December 5, 2024: Justices React to Ban on Gender Transition Treatments for Minors, Cryptic Text Found on CEO's Shell Casings, Biden Considering Preemptive Pardons? And More.
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to Unbiased, your favorite source of unbiased news and legal analysis. Welcome back to Unbiased. Today is Thursday, December 5th, and this is your final news rundown of the week. Just a heads up, there will be no episode on Monday next week, and then Tuesday's episode will actually look a little bit different than what you're used to, so stay tuned for that. And we will resume the normal format on Wednesday.

In today's episode, we'll discuss how the justices were feeling during arguments yesterday over that ban on gender transition treatments for minors. We'll also talk about which way those justices seem to be leaning. We'll talk about some updates in the fatal shooting of UnitedHealthcare's CEO. We'll discuss a few soldiers who were arrested for their role in a human smuggling operation at the southern border and more. So without further ado, let's get into today's stories.

Yesterday, the justices heard arguments in one of the most controversial cases of their current term. It's a case called United States v. Scermetti. And if you have not yet listened to yesterday's episode, I do highly recommend listening to that first, so that way you can fully understand what all of this means that we're about to talk about, and you can really understand what is at issue. Remember the

the main question in this case is whether this Tennessee law, which prohibits doctors from prescribing puberty blockers and hormone therapy to minors seeking gender transitions, is constitutional or unconstitutional. And also, as we discussed yesterday, one of the main questions that the justices need to sort out is whether this law classifies individuals based on sex

as the families and U.S. government argue, or whether instead the law merely regulates the practice of medicine, as Tennessee argues, and does not discriminate based on sex. That is, of course, not the only question in this analysis, but it is a big one. So overall, this case seemed like your typical partisan case. And when I say partisan,

partisan. A lot of people often ask me, like, they sort of question me about why I say that, because yes, justices are supposed to be impartial and nonpartisan, but the reality is the justices have ideological beliefs that are parallel to their political beliefs, and that ultimately influences their decisions. So that is why we see Republican presidents appointing certain justices and Democratic presidents appointing other justices.

Also, because the law is not black and white, and because it is quite literally the job of the justices to interpret the law, their ideological beliefs affect the way that they do this, and that is why we get these decisions that are seemingly either liberal or conservative. It doesn't always happen this way. In fact, more often than not, the decisions are not along partisan lines, and justices will sort of flip-flop on any given issue, but

In the more partisan cases like this one, that's why we typically see a split. So anyway, the three liberal justices, which are Justices Jackson, Sotomayor, and Kagan, they were very much in agreement with the federal government that this Tennessee law does clearly classify based on sex and therefore should have been analyzed under a heightened level of scrutiny at the appellate level.

Justice Sotomayor challenged the attorney for Tennessee, saying that the law does clearly rely on sex to determine who has access to the particular treatments at issue, and gave the example of a gender-neutral child going to the doctor to get treatments to prevent them from growing breasts.

In that case, Justice Sotomayor said the doctor has to know whether the child is male or female to know whether the law bans the use of the drugs, and therefore the law clearly makes distinctions based on sex. The attorney for Tennessee rebutted that assertion by reinforcing the idea that the law turns entirely on medical purpose

that the doctor can prescribe the treatments for some purposes, but not others. And therefore, it doesn't discriminate based on sex, but rather purpose. Justice Kagan jumped in on this, saying that the purpose of the law is banning gender dysphoria. She said, quote, the prohibited purpose here is treating gender dysphoria, which is to say that the

prohibited purpose is something about whether or not one is identifying with one's own sex or another. The whole thing is imbued with sex. You might have reasons for thinking that it's an appropriate regulation, but it's a dodge to say that this is not based on sex. It's based on medical purpose when the medical purpose is utterly and entirely about sex."

Justice Jackson drew a comparison between this case and the case in Loving v. Virginia. Loving is the case that struck down a ban on interracial marriage. She noted that in that case, the state that was defending the ban made arguments based in science and also contended that the court should defer to the legislature, similar to what Tennessee is doing here. But she noted that in Loving v. Virginia, the Supreme Court disregarded those arguments in finding that the ban on

on interracial marriage is in fact subject or was subject to a heightened level of scrutiny and that if this court doesn't act in a similar manner with this ban, then it would essentially be ignoring bedrock precedent. Chief Justice Roberts was skeptical of subjecting this case to heightened scrutiny because he said that this case is different from other cases

that do require heightened scrutiny. He said, for example, whether men and women should have the same rights on issues like adoption or being able to purchase liquor, those are quote-unquote simple stereotyping cases. He said in this case, it's a distinct type of inquiry because of the need to review evolving medical standards. And he said that the court isn't the best situated to address issues like that, implying that the best body to address issues like that is the state legislature.

The attorney for the U.S. government countered that by saying, sure, state legislatures do have the ability to regulate the practice of medicine, but when states regulate access to medicine based on a patient's birth sex, heightened scrutiny applies to that type of regulation.

Justice Kavanaugh, he acknowledged the impactful policy arguments on both sides. But like Chief Justice Roberts, he suggested that perhaps the courts should leave these types of medical questions and policy arguments to the democratic process since the United States Constitution does not take sides on those kinds of things.

The government countered this by saying that it's not asking the Supreme Court to take options away from the states, but it's simply asking the court to rule that when a state prohibits conduct based on sex, heightened scrutiny applies. Justice Barrett also expressed some concern about heightened scrutiny applying to transgender people.

since they have not been deemed a suspect or quasi-suspect class, which requires heightened scrutiny. So suspect or quasi-suspect classes typically require a history of legal discrimination. So Barrett asked the government whether there was a history of laws discriminating against transgender people, therefore making them either suspect or quasi-suspect, and therefore entitling them to this heightened level of scrutiny.

the government responded by saying that even if there is not a history of laws discriminating against transgender people, there is this quote-unquote wealth of evidence of other kinds of discrimination against them.

So here's the thing. Cases like this, partisan cases, usually come down to Justices Jackson, Kagan, and Sotomayor on one side and Justices Gorsuch, Alito, and Thomas on the other. Chief Justice Roberts, Justice Kavanaugh, and Justice Barrett are usually the more unpredictable votes. So in this case, based on the reactions of Roberts, Kavanaugh, and Barrett,

I'm almost certain that the Supreme Court will rule in favor of Tennessee and uphold the appellate court's decision, which would mean that states can prohibit doctors from prescribing treatments like puberty blockers and hormone therapy to minors wanting to transition.

it is worth noting that this case could go a multitude of ways. The decision could, right? So the justices could issue a very narrow ruling specific to this case and this particular law, or they could issue a very broad ruling as to perhaps whether transgender people are considered suspect or quasi-suspect and therefore entitled to heightened scrutiny or not entitled to heightened scrutiny. So either

way, we'll see a decision from the justices probably end of June, possibly beginning of July 2025. Moving on from the Supreme Court, three U.S. Army soldiers are facing federal charges for an alleged human smuggling operation near the southern border. According to the U.S. Attorney's Office for the Western District of Texas, three soldiers based at Fort Cavazos were arrested this week for allegedly conspiring to transport undocumented individuals from Mexico and Guatemala into the United States. The

The press release announcing these charges reads in part, quote,

The fourth individual was Emilio Mendoza-Lopez, who claimed to be the front seat passenger in the vehicle. The driver, alleged to be Angel Palma, fled on foot and was located the following day at a hotel in Odessa. Mendoza-Lopez and Palma allegedly traveled from Fort Cavazos to Presidio for the purpose of picking up and transporting undocumented non-citizens.

A third individual is alleged to be the recruiter and facilitator of the human smuggling conspiracy. Data extracted from Palma's phone through a search warrant revealed messages between the three soldiers indicating collaboration in the smuggling operation. Mendoza-Lopez is charged with one count of bringing in and harboring aliens, Palma's

End quote.

So let's take our break here. And when we come back, we'll talk about some updates in the fatal shooting of the UnitedHealthcare CEO, some quick hitters, and the rumor about President Biden's consideration of more preemptive pardons.

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In an update in the fatal shooting of UnitedHealthcare CEO Brian Thompson, the suspect is still out there, at least as of 2 p.m. Eastern time today. But detectives now say that the words deny, depose, and defend were engraved on the live rounds and shell casings that were recovered at the scene.

What's interesting about this, and this link hasn't been confirmed officially, but there was this book written in 2010 called Delay, Deny, Defend. Why insurance companies don't pay claims and what you can do about it.

Now, obviously, given that Thompson was the CEO of UnitedHealthcare, we could see how these engraved words may mean something. The notable difference there is that the bullets had the word depose instead of delay. However, insurance companies do also depose individuals that make certain claims.

We have also since learned from Thompson's wife and UnitedHealthcare that he had been getting some threats. When his wife was asked about those threats and what the threats were about, she said, quote,

We have also learned a little more about Thompson personally. He was a husband and a father of two. He joined UnitedHealthcare in 2004, was promoted to CEO in April 2021, and he was one of several senior executives at UnitedHealthcare that was under investigation by the DOJ.

According to a Crain's New York Business Report from April, Thompson allegedly exercised stock options and sold shares worth about $15.1 million on February 16th, which was less than two weeks before news of a federal antitrust investigation into the company went public and caused the stock price to drop. That investigation by the DOJ is still ongoing and Thompson had not been charged.

He was named in a class action lawsuit filed by other shareholders once that DOJ investigation became public. So again, the suspect has not yet been caught as of 2 p.m. Eastern time today, though investigators do now have evidence in their possession. This includes a water bottle, a coffee cup, as well as a cell phone. So that water and coffee cup were bought by the suspect at a Starbucks right before the shooting. He threw them in a nearby trash can and...

police have since recovered them. The cell phone was found in an alleyway where the suspect had initially ran. And then also earlier today, police released the first picture of the suspect without his mask on, where he can be seen smiling on a video recording taken at Starbucks that morning of the shooting.

So now let's turn to some quick hitters. Two young boys aged five and six are in critical condition after they were shot at their Christian grammar school in Northern California yesterday. Authorities responded to reports of an active shooter shortly after 1 p.m., where they found the two injured students and the suspect who had killed himself with the same gun he used to shoot the two boys.

The suspect had apparently met with the school administrator shortly before the shooting to discuss enrolling a student at the school, but it is unclear whether that meeting was a legitimate meeting or simply a way for the suspect to get inside the school.

And the Ninth Circuit Court of Appeals ruled that doctors in Idaho cannot be prosecuted for referring patients out of state to get an abortion. The panel of judges held that enforcing the state's abortion ban against doctors who provide out-of-state referrals would violate doctors' right to free speech.

Washington, D.C.'s Attorney General Brian Schwalb has filed a lawsuit against Amazon for allegedly secretly excluding two zip codes, which are historically lower-income neighborhoods, from its two-day prime delivery service. The lawsuit accuses Amazon of imposing a delivery exclusion in these areas and instead relying on third-party delivery services such as UPS and USPS, which has led to a significant decrease in speed and quality of the

Prime Service for members in these areas, despite the members paying the full price for the Prime membership. The DOJ released its findings of its investigation into the Memphis Police Department, which began in July 2023 in the wake of the death of Tyree Nichols. According to the findings, Memphis police use excessive force, conduct unlawful stops, searches, and arrests, and discriminate against Black people, children, and people with behavioral health disabilities.

Bitcoin reached $100,000 for the first time last night, just hours after Trump announced his nominee for the SEC. Bitcoin's recent traction has a lot to do with the election since Trump has promised for more crypto-friendly regulation once he takes office.

And finally, a federal judge rejected a plea agreement between Boeing and the DOJ today after Boeing pled guilty in July to deceiving the Federal Aviation Administration prior to those two fatal 737 MAX crashes. The plea agreement would have required Boeing to pay $487 million in fines and be overseen by an independent monitor, but in today's ruling, the judge took issue with the selection process for that independent monitor.

specifically that under the agreement it would be the DOJ, not the court, that would approve the selection of the monitor. And now it is time for Rumor Has It, my weekly rumor segment where I either confirm, deny, or add context to recent rumors. Rumor has it that President Biden is considering issuing preemptive pardons for Adam Schiff, Liz Cheney, and Dr. Anthony Fauci.

Politico reported last night, citing unnamed senior Democrats, that White House officials are considering whether President Biden should issue pardons for these individuals. Now, first and foremost, this report has not been confirmed by the White House, but let's answer some of your questions. Is this allowed? Sure. It's called a preemptive pardon, basically a pardon that's granted before anyone is even charged for anything.

The authority behind preemptive pardons dates back about 150 years when the Supreme Court held that President Jackson could pardon a former Confederate senator, ruling that the pardon power extends to every offense known to the law and can be exercised at any point after the Crimes Commission, even before legal proceedings are taken.

What that means is a president can pardon someone even if they are not facing charges. In fact, in the months before Trump left office in January 2021, there was a

the same sort of chatter was happening. So the question was, is Trump going to preemptively pardon some of his family members, business partners, and administration officials to protect them from the incoming administration? We know that he didn't end up doing that, but the same conversations were being had then that are being had now. So preemptive pardons are certainly a thing. Now, it is possible that if presidents start using these

broad preemptive pardons more frequently. Obviously, we know President Biden just did this for his son Hunter. And, you know, if he were to grant more of those broad pardons to others, like this Politico report is saying, or if Trump chooses to do so in the future, then we may see this issue before the courts. Because here's the thing, and I can see the arguments on both sides of this.

There is a difference between issuing a preemptive pardon for someone like Hunter Biden, who is currently at the center of investigations for his foreign business dealings and could very well face charges versus issuing a preemptive pardon for someone who doesn't have any ongoing investigations and is not being threatened with potential charges. Now, that's not to say that Hunter's

pardon was justified or not justified. It's just to say that from a legal standpoint, there is a difference between the two situations. If we go back to that 150-year-old case out of the Supreme Court, precedent tells us that a pardon can be granted at any point, even before charges are brought, but it has to be for a crime that has already been

committed. But what does that mean? How does one prove that a crime has already been committed to warrant the granting of a pardon if charges have not been brought against that person? Because in a sense, a preemptive pardon, as it exists today, is essentially an admission of guilt, right? If pardons can only be issued for crimes that have

actually been committed, then a preemptive pardon is essentially saying, yes, this person committed a crime, but has not faced charges. So the water, the legal water is murky. It's possible that one day down the line, a court might step in and say, hey, preemptive

pardons are okay so long as someone is at least being investigated for a crime. Maybe they haven't been charged, but there has to at least be this sort of threat of charges. Perhaps pardons were not meant to be these blanket immunity devices as they're being used today. Or maybe they were. Maybe a court says, no, you know what, that's the whole point of the presidential pardoning power.

So I know that's a little bit of a legal analysis tangent, but this is all just to say that while the law currently supports preemptive pardons, we may see the law shift a bit if enough preemptive pardons are granted and the court decides to step in and assess the scope of these types of pardons.

The next question was, what did these people do that would lead to charges from a future Trump administration? From what we know, these pardons that are being considered would be more precautionary due to comments that have been made by Trump and other conservatives who take issue with the way that Fauci handled the pandemic, the way Cheney investigated January 6th while she was on the investigating committee, and the way Schiff has been vocally critical of Trump dating back to his first presidency.

Have these people actually committed crimes? That we don't know. What we do know is that they have not faced any charges, which is why if there were pardons granted, they would be these preemptive pardons that we've been talking about. Now, Schiff has said that he does not support the idea of preemptive pardons. He told Politico, quote, I would urge the president not to do that. I think it would seem defensive and unnecessary. End quote. As for Fauci and Cheney, they have not responded to requests for comment as of now.

So that is what you need to know about the pardon rumor. It has not been confirmed nor denied by the White House. And that is what I have for you today. Don't forget, next week, there will be no episode on Monday. On Tuesday, I'll be releasing an episode. But again, like I said, it'll be a little different than what you're used to. And we will return to our normal daily news recap on Wednesday. Have a great weekend, and I will talk to you next week. Morning, people. Wake up for peace and quiet.

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