Transcript:

Dr. Michele Goodwin: 

Welcome to On the Issues with Michele Goodwin at Ms. Magazine. As you know, we report, rebel, and we tell it just like it is, and that includes with reviewing the United States Supreme Court’s most recent term. I hope you’ll sit back and take a very close listen as I’m joined live with Erwin Chemerinsky, Dean of Berkeley Law; Mark Joseph Stern, Senior Writer at Slate; Jamelle Bouie, columnist at The New York Times; Moira Donegan, a columnist at The Guardian; Sherrilyn Ifill, Professor of Law at Howard Law School and former CEO and President of the Legal Defense Fund; and Chris Geidner, legal editor at Law Dork. 

You’ll also be hearing from H. Adam Harris as he gets us started before this live audience we recorded in Washington, D.C. at Georgetown University.

Our friends, our listeners, sit back and take a very close listen.

01:06:47.8 H. Adam Harris:

[SINGING] In the morning, when I rise, in the morning, when I rise, oh, in the morning, when I rise.

Let America be the dream the dreamers dreamed. Let it be the great strong land of love, where never kings connive nor tyrants scheme, that any man be crushed by one above. Oh, let my land be a land where liberty is crowned with no false patriotic wreath, but opportunity is real and life is free , equality is in the air we breathe.

Oh, let America be America again, the land that never has been yet, and yet must be, the land where every man is free. To that land, that land that’s mine, whose sweat and blood, whose faith and pain, whose hand at the foundry, whose plow in the rain, must bring back our mighty dream again.

Oh, yes, let me say it plain, America never was America to me, and yet I swear this oath: America will be, out of the rack and ruin of our gangster death, the rape and rot of graft and stealth and lies. We, the people, we, the people, we, the people, must redeem the land, the mines, the plants, the rivers, the mountains, and the endless plain, all this great stretch of these great green states, and make America again. Oh, let us make America again.

Good morning. Good morning. My name is H. Adam Harris, and I’m your emcee. I am so, so honored to be here, and I thought I’d start us off with a little bit of that excerpt from Langston Hughes’, “Oh, Let America Be America Again.” On behalf of Georgetown Law and the O’Neill Institute, I offer sincere gratitude and admiration to each of you for joining us this morning for this year’s Supreme Court Term in Review.

The Supreme Court heard 60 cases this term, a period defined by critical tests of executive authority, structural, administrative power and civil rights. Today, we gather to hear from leading luminaries of the legal profession on the impact of this term and how we might navigate the truth of now as we seek the potential of the future.

Friends, if you’ll take your seat, we’re going to welcome Professor Goodwin and our panelists for the Supreme Court Term in Review. Please take your seats, and we’ll ask our panelists to join us on stage. All right, all right, thank you all. Professor Goodwin. 

01:07:26.4 Professor Michele Goodwin:

Can we give another round of applause to our Rule of Law panel and our panelists? How brilliant they are. So grateful. We are truly, truly grateful to have been able to assemble a panel like you just heard with that level of depth, experience and leadership. I mean, rule of law, democracy, and on the ground. You know, one of the things that didn’t come up in that last panel is that, as we think about January 6 and as congressional committees [and] law enforcement were trying to figure out who were the people that stormed the Capitol and that harmed our democracy, it was actually Liz Winstead and her group that were able to give over two or three dozen names of individuals. Because they spotted them because of the ways in which they had been harassing, bullying and harming women outside of medical clinics, and they were able to say, “oh, we know that person, and here’s the information, and we know that person, and here is the information,” which led to prosecutions and convictions. Liz, thank you so much. That’s the work of democracy.

All right, so, we’re going to get started with this rough-and-tumble group. Thank you so much for being back together again. You might hear them interrupting each other, and that’s completely okay. That’s fair. Absolute fair game, and the way in which we’re going to get this started is, Erwin, Dean of Berkeley Law, I’m going to ask you to just give us a quick overview of this term. 

01:09:10.1 Erwin Chemerinsky:

Sure. Thank you so much for having us. It’s an honor and pleasure to be here. Like so many of us, I think I’m up here because I do anything Michele asks. If I was to characterize the term overall, I would say that it shows that it’s a very conservative Supreme Court, and cases involving President Trump usually will rule in his favor, but sometimes against him. Michele always asks me to start with some statistics about the term. The Supreme Court decided 61 cases, assigned opinions after briefing all argument. It’s almost the same as the 58 a year ago, but keep in mind, in the 1980s, the court was deciding over 160 cases a term.

In William Rehnquist’s last term as chief, October term 2004, the court decided 85 cases. At the same time, the number of cases on the emergency docket, the so-called shadow docket, have tripled in the last few years. About 29 percent of the cases were six-to-three decisions, but 23 percent were six-three, with the dissent being Justice Sotomayor, Kagan, and Jackson. That’s about double the number of six-three decisions from a year ago. Once more, the justice most often in the majority was John Roberts 95 percent of the time. If I was to identify a theme for the term, I would say that it was about the court and democracy. Let me give three quick examples of that.

01:10:35.0 Professor Michele Goodwin:

Please.

01:10:36.2 Erwin Chemerinsky:

The first is voting rights. If you ask me what, “was the single-most important decision of the term?” I would say, without hesitation, “Louisiana v. Callais.” 

I regard the Voting Rights Act of 1965 as one of the most important laws adopted in my lifetime. In 1964 in Mississippi, only 7 percent of eligible Black individuals were registered to vote. In Alabama, it was only 17 percent. In the states across the Confederacy, only 43 percent of eligible Black individuals were registered to vote.

The Voting Rights Act of 1965 was intended to and made a huge difference. But in 2013, in Shelby County v. Holder, the Supreme Court struck down the provisions that required that states with a history of race discrimination get pre-clearance. Chief Justice Roberts, writing to the court, said, but there’s still Section 2 of the Voting Rights Act that says that states can’t have election systems that have a discriminatory impact against voters of color.

In Louisiana v. Callais, the Supreme Court effectively gutted that provision. The court said, proof of discriminatory impact is not enough, there has to be proof of discriminatory intent. And it’s very difficult to show discriminatory intent. Really, will legislators express the racist motive? The court went further and said, if the legislature is acting to give a partisan advantage to a political party, then that’s an acceptable, non-racist purpose. So, immediately, Southern states began redrawing election districts, saying, we’re doing so to give an advantage to Republicans.

We saw Louisiana cancel its scheduled congressional elections to redraw them. Tennessee redrew its districts. The bottom line is, this is going to mean the largest loss of Black representatives in Congress and state legislatures since the end of Reconstruction. And it was briefly suggested in a prior panel, the Supreme Court’s opinion suggests it might find all disparate impact liability unconstitutional, which would gut Title VII on employment discrimination, the 1968 Fair Housing Law, and many state laws.

Second, they’re the cases involving President Trump. By my count, since January 20, 2025, there’ve been 31 Supreme Court rulings involving challenges to the Trump administration, most on the shadow docket, some merits cases. This, in itself, is unprecedented. Never has the Supreme Court heard so many challenges to an administration for such a long period of time. In 26 of 31, the Supreme Court has ruled in favor of the Trump administration. We saw key examples of that this term.

On Monday, in Trump v. Slaughter, the Supreme Court overruled a 90-year-old precedent and said that Congress cannot limit the ability of the president to remove the heads of federal agencies. This is an enormously important separation of powers decision, shifting power from Congress to the president. Last Thursday, there were a couple of immigration decisions. There was Mullen v. Doe, that President Trump could, unilaterally, revoke temporary protection status for 300,000 individuals from Haiti and Syria.

There’s Trump v. Lado, where the Supreme Court held that the president has the ability to bar people from coming to this country to seek amnesty. Notwithstanding a federal statute in a national law. But at the same time, we can’t ignore that, in the tariffs case, Learning Resources v. Trump, the Supreme Court, 6-3, struck down President Trump’s tariffs, and just yesterday, in Trump v. Barbara, the Supreme Court said that President Trump’s executive order on birthright citizenship was unconstitutional. To me, the surprise of that case is it wasn’t nine to nothing. Given the United States’ history, given the text of the 14th Amendment, given the precedent from 1898, given tradition, it should’ve been unanimous.

On the other hand, keep in mind here that Justices Thomas and Alito have not once voted against the Trump administration in any of the cases. Third and finally, there’s the issue of the relationship of the judiciary to democracy. When I teach constitutional law each spring, I always say to my students, the central underlying question of constitutional law is when should the judiciary defer to the democratic process and when overrule it? The theme here, and I know it sounds cynical, is that, when the Supreme Court agrees with the democratic process, it professes deference, and when it disagrees with the result, it just overrules it.

01:15:17.3

Compare two cases: Yesterday’s decision, with regard to state laws prohibiting transgender girls and women from participating in girls’ and women’s sport, (this was the case of West Virginia v. B.P.J.) the Supreme Court deferred to the legislatures of West Virginia and Idaho and their laws. The argument they gave was, it was necessary for states to do this in order to preserve competitive balance and for safety reasons. But as Justice Sotomayor put out, there was no evidence in the record, whatsoever, to support this. There should have to be proof of this. The case should’ve gone back to require the states to demonstrate it.

It was all about deference to the legislature. But now compare this to the Chiles v. Salazar case earlier this term and about Colorado law prohibiting conversion therapy for gay, lesbian, and transgender youth. The Colorado Legislature found, with extensive fact-finding, that such so-called therapy is ineffective and harmful. There was no deference whatsoever to the Colorado Legislature. It was about strict scrutiny. I guess, if I had to give an overall assessment of the term, is that it was awful, but it could’ve been worse. And you know when you’re saying it could’ve been worse, you’re having a really bad day.

01:16:41.7 Professor Michele Goodwin:

Give it up for Erwin Chemerinsky. Thank you, Erwin. 

All right, Sherrilyn. You led the LDF for a number of years, an organization key to furthering civil rights in the United States, taking on cases that brought us closer towards that arc of justice, closer towards living out the promise of the Reconstruction, the first, added to, by the second one of the laws Erwin references, right, 1965 Voting Rights Act. There was the 1964 Civil Rights Act, and out of that, came so many protections, and so forth. I want to start by asking, how you have viewed this term, and then I’m going to turn to you to start us off with talking about Callais. And your microphone friend.

01:17:43.5 Sherrilyn Ifill:

First of all, thank you. Thank you all for being here, and thank you for assembling us, Michele, and thank you, Dean Chemerinsky, for that assessment. Awful, but could be worse. Okay. I am as dismayed as I have ever been by this term, for a variety of reasons. And I went to the court yesterday and earlier in the week, in part, because I just thought, you know, if this court is going to do what many of us fear it will do in the birthright citizenship case, for example…I mean, I think most of us recognized, from the oral argument, that it would not be unanimous, and so, we already knew…to me, that’s a catastrophe. I just thought, you know, they do so much of their work without ever having to confront anyone, and you know, I was shocked, on Monday, there were three of us sitting in the section for members of the Supreme Court Bar. It was me and Kristin Clarke, former Assistant Attorney General for Civil Rights.

01:18:49.8 Professor Michele Goodwin:

Who’s brilliant.

01:18:50.6 Sherrilyn Ifill:

Who’s brilliant, and one other person. And you know, I understand why people don’t come, obviously, decision day should be on audio. Everyone should be able to listen to it. Certainly true, but I do think, and I will encourage, in the future, it’s really important that, at the very least…I know they don’t care about the people in the back, the public who comes in to watch, but I do think those of us who are members of…

01:19:14.9 Professor Michele Goodwin:

You know this to be true.

01:19:16.6 Sherrilyn Ifill:

Listen, those of us who are members of the Supreme Court Bar, they should have to confront us when they do things like, on one decision day, overturn two precedents, as they just did, right? When you’re overturning Humphrey’s Executor and Colorado II, you should have to look at people who you have told about the importance of stare decisis, who have to actually make decisions about when to litigate, where to litigate, what we think our chances are before we invest money and time into litigation, and one of the key markers that we use to make that evaluation is stare decisis. We need to know what we think the law is before we challenge a violation of that law. So, I went to sit there, just to confront that moment. And the reason is, because I think so many things went wrong with this term, that we’ve reached the point of peak illegitimacy. I’m going to hold off Callais just to the end of my remarks, because we’re all going to talk about Callais, but I think there’s…

01:20:22.4 Professor Michele Goodwin:

Or you’re going to talk about Callais, and I’m going to ask Jamelle about Callais.

01:20:24.6 Sherrilyn Ifill:

Yeah, for sure. There are a number of things that I think are deeply problematic. One of them is, you know, we are in the midst of an absolute power grab by this court. An absolute power grab. Not as though the Supreme Court didn’t have a lot of power already. It is the 800-pound gorilla, in part, because so many of us were ruined, shall we say, by having had our formative years in the 30 years when the court was doing things to expand democracy, as Skye Perryman was talking about.

If your kind of fundamental, formational idea of the Supreme Court, growing up in this country, was the court of Brown, right, then you have a distorted view of the court. And so, the court has been able to accumulate a lot of power, in part, because so many of us have believed that the court was a place where this could happen. So, they already had power. Then they wanted more power, right? Some of that power, they want for the president—and certainly, these are people who believe in the unitary executive—but the power to decide what powers go to the president, they want that power, right?

So, they can create new doctrines, like the Major Questions Doctrine, to just say, that seems too important for you to have that power, Joe Biden, right, and decide and arrogate to themselves that power. They can strip Congress of power. No, we will not, in the Shelby County v. Holder case, credit Congress with having pulled together a record that shows the need to continue Section 5 of the Voting Rights Act. And in fact, we don’t even care that Congress, overwhelmingly, voted to reauthorize the Voting Rights Act, because, as Justice Scalia said at the oral argument, we know why Congress did that. Who’s going to vote against the Voting Rights Act? Even the name sounds great, right?

So, they won’t even credit congressional votes as having any significance, because they know why. So, we just saw that Justice Jackson talked last week about this contempt of Congress, what she called academic contempt of Congress that many of these justices hold. But they absolutely don’t believe that Congress is a co-equal branch of government. They just don’t, and so, they have taken power from Congress and arrogated it to themselves, and sometimes to the president.

01:22:37.4 Professor Michele Goodwin:

All right. So, this is the way in which you’ve been seeing the Court, and I think that you’re probably not alone, right? Probably, in this audience right here, there are a number of people who feel the same. I will say…and I want to turn to Callais, and we’ve got a lot to cover in a brief period of time. I would like to take one pause, one pause, for us to think about and to appreciate the federal judges, district court, courts of appeals who have been taking on these cases and have been standing up for democracy and the rule of law. And many doing so under threat. Judges who can no longer walk the streets, you know, have to drive to wherever they go. Fear opening their doors, all of this. It’s important to recognize the work that they have been doing.

So, over the last year and a half, there have been over 850 lawsuits that’ve been filed against this administration, and we’re going to get to Callais right now. I’m going to start off with Jamelle, then push you in on this question, but there’s a lot of litigation, and that litigation, not all of it is making its way to the Supreme Court, as Erwin has mentioned, right? Because the court is taking fewer and fewer cases. A lot of it has been at the district court level and then making its way up. So, of our various cases, let’s talk about voting rights. 1965 Voting Rights Act, Pettus Bridge. People being bashed, it’s when we begin to understand and see John Lewis as a young man, right? There are multiple people who are murdered.

The point of it is just let’s register to vote. What Erwin said, and it went quickly, but it’s real, he was talking about 7 percent, 17 percent of Black people being able to register to vote. For us to remember that, in those Southern places, if you were Black, you had to guess how many bubbles on a bar of soap in order to vote. Here’s this jar of jelly beans. Guess how many jelly beans in this jar if I’m going to register you to vote. All of that, this is what gives you 7 percent, 17 percent, if you were lucky enough. Jamelle, tell us a bit about the Callais decision. What does that represent? What was it about?

01:24:58.5 Jamelle Bouie:

I think the Callais decision doesn’t just represent a destruction of the Voting Rights Act. I mean, as Erwin said, if you are allowing legislatures to gerrymander on a partisan basis, knowing full well that, in the south, there is no distinction between partisan and the racial gerrymandering, which I’ll say was the case in 1870 when the 15th Amendment was ratified. There has never, in the history of the American South, been a situation where you could distinguish between partisan and racial gerrymandering. So, if you are allowing legislatures to do that, then you are, effectively, allowing the kind of extreme racial gerrymandering that we thought we got rid of with the Voting Rights Act, the 15th Amendment was written to deal with. It is obliterating Black representation in the South.

01:25:49.0 Professor Michele Goodwin:

What about the people who are confused by this, right? Because this was about drawing districts, right?

01:25:54.8 Jamelle Bouie:

Right.

01:25:55.4 Professor Michele Goodwin:

And some folks would say, well, you know, you’re drawing special Black districts. Isn’t there a problem with that? Why is there no problem with that, or is there a problem with that?

01:26:05.0 Jamelle Bouie:

I don’t think there’s a problem with that. Even if they were, not a problem. [Laughter] 

So, I’m going to rewind real quick. Part of the origins of this is that the original Voting Rights Act did not have an intent test, and in 1982, the Congress amended the Voting Rights Act to introduce a results and effects test, right? To say that, hey, if the voting changes result in a situation where Black Americans are losing representation, even if that wasn’t, necessarily, the intent, you don’t have to prove it. All you have to show is that that’s the effect. And at the time, right, there was opposition to this. Notable opponents of this at the time, Chief Justice Roberts as a young lawyer. And I think you should understand Callais as, basically, Roberts and Alito who were, at the time, opponents of this, their ability to say, no, Congress was wrong.

01:28:04.9 Professor Michele Goodwin:

So, here’s a question I want to ask you, Sherrilyn, to just help our law students who are in the audience, right, because, again, what is it with these districts? If Black folks have one district, can’t they be satisfied? How does that…you got one. So, what is it about the American South, in terms of demographics, that adds nuance to this?

01:28:29.8 Sherrilyn Ifill:

Yeah, I mean, the reason that you can draw a majority-Black districts is because Black people have been segregated not only in the South, but all over this country. You don’t just walk up on the South side of some city and say, oh, all the Black people are here. 

01:28:42.6 Professor Michele Goodwin:

Chicago, Milwaukee…

01:28:44.8 Sherrilyn Ifill:

How is that possible? All the Black people in Harlem, why is that? Because even Thurgood Marshall couldn’t get an apartment in Stuyvesant Town when he took over the Legal Defense Fund.

01:28:51.0 Professor Michele Goodwin:

He couldn’t get into the University of Maryland. Please. Girl.

01:28:53.4 Sherrilyn Ifill:

I’m giving you New York, though. I’m giving you New York.

01:28:56.1 Professor Michele Goodwin:

Okay. Okay. Okay. Yes. Yes.

01:28:57.4 Sherrilyn Ifill:

You see what I’m saying?

01:28:58.1 Professor Michele Goodwin:

I see what you’re saying. I see where you’re going.

01:28:59.3 Sherrilyn Ifill:

None of the Black LDF lawyers could get an apartment in Stuyvesant Town, in Manhattan, and so, they all had to live up in Esplanade Gardens in Harlem, right? So, the reality of segregation in this country is that we are racially divided, and we are as segregated as we have ever been. It may not be by law, but it is…

01:29:18.9 Professor Michele Goodwin:

And sometimes it was. Pauli Murray…

01:29:19.4 Sherrilyn Ifill:

I mean today, it is by custom, and we are inheritors of…every time you redistrict…you know, like, I did the 1991, which I’m convinced is the reason I left LDF as a young lawyer, because redistricting is so awful, and when you do redistricting, you start with the old map, right? You don’t just say, oh, where are all the people, and start drawing new districts. So, I started with the map that came from the ‘80s, and then you’re making adjustments to that map. So, we’re just grandfathering that segregation. It’s continuing. 

But here’s the other piece.

One of the factors that you have to prove, as you’re creating these districts, is that you’re keeping together communities of interest, and part of what this Supreme Court, what those conservatives want, is to suggest that Black people don’t have a community of interest. That we’re all just color blind, and therefore, we shouldn’t care whose district that we’re in. I want to just throw in a couple of figures, because this is so important to build on what Erwin was saying. This is about power. Voting and districts is about power. The reason that Black people wanted power was not just to, ceremonially, you know, vote and to feel the dignity of voting.

They thought that if they had power, they could change the material circumstances of their lives and their communities. So, they wanted power, and they understood that the white people who opposed them, who didn’t even want them to vote, were not going to make the material conditions of their lives different. So, they wanted to elect people with whom they felt an affinity, so that they could make those changes, and so, the key figures here are about that representation. When the Voting Rights Act was enacted, there were 70 Black elected officials across the whole country. Right after the 1982 amendments, 1,000, but again, 20 years later, 10 thousand Black elected officials. This was the ability to develop Indigenous leadership that would give power.

01:31:13.2 Professor Michele Goodwin:

And based on their population. So, just so that you all know, we’re talking about spaces where the population of Black people is a third of the state, 40 percent of the state, approaching 50 percent of…

01:31:24.3 Sherrilyn Ifill:

Forty percent of Mississippi.

01:31:25.6 Professor Michele Goodwin:

Forty percent, and you got one person that you get to elect, based on how the map is drawn.

01:31:31.4 Mark Joseph Stern:

Can I just add that I think the simplest answer to your very good question, why should we have legal protections requiring majority-Black districts, is because look what happens when those protections are gone. We are seeing it right now after Callais, absolute annihilation of political representation.

01:31:48.3 Professor Michele Goodwin:

Yeah, and in fact, like, what happened right after Callais? Like, Tennessee. Alabama.

01:31:50.8 Mark Joseph Stern:

Tennessee, Alabama, all of these states racing to obliterate political representation for their Black communities, redrawing lines in obviously racist ways, which the Supreme Court now allows them to launder as mere partisan gerrymanders, even though, as Jamelle said, partisanship and race map onto each other perfectly. And you said, Michele, oh, why shouldn’t people be happy with, you know, one majority-Black district? Well, we don’t even see one in Tennessee anymore. There are zero, because all of the Black communities have been cracked, as we put it, and redistributed in majority-white areas.

01:32:24.2 Professor Michele Goodwin:

And what’s the flip of that, right? Because, you know, folks will look, and they’ll be like, Black people, you’ve got, like…you got one. We never flipped that question. So, what does that look like and…

01:32:33.0 Mark Joseph Stern:

White people have them all. White people have total control of the congressional map in the state of Tennessee. They have near-total control of the congressional map in Mississippi and Alabama, where there are huge Black populations. Like, this is a complete reversal of the Voting Rights Act and of the 15th Amendment, and it’s being done in the name of protecting the 15th Amendment. That’s the most perverse part of it all.

01:32:53.9 Professor Michele Goodwin:

Which is a Reconstruction amendment. I see you gripping, Chris. Yes, Chris Geidner, Mark from Slate. Chris, yes.

01:33:00.4 Chris Geidner:

It is not just the legislatures, because it was also then immediately after where, after we have this whole discussion of the effects test, that they allowed redistricting to go into effect that had been struck down, where they found intent. Where a three-judge panel had held a trial, had issued hundreds of pages of findings, and had found intent to discriminate by the legislature, and the Supreme Court then said, well, forget about that effects test decision that we just had in Callais. Now we’re going to say that even intent isn’t enough to stop the state from being able to go further.

01:35:40.3 Professor Michele Goodwin:

Thirteenth Amendment abolishing slavery and involuntary servitude, right? No more of this forced rape and carrying people’s babies so that they could be trafficked and sold. The 14th Amendment, which gives us birthright citizenship in its very first sentence. Equal protection under law, substantive due process, those liberties, and 15th Amendment with voting rights. All right, that establishes things for students. Now, did you have one last piece?

01:36:07.1 Mark Joseph Stern:

One last piece. One last piece.

01:36:08.3 Professor Michele Goodwin:

One last, because I want to actually turn to the anniversary of Dobbs to talk about that, and I’m looking at you, Moira.

01:36:15.2 Mark Joseph Stern:

So, we just have to make clear about this color-blind Constitution hokum, right? When the government wants to protect people of color by ensuring that they have equal representation, fair representation, this Supreme Court steps in and says, no, you can’t do that, because we have a color-blind Constitution, but when the government wants to racially profile people who appear to be Latino or Hispanic and detain them because of their apparent ethnicity, suddenly and mysteriously…

01:36:41.5 Professor Michele Goodwin:

Suddenly and mysteriously.

01:36:43.0 Mark Joseph Stern:

…the color-blind Constitution flies out the window. So, we just have to look at when the selective application of this principle comes in, and when it mysteriously disappears. And it tells us a lot about the real goals.

01:36:53.3 Professor Michele Goodwin:

Houdini. All right, Jamelle. Then we got to get onto Dobbs and anniversary…

01:36:56.3 Jamelle Bouie:

One very quick…

01:36:56.0 Professor Michele Goodwin:

You see this group? You see what I have to do each year. Yes. Yes.

01:37:00.8 Jamelle Bouie:

Just before we move on, Sherrilyn made a great point earlier about this court tried taking power from Congress, and when we think about the Reconstruction Amendment, one thing that’s so important to understand is that the congresses that passed those amendments understood themselves to also have the power to determine what was the appropriate legislation that they could pass under them. And what’s striking away Callais is Alito saying, no, we determine what is appropriate legislation under the 15th Amendment. We determined what it is under the 14th Amendment in this previous case, and that’s so significant. Because I think that, more than anything, narrows the ability of Congress to offer remedies. If the only remedies you can offer are those that…to rights that the court says exist and using methods the court says is okay, then that, in itself, vastly neuters the ability of those amendments to actually do anything for anyone.

01:37:50.7 Professor Michele Goodwin:

Thank you for that, and I think that there’s so much attention yet to be given to those very courageous members of Congress and the Senate that gave us those Reconstruction Amendments. We do not do enough time in recognizing them and thinking about them, because look, in 2026, we should be there, but imagine doing this, you know, in 1865, saying that, no, we are going to reconstruct this Constitution. Those days are over. It’s done. We’re stamping it out, and that’s what they did. 

All right, we’re in the anniversary of Dobbs. So, a few years ago, we were together. We were in California on Dobbs and talking about the Supreme Court overturning Roe v. Wade. Moira, if you can set the stage for what has been the case since then, the cases that we’ve had to think about, and what, on the ground, have people experienced?

01:38:46.5 Moira Donegan:

Yeah, so, you know, I would say, in the two years or so following Dobbs, we really had sort of a flickering on and off of access to abortion in large swaths of the country. I think of it as, like, you know, when an old light bulb would be, like, almost done, and you’d try to turn it on. It would kind of go on and off very quickly. That was what was happening as a lot of these state bans were litigated up through state courts, and now we have, more or less, here in 2026, reached our abortion rights stasis, such as you will, right? Like, we know, more or less, what states allow abortion, and more or less, what states prohibit it. The sort of electoral and plebiscite options in a bunch of states have, like, more or less been exhausted, right? We know, more or less, what the map looks like, and Dobbs…

01:39:35.1 Professor Michele Goodwin:

And the map actually looks very much like the Confederate map.

01:39:38.0 Moira Donegan:

Yes, it does. Yeah. But much to Sam Alito’s chagrin, Dobbs has not been able to prohibit access to abortion in these banned states because of the advent of telemedicine, mifepristone, and misoprostol provision, right? This is something that the Biden administration put into place on a temporary basis in 2021 and then on a permanent basis in 2023 I think, exactly with an eye towards this, you know, post-Dobbs reality in which abortion is inaccessible in large swaths of the country, where abortion medications, particularly mifepristone, the first in a two-drug regimen, is now accessible by mail, by telemedicine, and by mail.

01:40:27.3 Professor Michele Goodwin:

But at the same time, you have states like Texas and also, Louisiana seeking to criminally punish doctors who are engaged in telemedicine with residents in those states.

01:40:37.4 Moira Donegan:

Yeah, I want to draw attention to a case of a New York-based physician named Maggie Carpenter, who has warrants out for her arrest, I believe, from both Texas and Louisiana and is not free, at this point, to physically leave the state of New York, where she is protected by a Shield Law—by a Shield Law that prohibits state authorities in the state of New York, and in very similarly-situated states. Most democratic-controlled states, at this point, have some version of a Shield Law that prohibits those state authorities from cooperating with the attempts to prosecute her in Louisiana and Texas. I think those Shield Laws, at least according to Sam Alito, who is piping mad about that, are likely to be object of further litigation.

01:41:20.8 Professor Michele Goodwin:

Yeah, we saw that. So, really quickly, just in thinking about this…because it’s so important to level-set in terms of factual information. Roe v. Wade was a 7-2 decision. 5 of those 7 justices were Republican appointed. Justice Blackmun, who wrote the opinion in Roe, was put on the Supreme Court by Richard Nixon. No one would say that he was a bleeding-heart liberal. Just a couple years before the Dobbs decision, the Supreme Court had, again, reaffirmed Roe v. Wade. So, this sort of, like, idea that Roe was some strange thing out in the universe where the Supreme Court had, over and over again, affirmed it, including just a few years before the decision with Chief Justice John Roberts joining on with liberals to stamp out an anti-abortion law in Louisiana. Chris, did you want to say something about that?

01:42:11.8 Chris Geidner:

Yeah. Just because you mentioned the New York Shield Law and how it’s playing out in abortion, I just wanted to note, in regards to the earlier panel, the discussion about sort of the intertwined nature of the attack on trans people and abortion is that the New York Shield Law has come into effect with regards to trans rights, because it’s the only reason that we learned about the fact that the Department of Justice, which has been going after providers of gender-affirming care for minors in blue states where it’s legal, using administrative subpoenas over the past year, that we learned that they had turned to using a grand jury in the Northern District of Texas, where it would potentially be going to Judge Reed O’Connor, one of the furthest right judges on the district courts in the country, and the only reason we found out about it was because one of the grand jury’s emails was given to NYU Langone, and they basically posted it and said, under New York Shield Law, we need to let our patients know. And I think they were conveniently helping us out by doing it, posting it, but it is this example of how these attacks are full-fledged going at both trans people and abortion.

01:43:37.9 Professor Michele Goodwin:

And it is interesting, because Dobbs presented that, like, right after. One other thing I think that we should say…because even though folks are being able to get access to medication, abortion, that doesn’t mean that there aren’t women who are bleeding out in parking lots. That doesn’t mean that there aren’t women who have died. That doesn’t mean that the state of Georgia had a woman tethered to life support, who was brain dead, so that the state of Georgia could have her body gestate a fetus. It doesn’t mean that there haven’t been women being helicoptered out of states to get reproductive healthcare, because doctors are concerned about being criminally punished, losing their license to practice, or getting civil fines, or in Texas, where it can be 99 years’ incarceration if you’re a doctor, 100-thousand-dollar fine per, lose your license to practice.

So, we have to remember those cases still exist and that there have been doctors in Louisiana that have presented before their legislature saying, look, I got an 8-year-old patient. Are you serious that this 8-year-old must carry her rapist’s fetus here, which could risk her life? And so, those are some of the other of what’s happening. But Chris, you got us thinking, then, about what’s been taking place with regard to trans issues, and so, I’m going to turn to you, and I’m going to turn to Erwin by thinking about it, and you might jump in here, too, Mark, but Erwin, if you could lay the sort of ground for how we understand Skrmetti and then Chiles from this term, and then what the case that was just released with Heacox, what we should be thinking about.

01:45:20.1 Erwin Chemerinsky:

To put this in context, this is a very anti-trans-rights court. Let me put it in a little better context.

01:45:25.5 Professor Michele Goodwin:

Please.

01:45:26.6 Erwin Chemerinsky:

In the spring of 2025, the Supreme Court decided Trump v. Shilling. It involved whether President Trump could have an executive order barring transgender individuals from the military.

01:45:38.4 Professor Michele Goodwin:

We wrote about that, too, Erwin. We did. It was, like, Northwestern Law Review, like, seven years ago. Like, what happens with…okay, anyway, yes.

01:45:47.9 Erwin Chemerinsky:

The district court said that this was violating equal protection. Trans individuals serve with great distinction in the military. Court of appeals upheld the preliminary injunction. The Supreme Court, 6-3, without any explanation, reversed it, allowing President Trump to bar transgender individuals in the military. In June of 2025, the case you just alluded to, United States v. Skrmetti, Tennessee adopted a law prohibiting gender-affirming care for transgender youth. Found 26 states to do so. The consensus of medical opinion is that for transgender youth, those with gender dysphoria, such medical care can often be lifesaving.

The Supreme Court, 6-3, upholds the Tennessee law, professing the need for deference to the Tennessee Legislature. November of 2025, Trump v. Orr, the State Department reversed earlier policy and said that an individual’s passport had to list the sex as identified at birth. In other words, it couldn’t be gender identity. District court says this is irrational. You want the passport to accurately reflect the person’s gender identity when it’s presented. The district court said, in some countries, having the passport indicate the sex at birth rather than gender identity can lead to harassment, violence, threats against individuals.

The Supreme Court stays the preliminary injunction and allows the State Department to do this, saying it would irreparably harm the United States government to not be able to carry out its policy, and then yesterday, West Virginia v. B.P.J. It involves laws in West Virginia and Idaho that, essentially, prohibit transgender girls and women from participating in girls’ and women’s sports. The United States Court of Appeals for the Fourth Circuit, the United States Court of Appeals for the Ninth Circuit found that it violated equal protection. It is discrimination on the basis of gender identity.

The Supreme Court, yesterday, 6-3, said it doesn’t violate equal protection. Michele, I put these cases together because you have to look at them cumulatively. It is a court that is very hostile to trans rights. Here, I remind everybody that 1938, the famous Carolene Products Footnote 4, the Supreme Court said that the judiciary has a special role in protecting minorities that aren’t going to be able to save themselves from the political process. Trans individuals are exactly that kind of minority today, and yet, the Supreme Court is entirely abandoning protection of them.

01:48:23.5 Professor Michele Goodwin:

Thank you very much for that arc, Chris.

01:48:29.6 Chris Geidner:

Yeah, I mean, I think that the passport case, I’m really glad you mentioned that. I think that that opinion was really one of the low-water marks, aside from Justice Thomas’s concurrence yesterday, which was just horrifying in B.P.J., but just the entire rationale of the passport case and the dissent to it, it made clear, like, what you are doing is turning the concept of irreparable harm on its head, and I think that does connect completely with the Carolene Products.

01:49:04.2 Sherrilyn Ifill:

Can I give a shout out…

01:49:04.5 Professor Michele Goodwin:

Yeah, and then let’s talk about Justice Thomas…

01:49:06.6 Sherrilyn Ifill:

On equal protection that brings these together? Because, you know, this is why Justice Sotomayor’s very powerfully read dissent…well, at least partial dissent in the West Virginia case was so important, because she said, you know, we should be sending this back for factual findings about whether, in fact, there is some safety issue with letting transgender girls participate in this particular sport. Like, what are the sports where there might be some danger? What are the sports in which there would be unfair competition? That’s a factual question that we need, and the majority is running right past that, because they know everything, but they’re also doing it in the race cases, right?

So, this is why they don’t care what Congress has accumulated in the record. This is why they don’t care that the district court has found intentional discrimination. This is why they don’t care about the test that existed under Section 2 that required, “from the legislative history, a searching, practical evaluation of the political, social, and cultural reality in that jurisdiction.” That was the test, and that test includes having to establish that voting is racially polarized. Racially polarized voting means that majority of white people consistently vote one way that is the opposite of how the majority of Black people in that jurisdiction vote.

Think, if you will, of the last three presidential elections, right? That’s racially polarized voting, and if you live in a community in which you are a minority and the white population is always hostile to your candidates of choice, then you will never have power. So, that’s one of the things you have to actually prove, and you have an expert witness. You have to get a political scientist. They have to run a regression analysis. We’re not just doing this on a hunch or how we feel. But they don’t care about facts, and that’s why they’re hostile to the district courts, and I think I even said that last year. That that’s what the district courts represent.

01:50:55.3 Professor Michele Goodwin:

So, I see multiple hands here. So, let’s go to you, Moira, and then we’re going to you, Mark, and then we’ll go to you, Chris, and then we’re going on. Yes.

01:51:04.6 Moira Donegan:

Yeah. I’m really glad, Sherrilyn, that you brought this up, because, you know, the underlying facts, particularly in the B.P.J. case are, like, kind of shockingly innocuous. This is, quite literally, a teenage girl named Becky, who happens to be the only transgender student playing sports in the state of West Virginia, who has had no complaints and seems to get along well with her teammates, but her after-school activities are now the subject of Supreme Court intervention, and this is a…

01:51:38.2 Professor Michele Goodwin:

On that point, can you imagine that point. You’re one individual in the entire state, and the Supreme Court has now decided to focus on you for a matter of…

01:51:49.1 Moira Donegan:

Not the only state where that has happened, by the way. This is an infinitesimally small number of children.

01:51:54.0 Chris Geidner:

And that is…just very quick…I mean, that is sort of what was pointed out by Justice Sotomayor, is, like, the absurdity of this, because they allowed both the state to claim this severe concern about the attack of these trans women on women’s sports as the reason why this law is needed, and yet, also, use the small number to say that this is too small of a subclass…

01:52:25.6 Professor Michele Goodwin:

Make it make sense. Make it make sense.

01:52:27.2 Chris Geidner:

…to be an equal protection violation.

01:52:30.1 Professor Michele Goodwin:

Moira, back to Moira, and then Mark, yes. Moira, we’re to you.

01:52:33.6 Moira Donegan:

Yeah, and you know, there are factual questions about whether this child really does, in fact, have a “biological advantage” over her peers because she was able to access the puberty blockers that the court allowed states to ban indiscriminately last year, right? This is somebody who has a genuinely unresolved factual claim about whether the state has an interest in preventing her from playing sports.

01:53:01.9 Professor Michele Goodwin:

Which has not been resolved.

01:53:03.6 Moira Donegan:

Has not been resolved.

01:53:05.2 Mark Joseph Stern:

We should not lose sight of the massive damage that these cases are doing to the law of sex discrimination more broadly and to constitutional protections.

01:53:12.2 Professor Michele Goodwin:

And to the individuals that are affected.

01:53:13.6 Mark Joseph Stern:

Yes, yes, absolutely. It goes beyond just these particular plaintiffs. What the court keeps doing, in this case, is essentially saying that states can, by law, enforce sex stereotypes. That they can say boys should be boys, and girls should be girls. I mean, the law in Skrmetti in Tennessee specifically said we need to force minors to appreciate their sex. They shouldn’t be acting like a different sex or transitioning to a different sex. They need to be this one sex that we think is right for them, and as Justice Jackson pointed out in her separate dissent yesterday, all of this runs headlong into this doctrine that the Supreme Court has had for many years against sex stereotyping by the government.

That the government, under the Equal Protection Clause, cannot force us to live out its own ideas of what a man is and what a woman is, and these trans cases should have been easy on that basis, because, in each and every one of them, the government is telling people, you think you’re a man, but you’re not, and so, you don’t get access to these drugs. You don’t get access to this athletics program. You don’t get access to the correct passport, and so, you know, the previous panel talked about how women’s rights are at stake here, too. This is a prime example of it, because, in ruling against these trans individuals, the court is absolutely diminishing constitutional protections for men and women, but especially for women who face discrimination because they are deemed insufficiently feminine.

01:54:34.3 Professor Michele Goodwin:

And we are moving on. I saw those microphones being gripped over there. I’m not even going to look their way…

01:54:39.9 Sherrilyn Ifill:

But this is so important.

01:54:41.1 Professor Michele Goodwin:

Going to turn to Erwin while I’m looking…

01:54:42.7 Sherrilyn Ifill:

It is so important.

01:54:44.3 Professor Michele Goodwin:

Away and asking Erwin…

01:54:45.3 Sherrilyn Ifill:

It’s important. It’s so important.

01:54:47.9 Professor Michele Goodwin:

Oh, okay, and then we get to get, like, to tariffs. To tariffs, please. Okay. Yes. Yes. Yes.

01:54:55.2 Sherrilyn Ifill:

I just want to add to Mark’s point to suggest that we’re talking about a court that actually doesn’t know anything about transgender experiences, boys, girls, medication. They don’t know anything. Thurgood Marshall famously said none of them knew anything about Black people before I got here. Not one of them. He said that, and that was the truth, right?

01:55:15.1 Professor Michele Goodwin:

It was the truth.

01:55:16.1 Sherrilyn Ifill:

So, the other piece to remember is this court has no humility. This is why they don’t want factual findings, because factual findings allow a court…you have to be humble as a judge, because you’re being educated in that courtroom, and I say this as a civil rights lawyer, because it’s very rare that we are trying cases before judges who get what we’re talking about. We have to make them get it, right? And so, we have to present facts, and this court doesn’t want to be bothered with that. They know that racism is over. They know that the South has changed. They know that these districts are not necessary for Black political power. They know that women are not without their own power. All of the things they say are about a world they have created in their own heads, and they will not be disturbed from that world by the facts that lawyers are able to accumulate in court.

01:56:04.7 Chris Geidner:

And the district judges…

01:56:04.6 Professor Michele Goodwin:

Chris, you were not supposed to do that. No, seriously. Seriously. Seriously. Erwin, now we need to hear about tariffs. Thank you very much. Yes.

01:56:17.4 Erwin Chemerinsky:

I think that the tariffs…

01:56:23.4 Professor Michele Goodwin:

I know.

01:56:23.1 Erwin Chemerinsky:

The tariffs case is enormously important, because it does show that, at least in extreme instances, the Supreme Court is willing to stand up to Donald Trump. What President Trump did, no prior president had ever attempted. Tried to unilaterally, without statutory authority, impose enormous tariffs. One thing to note about the case is that it was 9-0 that the president has on inherent authority to impose tariffs. Donald Trump had claimed that, under Article II of the Constitution, he could do this, and all of the justices agreed that there has to be a statute that permits it, and the court ruled 6-3 that there’s no statute that permits it here.

The law that President Trump invoked was the International Emergency Economic Powers Act that allows the president to “regulate importation,” and Chief Justice Roberts, writing for a six-person majority, said regulate importation isn’t tariffs. When Congress wants the president to have the ability to impose tariffs, Congress says tariffs. He said no prior president has claimed this authority. Again, the only surprise to me about this is it should’ve been 9-0. The statute doesn’t provide authority. The Constitution doesn’t provide authority, but Justice Thomas, Alito, and Kavanaugh dissented.

01:57:46.7 Professor Michele Goodwin:

All right, Moira, want to grab on tariffs?

01:57:48.2 Moira Donegan:

I think I want to stress the importance of pairing the tariffs case with Cook from Monday.

01:57:55.9 Professor Michele Goodwin:

Well, that’s where I was turning to. All right. So, let’s actually go there, right? The removal matters. So, start us off, please.

01:58:03.3 Moira Donegan:

Yeah, well, in Slaughter, of course, the court found a novelly-expansive removal power for the heads of independent agencies for the president, but in Cook, they carved out an exception for the fed.

01:58:16.4 Professor Michele Goodwin:

Make it make sense. Make it make sense. Make it make sense.

01:58:19.7 Moira Donegan:

Amy Coney Barrett, to her credit, I think asked, in her dissent in Cook…and I think the underlying rule that seems to be emerging is that the president has a very, very expansive…and perhaps, this is too cynical, even for this audience, but I don’t think it is. The president’s authority, in the eyes of at least six justices, seems to be limited only by, you know, the risk to their own financial fortune.

01:58:51.7 Professor Michele Goodwin:

Which would be the Cook case, and Jamelle, I see you grabbing for the microphone. So, how do we understand those two cases together? How do we make sense of both Slaughter and Cook? All right, well, we can fire here. Here, I can’t fire, and what does it mean when a president can approach an agency and say, okay, just, like, fire these people?

01:59:11.2 Jamelle Bouie:

I do think it’s hard to make sense of Slaughter and Cook under any kind of logical consistency. If the presidential removal power is as expansive as Roberts describes in Slaughter, then it applies to the Federal Reserve, which isn’t even…it’s not just that the Federal Reserve is the oldest in the agency. It is not, right? Look at it historically. The Federal Reserve is modeled after previous agencies, and so, if, for example, the removal power applies to the Interstate Commerce Commission, which was formed in the 1880s, it, presumably, also applies to the Federal Reserve. There’s no historical reason why it wouldn’t.

01:59:53.0 Professor Michele Goodwin:

So, for those who don’t know, what are these cases about? There are, like, a couple of people who were removed. So, what’s the difference between the two?

01:59:59.3 Jamelle Bouie:

Between?

02:00:00.4 Professor Michele Goodwin:

Right. So, who’s being removed in Cook, and who’s being removed in Slaughter?

02:00:03.9 Sherrilyn Ifill:

Well, in Cook, it’s a member of the Federal Reserve Board, not the president of the Federal Reserve Board, Jerome Powell, but a member of the Federal Reserve, and Trump tried to…I’m coming, okay?

02:00:15.8 Professor Michele Goodwin:

I love it. Like, this call and response from our audience, yes.

02:00:20.1 Sherrilyn Ifill:

A Black woman who sits on the Federal Reserve. And it was clear Trump wanted the Federal Reserve to do what he wanted it to do to actually cover up for the freaking disaster he created with the tariffs, which are sometimes enormous one day, and then if someone said something nice about him, very small the next day. So, they were also completely irrational. So, he really had been pressuring Jerome Powell and the Federal Reserve to lower interest rates, I think is what he wanted. So, he’d been gunning for the Federal Reserve, but there was real concern about whether he could go for Jerome Powell. So, he attempted to drum up some reason why there was some malfeasance, why he would have cause to fire people on the Federal Reserve. He did it with Jerome Powell. He tried to say that there was a cost overrun on the new building that the Federal Reserve was constructing, which was completely crazy and made up, and if you’ve ever seen that video…

02:01:08.9 Professor Michele Goodwin:

Just look at the Reflecting Pool.

02:01:10.2 Sherrilyn Ifill:

Of when he tried to bum-rush Jerome Powell with Tim Scott. It’s hilarious. I keep it in my phone. And then, with Lisa Cook, he got his buddy, who I think is about to be the DNI now.

02:01:23.5 Jamelle Bouie:

Bill Pulte.

02:01:23.4 Sherrilyn Ifill:

Bill Pulte, to say that she had committed mortgage fraud by describing a property that she held as her principal home as opposed to a vacation property. And it’s clear that the evidence on that is really thin as a matter of fraud, but once that came out, once he had that announcement come out, then he tweeted that she needed to resign, and when she didn’t resign, then he fired her. The other one was the FTC, was the Federal Trade Commission, and the reason why this one is so important, where he tried to remove members of the Federal Trade Commission, it’s important because the Federal Trade Commission was the precise agency that was at issue in the precedent that held that the President could not remove these people, a case called Humphrey’s Executor, and so, that decision…and so, I’m sitting there yesterday, and when I say overturning two precedents, like, that usually doesn’t happen in one, like, decision day, but that’s what that did.

02:02:16.2 Professor Michele Goodwin:

But they did.

02:02:17.1 Sherrilyn Ifill:

So, that was the case.

02:02:17.2 Professor Michele Goodwin:

And I’m turning to Erwin, and I saw him grab first.

02:02:19.2 Erwin Chemerinsky:

Can I say one thing?

02:02:20.1 Professor Michele Goodwin:

Yes.

02:02:20.7 Erwin Chemerinsky:

Trump v. Cook is much less of a victory than it may seem or much less of a limit on presidential removal than they seem, because though the Supreme Court discusses why the Federal Reserve is different, the actual holding of the case was no more than under the statute, Lisa Cook was entitled to notice an opportunity to be heard before she was fired. The Trump administration had argued to the Supreme Court that once the President found there was cause, there could be no judicial review of that. This court was not going to say there could be no judicial review, and so, what it said was she’s entitled to have notice and a hearing.

02:02:56.4 Sherrilyn Ifill:

Well, and that she has a likelihood of prevailing on the merits, and they don’t have a…so, it was to back him off of this, but you’re right.

02:03:03.5 Erwin Chemerinsky:

And Trump v. Slaughter is so important, because Congress has created countless agencies, the Securities and Exchange Commission, the Federal Communication Commission, the National Labor Relations Board, and so many more where it’s provided some independence of the commissioners by saying you get fired only for cause, and this is so Congress can carry out its powers. And the Supreme Court, on Monday, declared all of that unconstitutional. It embraced this idea of the unitary executive, which would, seemingly, mean the president can fire anyone in the Executive Branch, will mean that even civil service protections that have existed since the late 19th century are unconstitutional.

02:03:43.5 Chris Geidner:

It doesn’t resolve as to Tax Court, Court of Claim, all of the non-Article III courts, and I think the sort of big picture thing that I took from it is that, actually, John Roberts of the Cook opinion listening to… If he was able to direct his opinion at John Roberts of the Slaughter opinion, he was actually making a case for Congress being able to pass removal protections. There was no way…you can imagine a rewriting of the Cook opinion. That, actually, is resolve all of these cases in favor of saying, like, there is a…even using their terms, so this isn’t my choice. There is a history and tradition of allowing their Congress to pass these laws that have these restrictions. And yet, it was just written as this one exception that has…as Mark said, there’s no coherence to it.

02:04:46.4 Jamelle Bouie:

Can I add…

02:04:46.0 Professor Michele Goodwin:

Yeah, really quickly, because then we’re going to birthright citizenship.

02:04:49.4 Jamelle Bouie:

I think it’s…like, so many of these cases turn back to a point that Sherrilyn made at the beginning about congressional power and the court. No Congress would have designed an agency where they could have, effectively, no influence or control over what happens to the commissioners. No legislator would’ve agreed to that. Part of the bargain of the agencies, in their design, is that Congress can shape what happens to the commissioners, and so, you know. It’s described as the president has the removal power. I think it’s more apt to say Congress cannot protect agency heads anymore. By obliterating that ability of Congress to protect agency heads, it has turned these agencies into things that they weren’t ever meant to be. They were not meant to be instruments of the President’s will.

02:05:37.7 Professor Michele Goodwin:

That’s right.

02:05:38.8 Jamelle Bouie:

And I think this represents a huge expansion of executive power and judicial power, because the court is also sort of saying, any limits on the president that do exist, we’re the ones who determine what they are.

02:05:49.6 Professor Michele Goodwin:

You know, I’m glad that you mentioned that, because there is a weaponization that when you think about what our agencies do—beyond finance, right?—making sure that our water…no abortions in them, but our water is clean and safe. The air that we breathe, that we have a Food and Drug Administration that does its work. The backdrop of needing people who are learned, who have capacity in those spaces, that are willing to push back against political pressures to do the right things and keep we, the people, safe. And it seems that that was one of the big threats that we see coming out of the Slaughter decision and not much protection under Cook.

02:06:33.7 Sherrilyn Ifill:

That decision really frightened me, I will say. I am not easily shook, but it frightened me, because this is about the safety of Americans. It isn’t just about congressional power. That is certainly important, but the independence of these agencies are what is supposed to keep us safe. The Consumer Product Safety Commission, you know, you don’t buy a toy for your kids until you’ve looked at what the age is and whether it has choking pieces on it, and like, there are things that keep us safe, and I looked at those boards that, you know, were mentioned in the dissent, you know, the Chemical Safety Board. So, let’s suppose a spill happens. They investigate, you know, chemical disasters. A spill happens. You need real information about the danger of that product to people who live close by and so forth. But you’re telling me that if the manufacturer of that product is a buddy of Trump’s and the Chemical Safety Board is…

02:07:24.9 Professor Michele Goodwin:

We’re not talking about reflecting pools.

02:07:26.8 Sherrilyn Ifill:

…Is doing a study and they want to interfere with the investigation and Trump just says, well, I’m going to fire you. I’m going to put the people I want on it, so that they’ll come up with a conclusion that works for my buddy. Like, these are the ways in which we’re kept safe, and so, this isn’t…your eyes can’t glaze over at the Slaughter decision. It is very, very ominous.

02:07:45.3 Professor Michele Goodwin:

All right. So, our last two, and we’re going to be wrapping up, is…aren’t they brilliant? Can we just give them all a round of applause? All right, so, we’re going to end on birthright, but before we get there, let’s talk TPS, right? Mark, do you want to…yeah.

02:08:05.1 Mark Joseph Stern:

The bearer of terrible news.

02:08:07.1 Professor Michele Goodwin:

I know. Yes. Yeah.

02:08:08.4 Mark Joseph Stern:

So, basically, here’s what happened. Congress enacted Temporary Protective Status…

02:08:13.8 Professor Michele Goodwin:

And one of our justices does have family members who are from Haiti. All right, I’ll just say that, but please go on.

02:08:20.6 Mark Joseph Stern:

I’m not getting into that one, Michele. You can…

02:08:22.4 Professor Michele Goodwin:

I just said it, and then we’ll just move on.

02:08:26.2 Mark Joseph Stern:

Congress enacted TPS to ensure that people who are coming here from countries where there is war and natural disasters and violence and all this stuff can remain here, at least until it is safe to go home, and Congress did give the Executive Branch the authority to eventually terminate a TPS designation. 

But it said, look, before you do that, you go through all of these steps, right? You have to do this study on the conditions in the country. The Department of Homeland Security has to consult with these other agencies. There has to be 60 days, at least, notice so that people don’t have their lawful status stripped away overnight, right? And then, only at that point, can the determination be made, and then Congress said, but that determination is not subject to judicial review. So, at the end of the process, the decision made by the Executive Branch is final. So, in these cases, the Trump administration terminated TPS for Haiti and Syria without following any of those steps, right? It completely violated the statute. Just brazenly cut every corner. Rescinded TPS in the most lawless, sloppy way you could imagine. Didn’t give proper notice. Tried to strip this away from people overnight. Didn’t do the right consultations.

And then, when they got sued for it, went into court and said, oh, but the courts can’t review any of this, because the entire thing is insulated from judicial review. TPS beneficiaries sued and said that’s not true. The final decision may be insulated from judicial review, but there are very clear laws that require the governments to go through the proper process, and they were violated here, by a 6-3 vote in a horrific and cruel and callous opinion by Justice Samuel Alito, the Supreme Court ruled that, in fact, the entire process was insulated from judicial review and that there was nothing that the courts could do to push back against this egregious violation of this procedure.

Justice Alito also rejected the constitutional challenge that the plaintiffs had raised to this determination. The plaintiffs pointed out that President Trump has said an inordinate number of super racist things about Haitians. He has said that they are eating cats and dogs, that they are poisoning the blood of the nation, just outrageous, racist stuff that should trigger equal protection scrutiny, and Justice Alito just swatted that away and said, even if we could consider that—he wouldn’t agree that the court could even review that—but said, assuming that we can, this is not sufficient evidence of racism, whatsoever.

02:10:48.5 Professor Michele Goodwin:

Mark, if I could, so, in the dissent were Justices Kagan, Sotomayor, and Jackson, and in part of Justice Kagan’s dissent, she wrote, “Today the Court undoes that preliminary relief—insisting that the terminations take effect now—based on two mistakes about the plaintiffs’ likelihood of success. First, the majority asserts that the Secretary’s compliance with the TPS statute is in every respect unreviewable by the courts. But in fact the statute allows judicial review of whether the Secretary adhered to the procedures it mandates—which is what the plaintiffs dispute here.”

“Second,” and to the point that you were making, “the majority claims to see no evidence that race played any role in the Haiti decision, but the evidence is there,” Justice Kagan wrote, “plain to see,” she wrote, “in the President’s statements, which the majority (and for that matter, his own lawyers) cannot even bear to repeat. Once that much is established, the case for interim relief is made: There is no dispute that the plaintiffs will suffer irreparable harm absent postponement of the TPS decisions. So the plaintiffs are entitled to stay in this country while these suits go forward. Respectfully, I dissent.”

02:12:23.1 Sherrilyn Ifill:

So, I want to bring you back to Justice Marshall: “Not one of them knew anything about Black people before I got here. Not one of them.”

This is the end of racism for this court. They have decided that anti-Black racism cannot be proved. Anti-white racism is flourishing, but anti-Black racism cannot be proved, right? It cannot… And if it is proved, there’s no remedy for it, because to remedy it would make you racist. So, essentially, what they have done, right, is shut down the possibility of racial discrimination, claims prevailing, and being able to be remedied.

If you could read that litany… And I was there at the oral argument, and I remember the justices, the three dissenters, asking Sauer, the solicitor general, the exact question with those things that Kagan pulls out, the poisoning the blood, they eat the cats and dogs, they’re garbage, all the things, saying them, and Sauer kind of not answering, and the colleagues on the bench just kind of standing stark still. Like, they knew that this was there, and they are saying there’s nothing you can say, we will decide. Alito said it’s not overtly racist and there are neutral reasons why…

02:13:35.0 Professor Michele Goodwin:

Well, this is the thing. You know, it’s kind of like stuck on Bull Connor and white citizenry, right? Like, if it doesn’t look like, you know, dogs, fire hoses, bombs, then that is not constitutional.

02:13:48.0 Sherrilyn Ifill:

Except it does look that… In Minnesota…

And in Los Angeles with, you know…

02:13:55.4 Professor Michele Goodwin:

And you know, we got to go. I wish we…okay, Jamelle, you have something. Yes, and then we get to birthright, and we wrap up.

02:14:02.0 Jamelle Bouie:

To connect this a bit to the Alabama case, Alito’s saying that there might be these neutral explanations for this. It’s the same trick. It’s the exact same trick. It’s saying if there’s any plausible, non-racial explanation, not one that the people use… If you can imagine a plausible, then that controls.

02:14:27.2 Sherrilyn Ifill:

And your job is still [inaudible] 02:14:27.0.

02:14:28.4 Mark Joseph Stern:

And your job is…yeah, that controls, and therefore, no remedy for it.

02:14:31.0 Professor Michele Goodwin:

All right, so, it was Chris and Erwin, because, Erwin, I saw you gripping your microphone, too. So, okay, yes.

02:14:35.3 Chris Geidner:

Yeah, this is one other example of the misuse of and degradation of congressional power, because… And this was very clear at oral arguments, that the questions kept coming, why would Congress say there are these four requirements in order to end TPS if there was nothing that could be done about it? And the court, essentially, doesn’t answer that. They just say, well, that’s just in the statute, and so, it is…

02:15:07.7 Jamelle Bouie:

Congress just says stuff.

02:15:09.0 Chris Geidner:

It is like that with…

02:15:09.5 Professor Michele Goodwin:

Like the other Mullins decision.

02:15:10.5 Chris Geidner:

…removal, it just ends the power.

02:15:13.6 Professor Michele Goodwin:

Well, just really quickly, on the other Mullins case, right, if you could?

02:15:16.0 Erwin Chemerinsky:

Sure. This is a case, Mullin v. Lado, that involves whether or not the government can prohibit people who are in Mexico from coming to apply for amnesty. This is a statute that, clearly, would allow people to come for amnesty. Also, international law would allow people to come for amnesty, but the Supreme Court, 6-3, said that the government can keep people—no matter what persecution they’re suffering—from being able to do so, and this is the case where Justice Sotomayor writes such a powerful dissent, going back to boats of people who were fleeing the Nazis turned away and then were perished in the Holocaust. Again, it’s a case just about deferring to the president on power in immigration law.

02:16:00.0 Professor Michele Goodwin:

All right. Erwin, why don’t you start us off with birthright citizenship.

02:16:05.0 Erwin Chemerinsky:

Sure. When the United States began in 1787, it followed English law that everyone born in the country was a United States citizen. This was the law until 1857, when the Supreme Court tragically decided Dred Scott v. Sandford and held that enslaved individuals were not citizens, even if born in the United States. When the 14th Amendment was ratified about a decade later, the first sentence of Section 1, unquestionably, was to overrule Dred Scott v. Sandford. It says that all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States in the state wherein they reside.

In 1898, in United States v. Wong Kim Ark, the Supreme Court emphatically said everyone born in the United States is an American citizen. The court saying the phrase, subject to the jurisdiction they’re of, was just meant to mean if there was an invading army and a soldier had a baby or a foreign diplomat had a baby, those children would not be citizens. This was the law. It was unquestioned as the law until January 20, 2025. Back in the 1940s, Congress adopted a statute. They use the same language of the 14th Amendment, clearly intending that all born in the country would be United States citizens.

President Trump’s executive order, issued on Inauguration Day, essentially says only those born to citizens and those with green cards would be citizens. So, those born to those in the United States on a visa or born to those who are undocumented would not be United States citizens. Every federal district court, without exception, every court of appeals, without exception, declared the Trump executive order as unconstitutional and as violating the first sentence of the 14th Amendment. Yesterday, the Supreme Court, 5-4, said that the Trump executive order is unconstitutional. Justice Kavanaugh said he would’ve found it violates the federal statute, but not the 14th Amendment.

To me, the most chilling part of this was an opinion by Justice Alito in dissent, and I worry it’s not going to get attention, because the result was, let’s break down the Trump executive order, but what Justice Alito said is the president has the authority to redefine who’s a citizen, and if the president wanted to do this retroactively, he could do so, unless Congress would stop it.

So, that the Alito opinion would even be permissible for the president to say that United States citizens, been citizens their whole lives, but were born to parents who were on visas or undocumented could have their citizenship taken away, that’s one of the most radical things that I’ve seen a Supreme Court justice say, but the bottom line is the Supreme Court came to the obvious correct conclusion. The first sentence of Section 1 of the 14th Amendment means everyone born in the United States is an American citizen.

02:19:06.4 Professor Michele Goodwin:

I want to read from Justice Thoams’s concurrence…or not concurrence. Dissent. Excuse me—slip. In my view, he wrote, the citizenship order is not facially unconstitutional, Erwin…he didn’t put Erwin in. The order is consistent with the original meaning of the Citizenship Clause, at least insofar as it applies to children born to parents here, lawfully or unlawfully, who are not domiciled in the United States. The Citizenship Clause was enacted for people who were born in this country and called it home. It was enacted for freed slaves, such as Dred Scott, who had a domicile here, and therefore, were entitled to sue as citizens. All right, I’ll open it up. Who wants to say something about that?

02:20:02.0 Jamelle Bouie:

I do. I do.

02:20:02.3 Professor Michele Goodwin:

Okay. All right, let’s start with you, Jamelle.

02:20:04.4 Jamelle Bouie:

There’s so much to say about this. Justice Jackson’s concurrence, I think, does extremely able work of just dismissing this notion that the Citizenship Clause was narrowly written for the formerly enslaved. She shows, quite clearly, that both in the pre-war kind of intellectual developments that lead to the Citizenship Clause, and then also in the drafting itself, it was extremely clear that this was a broad remedy for everyone born in the United States, but I just want to make a quick factual point. Even if…like, even by Thomas’s standard, the Citizenship Clause…how do I put this?

In 1868, there were Black Americans who were not born in the United States. They were illegally imported into the United States as enslaved people. If Thomas is correct, then the Citizenship Clause did not make them citizens, and if you… Any understanding of the clause that does not make those people citizens is, on its face, incorrect. Like, it has to make them citizens.

02:21:09.3 Professor Michele Goodwin:

All right. Moira.

02:21:09.6 Moira Donegan:

Yeah, I wanted to echo something that Sherrilyn has been saying that really jumped out to me in this. One of several things have jumped out to me in this Thomas dissent. Is that, you know, throughout this term and over the past couple years, we’ve really seen an inversion of the Reconstruction amendments to, basically, be like photo negatives of their, like, historical intent, right? Suddenly, instead of being about, like, remedying the, like, status of racial minorities and particularly Black people in the U.S., they become these guarantees of color-blindness that, in fact, make such remedies unconstitutional, right? Not here. Here, we got almost like woke Clarence Thomas about, like, focusing on the very specific historical condition of the formerly enslaved, and I just think that there’s something about that reading that reveals the bad faith of this inversion of the Reconstruction amendments. They know it’s a misreading.

02:22:05.0 Professor Michele Goodwin:

Yeah, Sherrilyn.

02:22:06.1 Sherrilyn Ifill:

It is such an awful dismissal of what is one of the highest moments in the history of the country, one of the most important moments in the history of congressional legislation and decision-making in our country, and you know, what you mentioned, we could be doing it now, but 1865 was 1865. That is that we’d had a war. That 600,000 people were dead. That the president, who had held the Union together, was assassinated by a Confederate conspiracy… There were skirmishes still happening of the… I mean, this was a very, very difficult time, and the people who decided how to try and create a template that would allow this country to go forward, they actually did know something about race.

Many of them were abolitionists, right, and they were drawing from a wide variety of sources, and I’m so glad that Justice Jackson cited many of those sources, the Colored Conventions, and all kinds of writing, Frederick Douglass. It was beautiful to see that, and they were drawing on all of that, because those people were shaping the ideas about citizenship and equality during that period, and what they created was something, by the way, that was designed absolutely to ensure that Black people would be citizens and not just enslaved Black people, because if you read Dred Scott correctly, it said that Black people could not be citizens, whether enslaved or free.

02:23:30.9 Professor Michele Goodwin:

That’s right.

02:23:31.3 Sherrilyn Ifill:

And so, it was to ensure that Black people were citizens, but they had explicit conversations about the children of immigrants. Of course, they had their prejudices, as well, and of course, there were legislators who said, well, what about the Chinese laborers? They can’t even be citizens here, but, are we going to be overrun in California by the Chinese? And you had the retort. That Chinese laborer could not become a citizen, but if they have a child born here, that child is a citizen. So, this explicit point was discussed by that Congress.

02:24:03.8 Professor Michele Goodwin:

And we saw it in precedent. Mark, did you…

02:24:04.1 Sherrilyn Ifill:

And yet, this Supreme Court thinks that they’ve come up on something, or at least the, you know, conservative stalwarts, think they’ve come up on something so new, that they can just hand this power to the President, and the last thing I want to say…

02:24:16.3 Professor Michele Goodwin:

Yes, because we’re going to wrap up. I got to be…yes.

02:24:18.5 Sherrilyn Ifill:

Is that every one of the Reconstruction amendments includes a clause that says Congress shall have the power, by appropriate legislation, to enforce the guarantees of this provision. The President is not in the mix. Now, we can talk about Kavanaugh…

02:24:37.2 Professor Michele Goodwin:

Yeah, not even mentioned.

02:24:38.0 Sherrilyn Ifill:

What Kavanaugh thinks happens, but if there’s one place where the president ain’t in it, and I can assure that the president’s not in it, because those founders had just faced the vetoing of the Civil Rights Act of 1866, which included birthright citizenship from the president, Andrew Johnson, and that’s why they wanted to create a 14th Amendment. So, we know, this was a slam dunk. It should’ve been decided the first day and that the court waited a year and a half…

02:25:01.2 Professor Michele Goodwin:

And 9-0, which raises a number of issues, which we don’t have time for, but how the Court…

02:25:09.6 Sherrilyn Ifill:

My assistant Lauren is handing out free…

02:25:11.1 Professor Michele Goodwin:

…could so very quickly decide Callais, but could not in time to dismantle voting rights, but could not decide quickly whether birthright citizenship is the law of the land. Mark, last word on that?

02:25:25.4 Mark Joseph Stern:

Well, it brings us straight to Brett Kavanaugh, unfortunately, because, as Sherrilyn said, right, Kavanaugh has this dissent where he says, okay, fine, it’s barred by statute currently, but he says Congress could change that statute, right? And he claims that the children of temporary immigrants today are relevantly similar to the children of diplomats and foreign ministers in 1868, who enjoyed immunity from US law, which was precisely why they were excluded from the Citizenship Clause. It makes no sense, but he has this ode to deference to Congress. He says, the courts need to defer to Congress’s decisions here. Where was that Brett Kavanaugh with the Voting Rights Act, with TPS, right, with independent agencies? No deference to Congress there, but when it comes to stripping birthright citizens of their American citizenship, Kavanaugh says, let Congress do whatever it wants.

02:26:18.4 Professor Michele Goodwin:

All right, really quickly, because I promise…there’s food and refreshments outside, and we have to stop. It’s, like, time.

02:26:26.0 Chris Geidner:

Yeah, just sort of summing up…and Erwin mentioned this: That you have this reality that we are seeing time and time again. That the lower courts and the appeals courts, looking at the law, regardless of the President who appoints them are unanimous. And we saw that not just in birthright citizenship, but we saw that in the removal cases. We saw that in the impoundment cases, and importantly, we saw that in the trans cases before this radical court decided to turn trans cases on their head.

02:27:03.5 Professor Michele Goodwin:

All right, Jamelle, I saw you pleadingly. So, like, 30 seconds?

02:27:07.8 Jamelle Bouie:

Thirty seconds. Mark made a reference to birthright citizens. I think it’s very, very important to say, and this gets to the true radicalism of Alito’s dissent. That how we determine citizenship in this country is by birth. Everyone is a birthright citizen. Unless you’re naturalized, everyone is a birthright citizen. If you take away that guarantee, not a single person can definitively prove their citizenship.

02:27:31.4 Professor Michele Goodwin:

So, thank you. Please give it up for this amazing, amazing panel, and I want to just briefly read from Justice Jackson’s concurrence, she wrote, “I join the court’s opinion in full. I write separately to respond to some of the themes in the principal dissent. Despite his longstanding endorsement of a ‘colorblind Constitution,’ Justice Thomas now surprisingly suggests that the Citizenship Clause was a race-conscious remedial measure, relating only to ‘freed slaves, such as Dred Scott,’ and those shared with him certain characteristics.”

It is for this reason, he says, that, ‘children who were born in the United States, but to parents not domiciled here, are not entitled to claim birthright citizenship, but that narrow vision of the 14th Amendment bears little relationship to the history of its ratification. Even worse, Justice Thomas’s telling belies the entire point of the second founding. The Reconstruction amendments were an anti-caste, anti-subordination reset for the nation, not a mere spot treatment for the dark stain of slavery.”

All right, please give a hand to our panelists and also gratitude to our interpreters. Thank you so much.