Background reading:

• LISTEN: The Supreme Court Is Back in Session. What Fresh Hell Awaits? (with Steve Vladeck)
• “New Supreme Court Term Pits Presidency Against Constitutional Values” — Michael Waldman

Transcript:

Dr. Michele Goodwin: Welcome to On the Issues with Michele Goodwin at Ms. Magazine. As you know, we report, we rebel, and we tell it just like it is. And in this episode, it’s part of our annual Supreme Court Term in Review, as the Court is getting ready to open its 2025-26 term, we want to take a look back at just what we learned from the Court’s last session. 

And joining me in this pre-recorded panel discussion held at Georgetown University, is Dean of Berkeley’s Law School, Erwin Chemerinsky, Sherrilyn Ifill, who served as the 7th President and Director Counsel of the NAACP Legal Defense Fund. I’m also joined by Jamelle Bouie from the New York Times. As well, Chris Geidner, who was at BuzzFeed, and is now leading news all the way with Law Dork. Moira Donegan also joins us from The Guardian, and Mark Joseph Stern, who’s been a fellow traveler with us on our Supreme Court Terms in Review. He’s at Slate.

My listeners, sit back, take a listen, and maybe you’ll want to pull out your notepad and your pens. Sit back and take a listen. 

00:06:54 Erwin Chemerinsky:

Thank you. It’s such an honor to be part of this discussion. Each year, I write a short book for the American Bar Association, recapping the term. I try to come up with a title that captures the theme for the year. My title for this year is going to be Taking Sides. Our country is more ideologically divided than it’s been at any time since Reconstruction. Many of the cases this term posed issues with regard to that ideological divide. 

Time and again, the Supreme Court came down on one side, and solidly so, the very conservative side. I think the most important cases to illustrate this, and among the most significant of the term, involve president power, and also, it was the year that the culture wars came to the Supreme Court. With regard to presidential power, let me start not with nationwide injunction but the many instances where matters came to the Supreme Court on the emergency or so-called shadow docket. 

Overwhelmingly, the Supreme Court has sided with President Trump. To give just two examples, and there are many, one is a week of Monday. It’s a case called Department of Homeland Security v. D.V.D., and the issue is whether the Trump Administration could deport individuals to South Sudan. There’s a federal statute that lists where people can be deported to, listed in priority order. Only if there’s nowhere else to go does the administration get discretion. 

A federal district court issued a preliminary injunction against sending individuals to South Sudan. It clearly violates the federal statute, but the Supreme Court, 6-3, lifted the preliminary injunction, allowing the Trump Administration to do this. What’s particularly striking is the 6 justices of the majority didn’t even feel a need to write a word of explanation for what they were doing. Another example of this that hasn’t gotten nearly enough attention is Trump v. Wilcox. 

In 1935, in Humphrey’s Executor v. the United States, the Supreme Court said that Congress can create federal agencies and provide protection for removal of the commissioners of those agencies, can limit removal to where there’s cause. President Trump announced he’s not going to follow Humphrey’s Executor. He believes it’s a unitary executive, and he can fire anyone in the executive branch. He fired Gwynne Wilcox, the commissioner on the National Labor Relations Board, even though she has a term that goes until 2028, even though she can only be fired for cause.

He fired another person, Cathy Harris, who’s the head of the Merit System Protection Board, same thing. There’s a statute providing protection. The lower courts, the DC Circuit, en banc, ruled in favor of Wilcox and Harris. They said Humphrey’s Executor is the law, and it has to be complied with, unless and until the Supreme Court overrules it, but the Supreme Court, in a 6-3 decision, reversed the DC Circuit, allowing Trump to fire Wilcox and Harris.

As Justice Kagan said in her dissent, this was the Supreme Court effectively overruling a 90-year precedent without briefing an argument on the shadow docket, and then, of course, there’s the birthright citizenship case from last Friday, Trump v. CASA. This is the Supreme Court unquestionably reducing the powers of the federal judiciary to check the president. At the same time, we have a president who’s asserting unprecedented authority.

Here, I must, respectfully, though strongly, disagree with what Mr. Conway said on the last panel. He said federal courts are limited to deciding cases on controversies. Of course, that’s true, but there were cases. Trump v. CASA, Trump v. New Jersey, Trump v. Washington, and the federal courts were issuing relief in those cases. He said, as Justice Barrett did in her majority opinion, that nationwide injunctions didn’t exist early in American history, are relatively new.

Federal courts have always had broad injunctive power, and the fact that something wasn’t done in 1791 doesn’t mean that the courts didn’t have power to do it. In fact, I can show you nationwide injunctions going back well over a century. The reality is it’s going to be much more difficult to check the president. Now, you’re going to need to file lawsuits in 94 federal districts, and the president can continue to lose in many of them and continue the unconstitutional practice and others until and unless the Supreme Court gets involved.

Mr. Conway, Justice Barrett said there’s class action suits, but they have additional procedural obstacles, and we’ll have to see if they’re really there, because I predict, and I’m sure of this, the Trump Administration will try to oppose every one of those class actions in certification. I think, here, what Justices Sotomayor and Jackson said in their dissent is right, this is very much weakening the rule of law. The courts, right now, are our only guardrail to enforce the Constitution, and the Supreme Court weakened that guardrail.

So, these are examples of what I mean of the Supreme Court clearly taking sides, but there are also the cases about the culture wars, this term. Take, for instance, United States v. Skrmetti, well, the Tennessee law that prohibited gender-affirming care for transgender youth. 26 states have adopted such laws, all with Republican-controlled state legislatures. A federal district court issued a preliminary injunction against this. The federal district court said this is sex discrimination.

The federal district court said this is discrimination against transgender individuals. The United States Supreme Court, in a 6-3 decision, held the Tennessee law, and here, too, it was very much the Supreme Court taking side. Chief Justice Roberts, throughout the opinion for the court, he said it’s not sex discrimination because the Tennessee law prohibits gender-affirming care for both boys and girls, but as Justice Sotomayor said in her dissent, what this law means is that certain drugs can be given to boys for gender-affirming reasons, boys for whom puberty is delayed can be given testosterone.

Drugs can be given to girls for gender-affirming reasons, estrogen where puberty is delayed, but those drugs can’t be given to boys for gender-affirming reasons or to girls for gender-affirming reasons if they’re transgender. This, as Justice Sotomayor said, is sex discrimination. Also, the court said this isn’t discrimination based on gender identity. In coming to this conclusion, the Supreme Court invoked one of the most ridiculed Supreme Court decisions in history, Geduldig v. Aiello.

Geduldig was a 1974 case that involved a California law that said the state would pay for its employees for any disability related to health, but not pregnancy-related disability. It would pay for disabilities that would only affect women, say, from ovarian cancer, or only affect men, testicular cancer, but not pregnancy, and the Supreme Court said excluding pregnancy wasn’t sex discrimination. The court said there’s two categories of people, pregnant people and non-pregnant people, and since women are both categories, that’s not sex discrimination.

That’s what the court said. Chief Justice Roberts says, well, there’s two categories of people under the Tennessee law, there’s transgender individuals who can’t have these hormones for gender-affirming reasons and then there’s all the other people who can have these hormones for other reasons. He said since transgenders are in both categories, that’s not discrimination based on gender identity. Of course, it is. The whole law is about gender identity.

Justice Sotomayor ridiculed this in her dissent and said this is the same as if a state were to say we’re not going to provide any insurance for anybody who can ever menstruate, but it’s not sex discrimination, because some women don’t menstruate. The whole point of it is discrimination based on gender identity. The court didn’t reach the issue of the level of scrutiny to be used for gender identity discrimination, but I think the court has signaled where it’s going in that regard.

There was another matter on the emergency docket, United States v. Shilling. It involved the Trump Administration’s ban on transgender individuals serving in the military. The district court issued a preliminary injunction. The Supreme Court, 6-3, overturned that preliminary injunction, allowing the discrimination. One more case I’d mention with regard to the culture wars came down last Friday, Mahmoud v. Taylor.

The Montgomery County, Maryland, school system adopted a curriculum with regard to education about sexuality, sexual orientation, and gender identity, and it started at a young age. A group of parents objected on religious grounds. They said that they should have had notice and the opportunity to opt out. The United States Court of Appeals for the 4th Circuit upheld the Montgomery County curriculum, but the Supreme Court, 6-3, reversed.

Here, Justice Thomas wrote the opinion for the court, and with the…I’m sorry, Justice Alito wrote the opinion for the court, and Justice Sotomayor wrote the dissent. Justice Alito’s majority opinion here said that this is a substantial burdening of religion, therefore, strict scrutiny is to be used, and the conclusion was that parents should have the right to notice and opt out. 

As Justice Sotomayor said in her dissent, never before has the Supreme Court said that mere exposure to material is a violation of free exercise of religion, but she also said, and I think she’s right, this is going to cause chaos in the public school system. Any time a parent objects to anything, now, they have the right to notice and opt out, so long as it’s on religious grounds. If a parent objects to evolution being taught in science or biology, they have the right to notice and opt out.

If a parent objects to English classes, where they read The Wizard of Oz or Harry Potter, because there’s witchcraft, they’ll have the opportunity to notice and opt out, and the government would have to meet strict scrutiny, which is enormously difficult for it to do. This is so much the Supreme Court coming down on one side of the culture wars. I can give other examples, both with regard to presidential power and culture wars, but here, I want to conclude, again, by disagreeing with Mr. Conway.

I don’t believe it’s the role of the Supreme Court to pick and choose and be careful. I think Marbury v. Madison got it exactly write, that the Constitution exists to limit the government, and those limits are meaningless if they’re not enforced by the court, and I think what the Supreme Court has done is very much abdicate its role, and so, I think the profound question, going forward, is at a time when our country is so ideologically divided, what will it mean to have a Supreme Court that’s consistently and solidly come down on one side of that ideological divide.

00:18:15 Michele Goodwin:

Thank you, so much, Erwin. Can we give him a round of applause for that overview? So, Erwin Chemerinsky is the dean of Berkeley’s Law School. Sherrilyn Ifill, who is to his left, served as the 7th President and Director-Counsel of the NAACP Legal Defense Fund. And as the founding director of the 14th Amendment Center for Law & Democracy at Howard Law School. I’m also joined by Jamelle Bouie, from the New York Times, who’s to Erwin’s right.

And to his right is Chris Geidner, who was at Buzzfeed and is now feeding us all news through Law Dork, and then Moira Donegan, to his right, who’s at The Guardian and providing some of the most comprehensive coverage that we’ve been having on the status of women, and so needed for a very long time, and immediately to my left, Mark Joseph Stern from Slate. And with that said, let’s get started and get all into it, and Sherrilyn, I’ll start off with you. 

Were there big surprises for you for this term? You were mentioning at our table that you knew the gloves were off and that things would be, in some ways, as we have seen them, based on just simply paying attention to what the now-sitting president has said. Surprises for you this term?

00:19:49 Sherrilyn Ifill:
First of all, thank you, so much, for having me join you. This is wonderful, and Michele, you are…I heard the introduction, but they left out badass. You are also a badass.

00:19:58 Michele Goodwin:
Well, thank you. Takes one to know one, Sherrilyn.

00:20:04 Michele Goodwin:

And thank you, Dean Chemerinsky. I said I wanted to be sitting down there to listen to him because it’s just, it’s mesmerizing. I wouldn’t say surprises. I mean, that would be…I would be lying if I said I was surprised by anything the majority of this court did, and I stopped being surprised a couple of years ago, when the Supreme Court decided the section 3 case under the 14th Amendment, Section 3 of the 14th Amendment says that those who have participated in insurrection cannot serve in state or federal government. 

And that decision was so egregious and so over the top, and I read, very closely, the dissents in that case, and I heard Justice Kagan and Sotomayor and Jackson to be sounding an alarm. They were trying to tell us something, and they said it in terms that was maybe the starkest I had heard, and I felt like they were ringing the alarm bell. They were telling us that that 6-member majority is okay with this stuff. It was obviously followed by the immunity decision, and it continued, but I have not changed my views since then that those three justices have been trying to signal to us a sea change. 

You know, I’m a civil rights lawyer, okay? I’ve never…for my entire career, I have not litigated before or in the context of a Supreme Court that has been inclined, shall we say, towards to the issues that are the issues of my clients, but this is very, actually, different than what I have seen over the course of my career, for all of the reasons that Dean Chemerinsky just talked about, and it’s extremely explicit, and I’ll just give, you know, one example, and I think that this is what Justice Jackson is talking about in her dissent in Medina and certainly in her dissent in Trump v. CASA. 

There always was a glancing pass towards understanding the effect of their decisions and even saying something about the effects of their decisions. This court not only militantly refuses to talk about the effect of their decisions, they kind of gaslight us into pretending that the effects of their decision won’t be what they are. It really begins with Shelby County v. Holder, to be honest, right? 

I mean it took an hour before the Texas Attorney General was saying, okay, let’s impose the voter ID law that we had been kept from imposing under Section 5, in the past, right? There was this willingness of the court…it’s a carelessness, a devil may care, a hard-charging move towards their agenda, towards checking off a set of issues that have long been issues, you know, that those on the legal right have cared about, right, unitary executive, you know, mass executive power, limiting powers of district courts, although I think that has gone off the rails, limiting the 14th Amendment. 

There are all kinds of things that have been just part of the, you know, the…in the suitcase of the legal right, but this court has shown itself willing, almost with breakneck speed, you know, not willing to leave anything to chance, checking off those boxes without regard to what the effect of the decision may be.

00:23:34 Michele Goodwin:

It’s unpacking the suitcase.

00:23:36 Sherrilyn Ifill:

It is. It is.

00:23:38 Michele Goodwin:

Well, with that said, let’s then talk about these cases and give them more deliberation. Mark, I want to start with you, and I’ll go just to the other panelists, about the US v. Skrmetti case, and I want you to tell us about the case, our listeners, so that they understand what was at stake. What is the law about in that case?

00:23:58 Mark Stern:
Yeah. So, this is a Tennessee law that prohibits, as Erwin was explaining, medical treatments for youth experiencing gender dysphoria that allows them to receive gender-affirming care and transition to the gender they identify as, and as Erwin explained, these so clearly classify on the basis of sex. If you are a boy who is assigned male at birth and you develop unwanted breast tissue, you can receive testosterone treatments to reduce that breast tissue.

But if you are a trans boy, and you are assigned female at birth, and you develop unwanted breast tissue, you cannot receive testosterone to reduce that breast tissue. So, whether or not you can receive the same treatment, for the same reason, depends entirely on the sex that you were assigned at birth, and under a long line of Supreme Court precedent, that is so blatantly sex discrimination, as well as discrimination on the basis of transgender status, and to sort of close his eyes to that, I think that Chief Justice Roberts had to really badly contort…

00:25:09 Michele Goodwin:

And he wrote the decision.

00:25:10 Mark Stern:

And he wrote the majority opinion. He had to very badly contort the law of sex discrimination and the law of equal protection in order to pretend as though these laws are not, in fact, trying to force children to adhere to a certain sex and certain sex stereotypes, and he had to close his eyes to the text of the law itself, which states that one of the legislature’s key goals was to make minors appreciate the sex they were assigned at birth.

00:25:38 Michele Goodwin:

And so, to just be clear about this, too.

00:25:40 Mark Stern:

Yeah.

00:25:41 Michele Goodwin:
Right? So, it’s not that in the State of Tennessee, which some people might think, that gender-affirming care is banned altogether, because it’s possible. Is that right, Moira?

00:26:00 Moira Donegan:

It’s banned for the people who need it, right? It’s banned for people on the basis of their transgender identity, which I agree with Mark. I really think it’s a…it’s an almost embarrassingly sloppy opinion. It’s an opinion that, like, that tends to insult the reader with its bad faith.

00:26:15 Michele Goodwin:
Because like some people think, with the case, like, oh, you know, here are these parents trying to force, you know, testosterone on their kids, but the reality is, in Tennessee, kids were already getting testosterone and estrogen.

00:26:29 Moira Donegan:

Yes, and cis children will continue to receive those treatments, and I am interested that you point out the concerns of the parents, right, because in this case, the court declined to hear the question of whether the ban infringes on parents’ rights, and as Chris pointed out in his very excellent blog on this set of cases that I think everybody should read, they also declined to hear further argument for next term on the question of parents’ rights, and we saw some other very aggressive interpretations of rights that parents have, this term, right, but this right to guide the medical care of their children in ways that they feel are most advantageous for those children’s thriving and development, the Supreme Court intervened to stop a particular culture war outcome from having legal protection.

00:27:21 Michele Goodwin:

So, Chris, tell us a little bit about, then, these concurring decisions, right? Because you have broken this down and looked at it, left, right, up and down. Give us some more texture about how the justices, beyond the chief justice, viewed this case and what’s at stake? Yeah. I know, it’s the Stephen Miller effect.

00:27:46 Chris Geidner:

Thank you. I think it is just so…whenever talking about this case, I think the gaslighting that we were talking about is so clear, because if you asked, I mean, like…

00:28:04 Michele Goodwin:
In these days, people know what gaslighting is. I had to wonder, but…

00:28:04 Chris Geidner:

If you ask 100 people in Tennessee what this law is about, nobody is going to say it’s about age and medical use, which is what the chief justice insisted to us is all that this case was about, that they’re going to say, whatever side they come down on, whether they support the law or oppose it. 

They’re going to say this is a law about trans kids, and it’s just so remarkable that like the law of the United States is now that a law that everyone passing it, supporting it, opposing it, signing it, challenging it, defending it, everybody going all the way up, Trump appointed district court judges across the country, even the appeals court judges, until you got to Jeff Sutton, you had an 8th Circuit decision before this all started that had upheld a district court injunction against Arkansas’ ban. 

All of a sudden, John Roberts gets it and tells us this is not sex classification, this is not transgender status, and because of that, that’s the only way that they’re able to then do the second trick, which is we’re not even going to look at the debate over the evidence. He literally says the fact that there is a debate was all that the Tennessee legislature needed to prove to form a rational basis, and because of that, you just went forward, and so, then, you’re stuck with this ruling and the dissent that you get from Justice Sotomayor that really does…

00:29:55 Michele Goodwin:

Tell us about that dissent, and back to this gaslighting, right, this sort of sense when it’s raining outside that we’re told it’s not really raining, or you really don’t need an umbrella, or you really don’t need to have something that protects you from the rain.

00:30:10 Chris Geidner:

Yeah. No. It’s this idea that we saw that you can just ignore the text of the law. You can ignore the purpose of the law. You can ignore all of these things in other cases that conservatives’ judicial appointees have been telling us we have to follow and all of a sudden say, no, in this one instance, we’re going to go outside of that. It’s just…I mean, you could just tell that there was…I mean, it was a powerful dissent, but it was almost sort of like a dissent that understand that they’re…I’m writing for the future because this is clearly a lost cause, right now.

00:31:00 Michele Goodwin:

Which also seems to be something that’s taking place within the dissents. Jamelle, I see you gripping your microphone.

00:31:06 Jamelle Bouie:

Yeah. No. I just…

00:31:09 Michele Goodwin:
I’ve learned what the grip of the microphone means. Yes.

00:31:11 Jamelle Bouie:

I want to pick up on what Chris is saying and tie it back to something Sherrilyn said, which is Sherrilyn mentioned that the court is acting in ways that are indifferent to the consequences on the ground, but I think the corollary to that is the court is pretending as if it operates in this world of total abstraction, right, that they can do pure law.

00:31:32 Sherrilyn Ifill:

Right.

00:31:32 Jamelle Bouie:

And they don’t have to worry about context. They don’t have to worry about anything other than whatever language games they’re playing, and Roberts’ opinion is just a language game, right? It’s ignoring what’s plainly in front of us as a matter of like material reality, in favor of saying, well, no, if you abstract it out, then this isn’t sex discrimination. It reminded me so much of oral argument in Trump v. US, where Roberts is like, well, we can’t think about the particular circumstances involved. It’s like what do you…what? Like, what are you talking about?

00:32:10 Michele Goodwin:
The immunity decision, right.

00:32:10 Jamelle Bouie:

This is specific…that’s nonsense. Like, of course, you have to think about the particular circumstances because you’re not actually a legal academic. No offense to legal academics. You’re not a philosopher. You are someone doing the concrete…

00:32:28 Michele Goodwin:

Nor a historian.

00:32:28 Jamelle Bouie:

Right, nor a historian. You’re doing the concrete work of judging, which is fundamentally a material thing.

00:32:34 Michele Goodwin:
They’re not judging.

00:32:36 Chris Geidner:

The ironic part of that is that then you get to like Justice Thomas, who was…

00:32:41 Michele Goodwin:

Get to Justice Thomas.

00:32:42 Chris Geidner:

…neither doing philosophy, nor…he was neither doing practical effects nor philosophy. He was writing a series of blog posts. He was literally…if you go through each section of his concurrence, like, you could literally probably like type in the key words from it, and you’ll find a National Review or some far-right terf blog that advanced whatever he was writing, because it was just this like attack on…he said it was an attack on elite opinion, but it wasn’t, and it was an attack on knowledge. It was an attack on evidence. It was an attack on science. It was truly this effort to just say, like, no, no, not only is Roberts’ wordplay fine, but we don’t even need to worry about reality when making our decisions.

00:33:42 Michele Goodwin:

Sherrilyn and the Moira.

00:33:43 Sherrilyn Ifill:

Yeah. This is because this court finds facts and reality inconvenient, and therefore, they are working very hard to ensure they never have to encounter them, and I have come to believe that part of their attacks on district courts are because district courts present the inconvenience of facts. They don’t want to deal with the factual record.

And in Skrmetti, for me, the tell was at oral argument, when Justice Alito said to the Solicitor General, Elizabeth Prelogar, and he was, you know, pounding the desk, as he sometimes does, you didn’t include in your brief…I don’t see you citing, anywhere, this important case study from Great Britain that shows the harm of gender-affirming care on children. And of course, you know, Solicitor General Prelogar has to say, in the very nice way that she does, that that study wasn’t out when we tried this case, it’s not part of the record, right, and there are actually lots of views that are contrary, the show the weakness.

00:34:46 Michele Goodwin:

Right.

00:34:46 Sherrilyn Ifill:

But the point is that, you know, people who are lawyers in this room know that appellate courts don’t get to do the facts over. The facts are developed below.

00:34:55 Michele Goodwin:
That’s right.

00:34:56 Sherrilyn Ifill:

And for like a civil rights lawyer, the record is the coin of the realm.

00:34:59 Michele Goodwin:
Yes.

00:34:59 Sherrilyn Ifill:

That’s where we get to prove that the thing that our client said is happening actually is happening.

00:35:04 Michele Goodwin:
Yes.

00:35:04 Sherrilyn Ifill:

And it’s really important for us that you adhere to the record and that appellate judges defer to the record. This Supreme Court, part of their attacks on district court judges is they don’t want to have to deal with what it means that this administration is coming before district courts and lying for the express purpose of disappearing people into other countries. So, they can make decisions about whether, you know, you can send people to South Sudan and so forth in the abstract, without dealing with…there were some very important facts on the ground. In fact, Justice Alito called those facts sketchy.

00:35:39 Michele Goodwin:
Yeah.

00:35:40 Sherrilyn Ifill:

That there was some sketchy evidence that the administration was playing a fast and loose with the truth and with lying to the court. So, that’s what we’re seeing. What you’re describing, Jamelle, is exactly what they want. They don’t want to have to deal with the inconvenience, and just the last thing I’ll say, Michele.

00:35:54 Michele Goodwin:

Yeah.

00:35:54 Sherrilyn Ifill:

That’s what makes them different from earlier courts, I think.

00:35:59 Michele Goodwin:

Okay.

00:36:00 Sherrilyn Ifill:

Because in the most difficult circumstances in this country, circumstances where, you know, we had violent conflicts.

00:36:07 Michele Goodwin:
Yeah.

00:36:08 Sherrilyn Ifill:
Circumstances where people were being taken to Guantanamo, and so on and so forth, you would find a conversation in these opinions about what was actually happening.

00:36:14 Michele Goodwin:

Yes. 

00:36:17 Sherrilyn Ifill:

And you don’t find that anymore.

00:36:18 Michele Goodwin:

And how people’s lives were being affected.

00:36:20 Sherrilyn Ifill:

Yes.

00:36:22 Michele Goodwin:

But my final question that’s going to be on Skrmetti, and then we’re going to move on, because we’ve got others, which is that this comes three years after the Dobbs decision, which overturned Roe v. Wade and Planned Parenthood v. Casey, and to your point, Sherrilyn, thinking about a prior court, and it’s 1973, it’s a 7-2 opinion, it’s not even close, Justice Blackmun authors the case. He’s appointed by Richard Nixon, gives us some sense of just how different, how far this court is. Moira, I’m wondering if part of the aftermath of the Dobbs decision happens to be Skrmetti. Your quick thoughts on that.

00:37:00 Moira Donegan:

Yeah. I don’t think you get Skrmetti without the sort of shift that the court has been on for a long time but was really epitomized by Dobbs, right? So, this is a case that had to be brought on sex discrimination grounds because the broader jurisprudence of bodily autonomy has already been gutted, right? So, there’s already a narrowing of the avenues. This is something the previous panel addressed at length, right, is that the Supreme Court does this thing where they set the house on fire, and then they run around like systematically locking all the doors, so that nobody can get out. I’m sorry if that’s a little…

00:37:37 Michele Goodwin:

No. No. Not at all. Bring it. Right. Yes.

00:37:40 Moira Donegan:

But you know, this is also something I wanted to point out in Skrmetti, I think these points are well-taken with regard to Thomas’ concurrence as well as Barrett’s, which I think was also sort of weirdly cavalier with history and fact, is that, you know, this is a decision that was also based on this idea that’s really been recurring in the court’s jurisprudence about sex discrimination, since Dobbs, with its revival of Geduldig, right, this notion that with regard to medicine, in particular, sex discrimination claims are…or sex discriminatory laws are subject only to rational basis review.

And I think something that the Thomas dissent showed us is that, you know, we’re in a…I’m sorry, the Thomas concurrence…he is sadly so rarely in dissent, the Thomas concurrence showed us that we’re also in an era of epistemic collapse, right, when what classifies as a medical license to discriminate becomes a loophole so big that you can drive a truck through it.

00:38:49 Michele Goodwin:

Erwin, you’re gripping the microphone, and my next question is for you, but go ahead, yes.

00:38:51 Erwin Chemerinsky:

Okay. Really quickly, first, it was just 10 years ago, on June 25, 2015, that the court decided Obergefell v. Hodges.

00:39:01 Michele Goodwin:
Yeah.

00:39:01 Erwin Chemerinsky:

Does anyone in this room believe that this court would decide Obergefell the same way? And second, it was just mentioned, Justice Barrett’s concurrence in Skrmetti, it was a very strong opinion, saying only rational basis review should be used for discrimination based on gender identity, including, he said, there’s not really a history of discrimination based on gender identity in the United States.

00:39:22 Michele Goodwin:

Yes.

00:39:24 Erwin Chemerinsky:

I want to tie this together with the majority opinion that she wrote, last week, in Trump v. CASA. I think that liberals have tried to project their hope that she’s going to be different, and she’s not. She’s very much a solid conservative justice. If you look at all the major cases since she’s come on the court, Dobbs or the gun cases, separation of church and state cases, she’s always with the conservatives, and I don’t think we can pin hopes that somehow she’s going to be a more moderate justice than she ever was thought to be.

00:39:55 Michele Goodwin:

I appreciate that, Erwin, and we’re actually going to get to the CASA case and what has been written about in terms of a bit of a showdown between Amy Coney Barrett and what she tossed at Justice Jackson. We’re going to get there, but I do wonder about Kennedy v. Braidwood, really quickly, and I’ll start with you, Erwin. Many see that as a victory to celebrate. Are there concerns that you have, and can you tell us just quickly about that case?

00:40:28 Erwin Chemerinsky:

Kennedy v. Braidwood is about the presidential appointment power, and the Supreme Court has increasingly said that officers of the United States have to be appointed by the president, and this involves a particular board that prescribes what needs to be covered with regard to insurance, and the question is did the president have to appoint the members of this board? 

Were they, in the language of the Constitution, officers of the United States, or were they inferior officers of the United States, and the Supreme Court said that given the fact that everything they do is reviewed by the Department of Health and Human Services, given that they can be fired by the head of the Department of Health and Human Services, they should be thought of as inferior officers, not officers…so, the appointment power doesn’t have to be the president. I don’t think this is a major case, at all.

00:41:20 Chris Geidner:

I would just say the only concern that it raises, it was…this was the case that started out as the challenge to PrEP, the HIV prevention drug, was brought by right wing, was a Jonathan Mitchell case, out of Texas, went to Judge Reed O’Connor. I mean, this was a right-wing mission to get rid of PrEP coverage under…and some contraceptive coverage, but that sort of went off to the side in the case, and the problem of what we got out of the ruling was that, yes, the commission, the taskforce, was upheld.

But now, it is in the same position as one of the other commissions that provide coverage under the ACA preventive care, which is ACIP, which, if you’ve been reading about that, that’s the board that HHS Secretary Kennedy fired all the members and put a bunch of vaccine skeptics on. So, even though this was a victory at the Supreme Court, the political reality of it being inferior officers and Kennedy being able to fire them is that you could actually see some real upheaval in that board membership, which then could lead to changes in what they recommend should be covered.

00:42:44 Mark Stern:
Just to put a finer point on it, I mean, in order to save the Preventive Service Taskforce, which was a key plank of the Affordable Care Act, the Supreme Court had to give RFK JR so much more power over it to hire and fire its members, to block its rules, and that goes entirely against what Congress was intending to do when it designed this taskforce and gave it the powers that it has to basically instruct insurance companies you must cover these preventive treatments, including HIV prevention, including PrEP, and cancer screenings, and diabetes screenings. 

All of that must be covered without any copays or any patient payments, but RFK JR like doesn’t believe diabetes exists. He does not accept the medical causes of cancer. He is an HIV denialist who does not accept that HIV causes AIDS, and he has now been handed, by the Supreme Court, near total power over the body that regulates insurance companies’ coverage of this preventive treatment, and so, it seems to me this is a good example of how even when the Supreme Court does something good, like uphold part of the ACA, it is still putting through a lot of bad law.

00:43:46 Michele Goodwin:

Yes, and Erwin’s gripping. Yes?

00:43:48 Erwin Chemerinsky:
Yeah. I just want to say I think it’s important to separate the appointment issue, which is what this case is about, from the removal power. I think the Supreme Court’s going to give the president the power to fire anyone in the executive branch of government. So, I don’t think this case is going to increase the removal power, and I think it’s very troubling that no longer is Congress going to be able to provide protection for those in the executive branch of government.

00:44:13 Michele Goodwin:
All right. Moving on to our next case. So, we’ve got more to cover. All right. Medina v. Planned Parenthood, I want to start off with you, Moira, and then go to you, Sherrilyn, especially on this point with regard to gaslighting and the history of Medicaid being part of a civil rights agenda. Moira, what’s the case about?

00:44:30 Moira Donegan:

So, this is a case out of South Carolina, where the Republican governor said that any Medicaid reimbursements to Planned Parenthood providers were…even for other, non-abortion related services, were functionally subsidies of abortion because money is fungible, and on that basis, he moved to excluded Planned Parenthood from all of the state’s Medicaid reimbursement. 

Now, this is a pretty big deal for Planned Parenthood. About half of their patients, nationwide, are Medicaid recipients. 1 in 3 American women has received services from a Planned Parenthood. For Black women, that’s about 1 in 2, and so, this means that the Planned Parenthood patients no longer had what was supposedly guaranteed to them in the 1965 Medicaid Act, which is a free choice of provider, the ability to access Medicaid care from the provider of their choice, right?

00:45:29 Michele Goodwin:

So, Sherrilyn, I want to then pick up with you on that. Why was that even important, and coming out of 1965, what does that all represent? 

00:45:40 Sherrilyn Ifill:

You know, but I think it’s really important that you put a pin in this because to understand the agenda of this court, right, you have to understand the context from which these statutes emanate, right? And so, this period of the 1960s, before we got to 1968, which kind of turned things, right, this period was also the period of the Great Society, in which Lyndon Johnson had been advised by a number of very powerfully important people, including Marian Wright Edelman and others, about the relationship between race and poverty and folding that into the Civil Rights piece, and this idea of the Great Society was to create this platform that would lift people up, that would deal with profound poverty, that would deal with those who didn’t have access to healthcare, that would address discrimination. 

This is the period in which we get Head Start and all these other supports that are supposed to create this kind of set of services that will allow people to be lifted, right? So, it is also true that this is the period when we get the change in our immigration laws in this country, and I raise that because, of course, given everything that is happening around immigration and around birthright citizenship, and so on and so forth, if you can understand the suite of issues that this court has shown their hostility to, it is about an anti-civil rights agenda. 

That is the agenda of this court, even when it’s masquerading as something else. What was powerfully important in, I think, Justice Jackson’s dissent in this case was her doing what she does so well and did as well in Trump v. Casa, which is compelling the court to deal with Reconstruction history and the history that undergirded the ratification of the drafting and the ratification of the 14th Amendment and the Civil Rights statutes that emanated from the 14th Amendment, including the Enforcement Acts of 1870 and 1871. 

And her willingness to mine that history, to tie together the Medicaid Act with that project, the reimagined project of our country that emanates from the 14th Amendment, was incredibly powerful and important. Justice Thurgood Marshall, when he went on…he was later interviewed about being on the bench and the effect he had on the bench, and one of the things he said was…and he said it, he said not one of them knew anything about Black people before I got there, not one of them.

00:48:16 Michele Goodwin:
And you know who the them he was talking about?

00:48:17 Sherrilyn Ifill:

So, that’s what Marshall said. I would paraphrase that around the 14th Amendment before Justice Jackson got there, because if you read their opinions, particularly in civil rights cases where they purport to address that history, they do it so anemically. They so clearly have never done a deep dive on the history of the 14th Amendment and the intentions of the framers of the 14th Amendment, and I almost think that part of the agenda of the long arc of this court’s discrimination…and actually, not just this particular set of justices on the court, has been to diminish the power and authority of the 14th Amendment as a restart. 

So, we see it coming out in this dissent, where Justice Jackson calls it out and essentially says we’ve got to really deal with what was the 1871 Enforcement Act about, why does it connect to Medicaid? And of course, she does the same in Trump v. CASA. What was birthright citizenship all about? What was it meant to do? And why is it that its significant, even in this case, where we’re talking about nationwide injunctions?

00:49:19 Michele Goodwin:
Yeah.

00:49:20 Sherrilyn Ifill:
That we can’t pretend that this is not the context in which it’s happening.

00:49:23 Michele Goodwin:

No. Jamelle, then, I want to take us…and thank you, so very much, for that, because what you’ve shared is that there is something broader for us to understand in terms of the civil rights achievements that were scored in our nation and what that looks like within the context of this court, and those reversals. What’s written on paper is ceding, in many ways, to the adjudication that’s taking place in the decisions of the court. Jamelle, I want to turn to you as we talk about Trump v. CASA. Can you tell us about that case?

00:50:00 Jamelle Bouie:
Well, on the surface, the case is just about whether or not district courts can issue these nationwide injunctions, but as Justice Jackson points out in her dissent, removing that tool from federal district courts, especially in this particular circumstance, what it does is it empowers the executive branch to essentially revoke a Constitutional right from a class of people, and that, that, to me, is what the case is about. I’ve gotten into some arguments about this on the internet because…

00:50:32 Michele Goodwin:

The best arguments.

00:50:33 Jamelle Bouie:
The best arguments, because my initial reaction was that the court, even though in Barrett’s opinion, the opinion of the court, you know, they hold out the possibility of a broad group of plaintiffs being able to get relief through different mechanisms, it remains the case that what they’ve done is said that if you cannot get access to that relief, the president can, with the stroke of a pen, revoke your constitutional right to citizenship if you are the child of undocumented immigrants, or if you are the child of anyone and you cannot prove their citizenship.

And there’s been this debate over, you know, whether or not the framers of the 14th Amendment intended birthright citizenship to apply to undocumented immigrants, and my response to all of this is about kind of the origins of the amendment, which weren’t narrowly about enslaved people but quite broad about creating a country where there is no more tiered citizenship. Like, this is the language, you know, the language of the framers of the 14th Amendment, they were constantly talking about caste. They were constantly saying we cannot have caste in this country.

Charles Sumner refers to color caste. Thaddeus Stevens refers to caste. All these people are talking about this notion, established in the slaveholding republic, that there are tiers of citizenship, tiers of Americans, and they get particular rights depending on where they fall.

00:52:02 Michele Goodwin:

That there are Americans and then there’s property.

00:52:04 Jamelle Bouie:
Right, and the purpose of the Birthright Citizenship Clause of the 14th…broadly, the Reconstruction Amendments in their totality is to end this notion of tiered citizenship, to write it out of the American Republic, and so, as soon as you grant any president, grant this president, the ability, even if it’s theoretical, even if plaintiffs get the relief, as soon as you grant that president the ability to at least temporarily question that, to say that, oh, it may be, in fact, that there are tiers of citizenship, you’ve done just tremendous violence to the constitutional text.

00:52:39 Michele Goodwin:
So, Erwin, there’s some that say that this is not a case for people to worry about, that this was just procedural. It doesn’t reach anything substantive. What’s your response to that?

00:52:51 Erwin Chemerinsky:

But procedure does affect substance. If you can’t get to court, then your rights aren’t going to be protected. If the court can’t provide a remedy, then your rights aren’t going to be protected. The reality is, and I think everyone has to agree, this lessens the power of the federal courts to check the executive branch of government, and it happens at a moment when the executive branch is systematically ignoring the Constitution.

Maybe it’ll turn out that class action suits are a substitute, but as I said, I expect the Trump Administration will fight very hard against class certification. Maybe state governments will be able to sue, but what we’ve done, last Friday, is lose an important judicial check on the federal government.

00:53:34 Sherrilyn Ifill:

Michele, can I…just for a second? No, just because I want to respond…

00:53:38 Michele Goodwin:

Sherrilyn, Chris, and then Mark. Yes.

00:53:39 Sherrilyn Ifill:

I just want to respond to the class action piece.

00:53:41 Michele Goodwin:

Yes.

00:53:42 Sherrilyn Ifill:

Because George talked about how these are not like B3 class actions.

00:53:44 Michele Goodwin:
Right.

00:53:45 Sherrilyn Ifill:

And just speaking as a civil rights litigator, where B2 class actions are my bread and butter, it’s not a cakewalk. It’s not a cakewalk. The federal courts, and particularly the Supreme Court, are extremely hostile to class certification, so hostile that they changed the federal rules. The judicial conference changed the federal rules so that now you can immediately appeal from a class certification decision that is adverse. So, we’re now talking about collateral litigation, right, that takes time, that takes money, and all of it happens in the context in which how is this going to play out in real life? 

The way this plays out in real life is like what we have been seeing outside Home Depots. A masked group of men roll up to the maternity ward or roll up to your house as a new parent and say your baby is not an American citizen, and we have a deportation order. We’re going to deport that baby, right? They’re not going to wait for you to get to the courthouse, right? And it’s not going to be everyone who gets to the courthouse. We already know that. 

Where there are class actions, it’s no mistake that the class actions, so far, have been filed in Maryland and New Hampshire, right? It’s no mistake that they’re trying to go through systems where they’re likely to get favorable…but what about if you are in Texas, and what is your Texas attorney general going to do? Is the attorney general in Texas going to sue on behalf of people in Texas? 

They are not. This court has been hostile to nationwide injunctions, nationwide class actions. So, if you couldn’t get a nationwide injunction, you’re not going to get nationwide class action status, either. So, I think when we talk about this as though independency of….when we say go to court, independency of your going to court and litigating, we’re talking about babies being ripped out of the arms of their parents, or not, and the whole family just having to leave the country because this administration wants to execute orders against that baby. This is shocking and horrifying, and to keep it abstract makes us complicit in denying what is really happening here.

00:55:48 Michele Goodwin:
Chris, you are on your remark.

00:55:50 Chris Geidner:

I think that that’s right on, and I think the great thing about…we were talking in the earlier panel about federal district court judges really stepping up. We saw that in Judge Deborah Boardman’s courtroom, when she held the first hearing when the CASA litigants have tried to turn their case into a class action lawsuit. She held just a status conference hearing to figure out how to proceed with this, on Monday, after the ruling, and she did ask that question, and I was really happy she did.

She was like…told the Justice Department lawyer I want to know are you going to be trying to deport babies, and I think it was so powerful to hear that question and to hear DOJ need to give sort of his proceduralist answer about the 30-day stay, which ironically, of course, the Supreme Court can still give that stay. 

The other thing I just want to say, quickly, is that from Justice Jackson’s dissent, I think she really did hit the nail on the head when what she said was that this turns Constitutional rights upside-down, because it makes it so that the presumption is that a Constitutional right can be withdrawn, and you have to get a ruling saying that you get to keep it, and that just is not functional.

00:57:14 Michele Goodwin:

So, as our time is rounding down, you got us to where I also want us to go, and Moira, you’re taking the microphone, which is that tension between the majority opinion, written by Justice Amy Coney Barrett, and then that powerful dissent, written by Justice Jackson.

00:57:31 Moira Donegan:

I was really glad that Jackson wrote, separately, after also joining Sotomayor’s dissent for the two other liberals, because she really drove home what I think is the takeaway of this ruling, which is that there now is a presumptive lawlessness, as least as applies to those who do not have the ready resources and wherewithal to achieve that relief, that relief that as Kavanaugh, I think, sort of said that quiet part out loud in his concurrence, the relief will be entirely at the actual Supreme Court’s discretion, right, and this is a, you know, kind of a scary new state of affairs in terms of actually getting the laws and the rights enforced, which is now a much narrower privilege rather than a fundamental guarantee.

However, I wanted to point out that there was some real hostility directed towards Justice Jackson by Justice Barrett in a way that I think gave us a little bit of insight into how tense things have gotten in chambers, and I was really struck by the tone that Justice Barrett took towards Justice Jackson, and I see Mark trying to…

00:58:39 Michele Goodwin:
Okay. Yeah.

00:58:39 Mark Stern:

Yeah. I thought Justice Barrett was extraordinarily disrespectful toward Justice Jackson in that opinion. I thought it was shameful the way that she addressed her so contemptuously, and I think that it may well reveal some implicit biases on the part of Justice Barrett about what kind of person she thinks can speak with authority on these issues, and for some reason, Justice Jackson isn’t one of those people. So, I’ll leave that.

00:59:03 Sherrilyn Ifill:

Well, Justice Barrett was joined by the other…her five colleagues, so we shouldn’t just put it on her.

00:59:07 Mark Stern:

Yeah. Yeah.

00:59:07 Sherrilyn Ifill:

And therefore, I think that it was an effort by many of them who agreed that it was time to try and put Justice Jackson in her place.

00:59:16 Mark Stern:

In her place.

00:59:15 Sherrilyn Ifill:

Because, remember, she had had that colloquy with Justice Gorsuch earlier in the…was it the Sanford Florida case, the Stanley case, right?

00:59:23 Michele Goodwin:

Right.

00:59:23 Sherrilyn Ifill:

Where she said I can’t abide the narrow-minded approach, right, of this court. So, I think that it’s not only Justice Barrett that wanted to kind of hit it hard. I think she was joined by her colleagues, who decided…

00:59:36 Michele Goodwin:

Perhaps helped to goad her along.

00:59:36 Sherrilyn Ifill:

Oh, for sure.

00:59:38 Mark Stern:

I strongly agree. I just want to make one more point that I think ties us back to where we started about this court pretending that it’s not looking at the consequences or the political context of its decision. So, just to spell this out, for four years, under Joe Biden, this Supreme Court repeatedly affirmed and upheld nationwide injunctions against the Biden Administration. Every single justice in the CASA majority repeatedly voted to uphold these nationwide, sweeping, universal injunctions against Joe Biden, for four years, and then, within 6 months of Donald Trump returning to power, those justices abolished universal injunctions and cut back nationwide relief. 

Why would that be? I think the only real reasonable answer that we can give is that those justices thought that Donald Trump deserved more power, that they want to cut back the district courts that are trying to rein in Trump’s lawlessness, and they want to give Trump more discretion, more freedom, to implement his agenda, even when it is unlawful, and what is bizarre is that as Justice Sotomayor noted in her dissent, in CASA, you will not find a constitutional right more clearly spelled out than birthright citizenship, right? It’s not something sort of hazy, like equal protection or free speech.

It is right there in the text of the 14th Amendment, and so, for the court to use this particular case, with this particular question, to give the president this newfound freedom to start to implement unconstitutional policy, it either shows extraordinarily callous disregard for the actual rights of humans on the ground, or it is a deeply ominous sign about where the court will land on the whole transparency of the agenda.

01:01:14 Sherrilyn Ifill:
Can I just wrap it and just bring it back to the beginning? 

01:01:15 Michele Goodwin:

And we are going to wrap it up because they’re like flashing like signs and numbers back there, but yes.

01:01:20 Sherrilyn Ifill:

I’m just going to bring it to the beginning, that’s what I saw in the Section 3 case, when I talked about the dissent. They were telling us, these folks, they’re for him, you know? They weren’t just saying they’re for like the unitary executive. They were saying something very particular, and I couldn’t agree with you more, Mark, that this felt very targeted.

01:01:41 Michele Goodwin:
Well, in a term where what we’ve seen as opportunistic originalism, where history matters for some and then doesn’t matter for others, there’s so much to…yet to unpack. Our time went by incredibly quickly. I am so grateful to each of you. I want to just take the chair’s discretion, even though I’ve gotten looks from the back, to just give you each just a quick moment to just wrap up. Regina shared what I do on my podcast, what’s the silver lining. So, we heard that from an earlier panel. I’m wondering, given your wisdom, what you predict and see for the future, in just quick takes. I’ll start with you, Sherrilyn.

01:02:40 Sherrilyn Ifill:

Well, I already wrote about this. I see an opportunity for us on the other side of this, and I cannot tell you when the other side will be, but I believe, one day, there will be one, and when we get to that other side, we need to reimagine our Supreme Court and what are the qualifications, how do we evaluate whether a distinguished lawyer has what it takes to take on the awesome responsibility of sitting on the United States Supreme Court. We have the justices that the system that we have created for selecting justices provides. 

We’re getting what we paid for, and what we paid for are people sitting at a table, answering questions in a way that is not truthful, that is designed to get them on the bench. We have allowed ourselves to be clouded by what they say. We have pretended that saying you think that judging is like calling balls and strikes to seem like a virtue instead of a disqualifying viewpoint for someone who would take on the job of being chief justice of the United States Supreme Court. So, that’s my silver lining, the future.

01:03:45 Michele Goodwin:
Thank you, Sherrilyn. All right. Erwin?

01:03:48 Erwin Chemerinsky:
It didn’t have to be this way. So, we shouldn’t assume that of necessity it was going to be that way. If Hillary Clinton had won in 2016 and she had picked three justices, none of it would be this way. If Merrick Garland had gotten confirmed and if Ruth Bader Ginsburg stayed alive a few more months later, it would be a 5-4 court, a very different way. I think that what we’re going to have to face is it’s going to be a very conservative court for a long time to come. Thomas is 77. Alito is 75. Roberts is 71. Kavanaugh is 60. Gorsuch is 58. Barrett is 54. So, what we have to do…

01:04:25 Sherrilyn Ifill:
Depress us more.

01:04:21 Erwin Chemerinsky:
That’s just the reality that we face. So, what we have to do is constantly show that this is an emperor that has no clothes. They’re not following the law. They’re not following originalism. They’re imposing their own conservative values, and in addition to pushing back against the court, we’ve got to find other ways to succeed, because the court’s not going to be the friend for progressives for a long time to come.

01:04:51 Sherrilyn Ifill:
Thank you, so much, Erwin. All right, Jamelle?

01:04:53 Jamelle Bouie:

In the interest of not going on about how much I think we should just use institutional mechanisms to change the court, I will say that one thing I have really appreciated of Justice Jackson’s opinions, or dissents, rather, is her broad vision of who is included in American history, didn’t really so much talk about this in her Medina dissent, but she references the Colored Conventions, which if you don’t know, basically, throughout the early-to-mid 19th century, Black Americans, in cities where there were large populations of free Black Americans, basically held…they held conventions where they discussed the constitutional issues of the day. 

They issued petitions to Congress. They kind of were deeply engaged in the work of constitutional debate, and they are remarkable documents that give us some insight into how people outside of the mainstream, but still very much engaged in American political life, understood constitutional and political debates of the day, and bringing that into a discussion of how Americans at the time thought about rights, I think, was a powerful rejoinder.

But also, I think, can help us think about American history in a broader, more inclusive way, and in ways that actually are generative of new approaches to our Constitution, to constitutional amendments, to thinking about what our Constitution guarantees us. It is not the case that the Constitution is a document that grants extraordinarily narrow rights and narrow privileges to American citizens. Many of the people engaged in writing the thing and the various amendments didn’t think of it that way, and I think Justice Jackson’s offering us a way to recover these older meanings.

01:06:46 Michele Goodwin:
Thank you, Jamelle. Chris, your quick…?

01:06:48 Chris Geidner:

Yeah. I’ll take sort of a similar but the other side of that with Justice Jackson, which I think she is starting to chart out for us something that we are seeing in people like Democracy Forward and others, the ACLU, that there is a vision forward, as well, that not only looking toward the history but that part of being in the minority, now, part of being the great dissent, now, is not only looking to the past but charting a course forward and remembering, as Sherrilyn alluded to, that there is a future.

01:07:31 Michele Goodwin:

It’s that Justice Harlan work.

01:07:31 Chris Geidner:

And the only way that what we’re doing now is worth it is if we are charting a path to get out into what we do when we get there.

01:07:42 Michele Goodwin:
Thank you so much. Moira?

01:07:44 Moira Donegan:

I was also going to say that I was excited about Justice Jackson, and you guys kind of stole my thunder, but I will echo some other people, as well, in saying that I think that one thing that is a silver lining of the sort of antagonism this court has shown towards litigants who aspire to equal protection and towards the concept that this is a country that guarantees dignity and equality across a lot of difference is that that has provoked a lot of people into an attention that they weren’t paying to the ways that the law is asymmetrically applied into the ways that rights are asymmetrically distributed by the political system that we have, and I think that is a sort of consciousness that is growing in people who didn’t always have it. George Conway went to a protest. I don’t know if you guys heard, and that, I think, is a very good sign.

01:08:34 Mark Stern:

My silver lining, I think, is the brave district court judges, who are out there, doing this courageous work, really putting it all on the line to defend the rule of law and to try to rein in Trump’s lawlessness, judges like Deborah Boardman and James Boasberg and Amir Ali, who are forcing the Supreme Court to look at the facts and reality and actual law, putting it before them, making it impossible for them to entirely close their eyes to this stuff, and standing up for the most vulnerable among us, and for democracy and civil liberties, and the Supreme Court might keep throwing them under the bus, but we have already seen these judges stand up, and dust themselves off, and get back to doing the work, and I guess my feeling is if they can do that, then so can we.

01:09:23 Michele Goodwin:
Please join me in thanking our Supreme Court Term in Review panelists. Thank you, each of you, so much, and thank you all for joining us. There is a reception to follow and also books of theirs to purchase. Thank you.

01:09:39 Chris Geidner:

But before we stop, one last thank you to Michele.

01:09:46 Michele Goodwin:

Thank you, all, for joining us. Thank you so much.