impose a 60 percent tax on all imports from China—that could cost the average American $2,500 a year.
Phillips: That’s a lot of money.
Seeberger: It’s a lot of money. And if he mentions replacing income taxes with tariffs on all imports—first of all, don’t be fooled. It literally is not mathematically feasible. But if he did, that would actually increase taxes on the typical family by $5,000 a year. At the same time, it would give the top 10th of 1 percent an annual tax cut of more than $1.5 million.
At the same time, he wants to lower the corporate tax rate to just 15 percent, a move that would result in nearly $50 billion a year in tax breaks for the Fortune 100 companies in the United States—companies that made over $1 trillion in profits last year thanks, in part, to increasing prices that American consumers pay. So, why he wants to hand tax breaks out to them right now—I don’t get it.
By the way, I just gotta say that $50 billion a year, that’s also the equivalent of the entire K-12 federal education budget in this country, and then some. So, his plan essentially boils down to making struggling Americans pay more for their cost of living, while giving massive breaks to the ultra-wealthy corporations.
I’m sure we’re going to hear President Biden really try to lean into that contrast, right? Because he’s got a real record that he can go out there and sell. He has made multi-billion-dollar corporations pay more of their fair share through the 15 percent minimum tax. He has taken on corporate greed by cracking down on things like junk fees that consumers are saddled with. He’s capped overdraft fees that the big banks want to charge.
He’s taken on greed among Big Pharma companies to lower the price of prescription drugs. And he’s also focused on lowering other household costs through things like electric vehicle tax credits, tax credits to do important home repairs. As we’re talking about it being quite hot outside, and a lot of people having to get new HVACs, he’s passed policies to make those things more affordable so it’s not breaking the bank when they have to do those upgrades.
President Biden is clearly working to deliver for the middle class, to make sure they have a little more breathing room at the end of every month. And you don’t have to take my word for it. A recent analysis from Moody’s Analytics showed that President Biden’s policies are actually better for the economy, and that Trump’s and MAGA’s plans could be disastrous for us. Trump’s proposals would likely cause a recession by mid-2025, an increase in inflation, 3.2 million fewer jobs, and higher unemployment rates.
I don’t know about you, Erin, but that’s certainly not an economy I am hungry for.
Phillips: No, I’m with you there, Colin. Now, with the 12-year anniversary of DACA having passed just last week, I’m sure immigration will come up at some point during the debates. So, let’s talk about it. In case he fails to mention it, let’s remember that Trump kicked off his presidency by instituting a travel ban from seven largely Muslim nations, blocking immigrant families from being reunited with their American relatives. Throughout his time in office, he tried to end DACA, and he instituted policies that ripped children from their parents’ arms after crossing the border.
What we will hear for sure, though, is that he’s now doubling down on the same attitudes and policy approaches. He recently parroted Adolf Hitler, saying immigrants “poison the blood of our country.” And if he’s elected to a second term, he wants to deny entry to legal migrants based on their ideological beliefs, end birthright citizenship, and build mass detention facilities on the southern border. It’s all so outrageous.
Seeberger: You might think that a court would stand up to him, but we’ve seen that this far-right court is there to rubber stamp a lot of what he’s offered.
Phillips: Yeah, which makes it even more troublesome.
Seeberger: Yeah.
Phillips: And while Trump likes to talk a big talk on immigration, we can’t forget that he was the one who pushed congressional Republicans this year to oppose one of the toughest border deals in decades in order to bolster his chances of reelection. That’s something I hope President Biden reminds the audience of on Thursday. He doesn’t want to fix our immigration system. He wants chaos at the border so it will help him get elected, especially because it’s President Biden who’s been working hard to fix some of those issues with our badly broken immigration system. He backed the tough immigration deal that Trump killed in Congress, and he’s been working to reunite families separated by Trump’s cruel policies.
Just last week, he also signed multiple executive orders. I know you and Daniella talked about this. Those will help 500,000 immigrant spouses of U.S. citizens and more than 50,000 DREAMers live without fear of deportation. These are folks who’ve lived in mainland America for 10 years or more and paid thousands of dollars in taxes. And most Americans support their right to stay here.
Seeberger: Oh, you better believe that President Biden is going to be reminding the American people that it was Donald Trump who killed that tough border deal. Once again, it’s a stark contrast. There’s one other topic that I feel like we have to talk about, and that’s because President Trump loves to rant about this and cast the United States as some hellish landscape. And that’s crime.
I’m sure we’ll see him try to deflect from the massive crime spike that he oversaw as president. But the fact is, it’s President Biden who has a real record on enhancing public safety and driving crime rates to a 50-year low. And the successes we’ve seen on this front are directly linked to policies that President Biden has championed while he’s been in office—things like the Bipartisan Safer Communities Act, which just hit its second anniversary since becoming law. It’s helping address key causes of gun violence. The administration has used this law to prosecute 250 gun traffickers and seize over 1,300 weapons, including 190 AR-style rifles.
Other policies under the Biden administration have funded effective policing programs, improved treatment for mental illness, and led to the confiscation of more fentanyl at the southern border than ever before.
We’re already seeing Trump try to question the legitimacy of the data being released by local police departments, saying that it’s all made up or it’s not reality. So, I suspect we’ll probably see him continue to try to ignore the facts here and stubbornly insist that crime is going up and that it’s rampant under Joe Biden. But I hope President Biden reminds him that when he was in office, he oversaw the largest increase in U.S. history of murders in this country. It really, I feel like, puts the matter in much more clear context.
Phillips: Yeah. I feel like we’re going to see Donald Trump try to spin some alternative facts, as he likes to say, and I just hope that President Biden reminds him and the viewers at home of the real facts.
Seeberger: I sure hope so as well. I don’t know about you, but I’m feeling much more prepared for the debate.
Phillips: Me as well, Colin.
Seeberger: Well, that’s all the time we have this week. If there’s anything you’d like us to cover on the pod, hit us up on Twitter @TheTentPod. That’s @TheTentPod. And stick around for my interview with Chris Geidner in just a beat.
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Seeberger: Chris Geidner is the legal reporter and analyst behind Law Dork. He’s been reporting on the Supreme Court for 15 years for a variety of outlets, including BuzzFeed News, The New York Times, and MSNBC. He’s won awards from GLAAD and the National Lesbian and Gay Journalist Association for his reporting. He also served as the editor-in-chief of the Ohio State Law Journal and practiced law in Ohio.
Chris Geidner, thanks so much for joining us on “The Tent.”
Chris Geidner: Thank you so much for having me.
Seeberger: It’s very exciting to have you, because we are in the thick of the final week of the Supreme Court’s term—at least, we so believe. Now, can you give us a sense for the decisions that we’ve gotten from the court thus far, what sort of decisions we can anticipate getting the rest of this week—noting for our listeners that, again, we’re taping this on Tuesday, June 25th. What’s the rationale behind the Supreme Court calendar and how they stagger their decisions?
Geidner: Yeah. I mean, in some ways, the answer is actually pretty easy: They release the decisions when they’re done. The problem is what happens is you’ve got these nine people, all of whom operate sort of quasi-independently of each other. They’re all independent. The chief justice is the chief justice, but he can’t just say something and then it is so.
And what we see pretty much every year is that unanimous decisions, when a justice is done, they circulate it. And maybe a justice gives them, like, “Oh, can you get rid of this paragraph? I don’t agree that.” Clarence Thomas says, “Get rid of the legislative history.” And those opinions can come out more quickly.
But then as you get into the end of June—for example, what we saw last Friday with Rahimi, the gun case, even though it was an 8-1 decision, you had seven people who wrote. And so, what happens when that starts happening at the court, they’re circulating those opinions, and sometimes you’ll hear people like me talking about arguing in the footnotes. And so they’ve got the main part of their decision done maybe in May, but then they are circulating their draft opinions, going back and forth and adding a footnote, like Sotomayor being like, “I think that Thomas is wrong here.”
Seeberger: And deciding whether or how respectfully they dissent.
Geidner: Exactly. And then as you get to the last week, these are the 6-3 decisions that it’s, “How mean are we going to be? How aggressive do we need to be at, for the dissenters, letting the public know this is something that they should be alarmed by?” And other things like that.
And then the chief from his side trying to do what he can to keep some premise that the court is an objective body of law and not just a bunch of politicians trying to pull the law further and further right.
Seeberger: Well, speaking of mean decisions from the court, we recently passed the two-year anniversary of the Supreme Court’s Dobbs decision, which overturned Roe v. Wade in this country. And challenges to reproductive rights have continued to find their way back up to the Supreme Court, including in this term.
A big case we’re still waiting a decision on, Idaho v. The United States, is about whether pregnant people who are experiencing medical emergencies are able to obtain the abortion care that they so necessitate—regardless of the state that they live in—under a law called EMTALA.
Can you talk a little bit about how this court has ruled when it comes to reproductive rights since Dobbs, and how you think they might tackle this question in the Idaho case?
Geidner: Yeah. I mean, we already saw the mifepristone decision earlier, and that was a situation where the harsh consequences of Dobbs and the unwillingness of anti-abortion forces to stop met its match. And the court was like, “We’re not doing that.” And while it was a limited opinion—it was on standing—it was a pretty stark result; that was one where even Thomas didn’t dissent.
But now you’ve got this EMTALA decision, and it is a very narrow case. Because what it’s involving is, every state has a life-of-the-mother exception. But what EMTALA says is that it also includes significant health impacts of the mother, and some states have extreme anti-abortion laws that don’t include that. And so what EMTALA would do is in those states, if you appear in an emergency room and need treatment that includes abortion, they would have to provide it.
And that puts the court in a really, really tough position. And I think that there was some discussion in the mifepristone case about the “conscious exemption.” And I think that we could see that fallout in EMTALA, that maybe they say EMTALA does supersede state laws, but keep in mind there’s this very broad conscious exemption. And a Catholic hospital could essentially get a conscious exemption for everybody who practices there because they hire all people who adhere to their beliefs, whatever they would say.
Seeberger: Whatever those beliefs may be.
Geidner: Whatever Erin Hawley would argue. But I mean, I do think we could end up getting a very complicated ruling that looks like a win for pro-choice folks, but actually—
Seeberger: Opens the back door.
Geidner: But opens the ability for—but in all honesty, that’s a lot better than a decision saying that EMTALA does not supersede state law, and/or that says EMTALA should be read very narrowly to only include whatever a state says is allowed. So, I’m still nervous about that decision. I think that the arguments in that case were much closer than in mifepristone. We sort of knew at the end of the mifepristone arguments that that challenge was not going to succeed. But here, I think it’s a much closer question about what we’re going to see.
Seeberger: A much more open question, to be sure—and potentially very far reaching consequences for the future of access to reproductive health care in the future.
Geidner: Well, and I think to your larger point about how the court is reacting to all of this—they are having to deal with the consequences of Dobbs. It’s not just politicians in states who are watching their voters even in more—sadly, as a Buckeye—ever more conservative states like Ohio, voting down or voting for abortion rights and voting down Republican efforts to restrict them.
And the justices have to—they see that reality. They see the consequences of their decision. And I think that, for example, in the mifepristone decision, we saw the outcome of that. So I mean, it’s another example of, no, they’re not completely removed from politics, and it does affect their decisions.
Seeberger: Absolutely. So, there are several impending decisions that could affect, really, how government agencies are able to function in the public interest. And based on some of the oral arguments from a few months back, we may see this bench of extreme justices gut the authority of scientists and subject-matter experts in what’s called Chevron deference.
What impact could those decisions have, and why is the Supreme Court taking this up to begin with, given the long-standing precedent that allows agencies to effectively guide implementation of policy?
Geidner: The important thing to understand about this case is that Chevron deference just says that basically, there’s a lot of laws. The government is big. It’s much bigger than it was in the past. And there are agencies who—in this complicated, connected nation—are making decisions about important matters.
And Congress over time has said, “We trust those agencies. We give those agencies the authority to make decisions about the intricacies, the specifics.” Members of Congress admit, “We don’t know which specific species need to be protected under the Endangered Species Act. We don’t know what particles need to be protected under the Clean Air Act. We don’t know.” And so on and so forth.
And so all that Chevron says is that when a law is ambiguous, we are going to defer to reasonable agency interpretation. So, you’ve got two factors there that limit what agencies can do. It has to be an ambiguous statute, and the agency’s interpretation does have to be reasonable. So there were already two shut-off valves for courts to look at agencies and say, “No, you’ve gone too far.” What this would do essentially is turn all of that authority to the courts, and ultimately the 6-3 conservative Supreme Court.
Everything would be a stop valve. You could look at any regulation and say—even if it is a completely vague statute, even if it is a totally reasonable, even the most reasonable interpretation—the court could say, “No. For reason X, Y, or Z, we believe this is a more faithful interpretation of Congress’ intent based on history and tradition the year the Clean Air Act was passed.”
It is a power grab by the court at a time when the court believes that would be more beneficial for their interests. That is all it is. And I think that that is how people who want to allow experts to make decisions about how our agencies are run should look at this case. And particularly when we get the decision, which is—if it doesn’t overturn Chevron, it’s certainly going to take us further down that road.
Seeberger: That’s quite frightening. Another thing that is quite frightening is that we are still waiting on a decision from the court in Donald Trump’s presidential immunity case that challenged this idea that he can’t be prosecuted for his role in trying to overturn the 2020 election because presidents can do whatever they want in office without legal accountability. The D.C. Circuit Court of Appeals unanimously ruled this was a dangerous and nonsensical argument that included judges on the D.C. Circuit who were appointed by Republicans, I should just say.
So, how did this challenge—that many legal experts have long said is ludicrous—make its way all the way up to the Supreme Court? And if they were to side with Trump, how would it fundamentally reshape our democracy? And why have the justices taken so long to actually put out a decision in this case? It seems like it’s hugely important to the American people to have real clarity on this question.
Geidner: Yeah, I mean, the bottom line is that they have already made their decision, which is to prevent the D.C. trial based on Trump’s involvement in January 6 until after the election. That is what the Supreme Court has decided. And I think that that is what is most important, regardless of what decision they come out with when it comes out later this week. They’ve already made the decision to, in effect, prevent the trial from happening before the election.
Seeberger: That’s, like, the greatest political interference that we’ve seen from the court since Bush v. Gore.
Geidner: There was a request by Special Counsel Jack Smith back in December—right after Judge Chutkan, the district court judge, had issued her ruling—for the Supreme Court to do what’s called “grant cert before judgment,” which is basically just leapfrogging the appeals court.
And the Supreme Court denied that request. They gave no reasoning. And that meant it needed to go to the D.C. Circuit. So, we already could have had this case being decided, being heard, at least briefed over the holidays. They would have heard it probably in January. They didn’t do that.
Then, when we got the D.C. Circuit unanimous ruling, they could have denied cert. They could have just said, “You’re done.” They also could have allowed the mandate to issue, which is a technical thing, it basically just means the judgment of the appeals court goes down to the district court. The D.C. Circuit had left that in place while any appeal was ongoing. So, the Supreme Court left that, basically keeping the trial on hold while it was considering it. They then granted cert, which, I do understand that. Now, I think they should have done it in December, but I do understand. Like, yes, it’s unprecedented because Donald Trump took unprecedented acts. But if you do have this unprecedented prosecution, I get the idea that before we allow that, if there is a claim from the former president that this prosecution shouldn’t be allowed, I understand the Supreme Court wanting to rule on that. But they should have done it back in December.
When they granted cert, they took their time with the case. They technically granted it on an expedited basis, but they didn’t hear it until the very end of the April sitting—as opposed to when they took the 14th Amendment, they added a date before the February sitting so that they could have the decision before Super Tuesday. And that meant that they had that decision in the 14th Amendment case within a month.
This has now been—I believe it was today, while we’re taping—two months since the arguments were heard. I believe it was April 25th. And we still have no decision. And so, regardless of what they decide, I think they are going to say that there is either no immunity or very limited immunity. But even if they decide there’s very limited immunity, it could go back to Chutkan to need to decide which of the things are immune.
They have already made their ultimate decision, which is this isn’t going to go to trial before the election. And they should be held accountable for that. When the decision comes out, if they say there’s no immunity, any effort to be like, “This is a good job by the Supreme Court” from anybody on the left—I’m just going to be screaming at them.
Seeberger: It’s ridiculous. And also ridiculous—speaking of efforts to overturn the 2020 election—Justices Clarence Thomas and Samuel Alito continue to rule on cases involving the “big lie” and January 6, despite their inner circles’ involvement in these issues—including their own wives, I should say.
Can you talk a little bit about the growing calls for justices to recuse themselves from election-related cases the court is hearing, and for term limits and a binding code of ethics on the court to rein in some of these very legitimate questions about conflicts of interest? Among, I would say, the many outrageous aspects of these stories is just how—I’m completely flabbergasted—not surprised—but completely flabbergasted by Chief Justice Roberts turning a blind eye and inaction here.
Geidner: Yeah. I mean, I have written about it on Law Dork about the fact that this is as much John Roberts’ problem as it is Clarence Thomas and Sam Alito’s problem at this point. Because specifically when he responded to the latest invitation for him to talk with members of the Senate Judiciary Committee, he basically said, “Ain’t my thing,” which is just absurd.
Again, as I said earlier: Yes, the justices do have independent authority. They’re independently confirmed. He’s not their boss. But there are many ways, throughout the Supreme Court’s history, that we’ve seen when the justices feel like one of their colleagues is doing something inappropriate or is causing problems, they can take action. They can dramatically hold over cases. Now, of course, we wouldn’t want them to do that in the case of the immunity decision, but they’ve held over cases before when they’re concerned about a justice’s behavior, which is an extreme action.
They can speak out publicly. I’ve said elsewhere, they can even do it nicely and not name him, but like, you can imagine a speech from Justice Kagan that would leave no doubt of whom she is speaking when she talks about concerns about flag raising and the impression that might lead people who question whether a justice making a decision’s impartiality can reasonably be questioned.
Seeberger: Yes.
Geidner: It’s bad, and they should have recused. I mean, just last week we got Moore v. United States, the income tax case, which Justice Alito participated in despite the fact that he had been participating in these long, closed-door, off-the-record interviews with David Rivkin—in his role as a journalist with The Wall Street Journal—that was part of Alito’s Wall Street Journal year of narrative shaping.
And yet, when David Rivkin was one of the counsel for the Moores, that did not lead Alito to recuse. He issued a little four-page statement explaining why, that basically said, “People talk to journalists all the time.” This partner at BakerHostetler who co-wrote an op-ed was “a glowing interview” with Alito is the same thing as a journalist asking aggressive questions.
Seeberger: It’s ludicrous. So, looking forward now to next term, if we could. We’re already seeing some really high-profile cases coming down the pike. Earlier this week, the court announced that it’ll hear a case next fall relating to the Biden administration’s appeal of Tennessee’s gender-affirming care ban. There have been challenges in other states as well to their gender-affirming care bans, like in Alabama. I know you’ve been tracking this all closely. Can you break down some of these legal questions at hand in these cases and what the arguments are that advocates are making about these bans? And what should we expect from the Supreme Court as they look to take up these questions?
Geidner: Yeah. So, the case that the Supreme Court took is the Justice Department’s petition for review. The Justice Department had intervened in a case the challengers brought against the Tennessee ban.
There was also a Kentucky case that had been considered with that that had led to a decision from the 6th Circuit last September, that found that the bans are likely constitutional. Now, the cases—and almost all of the challengers’ cases—have raised basically three claims. They’ve raised two together: an equal protection claim saying that these laws discriminate on the basis of sex and on the basis of transgender status.
Then, they also raise a due process claim about parental rights and parents’ rights to direct the upbringing of their children, direct the medical decisions of their children. There are some questions that “law dorks” would get into about what the court cares about, which is the level of specificity of the right that you are claiming. And so, the level of specificity that these plaintiffs are claiming is the right to direct the medical care for your children. And courts have in the past said that that is a right. Now, the Justice Department is only raising the equal protection claim. They did not ask the justices to consider the parental right claims.
And so, there were three petitions before the court. Both of the Tennessee and Kentucky challengers had asked the court to review their cases.
Seeberger: All three?
Geidner: And the Justice Department. Yeah, all three claims.
Seeberger: OK.
Geidner: And the Justice Department had just asked the equal protection claim. And so, the court on Monday just granted the Justice Department’s petition.
So, we’re only going to be considering equal protection. We’re going to be considering whether these bans are a type of sex discrimination and whether they discriminate on the basis of transgender status.
Seeberger: And are the other challenges related to the parental rights question—are those still an open question for the court?
Geidner: They’re still an open question. And that’s something that I wrote about is that it is sort of an unusual grant. Because normally when the court grants a case, they want to make sure they resolve it.
Seeberger: Yeah. You would think. You would think.
Geidner: Shocking. And so, you’ve got a situation here where the law is in effect—both the Tennessee and Kentucky laws are in effect under the 6th Circuit’s ruling—and there are these multiple petitions seeking review. The court takes one of them—they take one of them that is the most narrow one—and what are they going to do? I hate getting in the minds of justices. We also don’t know. It only takes four votes to grant cert. And so we don’t know who did this. We don’t know if this is a horrible anti-trans thing. We don’t know if this is a moderate thing. We don’t know if this is the left, and they got Neil Gorsuch who wrote 2020’s Bostock decision holding that Title VII’s sex discrimination ban includes discrimination bans on the basis of sexual orientation and gender identity.
But if they decide that the bans violate equal protection, then the grant makes sense.
Seeberger: Sure.
Geidner: Because the bans are struck down. If they would say that the bans are likely constitutional and do not violate equal protection, that puts us in a really weird position. Because then, the 9th Circuit, for example—just hypothetically—which is hearing Idaho’s appeal right now, does include a due process claim. And so they could then strike down the ban on due process parental rights, and then we’re just back with another circuit split, with another cert grant, with another cert petition, and a likely need for the court to revisit this again on different grounds in two or three years.
So, even though this is a very tough court for this case—something that I’ve spoken with Chase Strangio at the ACLU about—the grant and the way they granted it does, in so far as we can look for positive signs from this Court—
Seeberger: We like to do that as often as we can.
Geidner: —does give me at least a minimal level of hope. The one caveat I’m gonna add to that is—because there’s always a caveat—is this is a grant that is being made in the midst of a presidential election. And I mean, the fact of the matter is that even if Donald Trump changed his position in a Trump administration on January 20, I don’t think that necessarily moots the case. Because you did have these plaintiffs from Tennessee who are in the case because DOJ had intervened, so the case isn’t moot. And I think that it is more likely to be a political issue in the campaign now because this is on the docket. I don’t know if it’ll necessarily be a top-tier, everybody-talking-about-it issue, but it certainly will have an effect on LGBTQ people and their allies, and then the anti-trans forces.
Seeberger: Yeah, that’s really fascinating, Chris, because we have seen far-right candidates over the course of the past few cycles try to use the rights of transgender people to whip up their base and foment outrage.
Geidner: It sort of failed.
Seeberger: Largely, across the board, as we have talked about on this show before, those efforts have gone up in flames. They’ve been disastrous politically, as people have rejected that kind of fearmongering.
I do have to ask, you have been doing this work a long time. You have kind of had a purview into the court that most Americans will never be able to enjoy, right? The oral arguments and decisions are not televised. You attend decision days. For our listeners at home who’ve never been to the court, what happens on those decision days? What’s the atmosphere like, and how do you go about sharing outcomes with the public so quickly and effectively?
Geidner: So it’s actually, in some ways, a little disappointing because the journalists—95 percent of us—don’t go up to the courtroom. The press room is in the basement of the court, maybe surprisingly.
Seeberger: Because you can’t take your phones or your computers into the courtroom.
Geidner: Yeah, you can’t take your phones, you can’t take your computer, yeah. And so we don’t go up in the courtroom on decision days other than a couple of people who—like, Nina Totenberg is not live-tweeting the decision.
Seeberger: Yeah.
Geidner: She has her recording at 12:30 or something. And so she goes up, a few others go up, but most of us, what we actually do—it’s almost demeaning—but there’s the press room, and then next to it, there’s the public information office. And we literally have our computers set up in the press room, walk over, and I’ll wait in the public information office. And as the chief justice says, “In our next opinion”—there’s speakers that come through to the press room, the public information office. The chief justice will say, “In our next opinion from Justice Thomas in blah, blah, blah.” And then the public information officers hand out the paper copies, and we run back into the other room, sit at our laptops, and tweet it out, send it in Slack, the CNN person is talking with their producers. Amy Howe’s on the SCOTUS live blog. And then we’re listening with one ear for the justice who’s reading from their decision to say—there’s language, “For those and other reasons contained in our opinion, we affirm the judgment of the Fourth Circuit Court of Appeals.” And we run back to the room for the next opinion, and then go back.
Maybe the most absurd thing that people see us say every opinion day is how many boxes it is.
Seeberger: Yeah.
Geidner: It’s a two-box day. It’s a three-box day. And that is because there are literal boxes with the opinions in them that they bring out five minutes before 10:00. And they sit them on the two public information officers’ desks. They’re closed. And what we know is that there can be two opinions in a box. There might be only one opinion in the box, but there cannot be more than two opinions in a box.
And so, if we get two boxes, we know that there’s a maximum of four opinions. If we get three boxes, we know there’s a maximum of six opinions. And because the Supreme Court is an absurd place—now, some other courts literally tell you the night before which opinions are coming down. Not the U.S. Supreme Court. No, so dramatic. They just tell us there will be opinions. They don’t even technically do that. If you look at the Supreme Court website, it says “the possibility of opinions.” And so we tell people it’s a two-box day, because that’s all we know.
Seeberger: Yeah. Well, it sounds very frantic, sounds quite chaotic, but also important. And I know we will be tuning in to your updates as we close out this term. So, Chris Geidner, Law Dork, thank you so much for joining us on “The Tent.”
Geidner: Thank you so much.
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Seeberger: Well, folks, that’s all the time we have this week. Please go back and check out previous episodes. Erin?
Phillips: Colin?
Seeberger: We have to talk about the news this week, and I’m not just talking about presidential debate politics.
Phillips: We had something else happen besides the presidential debate?
Seeberger: We did! We did! You may have caught that the Taylor Swift was performing in Wembley Stadium in London over the weekend.
Looks like she had just some absolutely incredible shows, as always, but this time we saw some special guests of the audience who really were just living their best lives.
Phillips: I heard about some of the musical guests. I’m a bit of a Gracie Abrams fan, so I heard about that one. But I also heard that there was maybe a sports star in the audience?
Seeberger: Yeah, yeah. I think one Mr. Travis Kelce is picking up some extracurricular activities while in the offseason. Yes, he took the stage at Wembley over the weekend and performed as part of the Tortured Poets Department set for “I Can Do It With a Broken Heart.” And he was a riot, as always.
Phillips: I loved the outfit.
Seeberger: Oh, he looked so good. And she was having so much fun with it. You could just see they absolutely adore each other, and it’s the cutest thing.
Phillips: Now you, I would say, are a Taylor Swift historian of sorts.
Seeberger: I mean, I’m no Kelly McCoy—yes, our senior producer on the podcast—but yes, I am a big Taylor fan, you could say.
Phillips: Has she done this before with former beaus, or is Travis the first?
Seeberger: You know, Travis is in a league of his own. She has done some collabs with former beaus, but this was the first time I’ve seen her on stage with someone that she’s dated. So, I hope that we’ll see him again, but I don’t know, because the Eras Tour is coming to a close at the end of December this year.
Phillips: Well, I will say, Colin, I know that sometimes you get a little laugh out of some of us here on “The Tent” when you insist that the wedding of Tayvis is coming. I think with each passing day, I’m joining your side.
Seeberger: OK! I like to hear it, Erin, I like to hear it.
Phillips: Well, Colin, there’s something else happening that I want to talk about that I know you’re a fan of—a sporting event. And I’m not usually one for sports, but I do watch the Olympics.
Seeberger: I am so excited for the Olympics, Erin. I grew up as a swimmer, and the Olympics are the once-every-four-years marquee sporting event for the sport that I did growing up. And I used to literally tape record on VHS tapes the Olympics and rewatch them a million times until the VHS tapes would no longer work.
I absolutely idolized the USA swimming team. And yeah, it’s always a ton of fun. And it’s cool to see the rest of the world come together and celebrate sports. So, I am super excited. This week is actually the trials for U.S. gymnastics, so I’m super interested to see who ends up making the team.
The women, of course, will be defending their team gold coming out of Tokyo, and we’ll see if Simone Biles can come back and surge to the top again.
Phillips: I love watching gymnastics. I think that’s one of my favorite sports to watch during the Olympics. Figure skating isn’t this time around, but I do usually love figure skating.
Seeberger: Yeah, that’s the Winter Olympics.
Phillips: I will say, an event I’m really excited for—as a rock climber—is rock climbing. They’re having sport climbing again for only the second time at the Olympics.
Seeberger: That is cool.
Phillips: Yeah, and so I’ve been watching the trials for that, which happened a few weeks ago. I’ve been watching the on-demand videos of bouldering—which is really exciting—lead climbing, and speed climbing, which is really interesting. They climb a wall in, like, six seconds. It’s really crazy. If you haven’t seen it, you should check it out.
Seeberger: Wow. That is very cool. Is the U.S. well positioned for the medal race? Do you know if they’re going to be competitive?
Phillips: I’m not super sure. I know a lot of the famous climbers are from Europe, so I guess we’ll have to see. It’s also kind of anybody’s game, because it’s only the second time they’ve had it.
Seeberger: Yeah. We’ve still got to live and learn a little bit.
Phillips: Yeah, exactly.
Seeberger: Yeah. Well, that’s all the time we have this week. I hope everyone takes care of themselves, survives the debate, survives the last week of the Supreme Court’s term, and we will talk to you again after Fourth of July.
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Seeberger: “The Tent” is a podcast from the Center for American Progress Action Fund. It’s hosted by me, Colin Seeberger, and co-hosted by Daniella Gibbs Léger. Erin Phillips is our lead producer and guest host for this episode. Kelly McCoy is our supervising producer, Mishka Espey is our booking producer, and Muggs Leone is our digital producer. Hai Phan, Matthew Gossage, Olivia Mowry, and Toni Pandolfo are our video team. You can find us on YouTube, Apple, Spotify, Google Play, or wherever you get your podcasts.