Background reading:

• “The Courts Are the New Frontlines in the War on Abortion” — Roxy Szal
• “In the Shadow of Partisanship: The Supreme Court’s Recent Term” — Michele Goodwin

Transcript:

00:00:04 Michele Goodwin: 

Welcome to On The Issues with Michele Goodwin at Ms. Magazine. As you know, we’re a show that reports, rebels, and we tell it just like it is, and every year we bring you a Supreme Court term in review with a live studio audience and it’s always packed, and for the first time we’re bringing you one from Washington, DC and what a term to review before we prepare for what’s coming next with the Supreme Court.

In this panel, I’m joined by Mark Joseph Stern Stern from Slate. You know him. You love him. He’s been on our show before. Moira Donegan who’s also a fan fave and who has also joined us from prior Supreme Court terms and review as well as Jamelle Bouie from the New York Times who joins us, and Moira you know from the Guardian. Madiba Dennie from Balls and Strikes and the author of the Originalism Trap, and Chris Geidner who has one of the most important sub stacks around anywhere, Law Dork. Sit back and take a very close listen.

00:01:16 Moira Donegan:
So, this term there was a case that challenged a provision of the Trump tax cuts from 2017 that featured a couple who owned shares in an Indian agricultural equipment manufacturing company.

00:01:30 Michele Goodwin:
Charles and Kathleen.

00:01:31 Moira Donegan:
Yes. Charles and Kathleen of Washington state. Like we know them personally. We don’t but Charles and Kathleen. Yes. This couple has presented as sort of passive shareholders, right, who are being taxed on unrealized income that they were receiving from this foreign entity and it comes out in the course of I think the trial in the district court that not only were they not passive shareholders in this foreign company, they actually were on the board and they were traveling multiple times with these sizable reimbursements back to India to help, you know, direct the company and they were like unequivocally realizing income, right.

So, this idea that their income was not taxable or their savings company was not taxable the way it was being taxed it was just incommensurate with the actual facts on the ground and that’s something we’re seeing in a bunch of these cases, right? The facts as alleged are not the facts as reality manifest them, right? So, this is something we saw I think pretty conspicuously in I’m sorry the praying coach case in which Sonya Sotomayer and her dissent actually produced photographs of the conduct at issue demonstrating that this high school football coach Coach Kennedy in…

00:03:03 Michele Goodwin:
Last year or year before last but it’s a really important case. Tell us to give some level setting about how we see this and how it’s intersected with the kind of weaponization of religion in the court.

00:03:16 Moira Donegan:
Right. This was a case meant to sort of further degrade what remains of the establishment clause, right, and that issue not only was a high school football coach who claimed that he wanted to in the course of his football coaching duties engage in like peaceful private prayer. What he was actually doing was a media spectacle of Christian prayer that was in the middle of the football field that some of his players said they seemed to feel mandatory and coerced and that was specifically engineered to create controversy, right. 

There was a lot of media attention. There were large crowds storming the field to participate in these prayers as sort of a gesture of investment in a public endorsement about Christian religion, right, and the justices in ruling in favor of Coach Kennedy just sort of dismissed all these actual facts about how public how disruptive how coercive his conduct was and pretended that he was just praying on the sidelines. You see this kind of thing a lot.

00:04:35 Michele Goodwin:
Well, in fact we saw this in the mifepristone case, didn’t we? So, Madiba I’m going to turn to you really quickly about the mifepristone case. Tell us a little bit about that and connect it with what was reality and what was not in that case.

00:04:51 Madiba Dennie:
Yeah. There was definitely a significant disconnect between what was happening on the ground or like what the conservative parties were claiming what was happening. So, in order to actually have a law, like a legal case, you need to have a thing called standing. Standing is like the fantasy law way of saying what’s it to you, like why is this like that.

00:05:21 Michele Goodwin:
What’s it to you? What does it say when you have something in the game? What is that? Skin in the game. Yes.

00:05:24 Madiba Dennie:

Yeah. Like what’s your skin in the game? Like why is this case relevant to you? You know, do you actually have an injury that the other party caused you to experience or you might experience imminently and that the court is capable of doing something about it. And so, this group of medical practitioners…

00:05:49 Michele Goodwin:
You would call them a group of medical practitioners. Okay. I digress. It’s your turn. It’s your turn.

00:05:54 Madiba Dennie:
A loosely affiliated group of some doctors and some dentists for some reason they quickly made this group, ran to their favorite forum where Matt Kacsmaryk sits and they said we have a problem. We have been harmed and Matt said what’s the harm, and they said those women are having abortions. It’s like that harms you how exactly. They says well what if they take mifepristone and then maybe they come to me because they had complications. And they said well did you give them the mifepristone or is someone making you prescribe it? They said no. 

They said well is someone like forcing you to do something against your will. They say well no. Is someone like making you not do something you want to do. Well, also no. So, again what is it to you but then you have Kacsmaryk say this sounds like standing to me and it goes to the fifth circuit and the fifth circuit agrees yeah I think there’s standing here and a particularly extra wild moment…

00:07:07 Michele Goodwin:
Extra wild.

00:07:07 Madiba Dennie:
Extra wild. Like the wild icing on an already wild cake is Judge James Ho says in his concurrence that there’s an aesthetic injury that these doctors experienced because they delight in working with their unborn patients, and Sawyer said abortion gives me a case of the sads because I like looking at sonograms and therefore I should be able to coerce someone into childbirth. This is outrageous. It should never have made it into any court. It should never have made into an opinion and yet this was something we saw multiple Trump appointed federal judges bless as a reasonable argument.

00:07:52 Mark Joseph Stern:
Can I just add one point?

00:07:53 Michele Goodwin:
Add a couple.

00:07:55 Mark Joseph Stern:
I mean that’s a fabulous recap totally agree but I just want to sort of foreshadow our coming discussion of the administrative state because Matthew Kacsmaryk the Trump appointed judge in this case he ignored about a hundred and fifty peer reviewed scientific studies that showed that mifepristone is safe and effective. Safer and more effective in fact than Tylenol and Viagra. I don’t see federal judges rushing to impose a nationwide ban on Viagra. That might be the thing to overthrow the entire judiciary if it happened.

And so, Matthew Kacsmaryk I call him the emperor of Amarillo because that’s where he sits. He ignores all those things then he cites two studies that he claimed showed that mifepristone is incredibly dangerous to women and girls. That’s the line, it’s always women and girls, and that it causes them to bleed profusely and that they risk death by taking it. And so, these doctors of course can come and sue because the courts need to block this dangerous drug. 

Shortly after his opinion comes down, the journals that published those two articles take another look at them and they wait a minute we should never have published these. These are not real scientific studies.

00:08:58 Michele Goodwin:
Well, you’re not even talking about the anonymous blog post that he cites.

00:09:00 Mark Joseph Stern:
So, these studies are based on anonymous blog posts that were fielded and collected by anti-abortion activists on the internet and then woven into this bogus study that purported to show that mifepristone is dangerous and that was the entire basis of a nationwide ban in all 50 states and the District of Columbia on mifepristone was basically these anonymous blog posts, and I think that’s important because the Supreme Court just abolished deference to administrative agencies and interpreting ambiguous laws, abolished deference to the experts at administrative agencies who are the ones who actually have the training and the experience in interpreting science and data and also today effectively abolished the statute of limitations that had limited the time when you can challenge agency actions.

And so, what the Supreme Court has done has empowered Matthew Kacsmaryk and his ilk to do a bunch more garbage like that every day all around the country, and if you combine that with judge shopping I think it shows that this fake facts problem it’s going to get so much worse before it maybe gets better because these judges are absolutely shameless in embracing junk science overruling the views of experts and doing whatever they want and the supreme court has kind of given that a thumbs up now.

00:10:21 Michele Goodwin:
This is where we start. Well, so there’s the fake facts, right, problem and then there’s the issue when there are real facts on the ground and the court looks the other way. So, I’m going to throw this out to the entire panel because last week we received the court’s decision in the Moyle v United States case which is the EMTALA case. EMTALA is the Emergency Medical Treatment and Labor Act. For anybody who’s a textualist and labor act is actually right there in the text.

For anyone who really wants to know well what was Congress’s original meaning, and labor was part of the original meaning. How do we pay close attention to and help all Americans in crisis but in particular people that are pregnant and in crisis. How do we make sure that these people aren’t what was being called patient dumped, not provided the care they need. So, Congress then decades ago enacted a law and put in its title and labor act. 

And so, last week was a decision that was rendered by the court which was a technical decision. The decision itself is one sentence long but we got a lot of concurrences. And so, Moira I’m going to turn back to you start us off with what was the decision and what were some of the facts on the ground that the court actually had at its disposal?

00:11:53 Moira Donegan:
Yeah. This is a really heartbreaking case one of I think more that we’re going to be seeing. It came out of Idaho and Idaho is one of six states that bans not just all abortions but including abortions that are conducted to preserve the health of a pregnant patient. So, these are people who are facing in the absence of abortion really severe amounts of blood loss, potential septic infections, the loss of vital organs or their future fertility. Like pretty staggering and life altering health complications from emergency pregnancy complications, right, and these are situations also I want to underscore where the distinction between health saving and a lifesaving abortion is actually really difficult for healthcare practitioners to identify in these emergency moments, right?

So, the law is commanding in states like Idaho that medical providers in these emergency rooms who are faced with these pregnant patients undergoing terrible complications the law requires them to keep waiting for those patients to get sicker and sicker and sicker until they are on the precipice of death and only then are they allowed to intervene, right, and you also have a situation where because of that legal uncertainty a lot of practitioners do not want to participate in this care whatsoever out of concern for their liabilities they might face if they do, right?

So, this is a legal recipe to impose disfigurement and potentially death on women who happen to live in these states with these sadistically pro bans and in fact it is creating emergencies we know from the briefings in the Moyle case that multiple Idaho women have had to be airlifted out of the state to receive emergency medical care.

00:13:56 Michele Goodwin:
Chris.

00:13:56 Chris Geidner:
Yeah. I mean you were sort of getting at it but this idea like that you are having to make that decision under like both criminal and licensure penalty potentials and that like…you think about if you’re in this position of needing to make this decision that it’s only allowed if it ____00:14:21. What we saw the court do is essentially realize that they weren’t able to get five votes for any decision and what we got is they just sent the case back to the ninth circuit.

This was a situation where they had leapfrogged over the ninth circuit I think brazenly to avoid a ninth circuit ruling that would have upheld EMTALA against Idaho in order to not have a circuit split because the fifth circuit had just ruled earlier in the week when the court did this that the Texas abortion ban was basically under the supremacy clause superior to EMTALA but before the ninth circuit the issue…

00:15:12 Michele Goodwin:
Let’s just take a quick pause on that for the people at home, right, because the people in the room they understand the joke behind that but to understand the idea of preemption what does that mean and how does it fit within this context?

00:15:23 Chris Geidner:
Yeah. The idea is just simply that because we have the EMTALA law that the states they limit that EMTALA places on states needing emergency care to be provided that to the extent that a state law contradicts those EMTALA obligations under the supremacy clause the federal emergency law prevails. It’s pretty simple.

00:15:56 Michele Goodwin:
It’s pretty simple, right? It dates back centuries.

00:15:59 Chris Geidner:
This is a basic building block argument and of course the fifth circuit said no. That’s overrated. And so, you had this injunction against the administration’s interpretation of EMTALA in the fifth circuit and you still do now and this is actually a really important part of what happened when they leap frogged took this case out of Idaho avoiding a ninth circuit ruling. They heard the case. We were going to get this decision. It might be bad but we were going to get an national decision and I think for a lot of us once the court took it on even if we didn’t want the court to take it on once they did the silver lining was whichever way they decided they were going to have decided and if there was a need to fight back against a bad ruling that could happen but instead what we got is they didn’t take the case.

They dismissed it as improvidently granted which basically means oops. We shouldn’t have taken it. In the concurring opinion that Justice Barrett wrote she basically said that. Once we looked at everything we realized this wasn’t ready for us, which of course is what the people arguing against had said in the first place but now because of that ruling there was no national ruling. There is no national resolution and that fifth circuit ruling stands. And so, there is no supremacy clause as to emergency care within the fifth circuit right now.

00:17:42 Michele Goodwin:
So, Madiba what’s your sense of then what that means? I mean there’s temporarily at least for now women in Idaho don’t have to be airlifted but then if one thinks about what Chris has mentioned the threats, the criminal threats, the civil threats there still may be doctors in Idaho that say I still feel like I’m unsteady ground. you’re getting in a helicopter.

00:18:07 Madiba Dennie:
Right. There are two things that really jump out at me here. One is the practical reality for pregnant patients on the ground that they’re still dealing with this question of how much do I have to suffer. Like how close do I need to be? Do I need to be knocking on death’s door to get care or do I need to be already standing in the vestibule? Like, what’s happening here? That’s the kind of question that they’re being forced to answer in order to actually get care and I think that’s really important to reckon with and that sort of gets glossed over sometimes in some of the conservative authored opinions.

So, they’re just like you know. They really like high level don’t really get into it and the other thing that jumped out at me again as we were talking about the supremacy clause I know I’m one of the it all sort of comes back to slavery people because I can’t hear about issues between federal and state laws without like alarms starting to go off in my head because it’s like we resolved this after the Civil War and established firmly that states don’t get to do their own thing and the own thing states were doing was enslaving people and the federal government said no.

We are firmly establishing with like our constitutional amendment the federal government is saying no and we have the authority to enforce these federal prohibitions. And so, when I see a state start saying actually I have more power than you federal government to establish these like national baselines that go to people’s safety and health and personhood I start to get nervous.

00:19:46 Michele Goodwin:
Well, Jamelle on that point I’d love for you to actually connect on that point because Madiba was just mentioning slavery but I also think about Jim Crow, the federal government coming in and saying we’re going to protect people whose voting rights are being denied. We’re going to step in and protect people whose housing rights are being denied, whose education is being denied, just a whole litany of things being denied. The federal government coming in and saying no states, this is where we limit what you perceive of your rights.

00:20:15 Jamelle Bouie:
Right. Prior to the Civil War the notion was that the federal government is this government of renumerated power. It’s quite limited in its actions but the states had effectively unlimited ability to regulate their internal communities. It was called the states police power. Not policing in terms of, you know, a badge and a gun but policing in terms of the ability to then structure the internal community. And so, enslavery, right…this is a wide area, a serious live area of political contestation in the 1830s and 40s.

You would have a state like South Carolina say any black sailor who comes into port in Charleston, right…Charleston is connected to Boston. It’s connected to Providence, lots of water traffic. Any black sailor who comes into Charleston has to remain on the ship or be jailed and if that black sailor cannot prove that they are free they can be sold into slavery in the state of South Carolina.

In the state of Massachusetts might say they what. Excuse me. You can’t do that to one of our citizens. This kind of conflict was happening throughout the union between free states and slave states. If you are a free black laborer in Ohio and you have to go over the Kentucky border to deliver something what are your rights? Kentucky would say well here you presume to be enslaved and so liable to be taken into slavery. Ohio, which wasn’t particularly a nice place to be black in the 1830s, even Ohio lawmakers would say wait a second. This is a violation of the rights of Ohio citizens. 

This is all to say that this expanded notion of states’ abilities to impose themselves on the residents of other states to extend their power beyond state borders is what was really quashed with the Civil War amendments and what was unraveled in the Supreme Court’s reaction to those amendments was exactly this. Jim Crow in a lot of ways is an attempt to recreate the kind of constitutional sentiment that existed pre-1865. I think you can understand the effort to allow Idaho for example to not honor federal law as an attempt to begin to roll back this sense that the states do not have that kind of control over the people within their borders, that there is such a thing as national citizenship that entitles one to a universal basic set of rights across the entire nation that cannot be interfered with by state law.

You know, in my view so much of the Roberts Court jurisprudence especially around bodily autonomy and the rights of people to be secure in their own persons is an attempt to undermine this and to say that in fact if today South Carolina or Missouri which floated in the wake of Dobbs proposal to create criminal liabilities for people who left the state to get abortions, right, that’s the kind of thing that you open the door to when you begin to say in this case Congress is no longer supreme. This supremacy clause doesn’t apply.

00:23:51 Michele Goodwin:
As we transition because we’ve got cases to cover I’m so glad that you mentioned that because there’s such an interconnectivity between these matters of citizenship, slavery, Jim Crow, and reproductive freedom, autonomy and rights. Mississippi, I said we’d go back to Mississippi, didn’t I but it brings to mind then Mississippi is what brought us the Dobbs decision and now we’re in the aftermath of talking about EMTALA and mifepristone which we wouldn’t have been say for the  Dobbs decision, and Jamelle what you were just mentioning makes me think about the work of Fannie Lou Hamer.

So, Fannie Lou Hamer who 60 years ago is talking about what it was like to be a black woman in Mississippi before the nation and talking about what happened to her and a group of black women as they attempted to vote and how they were dragged off of a bus taken to a jail were beaten, how when she was not being beaten forcefully enough by an inmate that the guards made beat her that the guard took the baton and began beating her in her head.

Then she tells the nation all of this because we want to be able to vote in Mississippi, all of this because black people don’t want to be second class citizens in Mississippi, the Mississippi that brought us Dobbs, and Fannie Lou Hamer just to tie up that thread was the person who then said and let me tell you about what they’re doing to black women in Mississippi. So, you know about the slavery kind of part of this but let’s tell you about the Jim Crow part of this. The coercive and the forced sterilizations, and she said let me tell you my story because I was one of them.

And thank goodness for Judge Carlton Reeves who in the opinion to put a stay on the Mississippi law before the Supreme Court took that off talked about Fannie Lou Hamer and acknowledged that high percentage of black women who were being coercively sterilized there in Mississippi, to go back and tie it up with facts and what we call things they called it the appendectomy. The Mississippi appendectomy rather than the coercive forced sterilizations of black women. Okay. We must move on. 

00:26:15 Moira Donegan:
Oh, but speaking of facts very quickly, a lot of those women were labeled as mentally defective falsely. In order to justify their sterilization, put a fig leaf or a pretext of a rationale other than racist exploitation on that program which was in many cases not everywhere in the country but in many cases was sponsored by the state.

00:26:35 Michele Goodwin:

Sponsored by the state because it was at a time in which black women began demanding full inclusion in welfare benefits in the United States, not to be confused with what Justice Thomas, back to Justice Thomas, and his claim that this all began a century ago. It didn’t but during that time…Madiba, it looked like you were going to add on.

00:26:55 Madiba Dennie:
Yeah. I just wanted to make one final point before we transition. I’m just thinking about how the 13 amendment formally abolished slavery and badges and incidents of slavery, and I’m thinking that if you consider how enslaved black women were coerced into pregnancy and if you consider how throughout Jim Crow black women were forcibly sterilized that to eliminate slavery and badges and incidents of slavery you have to say that women need reproductive autonomy. Like you have to say that there’s bodily autonomy.

00:27:30 Michele Goodwin:
You’re speaking my language.

00:27:34 Jamelle Bouie;
I think that is one hundred percent correct. It’s a problem that our understanding of slavery is primarily about physical labor and not about reproductive labor.

00:27:43 Michele Goodwin:
Picking cotton and tobacco rather than understanding the coercive forced rapes of black women, the incest. I mean if you just look at the bounty that tens of thousands of advertisements that took place in the United States selling breeding winches ages 12 to 14. What is a breeding winch? When Thomas Jefferson writes to his colleagues and says I prefer to have women and girls at Monticello because they turn a profit every year or two what is he talking about?

00:28:19 Jamelle Bouie:
I think as we’re taught about slavery we’re taught about is as the foundation of trying to extract free work but the actual foundation is like the extraction of reproductive capacity. That’s what American slavery is about and you can’t like in a constitutional moment like we are now where questions of bodily autonomy are paramount there’s just no way to think through our constitution and bodily autonomy without thinking and taking seriously slavery and the arguments that the architect of ____00:28:55 made about reproductive slavery because they were aware of this. Not to make light of it but everyone knew what was happening down south.

00:29:06 Michele Goodwin:
It’s in the advertisements.

00:29:11 Moira Donegan:
I would also just expand this perception of the reconstruction amendments protections of bodily autonomy not just to what Jamelle was referring to in terms of like pure reproductive capacity but also in terms of like family making, right? Another thing that the crafters of the 13 and 14 amendments were very cognizant of and that we see speaking of advertisements really profoundly in the historical record is the separation of families for the sake of profit, right, and writing into the 13 amendment this barring of the badges and incidents of slavery I think and this is something that was argued by Melissa Murray and Reva Siegel in their Dobbs brief that we also have to understand that as sort of a right to independent autonomy and family composition and how we make our families and keep them together.

00:29:59 Michele Goodwin:
This group we could have a whole day. Just one more. One more. Yes. 

00:30:06 Chris Geidner:
On Jamelle’s point I think it is important to note that it’s not just this hypothetical out of Missouri but we do have the Yellowhammer Fund case. Half the people know it’s Alabama, right? Am I right? I wasn’t sure. It’s one of the bad AGs down there. I mean this is a literal case where they went on the radio right after Dobbs and said yeah under our law we can prosecute people for trying to leave the state, and the Yellowhammer Fund and abortion fund has sued as well as the clinic to say we want a declaratory judgement that we are protected under our right to travel, under all of these rights in order to prevent prosecutions, and they have a preliminary injunction but that is ongoing. So, this is a court term in review but that could be up next term.

00:31:06 Michele Goodwin:
Well, as you can see there’s so much to unpack here and before we transition, which we’re about to do, to some other areas of law just to level set. So, for those of you who are joining us on television and are not here there are guards that are right outside this room and the reason why is to protect people’s safety, and I think this is really important because it’s kind of framed as they’re just good well-meaning people who just don’t like abortion but I just want to say that over the last 50 years there have been more than 50 bombings of clinics that have provided reproductive healthcare to women. 

There have been doctors that have been murdered at their homes and churches. I have colleagues who are doctors who provide reproductive healthcare for women who say that they cannot be on screen. They cannot have their photos taken because they have children at home and they do not want someone arriving at their door and potentially murdering their children. These are issues that are quite serious, quite real. When I think about the last standing abortion clinic that existed in Mississippi it was owned by a woman who had a clinic that was in Birmingham.

Her clinic in Birmingham was bombed. It killed the security guard there who was actually an anti-abortion guard but he believed that women deserve to be able to make their own decisions. And so, he was an off-duty police officer who had worked there. He was murdered in that process and there were staff that were permanently injured. So, when we think about these issues and I think about the doctors, the nurses, the medical providers who really do this courageous work of providing healthcare to women and I want to thank them in the audience and also those at home.

So, Chevron. Mark, what is Chevron? I mean people think that’s a car. It’s like Chevy. Is that a car? What is the Chevron doctrine? Why should people be concerned about it and what did we hear from the court this year?

00:33:10 Mark Joseph Stern:
What was the Chevron doctrine? You know, I thought this was a little technical but Barbara Streisand recently tweeted about it ____00:33:17.

00:33:17 Michele Goodwin:
But you know Babbs is tweeting about it. Thank you Babbs wherever you happen to be.

00:33:19 Mark Joseph Stern:
Chevron deference was a decision from 40 years ago where the Supreme Court held that when Congress enacts laws it delegates a lot of authority to administrative agencies. Everybody in this room knows what those are, but you know, Department of Labor, the EPA, now the CFPB, the alphabet soup of agencies that do the everyday work of interpreting and enforcing federal law.

Congress does not purport to know exactly how to tackle all of the problems its trying to address. It doesn’t know the exact formula to determine how much benzine can be in our air before it creates harm to children. So, it says EPA you figure this out. You come up with the right formula and you enforce this. And under the Chevron deference doctrine the court sort of acknowledged there are going to be gaps and ambiguities in these laws. When Congress makes these delegations it doesn’t’ purport to know every single problem that will arise.

And so, when there is an ambiguity what exactly is the definition of too much benzine that federal courts should defer to the experts at administrative agencies who have devoted their careers to mastering these issues and protecting all of our health and safety from the very problems that Congress was trying to address. So, you know, if the EPA says this is too much benzine the law itself is a little ambiguous. Under Chevron deference federal courts say you know your interpretation is reasonable. We will trust it. We will go with it and then look if future administration comes in and they think that standard is too loose then their experts can get at it and if they come up with a stricter rule as long as its still reasonable the courts still defer to it.

00:35:02 Michele Goodwin:
Mark, just really quickly, when we’re talking about these experts we’re not talking about experts such as come and leave with the presidential administration. Explain that for the public too.

00:35:11 Mark Joseph Stern:
No. We’re talking about career civil servants who many times have devoted their entire careers to this kind of government work where they often could cashout and get a job in the biopharma industry and make real bank and send their kids to Harvard but instead the kids are going to state schools and the experts and…

00:35:34 Michele Goodwin:
Which are great. Which are great.

00:35:34 Mark Joseph Stern:
Which are amazing. Which we love. We love this for them. They are resisting the siren call of private industry because they care so much about doing this work, and I’m glad you lifted up that point because it’s like, you know, people hate for instance the IRS. Everybody hates on the IRS. Listen, those folks could turn around and go to the dark side…not the dark side but they could do white collar criminal defense helping corporations save billions of dollars in taxes every year but instead they think it’s important that our government collect the money its owed. And so, they toil day in and day out figuring out how to fairly enforce the tax code, and that’s’ true across every agency.

NLRB when it comes to labor law, EPA on environmental stuff, I could go on. And Chevron is a doctrine of judicial humility. It says you know what, unelected judges, they don’t really understand this stuff on the same level as the experts and agencies and they sure as heck aren’t accountable to the people in any way, shape, or form.

00:36:32 Michele Goodwin:
So then Jamelle, I’m wondering what your response would be to those that say look it’s really not so bad. Don’t listen to those folks who are in July first at Georgetown with this panel. It’s not that bad. What’s your response?

00:36:44 Jamelle Bouie:
I mean my response is it’s pretty bad. 

00:36:51 Mark Joseph Stern:
I’ll just be clear, everything I just described in that whole paradigm that’s now gone. 

00:36:57 Jamelle Bouie:
It’s for very obvious practical reasons, right? Like none of this is hypothetical. If a law says there should be clean air and at the time that they’re just thinking about smog, they’re just thinking about pollutants that everyone recognizes but then 30 years later some company creates like a new, you know, something that is extremely polluting, agencies should have the ability to say this thing is new. It didn’t exist before. It’s subject to the law, or a law that says we don’t want asbestos in the buildings and the company creates like asbestos delta nine and company says hey you can’t regulate this because its technically not the same asbestos. 

You want an agency to be able to say you know we think it is. Just because there’s like one different carbon molecule it still is the same thing. And so, the ability of agencies to no longer be able to securely make those determinations. They can still make those determinations but if a company sues with Chevron overturned it’ll be the courts now deciding whether or not the regulation was reasonable. There are two things I want to note here. The first is that this creates a tremendous amount of work for the federal judiciary. Like they’re…

00:38:15 Michele Goodwin:
Didn’t Justice Roberts say they’re overworked.

00:38:18 Jamelle Bouie:
Justice Roberts is constantly saying they’re overworked and beyond sort of the actual intellectual capacity, like literal there aren’t enough judges. There aren’t enough people on the bench to handle all the regulatory challenges that are to come as a result of last week’s decision and today’s decision. So, I would say that if you wanted to respond to these decisions it’ll be best way to respond is just to like radically enlarge the entire federal judiciary and put a bunch of new judges on the bench to like handle the capacity gap and  hopefully these people are friendly to the notion that agencies should be able to do their jobs.

The second thing I want to note, this comes to the politics of all this. Chevron 84 was widely considered to be a victory for the right or conservatives for the reason that part of the conservative argument was that a judiciary was captured by liberals after Truman and Kennedy and Johnson and Carter. All these libs on the judiciary that are standing in the way of Ronald Reagen and his administration which represents the people. Reagen wins a commanding majority in 1980. I was about to say 1850. I might as well. 

And conservatives believed that this entitled their administration to deference from the courts. So, it’s interesting to me that conservatives have now sort of turned against this kind of deference in the same moment that they turned against the notion that they can win democratically consistently enough to hold power. The two are connected. They’re part of the same kind of like project of doing as much as possible to remove governance from democratically accountable institutions into the ones that they believe they can kind of hold in perpetuity, whether that’s courts or their hyper gerrymandered state legislatures, whatever it might be.

00:40:12 Michele Goodwin:
Well, in our last panel was Professor Victoria Norris who was talking about a kind of selective determinativism with the Supreme Court which I think is something that law professors would have blushed at saying let’s say a decade ago but now seems so apparent that maybe we should just call it opportunism that we see coming from the court. So, really quickly Moira then Chris and then I think you wanted to tie that up, and then I’ve got to go on because we’ve got more. We haven’t even gotten to guns yet. Okay.

00:40:42 Moira Donegan:
I wanted to echo Jamelle’s point that this is creating a ton of more work for the court and that the federal courts have been sort of appropriating powers from the elected branches or branches that are responsible to voters and apportioning that power for themselves but I don’t think that this actually will in the end wind up creating that much more work for the federal judiciary. Although I do think we should give Don Roberts, you know, four to seven new colleagues. 

00:41:13 Mark Joseph Stern:

Within the next four months.

00:41:13 Moira Donegan:

But I think what’s going to happen is that these regulatory agencies are going to severely triage their enforcement activities and that’s what’s intended to happen. So, a lot of illegal conduct is going to have to be let slide by these agencies that do not have the capacity to be able to…

00:41:32 Michele Goodwin:
Less monitoring. Less oversight. Chris.

00:41:35 Chris Geidner:
Yeah. I think a couple points. I’ll try to get them out quickly. The first point to Mark’s point about the experts like yes a lot of these people are experts but some of them are political. Some of them were political appointees and the important thing is that under Chevron like those are still more accountable people. And so, regardless of who it was under Chevron you did have this closer connection to accountability that’s now completely removed. 

The second point is this idea that I’ve sort of been teasing out that you’ve got on both ends now you’ve got this idea that particularly when you’re dealing with constitutional provisions that we have this originalism and this history and tradition test that when we get to guns we’ll talk about the problems of that but that basically limits us to have any progressive and small pea vision because it sorts of locked in place to this time but then if those people in that time make a decision that we want to create, our intent, our history, our tradition at this moment when we’re passing the law is to make a broad law that can be broadly interpreted and applied by an agency in the future.

What all of these decisions that we’ve had in Jarkesy, in EPA today in Corner Post and in Loper Bright what they do is make it more difficult for people now to even make laws that allow for future progressive action. And so, it’s sort of like on the front end and back end we’re limited.

00:43:32 Mark Joseph Stern:
It’s like one weird trick to seize power from both the executive branch and Congress all at once. I just want to add there’s a wonderful illustration the Supreme Court inadvertently  made of this point about experts the day before it overturned Chevron Deference. The Supreme Court blocked an EPA regulation of ozone emissions and Neil Gorsuch and his majority opinion came in and said I know better than the scientists at the EPA. 

In that opinion, he repeatedly confused nitrogen oxide which is the emission that causes smog with nitrous oxide which is laughing gas. So, we have this opinion that purports to limit the EPA’s ability to regulate laughing gas at the dentist I guess and I think you couldn’t hunt for like a better illustration of why maybe the EPA knows better than Neil Gorsuch.

00:44:21 Moria Donegan:
I hope the EPA reads it and is like okay I promise not to do that.

00:44:25 Mark Joseph Stern:
The other thing I just want to say briefly is there’s another case that’s very closely related here which is the Jarkesy case where the Supreme Court said that federal agencies staring with SEC but a lot more cannot bring civil penalties against private parties through in house adjudication before an administrative law judge which is a very fair and efficient way of doing this if the defendant says I want a federal jury trial. I want to go to federal court draw this out for years, make it last way longer, force the government to throw a ton more resources at it. The reality is that if the SEC and all these other agencies can’t bring these enforcement actions in house they’re not going to bring them at all.

They would need exponentially more lawyers loaned out from the Department of Justice which doesn’t have them and never will. They would need way more resources, way more personnel in house. And so, I think what the Supreme Court is doing is very clever. They aren’t striking down the laws that I think are broadly popular like the Clean Air Act or Dodd Frank or whatever that protect us from financial exploitation and pollution and all of that bad stuff. What they’re doing is hobbling the enforcement of those laws in a way that is frankly very difficult for many non-lawyers to understand and we have to sit up here for 15 minutes to sort of talk through it.

I think that this is going to lead to many people mistakenly attributing bad stuff to, you know, Congress or the executive branch or the president when in reality it is the Supreme Court that is blocking the effective enforcement of these laws.

00:45:59 Michele Goodwin:
Well, we’re going to carry on and push just a little bit beyond our time. They’re very good back there but we’ve got a couple more things to cover before we let this go but you can see just how not boring talking about the Supreme Court is. All right. Guns. Rahimi, Madiba. Let’s talk about it.

00:46:22 Madiba Dennie:
Let’s talk about it. So, Rahimi is a case about the right of domestic violence offenders, specifically people who are subject to domestic violence restraining orders, to possess guns. There’s a federal law that prohibits that and that has been enforced has been upheld as the constitutional law time and time again. There was no question about this until the Supreme Court decided New York NRA versus Bruen two years ago and in Bruen the court gave us its brand new originalist standard. Justice Thomas specifically gave us as a brand new originalist standard in which he said that a gun regulation is presumptively unconstitutional unless it has a historical analog like from the founding.

It was a little bit unclear I think in the opinion whether it was like a founding specifically or if like the 14 amendment era could count but still the point is that he wanted this while like founding fathers were walking the earth. That’s what counts. Like if there’s an analog to that time. And so, Zackey Rahimi this young man in Texas who is like a caricature of an irresponsible gun owner, which I think he would admit as well. Like he wrote a letter to the judge in his case saying like I promise for real this time to stay away from all firearms because he was just getting into all kinds of Yosemite Sam situations. 

It was just very silly. So, he challenged the constitutionality of the laws applied to him. He said well, you know, the court now says that a law has to have this historical analog and there are no historical analogs saying that you can dispossess like take away a domestic violence offender’s gun.

00:48:24 Chris Geidner:
Why is that Madiba? What the hell was going on in the 1790s?

00:48:26 Madiba Dennie:
Not caring about women. Not caring about domestic violence. Also not having the same kind of threat as gun violence then that existed now because like, you know, they had guns but like a musket is very different than a Glock. And so, it’s like very different. 

00:48:47 Michele Goodwin:
You can’t really put it in your back pocket.

00:48:49 Madiba Dennie:
Yeah. Yeah. Not quite the same. So, we have Zackey Rahimi make this argument that this law is actually unconstitutional given the new standard that Clarence Thomas so thoughtfully laid out for us, and the lower courts agreed. They said that the law was unconstitutional and it worked its way back up to the Supreme Court which got really nervous all of a sudden. Now they were faced with the consequences of originalism and most of them realized they didn’t like those consequences. I say most of them for a reason because Justice Clarence Thomas was the standalone dissent. It was an eight to one decision.

What’s funny about it is that the majority opinion you have all these justices who are saying you know it seems like the lower courts didn’t understand Bruen. We were really clear but the lower courts must not have understood it. They didn’t comprehend because that’s not what we meant. We recognize that’s wild and that’s not what we meant and then you have Clarence Thomas in dissent saying that’s exactly what I meant.

00:50:04 Michele Goodwin:
Okay. We got it. Okay. Bump stocks Garland, Moira.

00:50:09 Moira Donegan:
Yeah. This was a weird one. This was a decision that the court decided based on like a very technical abstract definition of the term function of the trigger, right, and the Trump DOJ had banned bump stocks which was a gun accessory under a federal law that bans machine guns on the theory that this is an accessory that turns a semi-automatic rifle into an automatic rifle or machine gun and these were banned after a mass shooting in Las Vegas. I believe something like 50 people were killed and several hundred were injured. Just a really cartoonish massacre of the kind of that really calls out for legal intervention, right?

To their credit, the Trump DOJ did respond by interpreting a federal ban on machine guns to include accessories that functionally convert these guns into machine guns. Court struck this down in a very technical kind of gun corny opinion with a lot of diagrams and a GIF arguing that because the bump stock moves the trigger multiple times that does not technically turn it into a machine gun for which it would require the trigger to be moved only once, right, and whether or not the trigger function requires additional conscious efforts behind the shooter is not an  issue according to Clarence Thomas.

00:51:49 Michele Goodwin:
Quick takes. Jamelle.

00:51:51 Jamelle Bouie:
Just listening to you describe it it’s so stupid. It’s like insulting to our intelligence.

00:51:58 Moira Donegan:
And I want to point out the gap in morality, right, between the technicality that Clarence Thomas is arguing and those 60 dead people in Las Vegas. 

00:52:06 Mark Joseph Stern;
One of the other things is he says that it’s not truly automatic because you have to lean on the bump stock in order to make it fire and that leaning takes it out of the realm of being automatic. This is something that makes an AR 15 go from a rate of 180 rounds per minute to a rate of 800 rounds per minute, right, and I completely agree he writes like a gun fetishist and what’s truly remarkable is he copies and pastes these diagrams and this GIF, I say GIF sorry, directly from an amicus brief with copyright credit that was filed by one of the most extreme gun groups that exist. They make the NRA look moderate. It’s called the Firearms Policy Coalition. They support the abolition of ATF. They think there should be zero regulations on guns up to and including machine guns. 

These are the people who have Clarence Thomas’s ear who are convincing Clarence Thomas to in my view mangle the plain text of this law and the original meaning. You know, we have the congressional Florida ____00:53:08 from the 1930s saying we want this to be broad. We want to encompass every tool, every device that could fire at this rate and Clarence Thomas says no I’m going to trust these anti-gun loonies and I think it’s another example of them toppling the administrative state. They say ATF’s experts don’t know how machine guns work but we do and this isn’t one of them.

00:53:30 Chris Geidner:
This is the exact example of like it doesn’t matter what the law says. It literally doesn’t matter. This was a statutory case, not a constitutional case, so he couldn’t even pull his originalism but he can just interpret it how he wants.

00:53:46 Michele Goodwin:
All right. So, we’re going to turn now to former President Trump. Immunity in cases. We’re going to do this quickly, and follow these fabulous journalists. So, you’ll have them just here for now. Yes, please. It takes considerable courage, diligence, integrity to do the reporting to be on the ground. All right. One quick note as we transition just in thinking about Bruen and Dobbs because Bruen was released the day before Dobbs and it was Justice Thomas that wrote the opinion in Bruen. 

What was fascinating about that amongst many things…that’s the case that turned over the more than centuries old gun control law is that Justice Thomas said it was important to include a prologue. It is very rare that there is any prologue in any law decision but he said a prologue is needed, so he could spend five paragraphs talking about how important male bodily autonomy is and how protecting male bodily autonomy was connected to men being able to have guns.

The next day was the Dobbs decision. Not one reference to women’s bodily autonomy whatsoever and no reference by Justice Thomas in his concurrence to black women’s bodily autonomy even though five paragraphs were spent the day before talking about black men and their guns. All right. Now to Trump immunity. Why don’t we just take that on? Today I know many of you had to rush and write given the opinion. What does the opinion actually say? Let’s start with your Mark.

00:55:24 Mark Joseph Stern:
So, the opinion says that presidents are immune from criminal prosecution for official acts that they take while in office. They are absolutely immune for official acts that are within their exclusive sphere of authority, which means something like the pardon power, right? The president is allowed to pardon people. And so, the court says well if the president takes a million dollar bribe in exchange for a pardon he’s absolutely immune from prosecution because that falls within the core sphere of his authority and we would not want to chill the functioning of an energetic executive by subjecting him to accountability for that.

And then it says now there are all of these other things the president does that fall under these broader duties to take care that the law be faithfully executed and they say as a general rule the president is presumptively immune from criminal prosecution for that as well and there may be a way that prosecutors could rebut that immunity but if there is we’re not going to tell you how they can do it and we’re going to tell you that they cannot inquire into the president’s motive. 

So, for instance, in the January sixth indictment it’s alleged that Donald Trump interfered with the Department of Justice, tried to coerce the agency into essentially brow beating swing states into illicitly changing the count of votes, so that Donald Trump would be declared the winner. The Supreme Court says he is immune from prosecution for all of that conduct because that falls within the outer perimeter of his duties. Then the court says there may be these other kind of things unofficial acts, which sort of sound like maybe like a speeding ticket or like smoking a joint on federal property, it’s very unclear. It’s a narrow category of things.

They say he can be prosecuted for unofficial acts but just to be clear any time he says he does something because he’s trying to enforce his executive power that is basically presumptively an official act that receives robust protection. And so, in my view the court has really cut the heart out of the indictment against Trump for January sixth.

00:57:33 Michele Goodwin:
All right. Chris, did you want to add anything to that? Jamelle? Madiba, Moira. 

00:57:42 Chris Geidner:
I don’t know if I quite agree with all of that. I do think that there is an area particularly the discussions with state and local officials because of the fact that John Sauer conceded, Trump’s lawyer basically conceded that those weren’t official acts in oral argument and that sort of even put this Supreme Court in a tough place and they said that they acknowledged that that was conceded but I think this is the important thing that I would add is while they were willing to decide that the DOJ conversations and the efforts to pressure Pence were either absolute or presumptively absolute for the things John Sauer conceded they weren’t willing to make a determination on. 

And so, those will need to go back and be decided on remand which basically means more delay if you’re thinking about…even if Jack Smith decided to cut out these parts of it that there is absolute immunity he would still have to go through a whole set of hearings before Judge Chutkin.

00:58:56 Michele Goodwin:
Madiba, Jamelle, Moira.

00:58:59 Moira Donegan:
I want to make a couple of really quick points. First I want to highlight the difference between the chilling concern that the court apparently has for Trump but none of that same concern about the chilling factor for doctors who might be like avoiding providing care to patients and just allowing them to suffer. The second thing I want point out is that for a court that calls itself originalist you would think that it would give some credence to the founder’s whole idea about getting away from the powers of the king but that’s effectively what they’re doing here.  The third thing I want to say is that this case is not actually about law at all. It’s about power. It’s about politics. It’s about the court support for the republican candidate.

00:59:48 Jamelle Bouie:
I would agree with every bit of that that this case is…I mean it’s no action that Roberts was in the Reagen OLC, Alito was in the Reagen OLC, Kavanaugh worked for W. Like these are people who came up through the republican legal movement at the time when the unitary executive notion was being developed. This to me is just sort of a constitutional ratification of the notion of the unitary executive and I really want to hammer in on how it represents a fundamental break with what the presidency was designed to be in 1778. 

It was a legitimate concern among the people who opposed ratification of the Constitution that they were creating a king. This was a real fear and one of the things that advocates for ratification said again and again and again…ratification mentions in presses, everywhere they had to make this argument they were like no the president can be criminally prosecuted. One of these guys at the North Carolina ratification convention even went as far as to say that not only can the president be criminally prosecuted but if it’s a capital offense you can execute them. 

The framers or the ratifiers were very clear about this. And so, this idea that there’s even a real distinction between official and unofficial acts is completely extra constitutional. It doesn’t exist. It’s something that’s made up to deal with the fact that basically since the second World War the president has acquired vast extra constitutional powers that do make him criminally liable when he exercises them and this court has just said not only are we not going to do anything to push back on that but we’re going to formalize it and effectively say that the president…what can’t the president do under this dispensation? Literlaly what can’t the president do?

01:01:57 Moira Dennie:
Well, you’re president. They let you do it. If the president does it, it’s not illegal. That was my favorite. I mean I want to echo Jamelle’s point that this is like the capstone of a long historical project to transform the presidency but I don’t think we can really understate what the court did to the executive institution today. It is a different office today than it was just a few hours ago and you know I think not to put too fine a point on it but I think they did this out of deference to Trump and in anticipation of Trump’s future actions in what they are hoping and expecting will be a second Trump term beginning in January. 

01:02:49 Mark Joseph Stern:
Can I just briefly say…

01:02:46 Michele Goodwin:
You can conclude so we can wrap this up.

01:02:47 Mark Joseph Stern:
Thank you Michele. I obviously agree with all that and you know I agree with Chris too that it does seem there are sort of concessions that John Roberts arguably makes that say well maybe when this goes back to the trial court there are ways that liability could be imposed sort of through the cracks, and yet if you read Justice Sotomayer’s dissent which I strongly encourage everyone to do she ends it with fear for our democracy I dissent. She is very, very skeptical that this opinion leaves any real room for liability. I mean she says basically don’t be fooled. 

The majority has crowned the president a king. That this taxonomy that the majority purports to create that if you really drill down and you look at how it’s ostensibly to be applied it really stacks the deck for the president at every single turn and that is what John Roberts is so incredibly good at doing. Writing an opinion that when you first read it might seem sort of reasonable and like compromise but that once you drill down you realize is filled with all kinds rhetoric that is designed to stack the deck, tip the scales, whatever metaphor you want to use for the position that is favored by the republican party. 

And so, I do think that Judge Tanya Chutkan the trial court judge here will do her best to apply this in a fair way that leaves some of Jack Smith’s indictments standing but guess what’ll happen after she issues that decision. It’s going to be appealed back up to the Supreme Court and they are going to have a chance to take a second crack at it and those open questions that they leave like is this immunity presumptive or absolute I think I know how they’ll answer that.

01:04:19 Michele Goodwin:
I know with that and all of the sighs in the room please join me in thanking our panelists today for the Supreme Court term in review. Guests and listeners, that’s it for today’s episode of On the Issues with Michele Goodwin at Ms. Magazine. I want to thank each of you for tuning in for the full story and engaging with us. We hope you’ll join us again for our next episode where you know we’ll be reporting, rebelling, and telling it just like it is.

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On the Issues with Michele Goodwin is a Ms. Magazine joint production. Michele Goodwin and Kathy Spillar are our executive producers. Our producers for this episode are Roxy Szal, Oliver Haug, and also Allison Whelan. Our social media content producer is Sophia Panigrahi. The creative vision behind our work includes art and design by Brandi Phipps, editing by Natalie Holland, and music by Chris J. Lee.