Adam Liptak
Appearances
The Daily
A Constitutional Crisis
We don't know, of course, exactly what case will reach the court and exactly how the court will think about it. I think the court will be very scared of, alert to the possibility of a constitutional crisis, of a pure impasse. So my guess, Michael, is that the court is going to try to find a case where, in a splashy way,
The Daily
A Constitutional Crisis
It rebukes Trump, rules against him, but ideally in a case where the president can't really disobey the court's judgment. And birthright citizenship is the classic example of this.
The Daily
A Constitutional Crisis
It's just a logistical nightmare. It requires Trump to essentially instruct every hospital administrator in the nation about how to track the citizenship of every newborn. It's hard enough to do if you had the law at your back. In the face of a Supreme Court judgment, it becomes really hard to imagine.
The Daily
A Constitutional Crisis
I guess I can think of lots of examples, but why don't we talk about USAID? The president wants to do away with that. The court says, you can't do that on your own. You can go to Congress. But you are not authorized, Mr. President. to disobey Congress's instructions about the existence of, and the nature of, and the spending of that agency.
The Daily
A Constitutional Crisis
And Trump, let's posit, says, I disagree, and shuts the agency down anyway. The court doesn't want to find itself in that situation. The court has always, through its entire history, been very sensitive to the idea that it's not really clear why we do what it tells us to do. They don't have an army. They don't have the power of the purse.
The Daily
A Constitutional Crisis
They have this kind of fuzzy thing we call legitimacy and authority. And they're very wary of that being undermined. And all it takes is for the president one time to say, as Andrew Jackson did say, apocryphally, The chief justice has made his decision. Now let him enforce it.
The Daily
A Constitutional Crisis
I think you would get some motivated reasoning from justices who probably wouldn't put this at the forefront of their minds and but would talk themselves into thinking, well, maybe we rule for the president here. Maybe it's not such a bad thing.
The Daily
A Constitutional Crisis
And somewhere, you know, in the substrata of their consciousness is the lurking feeling that if we go the other way, things are going to be bad for the institution.
The Daily
A Constitutional Crisis
It can be thought of, and I take your point, as simply a reimagining of what the Constitution calls for, that maybe people approve of, and maybe what we're on the cusp of here is, you know, without an amendment, without a constitutional convention, just a reorientation of the separation of powers in a way that elevates
The Daily
A Constitutional Crisis
the president to a role that we've not seen before at the expense of the other branches. But all of that said, a crisis is a crisis. And if our very understanding of the Constitution is being tested by a president who, legal scholars say, seems to have a contempt for the document, We are in the midst of something profound, whether or not people are taking it seriously today.
The Daily
A Constitutional Crisis
Yeah, it sounds serious, doesn't it? It does. But I've been talking to a lot of law professors, and what emerges from those conversations is that there's no fixed, agreed-upon definition of a constitutional crisis. It has characteristics, notably when one of the three branches tries to get out of its lane, assert too much power.
The Daily
A Constitutional Crisis
It often involves a president flouting statutes, flouting the Constitution, flouting judicial orders. And it can be a single instance, but it's more typically cumulative. But it's not a binary thing. It's not a switch. It's a slope that can descend. And it takes on a quality of danger if there's a lot of it.
The Daily
A Constitutional Crisis
So the consensus is that this is a constitutional crisis. And let me try to unpack why so many people think that. The president will often use his power to its fullest extent to assert a constitutional authority to do things that other branches may oppose.
The Daily
A Constitutional Crisis
But what we have with President Trump is a kind of wholesale reconception of the part of the Constitution, Article 2, that sets out presidential power that asserts that he's basically the decision maker, that he can act alone. He can disregard instructions from Congress. And Congress is in Article I. Congress makes the law. That sounds significant.
The Daily
A Constitutional Crisis
The president is charged by the Constitution to take care that the laws be faithfully executed. That would seem ordinarily to put him in a subordinate role. But the music of Trump's actions over the past several weeks has been quite different, has meant to insist on his primacy.
The Daily
A Constitutional Crisis
So a couple of quick examples. Congress has instructed the president not to fire people unless he satisfies certain criteria. Sometimes he has to have a good reason. Sometimes he has to wait 30 days. Sometimes he has to explain himself to Congress. President Trump has busted through all those limitations and insisted that as head of the executive branch, he can fire whomever he will.
The Daily
A Constitutional Crisis
Congress has also passed laws instructing the president to spend money to do certain things. President Trump takes the view that if those instructions are inconsistent with his policy agenda, he doesn't have to do it, that Congress can't make him spend the money Congress has appropriated. And Congress, of course, has the power of the purse.
The Daily
A Constitutional Crisis
So you would think there's a pretty good argument that the president has to do with Congress says.
The Daily
A Constitutional Crisis
Yes. Congress told the president what to do. The president is doing the opposite. That seems to contain some real seeds of what most people would think of as a constitutional crisis. And this is notable, too, Michael. He's doing this in the face of a Congress that's not opposing him.
The Daily
A Constitutional Crisis
To the contrary, if President Trump were to seek legislation from this Congress limiting or shutting down USAID, I think he'd be very likely to succeed. But he seems not to be interested in working with the other branch, a branch that he essentially controls, but to insist that he has the sole power. to do things.
The Daily
A Constitutional Crisis
Yeah, it's a raw assertion of power, and it's a little surprising. I mean, if you have a Republican-controlled Congress... that's ready to do your bidding, and you could button this down and make lasting change that's unassailable, it's a little bit surprising that in the early weeks of a four-year term, he wants to do everything at once.
The Daily
A Constitutional Crisis
And that has the quality of a crisis too, this notion that we're flooding the zone with endless executive orders and scores of lawsuits. It just gives rise to the sense that we're encountering a wholly new and maybe dangerous atmosphere.
The Daily
A Constitutional Crisis
So where to begin? He has shut down all kinds of federal spending that Congress has instructed him to spend. He's deputized Elon Musk and his Doge warriors to inspect all kinds of government logs and computer activity that gives rise to at least some privacy concerns. And maybe notably, he has, by executive order, purported to do away with
The Daily
A Constitutional Crisis
with what is generally thought to be a fundamental constitutional right of birthright citizenship that is with very rare exceptions. If you're born in the United States, you're a United States citizen.
The Daily
A Constitutional Crisis
So I think I'd put it in three buckets, Michael. One is Trump's role as the head of the executive branch. And there he has pretty good arguments about
The Daily
A Constitutional Crisis
that he's the boss, that he can decide who works for him, and that he can fire people, including heads of independent agencies that Congress has tried to insulate from political pressure, inspectors general who have an important role in keeping fraud and corruption out of agencies.
The Daily
A Constitutional Crisis
That may not sound like the best idea as a policy matter, but the Supreme Court has been increasingly sympathetic to the idea that at least where it's all inside the executive branch, the president has a lot of power. So that first bucket, he may well succeed in many of his arguments.
The Daily
A Constitutional Crisis
Right. The second bucket gets much harder, where Congress has specifically instructed him to do something, to spend money, to maintain agencies, USAID, the Consumer Financial Protection Bureau, the Department of Education. The notion that the president is allowed to disregard congressional instructions on things like that, that's a tough argument. And then the third bucket is
The Daily
A Constitutional Crisis
gets even harder, where the Constitution, most people think, has insisted that there's a constitutional right to birthright citizenship. And under the conventional understanding, You can't do away with that by executive order. You can't do away with that by statute. Congress can't do away with it. It's in the Constitution.
The Daily
A Constitutional Crisis
If something's going to change, it needs to be done by constitutional amendment. So the president's order in the early days of his administration that says, I declare that this constitutional right doesn't exist is quite brazen and bold.
The Daily
A Constitutional Crisis
Right, and the courts are already dealing with an extraordinary number of suits. They seem to multiply by the day.
The Daily
A Constitutional Crisis
And while none of them have reached the Supreme Court yet, in the coming, I would say, weeks, we are going to have major clashes before a Supreme Court that, you know, is dominated by six conservative appointees and will be sympathetic to some of what Trump wants to achieve, but is not going to be on board for the whole project. And then the open question is, assuming the court rules against Trump
The Daily
A Constitutional Crisis
He has been on an epic losing streak. Some of that can be explained by plaintiffs suing in friendly courts, but appointees of all different kinds of presidents, including President Trump himself, have ruled against him and have said that Elon Musk can't have access to some materials,
The Daily
A Constitutional Crisis
that people can't be fired, that agencies can't be disassembled, that the birthright citizenship order is unconstitutional. And some of these judges have been very harsh. One of them, in blocking the birthright citizenship order, said that he had difficulty understanding how a member of the bar could state unequivocally that this is a constitutional order. It boggles my mind.
The Daily
A Constitutional Crisis
So that gives you a flavor of how Trump is doing in the lower courts.
The Daily
A Constitutional Crisis
Right. And J.D. Vance, the vice president, has taken the most assertive attitude toward this, saying that the president doesn't have to obey rulings from courts that are at odds with his understanding of the Constitution.
The Daily
A Constitutional Crisis
So it sounds quite radical, doesn't it? I mean, we generally agree as Americans that the court has the last word over the constitutionality of congressional action, executive action. And if J.D. Vance is suggesting as a general matter that the president disagrees with that, well, that's a constitutional crisis.
The Daily
A Constitutional Crisis
I guess I would make, though, an observation, Michael, that there are probably some areas where if the Constitution distinctly and exclusively commits some right to the president, like, say, the pardon power, and a court were to say, no, you can't pardon your buddy, The president's interpretation of the Constitution could well govern there.
The Daily
A Constitutional Crisis
And there's a flavor of this in the Supreme Court's decision in July granting Trump broad immunity from prosecution, where the court talks about those powers that are core executive powers are for the president only. The Vance statement seems to resonate with that way of thinking, too.
The Daily
A Constitutional Crisis
Right, but I don't want to minimize it. I mean, it's a hell of a thing to even contemplate the Supreme Court saying to Richard Nixon, you got to turn over the White House tapes. And Richard Nixon, and he thought about this, saying no. That would be a classic constitutional crisis.
The Daily
Trapped Abroad: The Man at the Center of a Constitutional Standoff
He has then and now never had a criminal record in El Salvador or the United States. And goes before an immigration judge, and the judge, and this is important, issues a ruling that says he faces dire consequences if he were to be sent back to El Salvador. And the judge issues a ruling that says you may not deport him to El Salvador.
The Daily
Trapped Abroad: The Man at the Center of a Constitutional Standoff
Exactly. They say that the Supreme Court has essentially said, not, we're nudging you, you should bring him home, but rather, you decide. You get to decide in the area of foreign affairs and immigration. who gets deported, who doesn't, whom you bring back, whom you don't. And so the two sides managed to read the same judicial decision quite differently.
The Daily
Trapped Abroad: The Man at the Center of a Constitutional Standoff
So that's a very good question, Rachel. And we used to think that there are two things that could go on. There's the administration making weak, not very persuasive arguments, but still kind of doing law. And then at the other end of the spectrum, the administration being told to do something and refusing to do it. And that's defiance, and that's the classic constitutional crisis.
The Daily
Trapped Abroad: The Man at the Center of a Constitutional Standoff
So here we have something I didn't anticipate, a third thing, where everybody acknowledges that the initial deportation in the Abrego Garcia case was unlawful. And yet the administration continues to make kind of legalistic arguments defending it. And this third thing may be the constitutional crisis everyone's been waiting for.
The Daily
Trapped Abroad: The Man at the Center of a Constitutional Standoff
It doesn't take the classic form, but it gets you to pretty much the same place.
The Daily
Trapped Abroad: The Man at the Center of a Constitutional Standoff
What I would say is that there's really nothing in the administration's legal logic that would prohibit the administration from picking an American citizen off the street, send them to a vicious prison in another country where torture is routine, conceitedly lawlessly, and then say, whoops, sorry, nothing we can do about it. You're going to spend the rest of your days there.
The Daily
Trapped Abroad: The Man at the Center of a Constitutional Standoff
The legal logic of the Obrego-Garcia case is no different than the legal logic of sending Rachel Abrams or Adam Liptak to El Salvador for the rest of our days.
The Daily
Trapped Abroad: The Man at the Center of a Constitutional Standoff
The logic and implications of the administration's position can only be called deeply disturbing.
The Daily
Trapped Abroad: The Man at the Center of a Constitutional Standoff
And he goes on living in the United States, has a work permit, checks in with the immigration authorities every year, gets married, is raising three kids. And a few weeks ago, he is detained again. And this time he gets no process. He is sent to Louisiana, a detention facility, and then is put on an airplane to El Salvador, the one place he cannot be deported to under the immigration law.
The Daily
Trapped Abroad: The Man at the Center of a Constitutional Standoff
And moreover, he's sent to El Salvador. to a notoriously inhumane, squalid, and dangerous prison there called the Center for Terrorism Confinement. And there he sits. And his lawyers go to court in Maryland. And the lawyer says, there's been a terrible injustice here. We've got to get him back. And the government's initial response is, that's right. There's been an administrative error here.
The Daily
Trapped Abroad: The Man at the Center of a Constitutional Standoff
This shouldn't have happened. He shouldn't be in El Salvador. The lawyers initially say, we're looking into it. We're trying to figure out how to fix it. The lawyer says he's not getting cooperation from his superiors.
The Daily
Trapped Abroad: The Man at the Center of a Constitutional Standoff
Yes, but everybody agrees this shouldn't have happened. And you might think the answer is to take steps to bring them back. But then the administration, as this goes up the food chain in the Trump administration, starts to dig in his heels. And here's a bad sign for Mr. Obrego-Garcia. The government lawyer who made those concessions is put on administrative leave Because Pam Bondi, the U.S.
The Daily
Trapped Abroad: The Man at the Center of a Constitutional Standoff
Attorney General, says the lawyer had not zealously represented the position of the United States.
The Daily
Trapped Abroad: The Man at the Center of a Constitutional Standoff
Because the lawyer did the ordinary thing expected of an American attorney in an American courtroom. which is to be candid with the court. Zealous advocacy is one thing, but you also have an obligation as an officer of the court to tell the truth.
The Daily
Trapped Abroad: The Man at the Center of a Constitutional Standoff
She couldn't be more appalled. She says this shocks the conscience. that this kind of lawless behavior is un-American. And she orders the government to facilitate and effectuate, and those words may become important as we talk about this, his return in very short order. She tells the government to bring him home.
The Daily
Trapped Abroad: The Man at the Center of a Constitutional Standoff
A couple things. One, that this was in plain violation of a court order. Two, that he wasn't afforded the merest amount of due process for And if he had been afforded that, he could have made two points. One, that he's exempt from being deported to El Salvador. And two, that if there are other things to be said about his life, he could dispute that, put in evidence, call witnesses.
The Daily
Trapped Abroad: The Man at the Center of a Constitutional Standoff
He was afforded neither of those things.
The Daily
Trapped Abroad: The Man at the Center of a Constitutional Standoff
So as the case moves up through the legal system, the government never backs off its concession that this was an oversight, a mistake. But they now say that they're not capable of fixing the mistake because Mr. Obrego Garcia is in the custody of El Salvador. And the United States is powerless to retrieve him.
The Daily
Trapped Abroad: The Man at the Center of a Constitutional Standoff
And the government starts to lean on a theory that Abrego Garcia is a member of an El Salvador gang, MS-13. They have very little evidence for this. A confidential informant—we don't know who this is— accused Obrego Garcia of being affiliated with an upstate New York branch of the gang. He says he's never been to upstate New York. And in any event, even if everything was true,
The Daily
Trapped Abroad: The Man at the Center of a Constitutional Standoff
even if he's a member of this gang, even if that's criminal conduct, even if it's criminal conduct in the United States, that still doesn't give the government the right to deport him. Maybe it gives them the right to prosecute him in the United States. Maybe it gives them the right to send him somewhere other than El Salvador.
The Daily
Trapped Abroad: The Man at the Center of a Constitutional Standoff
But the one thing we know is that it's unlawful to send him to El Salvador. And their legal argument basically consists of It's a pity it happened. Shouldn't have happened. But now that he's in El Salvador, we have no way of getting him back.
The Daily
Trapped Abroad: The Man at the Center of a Constitutional Standoff
It goes to a federal appeals court. All three judges on the federal appeals court say the government needs to take steps to get him back. It then goes to the U.S. Supreme Court. And in what is basically a unanimous decision, The Supreme Court affirms most of what the trial judge said. Remember, the judge used two verbs, facilitate and effectuate.
The Daily
Trapped Abroad: The Man at the Center of a Constitutional Standoff
And the court, in an unsigned decision, bears down on those two words and endorses facilitate. You've got to get to work. people. You have to take steps. Clearly, something has gone wrong here. And the court says, take steps to fix it. But the court stops short of endorsing effectuate. It says it's not quite clear what the judge meant by that and that it's possible that it goes too far.
The Daily
Trapped Abroad: The Man at the Center of a Constitutional Standoff
The court doesn't like to, doesn't want to tell the president how to conduct foreign affairs, how to supervise the immigration system.
The Daily
Trapped Abroad: The Man at the Center of a Constitutional Standoff
I think what it means is that the court is not ordering an outcome. It's ordering process. But the thrust of the court's decision is, let's be serious, you've got to get them back.
The Daily
Trapped Abroad: The Man at the Center of a Constitutional Standoff
That puts it very well. That's right.
The Daily
Trapped Abroad: The Man at the Center of a Constitutional Standoff
So there are things the United States could do. You could extradite Abrego Garcia. If the U.S. contends he's a criminal, start extradition proceedings and have him returned here. Recall also that we are paying the government of El Salvador $6 million to house these people we've deported there. You would think that alone would give us the power to say, you know what? We're not paying for this guy.
The Daily
Trapped Abroad: The Man at the Center of a Constitutional Standoff
Send him back. The United States is a very powerful country. And if it wants to achieve something as simple as having an ally to accomplish something, it just beggars belief that it couldn't be achieved.
The Daily
Trapped Abroad: The Man at the Center of a Constitutional Standoff
That's what the Supreme Court said and meant. That's what lower courts have said and meant. They probably, on some level, didn't think that it would take more than that. You're right, Rachel, in suggesting this is kind of a judicial nudge. It's not an order. This is difficult. The court acknowledges that it owes the president some deference in his conduct of foreign affairs.
The Daily
Trapped Abroad: The Man at the Center of a Constitutional Standoff
But still, I think the courts, and uniformly so, hoped and believed that it wouldn't take very much to persuade the government of the United States to do something when it concedes that a terrible injustice has been done.
The Daily
Trapped Abroad: The Man at the Center of a Constitutional Standoff
So his name is Kilmar Abrego Garcia. He was born in El Salvador in 1995. He moved to the United States when he was 16 years old after a gang in El Salvador threatened him in trying to extort money from his family's business. He arrives here in 2011, enters without authorization, finds work, goes about his business, and is arrested in 2019 on immigration offenses.
The Daily
Trapped Abroad: The Man at the Center of a Constitutional Standoff
Abrego Garcia's lawyer issued a statement after the Supreme Court ruled that said the rule of law has prevailed. Bring him home. And there was a sense, at least initially, that the administration would say, okay, we hear the nudge, we'll take steps, and we'll bring them home. But almost immediately, it became clear that the administration had no particular interest in doing that.
The Daily
Trapped Abroad: The Man at the Center of a Constitutional Standoff
So the court rules on Thursday evening, and Friday morning the trial judge says, I want answers. I want a status report. I want to know what you're doing, what steps you're taking to bring Abrego Garcia home. That also echoes language in the Supreme Court's order. And the administration on Friday morning says, you know what? We need more time. We're not ready to come talk to you.
The Daily
Trapped Abroad: The Man at the Center of a Constitutional Standoff
Why don't you set this down? Not for Friday, not over the weekend, not for Monday, but for Tuesday. And the judge is flabbergasted by that idea. After all, Abrego Garcia has been wrongly confined in El Salvador for a month by then. And she says, no, I want answers right now. And I want daily reports on what's happening here, what you're doing to get him back.
The Daily
Trapped Abroad: The Man at the Center of a Constitutional Standoff
And those daily reports start to come in. And they are very thin reports. They don't indicate that the administration is doing anything. The administration almost grudgingly says, well, he's alive and he's being held at this terrorism prison and essentially says nothing more other than that. We are powerless to get him back. He's in the hands of another nation's sovereign authorities.
The Daily
Trapped Abroad: The Man at the Center of a Constitutional Standoff
And the judge's attempts to get this thing rolling are stymied.
The Daily
Trapped Abroad: The Man at the Center of a Constitutional Standoff
No, the government gets more and more hostile, more and more dug in, until on Sunday they, in essence, tell the judge that she's powerless to do anything.
The Daily
Trapped Abroad: The Man at the Center of a Constitutional Standoff
Right. And also that we don't want to get them back.
The Daily
Trapped Abroad: The Man at the Center of a Constitutional Standoff
So this was brought into vivid relief on Monday. when El Salvador's president, President Nayib Bukele, pays a visit to Donald Trump in the Oval Office and is asked, Can President Bukele weigh in on this?
The Daily
Trapped Abroad: The Man at the Center of a Constitutional Standoff
Are you going to send Obrigo Garcia back?
The Daily
Trapped Abroad: The Man at the Center of a Constitutional Standoff
And he treats that as a kind of laughable question.
The Daily
Trapped Abroad: The Man at the Center of a Constitutional Standoff
He says, what am I going to do, send a terrorist into the United States? So you could tell that the two presidents, Trump and Bukele, were on the same page and had no interest in returning Abrego Garcia to Maryland.
The Daily
Trapped Abroad: The Man at the Center of a Constitutional Standoff
And the president's chief immigration advisor, Stephen Miller, pipes up.
The Daily
Trapped Abroad: The Man at the Center of a Constitutional Standoff
And proposes an interpretation of the Supreme Court decision in the Obrego-Garcia case. which is that it was a nine to nothing win for the administration because of its reference to the president's power to conduct foreign affairs. And so focusing on a phrase in the decision, Stephen Miller completely flips what is the great bulk and thrust of the court's opinion.
The Daily
The Supreme Court Takes On Transgender Care for Minors
So this was not only personal, but also an important point for his side to try to win.
The Daily
The Supreme Court Takes On Transgender Care for Minors
So, Michael, by the time The Challengers finished, and it was kind of an unwieldy romp through a lot of different areas, not tightly focused on the legal question before the justices, I kind of had the sense that The Challengers were facing an uphill fight in what they had to prove. and persuading the more conservative majority that this law amounts to sex discrimination.
The Daily
The Supreme Court Takes On Transgender Care for Minors
And that was before we even heard from Tennessee's lawyer, who's defending the law, and saying that it wasn't about sex discrimination, but about something else entirely.
The Daily
The Supreme Court Takes On Transgender Care for Minors
Well, this case, Michael, presents probably the most fraught question of all, gender transition care for people under 18. And the case concerns a Tennessee law that bars providing some kinds of medical care to transgender minors, to people under 18 years of age, in particular puberty blockers, hormone therapy, and surgery. Twenty-three other states have similar laws.
The Daily
The Supreme Court Takes On Transgender Care for Minors
Mr. Chief Justice, and may it please the court. Tennessee Solicitor General Matthew Rice says the other side misunderstands what's going on here.
The Daily
The Supreme Court Takes On Transgender Care for Minors
That this isn't sex discrimination. Neither boys nor girls can get this kind of medical treatment. He says it's a restriction on medical procedures. It's a restriction on the purpose of the procedure, not on any particular gender, not on any particular sex of a patient.
The Daily
The Supreme Court Takes On Transgender Care for Minors
Right. He would also say, listen, we are discriminating based on age, but we're allowed to do that. We are discriminating based on, as you say, Michael, what the medical procedures are, but we're not discriminating, he claims, based on the gender of the patient.
The Daily
The Supreme Court Takes On Transgender Care for Minors
Both the SG and... petitioner have suggested... Justice Clarence Thomas asks the first question to Rice, saying that maybe Tennessee could have taken a different approach to its law.
The Daily
The Supreme Court Takes On Transgender Care for Minors
And the question of how many... And Rice starts to answer the question, says, you know, there are risks to this kind of intervention.
The Daily
The Supreme Court Takes On Transgender Care for Minors
And as he is answering, Justice Sotomayor interrupts him and says, wait a second, all kinds of medical procedures have risks.
The Daily
The Supreme Court Takes On Transgender Care for Minors
But the question is, what are you trying to achieve and what's the countervailing value of the harm that comes to transgender youths who are deeply distressed by the disconnect between their gender assigned at birth and their current gender identity?
The Daily
The Supreme Court Takes On Transgender Care for Minors
That the same medical treatment under this law is unavailable to transgender kids, but available to other kids.
The Daily
The Supreme Court Takes On Transgender Care for Minors
And the other liberal justices sort of pile on. They're loaded for bear.
The Daily
The Supreme Court Takes On Transgender Care for Minors
Justice Jackson presses the lawyer on the distinction between two different minors seeking the same treatment, testosterone to lower their voices.
The Daily
The Supreme Court Takes On Transgender Care for Minors
And the Tennessee law was challenged by three families and a doctor. The Biden administration intervened on the side of the families. And they say that the law violates the Constitution's Equal Protection Clause.
The Daily
The Supreme Court Takes On Transgender Care for Minors
If the first half of the argument was a little diffuse and roaming across the legal landscape, the second part of the argument had the three liberal members of the court really bearing down on the Tennessee lawyer and really questioning him about whether this distinction he's drawing between medical purpose and sex discrimination makes sense and can be sustained.
The Daily
The Supreme Court Takes On Transgender Care for Minors
Right. And it looked like, at least for a time, that they had Tennessee's lawyer on the ropes. And that's not the argument that we're making. But Rice gradually collects himself. We're arguing there is no sex baseline. And starts to make probably the best formulation of his argument, saying that maybe there's an incidental effect on sex, but sex is not the baseline. Sex is not the criterion.
The Daily
The Supreme Court Takes On Transgender Care for Minors
The criterion is, what's the purpose of the procedure you're trying to obtain?
The Daily
The Supreme Court Takes On Transgender Care for Minors
And both boys and girls, he says, are prohibited from getting care that is for the purpose of gender transition. So he says there's no sex discrimination there.
The Daily
The Supreme Court Takes On Transgender Care for Minors
And that's similar to the reasoning in Dobbs, the case that overturned Roe v. Wade. There was a passage in that majority opinion that says there's an argument that abortion restrictions violate equal protection because they fall disproportionately on women. But that's not how equal protection works. If the category, the prohibited procedure,
The Daily
The Supreme Court Takes On Transgender Care for Minors
is neutral just because one sex is more affected than the other, that's not an equal protection problem, the court said in Dobbs. And Rice, the Tennessee lawyer, is making a similar point here.
The Daily
The Supreme Court Takes On Transgender Care for Minors
Right. That the prohibition is actually neutral. It may happen to disproportionately affect one gender or the other. But the point is, what is the prohibition supposed to achieve?
The Daily
The Supreme Court Takes On Transgender Care for Minors
Yeah. And his the Tennessee brief in the case cites Dobbs a dozen times. It knows a good thing when it sees it. Thank you. Thank you, counsel. The case is submitted.
The Daily
The Supreme Court Takes On Transgender Care for Minors
So I guess I probably put the justices in three buckets. The three liberal justices are almost certainly going to want to strike down the Tennessee law. The most conservative justices will doubtless want to sustain it. And then the group in the middle, the chief justice, Justice Kavanaugh, maybe Justice Barrett,
The Daily
The Supreme Court Takes On Transgender Care for Minors
might take this kind of hands-off attitude, saying, we don't know, we're not doctors, we're going to let the states do what they like. And I'd be surprised if we didn't have a classic 6-3 split, where the six conservative Republican appointees say the Tennessee law is fine, and the three liberal Democratic appointees say that it, at a minimum—
The Daily
The Supreme Court Takes On Transgender Care for Minors
So the Equal Protection Clause says that some kinds of discrimination are— are presumptively unlawful. And the classic examples are, of course, race or gender. And what the families and the Biden administration say here is that this law is an example of sex discrimination. It says that certain forms of care are available to everybody except minors who are seeking gender transition care.
The Daily
The Supreme Court Takes On Transgender Care for Minors
amounts to sex discrimination, and at a minimum, requires new analysis by the lower courts to see whether the law can clear that very high bar of heightened scrutiny.
The Daily
The Supreme Court Takes On Transgender Care for Minors
It would seem to suggest that all of them are constitutional, at least as against an equal protection challenge. There's a separate possible constitutional argument, not before the Supreme Court on Wednesday, that parents have a constitutional right to direct the medical care of their children.
The Daily
The Supreme Court Takes On Transgender Care for Minors
Those challenges might still work, but the equal protection challenge, which was the only challenge the Biden administration pressed, would seem to be dead if we get that kind of ruling.
The Daily
The Supreme Court Takes On Transgender Care for Minors
Yeah, like imagine the situation of vaccines. Many conservatives say if a parent doesn't want to have their child vaccinated, the government can't force them. that parental rights have enormous force for many American conservatives. So that argument might be a more promising one before this conservative Supreme Court.
The Daily
The Supreme Court Takes On Transgender Care for Minors
No, the Trump administration is not going to do anything to enhance transgender rights. So even though that argument would be available to them, they're not going to press it. But that's not to say that private parties, parents, doctors won't make that argument.
The Daily
The Supreme Court Takes On Transgender Care for Minors
But the Trump administration also has an important decision to make on taking office of whether they disavow the position of the Biden administration in this very case. And they are likely to do so. And that will require the Supreme Court to do some procedural gymnastics because the only petition they agreed to hear was... was the one from the Biden administration.
The Daily
The Supreme Court Takes On Transgender Care for Minors
And it's possible they'd find some way to substitute in the families in this case who, while they argued, are not strictly speaking petitioners in the case. So there will be some machinations in the coming months because there is no doubt that the Trump administration is not on board for the arguments that the Solicitor General was making on Wednesday.
The Daily
The Supreme Court Takes On Transgender Care for Minors
Yeah, it's very much the same dynamic as abortion, where we might have wholly different sets of laws in deep red states like Mississippi and deep blue states like California. But then there may be ways in which abortion and trans care are different because it's no small thing, but women can leave a state to get an abortion, come back, and go on with their lives.
The Daily
The Supreme Court Takes On Transgender Care for Minors
This kind of treatment might require entire families to leave the state forever, an even bigger burden. And then there's also the question of political power. In a number of referenda around the nation, Voters have reestablished abortion rights.
The Daily
The Supreme Court Takes On Transgender Care for Minors
There's not this sense, I don't think, that the trans community has the political power or their allies have the political power to vote in, by referenda, similar protections for care for transgender minors.
The Daily
The Supreme Court Takes On Transgender Care for Minors
And you have to take account of the sex of the child involved to know whether they're entitled to get that kind of treatment or not. So think about it this way, Michael. If you have a child assigned male at birth experiencing precocious puberty, meaning he's going through puberty earlier than he wants to. He can get puberty-blocking drugs.
The Daily
The Supreme Court Takes On Transgender Care for Minors
If a transgender boy doesn't want to experience puberty because it doesn't align with his gender identity, he's not entitled to the very same treatment. So the challengers would say that example tells you that this Tennessee law is a form of sex discrimination.
The Daily
The Supreme Court Takes On Transgender Care for Minors
That's the challenger's argument. The state will come back and say, no, we're not drawing distinctions based on transgender status. We're drawing distinctions based on the medical procedure. These are different medical procedures, they would say. And the reason why this matters
The Daily
The Supreme Court Takes On Transgender Care for Minors
is that the Supreme Court has said that if it is sex discrimination, the law is subject to a very demanding form of judicial scrutiny. Lawyers call it heightened scrutiny. And what it means is that a state has to prove that it has a good reason for the law and that the restriction advances that reason. And that's a difficult hurdle to overcome. Got it.
The Daily
The Supreme Court Takes On Transgender Care for Minors
Right. And that's kind of a consequence of necessary litigation strategy, right? Almost surely, the challengers would prefer to make the more straightforward argument that this is discrimination based on gender identity, this is discrimination based on transgender status, and not have this kind of intermediate workaround about sex discrimination.
The Daily
The Supreme Court Takes On Transgender Care for Minors
But sex discrimination, the court has ruled, is subject to heightened scrutiny. And transgender status, they have never said is subject to heightened scrutiny, and almost any reason will do for a state to discriminate against transgender people if it's not sex discrimination. So while the transgender discrimination idea is in the case as a backup argument for
The Daily
The Supreme Court Takes On Transgender Care for Minors
Most of the chips of the challengers are put on the sex discrimination argument because that's the one where we know heightened scrutiny kicks in if the court agrees it's sex discrimination.
The Daily
The Supreme Court Takes On Transgender Care for Minors
So the case, United States against Scrametti, starts with the Solicitor General of the United States, Elizabeth Prelogar, the top appellate lawyer in the Justice Department representing the Biden administration.
The Daily
The Supreme Court Takes On Transgender Care for Minors
telling the justices that whatever else you can say, a law that is this categorical and that prohibits gender transition care for all minors, whatever their parents say, whatever their doctors say, whatever their personal situation is, is deeply problematic. and that the court should apply heightened scrutiny because this is plainly a law that draws distinctions based on sex.
The Daily
The Supreme Court Takes On Transgender Care for Minors
One major theme that runs through the conservative justices, and particularly the more moderate by the standards of this court conservative justices, I'm thinking of Chief Justice John Roberts and Justice Brett Kavanaugh, sort of in the middle of the court.
The Daily
The Supreme Court Takes On Transgender Care for Minors
That we can't make decisions... about medical practices, that we're just nine people, we're not medical doctors. And it's a little reminiscent, Michael, of the opinion in Dobbs, which said, we're going to send this back to the states. You can have abortion, you can not have abortion.
The Daily
The Supreme Court Takes On Transgender Care for Minors
Similarly, Justice Kavanaugh says... You know, some states may be fine with these procedures, others not. We take no point of view on that. The Constitution takes no point of view on that. And we're not even capable of making these judgments.
The Daily
The Supreme Court Takes On Transgender Care for Minors
She says they're kind of leapfrogging the question before them.
The Daily
The Supreme Court Takes On Transgender Care for Minors
The question before them is simply, is it sex discrimination? If so, does a demanding form of judicial scrutiny apply? And only then, once you determine that question, which is the only question she really has before the justices, do you get into this area of, do we know enough? What's the right answer? Is it good policy? Is it good law?
The Daily
The Supreme Court Takes On Transgender Care for Minors
She's focused on what is a fairly modest ask. Which is to say, what's the right way to analyze the question? Do you analyze it as sex discrimination giving rise to heightened scrutiny? And then you get into all the other stuff the justices are eager to talk about.
The Daily
The Supreme Court Takes On Transgender Care for Minors
Yeah, it's a wide-ranging argument, and all kinds of things pop up.
The Daily
The Supreme Court Takes On Transgender Care for Minors
Justice Kavanaugh, who coaches a girls' basketball team. was very interested in the impact of a potential ruling on transgender participation in sports.
The Daily
The Supreme Court Takes On Transgender Care for Minors
And it wasn't just the conservative justices who seemed to want to expand the scope of their questioning beyond that narrow legal question.
The Daily
The Supreme Court Takes On Transgender Care for Minors
Justice Sotomayor said that transgender minors suffering from gender dysphoria, the disconnect between sex assigned at birth and gender identity, can go through very rough times, including potential suicide.
The Daily
The Supreme Court Takes On Transgender Care for Minors
That's right. This is the biggest case of the term and would have been regardless. But it hits the court just as we're coming off a presidential campaign in which trans rights played a central role. So the Supreme Court confronts an important civil rights issue at just the moment in time when it's at the peak of public scrutiny.
The Daily
The Supreme Court Takes On Transgender Care for Minors
So that this is an urgent situation, she says. that needs to be addressed and indicated that the Tennessee law gets in the way of what can be life-saving care.
The Daily
The Supreme Court Takes On Transgender Care for Minors
Justice Alito kind of surveyed the world and said that much of Europe has grown cautious about some forms of transgender care, to which the Solicitor General responded,
The Daily
The Supreme Court Takes On Transgender Care for Minors
that it's true that there have been adjustments in the UK, in Sweden, but none of them have a categorical rule like the one in Tennessee forbidding transgender care as such. So at this point, the argument and the justices are sort of all over the map, quite literally. Trans kids in sports, laws in Europe, you know, all very important stuff.
The Daily
The Supreme Court Takes On Transgender Care for Minors
But really beyond the very specific question of does this law discriminate on the basis of sex?
The Daily
The Supreme Court Takes On Transgender Care for Minors
And then there was a striking moment when Justice Ketanji Brown Jackson says, wait a second, we have a job here. It's not to decide the risks or benefits of the policies that justify the law. It's our job under the Constitution to decide, at least in the first instance, whether the law triggers the Equal Protection Clause.
The Daily
The Supreme Court Takes On Transgender Care for Minors
She said that's the job of the Supreme Court to police the 14th Amendment and at least reach the initial question of is this sex discrimination? And does that mean that a heightened form of judicial review kicks in?
The Daily
The Supreme Court Takes On Transgender Care for Minors
It was a striking moment. Mr. Strangio?
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The Supreme Court Takes On Transgender Care for Minors
But I think in a lot of ways, one of the most memorable moments in the arguments came when another lawyer challenging the law stood up to argue.
The Daily
The Supreme Court Takes On Transgender Care for Minors
Chase Strangio, a lawyer with the ACLU representing the families and the doctor challenging the law, is the first transgender lawyer ever to argue before the Supreme Court, or at least the first openly transgender lawyer.
The Daily
The Supreme Court Takes On Transgender Care for Minors
And he pretty quickly gets into an exchange with Justice Alito, who's one of the court's most conservative members, that's really quite remarkable. Is transgender status immutable? Alito asks him whether transgender identity is immutable.
The Daily
The Supreme Court Takes On Transgender Care for Minors
And Alito is essentially asking a transgender person, a lawyer, arguing before the court, is your identity an essential element of who you are? And it's not just a striking moment. It also has some legal significance. Whether or not a characteristic is immutable plays into deciding whether that characteristic can make you into a protected class.
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'The Interview': Ramy Youssef Is Just Trying to Be ‘Emotionally Correct’
I'll have a lot of grandmothers come to my shows, and they love me. I do really good with grandmothers. And I always love that because I don't think there's much being made that they could go to. Certainly not stand-up comedy. No, no, no. That's the goal. I'm trying to be only grandmothers. Shows are at 8, 30 a.m. That's the late show.
The Daily
Children’s Books Go Before the Supreme Court
And Alito says, essentially, shouldn't age be a factor here? And I guess there's a logic to that position. I mean, assuming you accept that the books are pushing a vision of family life at odds with what religious parents want to have their children see and read.
The Daily
Children’s Books Go Before the Supreme Court
It's probably true that a young child, more impressionable, less likely to use critical thought and pushback on what a teacher is reading to him or her, is more likely to be, whatever coercion means, coerced than an older kid who might read a book and apply critical faculties to it and accept it or not and kind of reason with it, debate with it,
The Daily
Children’s Books Go Before the Supreme Court
The case arose from the curriculum of Montgomery County, Maryland public schools. Montgomery County is a quite liberal suburb of Washington, DC. And in 2022, along with all the other storybooks that kids in pre-K through fifth grade read, they added initially seven new books that included gay and trans characters and themes. And when they first introduced these new books,
The Daily
Children’s Books Go Before the Supreme Court
So it may be that exposure is more likely to be the apt word for a teenager, while coercion would fit more neatly when we're talking about a very young child.
The Daily
Children’s Books Go Before the Supreme Court
Yeah, that's right so far as it goes, Rachel. Justice Jackson? Justice Katonji Brown Jackson pushes back on the idea.
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Children’s Books Go Before the Supreme Court
Even in school, you're exposed to all kinds of ideas, not just in the books you're reading. And she brings up some examples.
The Daily
Children’s Books Go Before the Supreme Court
What if you have a gay teacher who puts out a wedding picture on her desk and talks about her wedding? Is that coercion?
The Daily
Children’s Books Go Before the Supreme Court
What about having a trans kid in the class or a trans teacher or posters celebrating gay rights?
The Daily
Children’s Books Go Before the Supreme Court
Exactly. We live in the world, even if we're young children. We see what we see, we learn what we learn, and we go home and our parents can explain it to us.
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Children’s Books Go Before the Supreme Court
Justice Jackson certainly seems to think that this is not a case where you give parents veto power over what their children learn in school and to pick and choose from a public school's curriculum.
The Daily
Children’s Books Go Before the Supreme Court
One is practical, that opt-outs are allowed in a lot of the country, and they're not much used, and it hasn't been a real problem. The other, though, is that he says yes. As a religious matter, if you have a sincerely held religious belief, you can object to many things.
The Daily
Children’s Books Go Before the Supreme Court
And the teaching of those things to your children in public school does burden your religious rights. He acknowledges that that's not the end of the inquiry. After you've found a burden, you still apply a kind of balancing test.
The Daily
Children’s Books Go Before the Supreme Court
But that second answer sure suggests that if the court rules in favor of the parents, there will be some very difficult issues about how to manage public schools in the face of religious objections going forward. And much of the second half of the argument is dominated by those concerns.
The Daily
Children’s Books Go Before the Supreme Court
Well, now it's the school board's chance to argue, represented by a lawyer named Alan Schoenfeld.
The Daily
Children’s Books Go Before the Supreme Court
They gave parents with religious objections notice that on a certain day, the books would be discussed in class. And if you wanted to take your kids out of class, if you wanted to opt out, you could. And a number of parents did, and that system went on for about a year. According to the school board, it wasn't working. It was hard to administer. You had to figure out where to put the kids.
The Daily
Children’s Books Go Before the Supreme Court
And he basically says, look, there's a lot of stuff in the world that's offensive to people with various kinds of beliefs, including religious ones.
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Children’s Books Go Before the Supreme Court
But just being exposed to ideas is not contrary to religion.
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Children’s Books Go Before the Supreme Court
And he also says that there are practical problems here, that if you let this kind of lawsuit move forward, it's going to be very hard to figure out how that works in practice, and that courts would hear... An infinite variety of curriculum challenges brought by parents with different religious beliefs. An infinite variety of objections to all sorts of things.
The Daily
Children’s Books Go Before the Supreme Court
They travel much of the same territory they did in the first half. Mr. Schoenfeld, could I make sure I understand what you mean by coercion? They ask about the difference between exposure and coercion.
The Daily
Children’s Books Go Before the Supreme Court
The school's lawyer predictably says that these books are not coercive and therefore not burdensome.
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Children’s Books Go Before the Supreme Court
Chief Justice Roberts tries to pin down how much age is a factor.
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Children’s Books Go Before the Supreme Court
And even as the lawyer for the school board insists that his client is not pushing any particular worldview...
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Children’s Books Go Before the Supreme Court
Several of the conservative justices seem pretty skeptical of that.
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Children’s Books Go Before the Supreme Court
Justice Alito says, essentially, just own up to it. These books are meant to endorse certain values, and those are not values shared by people of all religious faiths.
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Children’s Books Go Before the Supreme Court
Justice Gorsuch, for instance, seems to have read a book for pre-kindergarten named Pride Puppy quite closely. So the book is an alphabet primer. A is for something, B is for something, and so on in each page. And there are pictures of lots of things on those pages.
The Daily
Children’s Books Go Before the Supreme Court
Yeah. And he doesn't perfectly match up to what the book says, but he sure has the impression that there's something gone terribly awry here. And what emerges from all of this is that it's kind of hard to find the line of what crosses the line into being a violation of religious freedom.
The Daily
Children’s Books Go Before the Supreme Court
But one thing that seems pretty clear for several of the conservative justices is that whatever else you can say these books for young children crossed the line.
The Daily
Children’s Books Go Before the Supreme Court
Well, the Supreme Court does two things. It decides individual disputes, but it also lays down general legal principles that will apply in all kinds of cases. And I think the court is having a hard time figuring out
The Daily
Children’s Books Go Before the Supreme Court
It seemed to be leading to absenteeism all day. And they said also that it stigmatized kids from families with gay and trans members who were confused about why discussion of books reflecting their lives was so provocative that other kids had to be withdrawn from school. So on that reasoning, the school said, we're not going to give notice anymore. We're not going to let you opt out.
The Daily
Children’s Books Go Before the Supreme Court
what the implications of a ruling for the parents here would be for other kinds of religious objections to say, and these are real cases, books about wizards and giants, books about evolution and the Big Bang Theory. even books about children doing things that don't conform to traditional stereotypes of gender roles.
The Daily
Children’s Books Go Before the Supreme Court
Parents have objected to a book where one student, a girl, reads a recipe and another student, a boy, cooks the meal. So the court is a little concerned that it not come up with a rule that is going to complicate the lives of teachers and school administrators all across the country.
The Daily
Children’s Books Go Before the Supreme Court
That's right. But as complicated as finding the line may be for several of the justices, there's also this sense on the right side of the court—
The Daily
Children’s Books Go Before the Supreme Court
Particularly for Justices Alito and Kavanaugh, that this particular problem shouldn't be that hard to solve.
The Daily
Children’s Books Go Before the Supreme Court
They repeatedly say, what is the big deal about allowing them to opt out of this? Is this really so tough to let people opt out of these particular classes?
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Children’s Books Go Before the Supreme Court
For example, dozens of students being opted out in... It's not so easy to find something else for the kid to do who's opted out of the class.
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Children’s Books Go Before the Supreme Court
But Justice Kavanaugh, in particular, thinks that this is fairly straightforward and that compromise is the best solution.
The Daily
Children’s Books Go Before the Supreme Court
And that idea... seems to have the support of a majority of the justices. And this is in keeping with really countless cases from the Roberts Court, which has been in business for two decades now and has ruled in favor of religious groups and religious individuals and religious claims at a higher rate than any court in modern history. And just to remind you of a couple of them,
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Children’s Books Go Before the Supreme Court
A web designer who didn't want to create websites for same-sex marriages won.
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Children’s Books Go Before the Supreme Court
A high school football coach who wanted to pray on the 50-yard line after his games won. It's really been an extraordinary winning streak for religion, and it seems like it will continue here.
The Daily
Children’s Books Go Before the Supreme Court
Well, if the court rules as I expect it will, it will give religion a major role in shaping American public education. It will mean that teachers, principals, and public schools everywhere will have to consider at least the possibility that of these kinds of objections when they're putting together a curriculum.
The Daily
Children’s Books Go Before the Supreme Court
And the materials they choose that may be objectionable to some religious parents will come at a cost. They'll have to create a structure around those materials to let kids opt out of being exposed to them.
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Children’s Books Go Before the Supreme Court
If you want to go to public school, you will have the whole curriculum, including these books.
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Children’s Books Go Before the Supreme Court
It's sure a lot easier just to say, let's skip it. Let's use other books. Let's not use books that are going to provoke a reaction. And maybe that's the right attitude. Maybe it's the wrong attitude, but it's certainly going to make for changes.
The Daily
Children’s Books Go Before the Supreme Court
And if, as the school's lawyers said at the argument, the opt-out policies are too hard to implement, the bottom line is that these materials may not be taught at all. And it might be easier to stick to books like Jack and Jill or Sleeping Beauty and forget about Uncle Bobby's wedding.
The Daily
Children’s Books Go Before the Supreme Court
So parents of many faiths were quite upset. They sued. They said, we're not asking you to take these books out of the library. We're not even asking you to take these books out of the classroom. We just want to go back to the system where on days these books are going to be discussed, you tell us and you give us the option to take our kids out of class.
The Daily
Children’s Books Go Before the Supreme Court
The parents say that these books are a kind of indoctrination. That in depicting families with gay members, with trans members, in talking about same-sex marriage, in talking about preferred pronouns... The books tackle subjects that the parents say are not only age-inappropriate, but at odds with their ability to exercise the religious freedom guaranteed to them by the Constitution.
The Daily
Children’s Books Go Before the Supreme Court
Yeah, that's right. So these parents, and they're of many faiths, Muslim, Catholic.
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Children’s Books Go Before the Supreme Court
Protestant, other, say that their faiths don't acknowledge same-sex marriage, for instance, and that having their children exposed to these ideas puts a burden on their constitutional right, guaranteed by the Free Exercise Clause of the First Amendment, to raise their kids as they wish without hearing things in a public school mandated by the government,
The Daily
Children’s Books Go Before the Supreme Court
at odds with what they believe to be appropriate.
The Daily
Children’s Books Go Before the Supreme Court
Well, Rachel, I happen to have a couple of the books. And let me give you a tour of one of them.
The Daily
Children’s Books Go Before the Supreme Court
It's a storybook for young kids. It's full of colorful pictures. And the theme of the book is that a young girl named Chloe has a favorite uncle, Bobby, who's getting married to another man, Jamie. And she's unhappy about this. I'm going to pick up in the middle of the book, read you a little bit of it just to give you the flavor.
The Daily
Children’s Books Go Before the Supreme Court
Mummy, said Chloe, I don't understand. Why is Uncle Bobby getting married? Bobby and Jamie love each other, said Mummy. When grown-up people love each other that much, sometimes they get married. But, said Chloe, Bobby is my special uncle. I don't want him to get married. I think you should talk to him, said Mummy. Chloe found Uncle Bobby sitting on a swing.
The Daily
Children’s Books Go Before the Supreme Court
Why do you have to get married, she asked. Jamie and I want to live together and have our own family, said Bobby. You want kids? Only if they're just like you, said Bobby. And it goes on... Chloe becomes more cheerful. She actually saves the day near the end of the book when a wedding ring goes missing and she finds it and the wedding goes off without a hitch and everyone is happy.
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Children’s Books Go Before the Supreme Court
They start with a lawyer for the parents, Eric Baxter.
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Children’s Books Go Before the Supreme Court
These books are ours with our faith. All we want to do is take our kids out of class when they're discussed. And the alternative, he says, is really difficult for parents because their alternative is to withdraw their kids from public school.
The Daily
Children’s Books Go Before the Supreme Court
Which may not be possible for some people. So he's sort of saying... Let's weigh the equities here. Let's sort of balance out what the cost and the benefit is here. And he says it's a small ask.
The Daily
Children’s Books Go Before the Supreme Court
But for the justices to decide this question, they have to think about a threshold question. Is the mere exposure of kids to ideas like this a burden on religion? And it's not obvious that it is. And so right away, Justice Clarence Thomas dives into this question about whether schools are burdening the religious freedom of parents.
The Daily
Children’s Books Go Before the Supreme Court
And he focuses on a distinction that's a little legalistic, but it's really at the heart of what we're talking about. And that's the question of a distinction between exposure on the one hand and coercion on the other.
The Daily
Children’s Books Go Before the Supreme Court
Well, exposure is something that happens to all of us every day. We read things, see things, apply critical analysis to them. Just because we've heard it doesn't mean we believe it. Coercion is kind of indoctrination, is kind of... forcing someone to say or believe something.
The Daily
Children’s Books Go Before the Supreme Court
And the question for the court is, does that interfere with the parental right at home to raise kids in their faith to the extent that we've moved from mere exposure to something much more significant, coercion?
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Children’s Books Go Before the Supreme Court
The lawyer for the parents repeatedly makes the point that this is not about books being available to kids.
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Children’s Books Go Before the Supreme Court
This is about books being required to be read in class and discussed.
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Children’s Books Go Before the Supreme Court
So that, he says, makes it much more likely to be coercive than something sitting on a shelf that a child may read him or herself.
The Daily
Children’s Books Go Before the Supreme Court
Well, what they say is that the books are meant to teach respect and kindness. And to introduce kids to the idea that there are all sorts of different people from all sorts of different kinds of families. And to reinforce the idea that it's important to respect people's differences.
The Daily
Children’s Books Go Before the Supreme Court
Well, they do it in what may be the most obvious way. Justice Sotomayor jumps in and says, let's talk about the actual books. Let's talk about Uncle Bobby's Wedding.
The Daily
Children’s Books Go Before the Supreme Court
Uncle Bobby's Wedding is going to be, as a result of this, you know, shooting up the bestseller list, I imagine.
The Daily
Children’s Books Go Before the Supreme Court
Listen, this is just a story about a couple who love each other and get married. And what's the problem here? And Justice Alito jumps in and says, wait a second. To Uncle Bobby's wedding. I've read that book as well as a lot of these other books.
The Daily
Children’s Books Go Before the Supreme Court
Right. Obviously, we have a constitutional crisis or a series of them. hanging like a cloud over the court. But the Roberts Court is still in business, still hearing major cases on culture wars issues. And on Tuesday, they heard a good one.
The Daily
Children’s Books Go Before the Supreme Court
And it not only features same-sex marriage, which some people think is a good idea, but some people with religious objections think is a bad idea. But it also endorses it.
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Children’s Books Go Before the Supreme Court
Because little Chloe has an objection to same-sex marriage, and her mother disagrees with her and tells her it's fine. Justice Sotomayor says that's a misreading of Uncle Bobby's wedding.
The Daily
Children’s Books Go Before the Supreme Court
So we sort of have a book club going on at the Supreme Court with varying interpretations of Uncle Bobby's wedding.
The Daily
Children’s Books Go Before the Supreme Court
It also tells you something about the Supreme Court, that they managed to read it differently. And it's one thing if you read a statute differently, but you would think that there could be consensus on the meaning of a children's book.
The Daily
Children’s Books Go Before the Supreme Court
And Justice Alito follows up on that point. What are the ages of the children who are involved here? He asks, how old are the children reading these books?
The Daily
Birthright Citizenship Reaches The Supreme Court
and engages in a kind of gamesmanship of trying to stay one step ahead of the courts rather than giving it the best legal argument they can and accepting the results.
The Daily
Birthright Citizenship Reaches The Supreme Court
So the justices weren't happy with Sauer, and by the time he sits down, you had the distinct sense that they would like to solve this problem, this tension between their general dislike of nationwide injunctions and their feeling that something needed to happen in this case. And I think they were hoping...
The Daily
Birthright Citizenship Reaches The Supreme Court
that when the lawyers on the other side stood up and argued that those lawyers would help them find a middle ground, a limiting principle, some way to reconcile this tension.
The Daily
Birthright Citizenship Reaches The Supreme Court
So two lawyers argued on the other side. One of them, Jeremy Feigenbaum, is solicitor general of New Jersey, and he was arguing on behalf of more than 20 blue states who have won in the lower courts.
The Daily
Birthright Citizenship Reaches The Supreme Court
And he quickly takes on a different tone with the justices.
The Daily
Birthright Citizenship Reaches The Supreme Court
If Sauer was maximalist, Feigenbaum was relentlessly reasonable, acknowledging that nationwide injunctions can be problematic.
The Daily
Birthright Citizenship Reaches The Supreme Court
But he said in this case... But it was needed here. It's really warranted, particularly because states are suing, and if they are going to get effective relief from a court, it needs to be nationwide. And he demonstrates this by talking about practicalities. New Jersey provides services to citizens and needs to figure out who is a citizen and who's not.
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Birthright Citizenship Reaches The Supreme Court
When they come into the state and they need benefits, the Boyle Declaration for Massachusetts... And thousands of people move to New Jersey every year.
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Birthright Citizenship Reaches The Supreme Court
And under a system of birthright citizenship, which applies in 22 states but doesn't in others, it's really hard to know how that works in practice.
The Daily
Birthright Citizenship Reaches The Supreme Court
Right. And the administration had a choice. It could have gone to the Supreme Court on the merits, on the constitutionality of the birthright citizenship order, the attempt to ban it. But they did something different. They went to the court and said, we're ready to concede that the plaintiffs in the case, including 22 states—
The Daily
Birthright Citizenship Reaches The Supreme Court
So if a child is born in Kansas and under the Trump executive order is not a citizen, but moves to New Jersey, becomes a citizen the moment he or she passes the state border, because it's not about what state you're born in. It's about whether you're born in the United States or not.
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Birthright Citizenship Reaches The Supreme Court
You have to figure out how to get the kid a Social Security number, which it didn't have before.
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Birthright Citizenship Reaches The Supreme Court
And it just becomes an unadministrable jumble.
The Daily
Birthright Citizenship Reaches The Supreme Court
And that seemed to resonate with the justices, that this may be a case where if you're going to have nationwide injunctions, this is the case you want to do it in.
The Daily
Birthright Citizenship Reaches The Supreme Court
You know, I guess I would say they were kind of all over the map. Some of them seemed to be fully on board. Some of them continued to be skeptical, notably Justice Alito, who, while he said he respected federal district court judges, didn't seem to want to empower them to issue these kinds of injunctions.
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Birthright Citizenship Reaches The Supreme Court
And some of them, Justice Gorsuch among them, still seem to be itching... to hear about the merits, to hear about the constitutionality of nationwide injunctions. How do we get to the merits fast?
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Birthright Citizenship Reaches The Supreme Court
whether an injunction is good, bad, appropriate or not, if you could just rule on the constitutionality of birthright citizenship itself. Because whatever else, a Supreme Court ruling applies to the whole nation.
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Birthright Citizenship Reaches The Supreme Court
win and the birthright citizenship order doesn't apply to them and people in their states. But we think nationwide injunctions are bad, a pernicious problem. We've been facing a barrage of them, they say, and it's true. And the Trump administration is asking the court to lay down a rule that says you can't bind everyone in the country. You can only bind the parties before you.
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Birthright Citizenship Reaches The Supreme Court
You know, Michael, I'm ordinarily not shy about making predictions. Not at all. I think this one is likely to be a little splintered if I had to bet, but I wouldn't do it very enthusiastically. I think the court will find a way to say that this particular injunction is is okay, while nationwide injunctions generally are problematic.
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Birthright Citizenship Reaches The Supreme Court
I also think there's at least a 20% chance that they wake up and say, you know, we really can't do this by half measures. We have to get to the constitutional issue somehow. And to invite further briefing or maybe even re-argument on The core question in the case of the constitutionality of birthright citizenship, that's not very easy to achieve as a procedural matter.
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Birthright Citizenship Reaches The Supreme Court
But at the end of the day, the court can do what it likes.
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Birthright Citizenship Reaches The Supreme Court
I think there's a chance of that. I think that would be attractive to a lot of them because the outcome of that question, I'm much less reticent to say, if the question of the constitutionality of birthright citizenship reaches this court, there will be a lopsided ruling against the Trump administration.
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Birthright Citizenship Reaches The Supreme Court
I think the Trump administration could lose this case on that ground because So the nationwide injunction against the birthright citizenship order would stay in place and still achieve a substantial victory. Because I could imagine a decision where the court says, we're going to let this one go. But as a general matter, we don't like them. Lower courts, you can't use them in the following ways.
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Birthright Citizenship Reaches The Supreme Court
And so they take a hit on this one, but in the process achieve victory. guidance from the Supreme Court that will be very favorable to their agenda.
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Birthright Citizenship Reaches The Supreme Court
And that would mean that the litigation strategy, which a lot of people have been skeptical about, who have wondered why the administration went up on this issue, on this vehicle, which is not particularly favorable to them on their argument about nationwide injunctions, might still turn out to be a pretty good idea.
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Birthright Citizenship Reaches The Supreme Court
Because maybe they get language from the court that will help them in many other cases and allow President Trump to pursue what is the most transformative approach legal agenda of any president since at least FDR.
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Birthright Citizenship Reaches The Supreme Court
I have what is only speculation, Michael, but I think this is what lawyers call client management. President Trump expected his lawyers to go to the Supreme Court and in order to appease him, they went up on an issue they thought they could win.
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Birthright Citizenship Reaches The Supreme Court
nationwide injunctions, which have been criticized by many of the justices, and not on an issue that they probably thought they were sure to lose, which is the almost universal consensus that the Constitution guarantees birthright citizenship.
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Birthright Citizenship Reaches The Supreme Court
I think a lot of people think it's odd that the president of the United States should try to do something and a single federal judge at the lowest level of the federal judiciary, one of hundreds of such people, should make a decision for the entire nation. Mm-hmm. that could remain in place for years while the case gets litigated up to the Supreme Court.
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Birthright Citizenship Reaches The Supreme Court
And then also a second reason, all you need to do is win once. And litigants are likely to sue in parts of the country, Massachusetts, San Francisco, where judges are apt to be sympathetic. to challenges to Trump administration programs and initiatives. But the critique of nationwide injunctions is widespread. It's not particularly ideological.
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Birthright Citizenship Reaches The Supreme Court
The Biden administration was not happy about them either.
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Birthright Citizenship Reaches The Supreme Court
So D. John Sauer, the Solicitor General of the United States, the Justice Department official in charge of arguing before the Supreme Court, and who was also President Trump's personal lawyer in the immunity case last year, makes a maximalist argument.
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Birthright Citizenship Reaches The Supreme Court
He really says federal judges have no business issuing what he calls universal injunctions. A lot of people call them nationwide injunctions. They're the same thing. And he says there's no constitutional or historical support for them. They're a menace. They are a terrible intrusion into executive power.
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Birthright Citizenship Reaches The Supreme Court
And he suggests that if somebody's going to lay down a nationwide rule, it ought to be the Supreme Court and not one of many hundreds of federal district court judges.
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Birthright Citizenship Reaches The Supreme Court
So as a general matter, he thinks what should happen is what usually happens. I mean, nationwide injunctions are an exception. What usually happens is a lower court will rule in a case and the people suing will win or lose. The losing party will appeal to an appeals court. A year will pass. The appeals court will rule. It'll go to the Supreme Court eventually.
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Birthright Citizenship Reaches The Supreme Court
It's always good to be with you, Michael.
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Birthright Citizenship Reaches The Supreme Court
And I think he's basically trying to get the court to come up with a world in which it takes a long time for a challenge to, you know, a major change like birthright citizenship to reach the court and get a final ruling. And in the meantime, the challenged program remains in place for just about everybody.
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Birthright Citizenship Reaches The Supreme Court
So Justice Sonia Sotomayor, first of all, before she starts talking about nationwide injunctions, wants to make clear that the administration's position on birthright citizenship is is, in her view, way wrong.
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Birthright Citizenship Reaches The Supreme Court
And then she goes on to say, now talking about nationwide injunctions, that it would be an odd thing for the administration to get to say whatever it wants and have only very limited and slow and deliberate judicial review. She says, for instance, what about a future president who hated guns?
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Birthright Citizenship Reaches The Supreme Court
And years later, that would reach the Supreme Court and maybe he wins, maybe he loses. But in the meantime, everyone has their guns taken away. Would that be okay?
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Birthright Citizenship Reaches The Supreme Court
He falls back on two things. One, that there may be another mechanism like a class action to deal with it.
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Birthright Citizenship Reaches The Supreme Court
Another is that it is possible to get to the court pretty fast on the merits. We've been able to move much more expeditiously. And Chief Justice Roberts, for instance, said, we took care of the TikTok case in a month. But a problem with this is that the losing side needs to appeal. And here the government is losing in the birthright citizenship cases routinely, profoundly, comprehensively.
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Birthright Citizenship Reaches The Supreme Court
And yet they're not appealing to the Supreme Court.
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Birthright Citizenship Reaches The Supreme Court
Right. And then Sauer gets himself into a little bit of trouble. He says, well, when it gets to the Supreme Court, of course, the Supreme Court will lay down a national ruling and we will abide by it. And I think Justice Kagan asked him, well, what about a federal appeals court? You know, a federal appeals court that has jurisdiction over three, five, six states. What if they rule against you?
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Birthright Citizenship Reaches The Supreme Court
Will you follow their ruling, at least in those states?
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Birthright Citizenship Reaches The Supreme Court
It's really about a threshold question. Three different federal district court judges have taken a look at the order that President Trump signed the day he took office, purporting to do away with birthright citizenship. That is the constitutional concept that if you're born in the United States, you're automatically a citizen. And they found that that executive order was unconstitutional.
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Birthright Citizenship Reaches The Supreme Court
And he says, generally, we would. Generally. And then there's a lot of, what is this generally stuff?
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Birthright Citizenship Reaches The Supreme Court
And he doesn't back down. Federal circuit courts, he says, are only generally practiced. able to tell the administration what to do. And it's one thing to say that a single federal trial judge is overreached. It's another to say, and repeatedly under pressure, that even a federal appeals court ruling is one the administration will only generally follow.
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Birthright Citizenship Reaches The Supreme Court
I really don't know. I don't think it's the smart litigation strategy.
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Birthright Citizenship Reaches The Supreme Court
Yeah, I mean, it's consistent with the president saying that he respects the Supreme Court. He will follow what the Supreme Court says. But otherwise, judges who rule against him should be impeached because they're wild radicals. So it's a surfacing at the Supreme Court and through a sophisticated lawyer of the administration's very testy relationship with the federal judiciary.
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Birthright Citizenship Reaches The Supreme Court
And this is of a piece, Justice Katonji Brown Jackson says, with the administration's general litigation strategy of trying to avoid judicial review by clever legal maneuvers rather than going into court and arguing on the merits and saying, you know, we think we're right. But if we're wrong, tell us.
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Birthright Citizenship Reaches The Supreme Court
Rather, the administration has resorted to clever mechanisms like this one, like appealing only half of this case.
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Birthright Citizenship Reaches The Supreme Court
And that is frustrating not only to Justice Jackson, but seemingly to some conservative members of the court, like Justice Gorsuch, who's been harshly critical of nationwide injunctions. He seems unhappy and repeatedly says, well, how can we get the merits issue before us? How do you suggest we reach this case on the merits expeditiously?
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Birthright Citizenship Reaches The Supreme Court
And the suggestion is if we could just reach the underlying question, the core question of is birthright citizenship in the Constitution or not, all of this would go away.
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Birthright Citizenship Reaches The Supreme Court
Right. I mean, she says you keep losing and losing. And if you appeal, you'll lose some more. And if you appeal to us, you'll lose. And that's why you're not appealing.
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Birthright Citizenship Reaches The Supreme Court
They issued an injunction saying so. And all three of the injunctions did not only say to the parties in the case that they win and they get the benefit of the court's ruling. These judges did more. They issued nationwide injunctions. They said the birthright citizenship order is unconstitutional everywhere in the country.
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Birthright Citizenship Reaches The Supreme Court
They sure are. And it's a little bit surprising because going into the argument, one thing we knew is that is that many of the justices were deeply skeptical of nationwide injunctions issued by individual federal judges. And so you might have thought the administration would have some luck here.
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Birthright Citizenship Reaches The Supreme Court
But its general brazen approach to litigation has started to maybe infect its relationship with the Supreme Court.
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Birthright Citizenship Reaches The Supreme Court
No. I mean, the Solicitor General's office historically has a reputation for independence and candor. The Solicitor General is sometimes called the 10th Justice because they can expect a straight presentation from him without cutting corners and engaging in clever maneuvers. But there's a sense that the Trump administration goes to court