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Yahoo
4 days ago
- Politics
- Yahoo
SCOTUS trans care ruling opens harmful loophole to take access from all trans people, says Leah Litman
The U.S. Supreme Court's decision in United States v. Skrmetti has already sent shockwaves across the country. For legal scholar Leah Litman, it's a ruling that crystallizes something far more dangerous than one state's policy—it confirms the Court's conservative majority is no longer operating as a neutral arbiter of law but as a willing participant in a partisan project targeting transgender people and other vulnerable groups. Keep up with the latest in + news and politics. 'They don't have to try,' to seem beyond politics, Litman told The Advocate in an interview. A constitutional law professor at the University of Michigan, Litman is also a former Supreme Court clerk who cohosts Strict Scrutiny, a Crooked Media podcast that dissects the Court's decisions and culture. Her new book, Lawless, argues that the justices in the Court's conservative bloc routinely dispense with precedent and consistency in favor of 'legal-ish' reasoning that advances Republican priorities under the guise of constitutional interpretation. Related: What is U.S. v. Skrmetti, the Supreme Court case that could change gender-affirming care forever? The 6–3 ruling in Skrmetti, issued last Wednesday and authored by Chief Justice John Roberts, upheld Tennessee's ban on gender-affirming care, including hormone therapy and puberty blockers for trans minors. The court, according to the 118-page opinion, applied rational basis review, the most deferential standard, to conclude that the law doesn't violate the Equal Protection Clause. American Civil Liberties Union attorney Chase Strangio had argued that the court must apply heightened scrutiny, given the issue of sex discrimination he argued existed in the law. But Litman argued that the conservative majority's logic collapses under scrutiny: the very same treatments remain legal for cisgender minors with other conditions, such as precocious puberty, but are banned when prescribed for gender dysphoria. 'The treatments that are prohibited are inextricably bound up by and not experienced by cisgender individuals but associated with what it means to be trans,' Litman said. 'The idea that you can access hormones and puberty blockers for these other reasons, whether you're trans or cis, even that logic falls apart because some of the permitted treatments are precocious puberty.' Litman added, 'In those instances, like the cis girl [experiencing precocious puberty] can get the puberty blockers and the hormones, but the trans boy can't, and so that's obviously discrimination on the basis of gender identity. The logic just completely falls apart.' Related: 9 trans rights activists arrested in front of Supreme Court while protesting Skrmetti ruling That discrepancy, she said, renders the law discriminatory on its face. She likened the decision to the Supreme Court's 2023 ruling in 303 Creative, which allowed a business to refuse service to same-sex couples. In both cases, Litman said, the Court accepted discriminatory treatment by reframing it as something else entirely, rooted not in animus but in supposedly neutral categories. 'Since I'm a good person, and my friends are good people, then we must not be discriminating,' she said, describing the majority's logic. Litman argued that the justices are drawing from a well of reactionary politics disguised as jurisprudence. In Lawless, she characterizes this shift as one driven less by consistent legal reasoning than by 'vibes'—an instinctive alignment with conservative grievance politics. In Skrmetti, she said, that alignment is clearest in the opinion's sloppiness: 'They're so locked in that they're not even engaging with counterarguments or with the factual record in any serious way.' She warned that the ruling lays the groundwork for restricting gender-affirming care beyond minors. Roberts' opinion, she noted, emphasized that the law did not discriminate based on gender identity—a rationale that could just as easily apply to bans on adult care. Justice Amy Coney Barrett's concurring opinion went even further, she said, effectively inviting states to expand restrictions. Barrett's opinion, Litman added, was 'entirely gratuitous and unnecessary.' Even if the Tennessee law did discriminate against trans people, Barrett reasoned, she would still uphold it. 'That's just inviting states to do more harm,' Litman said. Related: Justice Sonia Sotomayor slams gender-affirming care ruling as 'state-sanctioned discrimination' Barret rejected the argument that transgender people qualify as a suspect or quasi-suspect class under the Constitution in her concurring opinion. She cited a lack of 'immutable or distinguishing characteristics,' dismissed the category as too 'amorphous,' and argued that there is insufficient evidence of a history of de jure legal discrimination against transgender people to warrant heightened judicial scrutiny. Barrett warned that granting suspect class status would force courts into overseeing 'all manner of policy choices' on gender-related issues—from bathrooms and sports teams to medical protocols—intrusions she argued are best left to legislatures. Her opinion emphasized that the Equal Protection Clause does not prohibit laws based on transgender status as long as they are rationally related to a legitimate government interest. When asked about the justices' motivations, Litman described a combination of factors: long-standing discomfort with gender nonconformity, susceptibility to misinformation, and what she called 'patriarchal commitments' that lead to moral panic over social change. She also said it's a mistake to think new data or medical evidence would sway them. Referencing a recent Utah state-commissioned report showing gender-affirming care's efficacy, she said bluntly: 'That would not have made a lick of difference.' Republicans in the state who ordered the study chose to discard its conclusions after it failed to support the state's ban on gender-affirming care for minors. The justices, she said, ignore facts when they conflict with the political outcomes they seek. 'It's frustrating because those are facts… and they should have mattered. The reality is they just don't.' Litman spoke as the Court issued another shadow docket ruling in a separate immigration case involving Kilmar Abrego Garcia, a Maryland father deported to El Salvador under President Trump's revived Alien Enemies Act policy. The justices stayed a lower court's order blocking the deportation of similarly situated asylum seekers to third countries they have no relationship to. 'It's utterly terrifying,' Litman said. She criticized the Court for repeatedly indulging Trump administration policies. She added that the Court was under no obligation to hear the government's request—and did anyway. 'The only reason why [Trump] keeps asking is because they keep saying yes.' Litman said these patterns show the Court has become an enabler of authoritarianism. Even during her time clerking for Justice Anthony Kennedy, when challenges to the Affordable Care Act were being considered, she said she felt the institution was 'on the edge of a cliff.' In that sense, she said, it has since hardened into something undeniable: the Court is now central to the 'deterioration and dismantlement of liberal constitutional democracy.' Related: In photos: U.S. v. Skrmetti protest at the Supreme Court in support of transgender youth (exclusive) She sees Skrmetti as a pivotal moment, not because it was unexpected, but because it confirms how far the majority is willing to go without being held accountable. She worries it's just the beginning. 'What am I not worried about at this point?' she said, listing likely future targets: adult gender-affirming care, bathroom and sports access for trans students, and growing carveouts for marriage equality under religious exemptions. Still, Litman doesn't believe the Court will issue a direct reversal of Obergefell anytime soon. 'But it just feels like they are not at all going to hold a line on the civil rights for the LGBTQ community at all,' she said. 'The movement has convinced a supermajority of Americans that gays, lesbians, and bisexuals get to participate in public life. And the fight for the trans community is worth fighting and can be won.' If Democrats regain power, she added, they should pass a federal law that prohibits discrimination based on sexual orientation and gender identity and block states from undermining marriage rights. The Democratically introduced Equality Act would usher in such protections.'They should make [Republicans] vote against it,' Litman said. She added, 'Also kind of like, fuck them, you know?' This article originally appeared on Advocate: SCOTUS trans care ruling opens harmful loophole to take access from all trans people, says Leah Litman What LGBTQ+ groups are saying before Supreme Court justices hear gender-affirming care case US v Skrmetti is a public health disaster In photos: U.S. v. Skrmetti protest at the Supreme Court in support of transgender youth (exclusive) Tennessee AG: It was God's will for him to defend gender-affirming care ban at Supreme Court Justice Sonia Sotomayor slams gender-affirming care ruling as 'state-sanctioned discrimination' Supreme Court rules states can ban gender-affirming care for youth in U.S. v. Skrmetti 9 trans rights activists arrested in front of Supreme Court while protesting Skrmetti ruling What is U.S. v. Skrmetti, the Supreme Court case that could change gender-affirming care forever?
Yahoo
16-05-2025
- Politics
- Yahoo
"A court captured by far-right conspiracy theories": How the GOP drove the Supreme Court off a cliff
"Strict Scrutiny" cohost Leah Litman has the profile of a person who, in previous eras, would seem like a defender of the Supreme Court. She's a law professor at the University of Michigan and once worked as a law clerk for former Justice Anthony Kennedy. In recent years, she's become one of the most outspoken critics of how the current iteration of the nation's highest court has abandoned good faith readings of the law, basic legal reasoning, and even facts in pursuit of a far-right agenda. In her new book, "Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes," Litman chronicles the decline of this once-venerated institution. She spoke with Salon about her book and how recent cases suggest the court is getting even more unhinged in this second Donald Trump administration. This interview has been edited for length and clarity. I listened to, and I was struck by how victimized acted during the entire thing. He felt he was being oppressed by this children's book called "Uncle Bobby's Wedding." It perfectly illustrated the thesis of your book, which is about how much the jurisprudence of the current Supreme Court is all vibes and grievance. What were you thinking when you listened to those arguments? I don't know whether to laugh or to cry. The justices keep providing me with so much content and so much material after I finished the manuscript. It perfectly reflects this notion of conservative grievance: the idea that social conservatives, religious conservatives, all the core parts of the Republican constituency, are the real victims. And there's no discrimination except against white evangelical Christians. That worldview was on display. This is a children's book about a young girl being concerned that when her favorite uncle got married, he'd have less time for her. Justice Alito read it as a personal attack and rank discrimination against religious conservatives like him because her favorite uncle happened to be getting married to a man. Apparently, acknowledging that some men marry men whom they love is discrimination against Sam Alito and people who believe that marriage is between a man and a woman. It was stunning in its clarity. I don't know what's going on in his head, but it's hard to use any word but "lying" to describe his claims during arguments. He said that the little girl in the book objected to the marriage cause she was homophobic, when she loved her gay uncle, and just didn't want him to have less time for her. The projection is very telling. Justice Alito read this book, where Chloe is concerned about her uncle's upcoming wedding, and Justice Alito seemed to read into Chloe his own views. He imagined Chloe saying something like, "Mommy, I have a sincere religious objection to Uncle Bobby's marriage to a man." And then he interpreted her mother as saying something like, "No, Chloe, that's bad. You can't think that. Men get to marry men because that's the future liberals want." Of course, Chloe and her mother said no such thing. He read the mere acknowledgement that a man would marry a man as an expression of hostility to his worldview, which is that same-sex marriages shouldn't exist at all. Acknowledging their existence, acknowledging the existence of LGBT people, he perceives as an attack on him, because the jurisprudence he is fashioning is all about bringing about a world where gays, lesbians, and bisexuals are not allowed to have civil rights and are not allowed to live been this myth for a long time that there might be liberal judges and conservative judges, but they all adhere to the same belief that they should follow the facts and they should follow the law. Brett Kavanaugh talked about it as "calling balls and strikes." To reject the obvious reading of a children's picture book suggests that's not the case. How far have they drifted from those basic principles? Oh, I would say quite far. It wasn't just Sam Alito, although he is the best example and encapsulation of this conservative grievance, bad vibes, fringe theory direction that the Supreme Court is headed in. During the same oral argument, you had Neil Gorsuch insisting that the book "Pride Puppy" involved a sex worker who was into bondage. If you read the book, there is a woman wearing a leather jacket, and she's at a Pride parade. Neil Gorsuch took from that and insisted, no, the book actually involves bondage and sex workers. Examples are myriad. In the 303 Creative case, which also concerned LGBTQ equality, you have the court insisting the case involved a wedding website designer with sincere religious objections, who was going to be forced to make a wedding website for a same-sex wedding. The person did not specialize in wedding website design. She did not sell her business as a designer of websites from a religious perspective. And the one alleged request she received for a same-sex wedding was submitted by someone who claimed they never submitted such a request, who was a website designer themselves, and was a man married to a woman. The Supreme Court has been running on these fast and loose characterizations of the facts for a while. We all can have a good laugh at the idea that "Uncle Bobby's Wedding" is a personal attack on people who don't believe in marriage equality. But the uncomfortable reality is that a conspiracy theory-laden universe is in full swing at the Supreme Court. It's a court captured by far-right conspiracy theories. That worldview interferes with their assessment of the law, their assessment of the facts, and their ability to engage with reality. Sam Alito and, to a large extent, Clarence Thomas get the most attention for having their brains poisoned by this stuff. But a lot of people think Chief Justice John Roberts isn't so bad. Look, there are differences between the Republican appointees, but the reality is, on the big picture level, they are in lockstep in important ways. Chief Justice Roberts, this purported moderate institutionalist, struck down the key provision of the Voting Rights Act in Shelby County versus Holder by inserting a misleading ellipsis into a quotation he drew from one of his previous opinions. He inserted this ellipsis, so the sentence meant the literal opposite of what it had actually said. This is the same Chief Justice who wrote the sweeping immunity ruling that effectively placed the president above the law. And people ask why Donald Trump thinks he's above the law. Some of the president's more expansive, outlandish assertions of executive power draw from this idea of the unitary executive theory, which is the idea that the Constitution gives the president and the president alone all of the executive power. It's that idea that the president relied on to fire inspectors general, to fire the heads of commissions like the National Labor Relations Board or the Equal Employment Opportunities Commission. Guess who wrote that the Constitution puts all of the executive power in the president: John Roberts. He was writing the same for the Reagan administration back when he was a lawyer in the Reagan administration. People mistake the forest for the trees. It's more interesting to focus on the differences between the Republican appointees. It is closer to reality to acknowledge that on these super high-profile, ideologically salient cases, the Republican justices are where the Republican Party is. There's a recent case where reporting suggests that a lawsuit regarding a bus full of Venezuelan immigrants that they were trying to send to that El Salvador in prison. The rest of the court stepped in and stopped Alito from doing that and rushed out a decision that ended up probably saving those men's lives. What is your read on that particular situation? Some lower courts had blocked the government from relying on the Alien Enemies Act to summarily expel people to this foreign megaprison in El Salvador. The case went up to the United States Supreme Court on a request for emergency relief, blocking the government from carrying out these renditions. The Supreme Court blocked the Trump administration and released its order blocking the deportation before Alito finished his dissent. In doing so, they likely saved these men from being sent to El Salvador because they got the order out before the men could be transported. What to read from that? It's a little hard to know. I'd imagine that the Supreme Court is responding in part to the administration's blatant disregard, if not outright defiance of their previous order in the case of Kilmar Abrego Garcia, which told the administration to facilitate Mr. Abrego Garcia's return. The administration's response has basically been, "make me." Then Stephen Miller characterized the decision in Abrego Garcia as a unanimous win for the administration. That's definitely not true. As to whether they thought they can't wait on Justice Alito, because he is trying to buy the Trump administration time to deport these men, I'm not sure. Trump got this immunity decision, and he seems to recognize that, as you argue in this book, these six Republican judges are going to bend over backwards to misinterpret the law to help him out. There is another case that just got going, where 12 Democratic attorneys general are suing, claiming Trump's tariffs are illegal. Which seems right to me, though I'm not a lawyer. It will be another interesting test of whether or not the Supreme Court has a limit. What are your thoughts on that case? Because it is a situation where Trump's agenda is so different than the standard Republican agenda. If you look back at the first Trump administration, there was this case challenging the entire Affordable Care Act. The state of Texas sued on this cockamamie theory that the entire Affordable Care Act had become unconstitutional when Congress reduced the penalty for not having health insurance to $0. And the Trump administration joined Texas's lawsuit, to ask the court to strike down the entirety of the Affordable Care Act. That was a Trump thing. It was not the consensus position of the Republican caucus, which had voted down efforts to repeal the entirety of the Affordable Care Act. In that case, the Supreme Court rejects the Trump administration's request. That's another example where the zeitgeist of the Republican Party is not exactly tracking what Donald Trump is asking for. And in those instances, you have a Republican court majority that is probably closer to the median Republican in Congress or than they are to Donald Trump. Now, that means, of course, they are enabling Trump, left and right and all over the place, you know, and are on board with a lot of his agenda. But it does mean there are some differences. It seems to me that the Supreme Court often oversteps with regard to this Christian nationalist agenda. Or is it larger than that? I think it is larger than that. I agree that one of the ideas they are most committed to is that conservative Christians are the victims of a society that doesn't share their views. But they are also very committed to the idea that white conservatives accused of racial discrimination are very put upon. That idea has inflected a lot of their jurisprudence on voting rights. This term, they are hearing another Voting Rights Act case that asks them to say it's actually unconstitutional racial discrimination for states to try to ensure that black voters are represented in districting. It's super transparent in the cases of religion, but it's definitely present in other areas of law as well. When I'm chatting with people on social media, I find the Supreme Court situation is the source of almost nihilistic pessimism. There are six Republican-appointed justices. As you said, they are in lockstep with this increasingly ridiculous, paranoid agenda. There is no sense that will change any time soon. They sometimes seem to have king-like powers. Should people feel this hopeless? Are there reasons to feel that this can get better? I understand the feeling of hopelessness. I definitely feel depressed sometimes. But, just like we tell people not to obey in advance for the Trump administration, don't obey in advance for the Supreme Court, either. If you have a great law or policy that you think will meaningfully improve people's lives, and you think it's constitutional, do it. Make them strike it down. Make them pay the price for taking away people's healthcare, voting rights, and whatnot. Second, if you are that convinced that the Supreme Court is such a destructive force on society, you should try to convince other people of that as well. If we do that, we might be in a situation where the next time progressives, the Democratic Party, the left have political power, they could exercise that political power in ways that reduce the destructive potential and powers of this Supreme Court. The other thing that gives me hope is the polling on the Trump administration on immigration and other matters, and especially the polling on the Supreme Court. A majority of the country is not on board with their wild grievance-laden, retributive agenda. And so that gives me hope. Just because these weirdos on the Supreme Court are doing this doesn't mean the rest of the country is OK with it. How much of this is Mitch McConnell's fault? Mitch McConnell is a key figure in my book for a reason. Even when Republicans aren't on board with what Trump is doing, the Republican Party and people like Mitch McConnell own absolutely everything he is doing. They have enabled him and they continue to do so. It doesn't really matter if Mitch McConnell is occasionally voting against the nominee, voting against tariffs, or whatnot. He held open a Supreme Court seat to give Donald Trump a better chance of being elected president. He refused to impeach Donald Trump when Donald Trump attacked our democracy. He has held open seats to make room for radical extremists on the lower courts who have done absolutely wild things, like order nationwide bans on medication abortion. He owns a lot of this, and he should be remembered as such.
Vox
27-03-2025
- Politics
- Vox
Trump is on a losing streak in the courts. How will he respond?
President Donald Trump isn't a fan of judges who rule against him. During his first term, he famously attacked Judge Amy Berman Jackson, who sentenced his ally and adviser Roger Stone, by saying she was 'totally biased' and had 'hatred' for both Trump and Stone. Now, Trump has only ratcheted up the attacks on judges. This feud reached a new high-water mark after US District Court Judge James Boasberg ordered the Trump administration to stop deporting certain Venezuelan immigrants. Boasberg also pressed the administration on the timing of flights from the US to El Salvador, where the immigrants were moved to a mega-prison. In response, Trump called Boasberg a 'Radical Left Lunatic of a Judge, a troublemaker and agitator.' In concert, Attorney General Pam Bondi said the judge had 'no right' to be asking about the flights. Similar attack lines have been used by an array of Trump administration officials and allies. For more on Trump's grudge with judges, Today, Explained's co-host Sean Rameswaram spoke with Kate Shaw. She's a professor at the University of Pennsylvania's Carey Law School, and co-host of the legal podcast Strict Scrutiny. Click the link below to hear the whole conversation. The following is a transcript edited for length and clarity. Kate, what is going on with Trump and the judges? Trump has fared remarkably poorly in litigation in the last two months. He really is on an impressive losing streak. He's zero for three in the courts of appeals in trying to defend the constitutionality of his birthright citizenship executive order. He has been losing in cases challenging various aspects of Elon Musk's role in government and the activities of DOGE. In the only two cases to reach the Supreme Court so far, both very early-stage procedural matters, he lost both of them. He's notched a couple of wins in the lower courts, but mostly on procedural issues. So, he's losing a lot and he's clearly really unhappy about it. And the biggest controversy in all of the losses is perhaps this situation with El Salvador. I think it's the one that Trump is the most incensed about. That seems clear, right? And so the administration invoked this 1798 statute: the Alien Enemies Act. That's been used three times, always in wartime: 1812, World War I, World War II. Now, they try to make an argument that this Venezuelan gang, Tren de Aragua, is somehow working in concert with the Venezuelan government in ways that makes them a state actor that we're basically engaged in active hostilities with. That's the [reasoning] for invoking this old statute, and that allows designating individuals as alien enemies and expelling them, essentially, to this prison in El Salvador. That has been challenged and is before this judge, Judge Boasberg. There have been some preliminary determinations made, but it's pretty clear the administration is gonna lose big in front of Judge Boasberg. This is the one that I think has Trump the most spun up based on his social media. He has taken to Truth Social and basically called for Boasberg to be impeached. He has called him a radical left lunatic of a judge, a troublemaker, and an agitator. I don't know this judge, but, no, that is not an accurate characterization of him. He was put on the DC local court by George W. Bush and then on the district court by President Obama — and then also designated to serve on the Foreign Intelligence Surveillance Court by Chief Justice John Roberts. This is not a judge who is in any way a radical left lunatic. It's a preposterous characterization, but calling for his impeachment based on this preliminary set of rulings is an enormous escalation of the way Trump has been talking about and acting toward the judiciary. And calling for a judge's impeachment — has that been reserved for Judge Boasberg, or does that apply to a number of these court battles that the Trump administration is facing? He has been criticizing federal judges. Others, I think including Musk, have called for other impeachments. I think this might be the first that Trump has called for [impeachment] himself. How do judges fight back when a president or an all-but-official vice president call for their impeachments? It's a good question and judges are very limited in what they can do. They can't take to public-facing communications channels. They don't have a bully pulpit the way the president does. They cannot tweet or skeet or truth or whatever in their own defense. They have a lot of power in a very limited domain. There's defending themselves in the court of public opinion, but then there's also the possibility that they could actually have to end up defending themselves in the actual United States Congress against impeachment. How often do we see judges getting impeached? Remind us. Pretty infrequently. There have been 15 impeachments of federal judges. Only eight of them have resulted in conviction. Impeachment is a two-step process. We say somebody has been impeached if a majority of the House of Representatives has voted to approve one or more articles of impeachment against them. It just requires a simple majority in the House and then, colloquially, we say the person has been impeached. But then they actually just go to the other House of Congress, the Senate, and that's where an actual trial happens. It requires a two-thirds supermajority to actually convict someone in a Senate trial, which results in their removal from office. So impeachment, again, is the first half of the two-step process in the Constitution. And it does not seem impossible to me that we might see federal judges actually subject to real impeachment proceedings in the House, although 67 votes in the Senate is very hard for me to see ever occurring. But that's still playing within the boundaries of what's legally acceptable. What about if they just openly defy the courts? That's what is at stake with this case, with Boasberg and the flights to El Salvador. Do we have concrete evidence that that has happened? I don't think so. I think we are close. [There's] this delicate dance in front of Judge Boasberg, in which the administration does suggest that it is complying with a narrow — and I think probably wrong, but at least defensible in legal-sounding language — argument that they weren't subject to this order. They weren't defying the order, they were trying to comply with the order. So they are at least not saying to the court: you essentially have no power over us. They are maybe inching a little closer to that. I think it matters a lot that they're continuing to make legal arguments and that they're continuing to appeal. I think in some ways, the real red lights start flashing if they stop doing that and simply don't comply. I think they're likelier to do it here than in the context of a challenge to the dismantling of USAID or the Department of Education or an order targeting law firms. Where the president is making claims about national security, the president's power is always understood to be at its apex, and so they think they have the strongest legal footing for suggesting a court has no power over them here, [compared to] other spaces where it's obvious that courts absolutely have the power to review and maybe invalidate things the executive branch has done. Interestingly, one source of that vast executive power comes from Chief Justice John Roberts, who last year helped expand our views of presidential power in this country. But in this case, especially when it comes to this fight between Trump and this DC judge, Boasberg, there's a bit of tension there. Yeah. So as you just referenced, July 1 of last year, Roberts authors this opinion granting sweeping new authorities and immunities to presidents and ex-presidents. And I think it hangs over virtually everything that we've seen in the last two months in terms of these extravagant assertions of executive authority and disdain at the idea that courts or any outside institution could act to check a president in any way. There's a straight line between some of the descriptions of presidential power in that Trump v. United States case and the predicament we find ourselves in. So I do think that John Roberts bears a ton of responsibility for the way the administration has comported itself and broadcast its vision of essentially boundless executive power. It is interesting that Roberts kind of came out swinging after Trump [suggested] on Truth Social that Boasberg should be impeached. Roberts issued this very unusual statement, kind of a rebuke of President Trump. The chief justice rarely wades into the political fray in any way other than issuing his opinions. So he was obviously worried enough to speak up. Any response from the Trump administration?
