Legal AF Full Episode - 6/18/2025
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Don't adjust that dial. You got a special midweek crossover edition of Unprecedented, a Supreme Court show I do with Dina Dahl on Legal AF.

and the midweek edition of Legal AF, the podcast. We're putting it all together. Dina's stepping in for Karen Friedman Ignifilo. And I thought this was a perfect opportunity for us to kind of spread our wings a little bit and show what we do about the United States Supreme Court.

um over on legal layoff the youtube channel welcome dina doll so great to be here i always love the midweek edition and great time to do a crossover because the supreme court is hot right now yeah yeah you're our regular you're like the joan rivers of this is a compliment you're like the joan rivers i don't know if that's a compliment or not but i'll take it as one she was for those that are about my vintage she was the regular

guest host for Johnny Carson, who was the, you know, one of the main people on The Tonight Show before whoever's on The Tonight Show these days. And she's regularly sat in for Johnny. In fact, she got her own show eventually. So that's a compliment. I like that. I like Joan Rivers. So enough of that. We've lost half the audience under the age of 50 or 60. We're back. We're going to talk today on the midweek edition of Legal AF.

about a number of things that orbit the United States Supreme Court, some that are in the United States Supreme Court, some that are about to get there, some that are being petitioned to get there, and a whole bunch of decisions that have yet to be issued, at least a half a dozen of them,

that are going to rock our world one way or the other before this Supreme Court term is officially over, when the last opinion drops and they get out of here for summer vacation, with the caveat that they get dragged back in about every week on emergency applications to the United States Supreme Court by Donald Trump. It's hard to believe that where we're at right now, besides that you're on the Midas Touch Network. And let me mention that for a minute.

I have a very disjointed presentation today. Midas Touch, while we're on the air live, is going to roll the odometer

Wait for this number. No way. Five million subscribers. Wow. In a little bit less than five years. Five million subscribers. I checked the odometer before we got on, started recording. Boom. I'm like, once again, because midweek was where the two millionth view happened, two millionth subscriber. I don't know about that. Salty's telling me I'm off, but not according to what I saw coming on the air. It says 4.99%.

I mean, I wasn't a math major, but that seems awful close. It's going to happen. And if it doesn't happen, make it happen. Yeah, people, make it happen. Popock needs it. Yes. Salty, our producer, wrote, laugh audience. The Legal AF audience can do it. Yes, we can do it. And as long as you're doing that, come over to Legal AF, the YouTube channel, because we're achingly close to 700,000 in our first eight months. Wow.

We're like Midas was four and a half years ago.

you know, and all of that. So anyway, enough. And to me, that just like, it gives comfort because we are in the majority. The bigger our community grows, the stronger we feel. And we need to feel that against Trump right now. Let's celebrate it. I love that community. You know, and the fact that we're all here doing hard work and being the foot soldiers to protect the constitution. So,

We're going to kick it off with what's happening at the Ninth Circuit Court of Appeals about Donald Trump's assault on states' rights.

which is what this is. You can call it many things. Trump versus Governor Newsom. You know, he's jailing and threatening to arrest his political rivals. We'll talk about that too. But at bottom, it's the Republican Party abandoning states' rights and attacking the sovereignty of one of the 50 states by commandeering the National Guard under phony, trumped-up

no pun intended, allegations that there's a rebellion. Did you know that there's a rebellion going on in your home state in LA? Did you know that? I know, right? Right. I know. It's my city. No, definitely not. I mean, neither do the millions of others, Angelinos. There's certainly no rebellion going on in your dining room. Definitely not that. From what I can see. So we

We got to talk about the Ninth Circuit. There was an oral argument. We had about 70,000 or more people join us live on Legal AF, the YouTube channel to watch it. Three-judge panel. I have a theory about what happened there.

And we're waiting as we're recording, as we're going live here, we're waiting for the decision by the Ninth Circuit. It's going to come out later today, tonight or tomorrow, because they said they are mindful that there is a major hearing in the case because the case continues. The rock moves in front of Judge Breyer.

in a preliminary injunction hearing, which is next level up from temporary restraining order. They're just dealing with temporary restraining order. I think I know what they're going to do, but I want to hear your impression about that Ninth Circuit we'll talk about. Then you and I, as friends and as colleagues, started texting each other today about this terrible anti-transgender decision by the United States Supreme Court, 6-3 majority.

including Roberts, who wrote it, including Amy Coney Barrett, who we had some hope for when it came to children. This has to do with gender affirming care for people who are, I mean, really for all people, but certainly puberty blockers. So kids that haven't yet gone through puberty who have, you know, uh,

who they think they are and who they are, there is a gap. And they, with the consultation of their families and others, want to live a life the way that they feel about themselves in terms of gender and to align their identity with their gender. Yeah.

And the United States Supreme Court had an opinion about that, that most of our audience I don't think will think is correct. In a case that you and I covered on Unprecedented at the time, including through oral argument, in a case called Scermetti, because it's named after the Attorney General of Tennessee. So we have to talk about that. And of course, there's always a shining light.

and that is judge sotomayor who not only wrote a scathing dissent with sorrow she actually said i'm sad but she read it from the bench and i want to talk to the audience about why justice is right concurrences and dissents do they matter or who are they talking to are they they're talking to history they're talking to future generations and sometimes

What was once the dissent really becomes the majority opinion and is cited in a future iteration of the court. And so it matters. Absolutely. And it matters to the bend of history. Ninth Circuit.

Then we'll give some updates about things that are going on at the United States Supreme Court as we wrap what normally would be a pretty uneventful summer, but won't be when you have a president that's got 400 lawsuits against him. We're going to hit my number. I said 4,000 before the Trump administration is over. We're at 400 already, two a day. Yeah.

We had a first trial that just happened. We can talk a little bit about with Judge Young. Or as I said, it's the revenge of the senior status judges. And then there's a group of things that the Supreme Court is thinking about. I'm sorry, is weighing in on through opinions.

Some major issues that not that have haven't yet dropped Transgender is probably the biggest on that list that we were waiting for. Mm-hmm There's been a couple of others in the meantime, but but there's a whole bunch coming up That'll be coming out one two three a day, you know before June is over And you and I'll catch him and explain him over on unprecedented and in hot takes here. Okay long-winded opening

You're never long-winded. People don't want to hear from Popok anymore. They're glad that Dina is here, and I'm going to turn the reins of the show over to you. Why don't you kick it off with the Ninth Circuit, and then I'll do some color commentary around it, okay? I mean, as you said, the Ninth Circuit, or maybe you didn't say it, but it definitely seems likely they're going to rule in favor of the government and basically say that Trump's

federalizing of the California National Guard is okay for now. If you know this was just a temporary restraining order, this wasn't looking at the merits of the issue. But still, that's definitely going, if they do rule as we think they are, that's going to be a major setback for California and Governor Gavin Newsom. You know, they seem to, we've talked about this before, but it's a three-judge panel effort

two Trump appointed judges, one female. So Trump kind of got lucky. The Ninth Circuit is famously liberal, famously liberal, the Ninth Circuit. Just like the Texas, the Fifth Circuit is famously conservative, the Ninth Circuit is famously liberal. And so it wasn't so surprising that the lower court judge, Justice Breyer, rules in favor of the government. I think a full

on bunk as they say full ninth circuit panel would probably also rule in favor of the governor we could talk about if it's going to get there but this three court panel that he drew some judges i think that were more favorable to him than he otherwise would in front of the ninth circuit but they

but they touched on two things that I thought were important to them. I mean, obviously, first of all, just a shout out to Legal AF channel, you live streamed it, which was amazing. I encourage everybody to listen to it if they haven't yet. I think it's amazing to just listen to it ourselves

courts, our court system should always be accessible. But anyway, so they, they touched, of course, on a lot. It was a long hearing, but one of the things that the lower court judge had said was that the statute says you have to go through the governor. And he really found that to be one of the reasons why the DOJ didn't, or the government didn't comply right with the statute. And then third, um,

Judge Panel said that it was enough that he notified basically the commander of the California National Guard, that the governor had substituted the commander as the lead of the California National Guard so they didn't have to go through the California. That to me seems like

like a very overly favorable ruling to the governor. So basically you either are saying that governor has to be the commander of your California national guard, which, you know, I don't know if the, how that works on a day-to-day practical basis or the governor has no say in

and whether or not the federal government federalizes it. But that was one thing that they kind of latched onto that I thought was very opposite, let's say, than Justice Breyer and gave us an indication that they are probably going to rule in favor of Trump. And then they also, in terms of this whole idea, if there's a rebellion,

or not? I thought one interesting question, and I think this leads us down to this idea of California being an experiment because they said, you know, you said that you needed to federalize the California National Guard because you couldn't effectuate federal law, right? ICE couldn't do their job, so you needed to federalize it. And one of the judges said, and I think it was a Trump-appointed judge, said, well, what if you just don't have the

enough of a budget, right? If you don't have enough ICE agents, can you federalize the California National Guard in order to effectuate

that law, the federal law, like how far are you going with this? I thought it was good for him to highlight it, but the government's answer wasn't great, which was basically it's in the president's discretion, the president's discretion. That's really the government's viewpoint here. So even if the three-court panel decides to rule in favor of him

And they do rely on some Supreme Court precedent where they said that it was clear that the president could at times be able to, you know, federalize the National Guard. That's kind of what they were relying on. I hope that they limit it at least in a little bit. But we'll see. This is still the temporary restraining order status. We are really just in the beginning of the legality. This will certainly go up to the Supreme Court, I think, at

at some time, unless Newsom worked to withdraw his case altogether. Yeah, I'm surprised they actually went as far as they did. I mean, when I went to school and when I listened to the Supreme Court,

They tell you the temporary restraining orders generally don't confer jurisdiction on appellate courts because they're so temporary. And they last a day, a week, two weeks. In this case, it was only going to last about 10 days before Friday's hearing on the preliminary injunction. That's the thing that I don't want people to lose sight of. The federal judge, Judge Breyer, senior status judge, hold that thought. Talk about that throughout the night.

Senior status judge, Judge Breyer, issues a temporary restraining order but sets a quick briefing schedule for the preliminary injunction hearing. The difference between TRO and preliminary injunction is basically temporal timing. The temporary restraining order lasts a temporary amount of time to give the court enough time to get the briefing in, the record developed enough, and hold the hearing. A week, two weeks. I've seen it go maybe three weeks.

but that's about it. And then you get to preliminary injunction hearing. Even if you lose the TRO on one side or the other, it doesn't mean you're going to lose the preliminary injunction because different facts can be developed and things like that. So appellate courts usually back up and back off and say, yeah, we're not going to take temporary restraining order. Let's see what happens at the preliminary injunction or if the temporary restraining order is extended for a long period of time, effectively becoming a preliminary injunction.

But here, where they could have, it just shows you when the judges want to reverse engineer a result, when they don't want to touch it, and with the two Trump appointees, they would go, well, we don't really have jurisdiction. Come back to us when there's a preliminary injunction hearing. But here they took it.

They issued an administrative stay. One of the Trumpers is moderate. He's the former attorney general for Hawaii, a blue state. So he knows how to play in the sandbox with the Democrats and Republicans. He's pragmatic. Judge Bennett, Judge Miller is an extreme right-wing MAGA, former Thomas judge, clerk. And Judge Sung is a Biden judge. She barely said anything. I know she's a new judge, but she could have spoken up a little bit. And now we're still waiting.

They said at the end, Judge Bennett, who presided, because he was a senior judge, he said, we understand that there's a hearing on Friday, dot, dot, dot, meaning we're going to rule before Friday. What I think they're going to do, I could be wrong. I've been wrong before. But what I think they're going to do is they're going to find they have jurisdiction. They've done that already. They're going to find that they have jurisdiction to review things.

a potential abuse of power by a president in other words they're going to say this is justiciable which is a fancy way of saying that um a judge can provide oversight over the article uh two powers of a president article three judge can you know can do that so i think they'll get there

Then when it comes to the decision, I think they're going to find that the record is incomplete and that Breyer needed to do a better job of developing the record evidence to support whether there was a rebellion or not, or Donald Trump had good cause to trigger the Militia Act of 1903, and whether the issue about the governor, you know, I love when Brett Schumacher for the Department of Justice looked the panel in the eye and said, no, no, we didn't cut out the governor.

We typed it up in his name. They said, what? I said, yeah, but the statute says you have to do it through the governor. We did it through the governor. We put his name on it. That's not what through the governor means. But I think there needs to be a better developed record. There's an easy punt for them. They could say tonight, tomorrow, there's a hearing on Friday. We're going to keep the administrative stay in place. So Trump's troops for now.

We're going to let Breyer develop the record both on the grounds to invoke the Militia Act, develop a little bit more of a record on the separation of powers, the 10th Amendment, and he's itching the trial judge to rule also on the Posse Comitatus Act, which is the.

Act that prevents a president from using the awesome power of the military on domestic soil turning it inward towards the American people Mm-hmm, and the judge punted on that trial judge originally because he said yeah, we got a better record now The judge says okay, we got we got a record on that see you Friday So I think they could give the judge instructions like they could remand it back to the judge with instructions Do this do this do this develop a better record as a trial judge to give us a better record on appeal? We'll keep the administrative stay in place

Come back to us, whoever loses, on the preliminary injunction, which is more important. And we'll let you know whether we're going to stay it until the appeal or not. That's what I think is going to happen. I could be totally wrong. I mean, it makes sense. But the government's argument over and over is...

They don't want to establish a record of rebellion because they say it's just a matter of the president's discretion. Right. So that's just disability, isn't it? Yeah. Well, so but but that's kind of like a fundamental argument on their part. They didn't even try to really try to give facts. So it will be interesting whether or not I mean, this is why I think this is going to go up to the Supreme Court, because really the crux of it isn't going to be whether or not

I mean, Trump can prove there's a rebellion. He can't, right? He's not going to be able to produce enough evidence to show that it's a rebellion. It's going to be whether or not he has to prove it. And that's going to be the ultimate question that the court is going to end up having to decide. But I think that you are right.

Right. Although, I don't know, is the two Trumpers going to say we can't question the president so much? They're not even going to try to ask the government to prove it. But I think a reasonable judge would probably ask that question. Yeah. Well, I'm banking on Bennett. And I did a hot take about arguing at the Ninth. I've argued at the Ninth Circuit, not before these three judges, but I've argued at the Ninth Circuit. I've argued appellate court, appellate cases. And you got to aim for Bennett.

You know, you never want to write off any judge, but you're not going to get Miller. And maybe on a technical procedural issue, you might. And you got to just aim for Bennett and Sung and try to get a two to one and make the arguments there. But we're going to get the ruling. I mean, I think that they didn't stop. They didn't issue it from the bench. They didn't blow Friday's hearing in front of Judge Breyer.

So listen, we'll end up doing hot takes about it. I think we've speculated about as much as we can given our experience. So look, this is what we do on the midweek edition of Legal AF. This is what we do on Unprecedented. That's why I was so thrilled to have you come over and do this as a crossover episode.

I like crossover episodes. I just did a Cohen, mea culpa with him. That was funny. Halfway. I just, you know, I'm not used to his vibe on what he does on his show. I'm used to our vibe when we do you and me and Karen and me and Ben and me. So like I had no, I was asking him questions, you

You know, not about him, about whatever the subject matter was. And he goes, Pol Pot, this is my show. I get to ask the questions. And I was like, okay. I just thought we were having a dialogue. I didn't realize. That's funny. He takes a classic, classic interview style. Like I was being interviewed, you know. But it was just funny. I told him, you can come on my show and you can, you can commandeer my show at some point. Yeah, yeah. To make him feel better. There are many ways to support what you and I do as part of independent legal commentary.

on the Midas Touch Network and on Legal AF. People ask all the time. You can fly the flag of Midas and Legal AF and wear the merchandise. We love that.

You can subscribe to the platform here, the Midas Touch platform. God, I would love to, I almost said rub it into the guys, the brothers. I'd love to have the odometer turn. I thought we were closer. Who knows? Just subscribe, bounce out, subscribe. And let's see if we can get them to 5 million on the show.

That's one way. Legal AF, don't forget Legal AF. We do it in collaboration with the Midas Touch Network, but we're a standalone entity. Think of us as like, I don't know, ESPN2. But we're devoted to the intersection of law and politics. A dozen contributors just added, it's complicated, Asha and Renato, national security experts, former FBI prosecutors, and they got a podcast. It's complicated. They're now with us.

Sidney Blumenthal and Sean Wilentz, who are our resident historians on Legal AF, they just did an amazing thing with Miles Taylor. It went viral on mainstream media

Got a lot of publicity for Legal AF and back to their YouTube about him having insider information about the resistance going on in the White House now. And boy, does he know about resistance. He wrote that famous 2018 op-ed piece, New York Times, in which he said that there's a resistance going on in the White House.

to stop Donald Trump from starting World War III. We may be on the cusp of World War III right now as we're on the air, but it's that kind of work that we have over there and some other contributors that I've brought on as well. So Legal AF...

and subscribing there. We also have a sub stack for legal. There we go. We've got a sub stack for Legal AF. And that's a great way to get new commentary, analysis, documents that are filed in cases. We post their Supreme Court rulings and opinions all on the Legal AF sub stack. So we got Legal AF, the podcast, Legal AF, the YouTube channel, Legal AF, the sub stack,

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They're the best wings you'll ever taste for free, but for a limited time. Spelled M-O-I-N-K box.com slash Legal AF. That's moinkbox.com slash Legal AF. You've joined a special midweek edition, crossover edition of Legal AF Meets Unprecedented from the Legal AF YouTube channel. I'm here with Dina Dahl.

We're giving a briefing to our audience about all things related to the United States Supreme Court and Donald Trump, along with other cases that matter that will end up orbiting or currently orbiting the United States Supreme Court. For instance, I'll do a little quickie here before we get to the transgender decision.

Dina, Judge Young, another senior status judge, 84 years old up in Massachusetts, had the first trial. It's hard to believe 400 cases against the Trump administration. But the first trial, because he's a trial judge's trial judge. He loves trials, was in his courtroom on Monday. And he ruled from the bench against the Trump administration. And what he had to say is going to make people's heads pop off.

He said that in his 40 years, he's never seen a more blatant and palpable racist, discriminatory,

policy and attack by an administration than what he's just watched with the Trump administration cutting off National Institute of Health grants to black and brown and disadvantaged communities, including the LGBTQ plus community. And he said, I'm talking about health care, which means I'm talking about dying Americans. And the fact that in the name of diversity, equity and inclusion,

which is not a bad word or concept on this network. In fact, it perfectly aligns with American values, except in the hands of Donald Trump, who's hijacked the concept. Judge William Young, a Reagan appointee. So he has the vantage point and the perch of history.

said in his 40 years he's never and he's handled some pretty amazing cases he's never seen a more blatant and palpable he says i have to call it out the racism of the trump administration there's no other way around it it violates the constitution it's arbitrary and capricious he's going to issue a probably a 50 or 60 page decision but he ruled from the bench today um

And it matters, you know, and I think this is the revenge of the senior staff. Senior status federal judges are so important right now. You know, at the same time, Dina, that the Republicans are wasting time and money and energy going after Joe Biden and his mental status. Here's a bunch of his peers. Judge Kofanor, who issued the first temporary restraining order from Seattle, who said that the birthright citizenship

executive order was so blatantly unconstitutional he couldn't believe it was even being argued in his courtroom. That was the first temporary restraining order five days into this administration up in Seattle. 83 years old, 82 years old. Judge Breyer

The Ninth Circuit case we just talked about, 83 years old, 84 years old, the brother of Stephen Breyer, the Supreme Court justice. Now you have Judge Young, 84 years old, Judge Beryl Howell, who's not quite there, but it's moving into senior status. These judges are not leftists. They're not activists. Add to that Harvey Wilkinson of the Fourth Circuit against the Trump administration, also in his 80s.

If we're the foot soldiers to protect democracy, they're our generals, right? I mean, they are saving our democracy. Their expertise is unmatched. And, you know, you don't have to be worried about a judge maybe who has lost their mental acuity and still serving because they are in the public all the time. They are in the front of the parties all the time. If they were not still with it,

lawyers would be dismissing them and unqualified. So instead you end up with people who just have the longevity of years of experience and frankly, the willingness to not be scared by what Trump may or may not do. And you may have somebody who's more recently appointed who's still kind of grappling with

their role or whatever. And I think that's why we're seeing all these senior justices. And also, as we talked about, and I think we're going to talk about a little bit more like the point of a dissent to the point of a concurrence, that the

A TRO opinion written by the lower court Justice Breyer, the 83-year-old, was written so well. And he did it because he's so senior. And so we are really all benefiting. Democracy is benefiting from these senior judges. Yeah, I'm glad they're hanging around to protect democracy and hold up that light, that torch, to remind us that this too shall pass. I mean the Trump administration. Hopefully not planet Earth.

the way Trump is running foreign policy and military policy. So let's turn to transgender rights. You did a great job originally talking about the Scrimeti oral argument on Unprecedented on Legal AF YouTube channel. Why don't you pick up for what was at stake? What was the ruling? And then we can turn and talk about Justice Sotomayor in her sorrowful dissent.

Yeah, the Supreme Court heard this oral argument back in December. So if you listened along with us, this is when we were talking about it. This is a law in Tennessee, but there are 22 or 20 other states that have very similar laws that have now all theoretically been upheld, right? Obviously, each one didn't go in front of the Supreme Court, but because the Supreme Court ruled in favor of Tennessee. This is not just

to Tennessee. We're talking about 22 or 23 other states where the most vulnerable community, transgender communities, have been stripped of their rights. Let's talk about it. That's the reality. And the

It was really disappointing when I was listening to the oral argument, Justice Amy Coney Barrett. I mean, we know she goes with the majority and, you know, the Christian more value. I don't even want to say that this is a Christian value case because personally, I think this is against Christian values.

But her type of Christianity, let's say, we know she tends to rule in favor of, you know, that she would be with the majority. But she brought up a question that gave me a little bit of hope, which was, what about the rights of the parents? Right. And you she has so many kids herself. She adopted so many kids. And I thought, oh, maybe maybe this is a glimmer of hope and hope.

Now, sure enough, it wasn't. It was a six to three decision. It was Khantanji, Brown Jackson and Sotomayor and Kagan that dissented. The rest were in lockstep. And basically the question was,

The law outlawed hormone blocking pills, non-surgical treatments that a doctor prescribes to a child who feels like they are born in a body that they do not biologically identify with. Right. And that's the thing here. We're talking about not only parents' health.

making this decision for their children, but the doctors. People cannot get this treatment unless a doctor is prescribing it. And these laws are basically taking away the healthcare choices of these families and the doctors. And the sad situation is a lot of times, I mean, I know families who have gone through this situation

transitioning and it is usually excruciating for the family. Oftentimes the child is severely depressed, severe anxiety when they have this disconnect of not being in their own body. And oftentimes the hormone treatments and other treatments they give them save their lives. You know, they feel suicidal, these children. So this is a radical, radical decision taking away the rights, the health care rights of this family.

How they legally did it is they had to decide whether or not the law would have a rational basis review or a strict scrutiny review.

Obviously, the rational basis review is a lot less. And the standard is whether or not the law rationally is related to a legitimate government interest. I mean, that's like the easiest to say. So the Supreme Court said, yes, this was democratically decided. They had a legitimate government interest in deciding what laws to have relating to

transgender children. It was rationally related. Of course, Sotomayor and her dissent said, this is kind of ridiculous. She doesn't use that word, but basically that's what she's saying. This should be strict scrutiny. And a strict scrutiny, they would most likely, this law would not have met that test. But the court didn't even go into whether or not it would have met that test because they decided it just needed to lower. And I'm going to just quote what she says. She says,

related to this decision. Quote, that marks the first time in 50 years that this court has applied such deferential review normally employed to assess run of the mill economic regulations to legislation that explicitly differentiates on the basis of sex.

And so now we have Dobbs basically doing the same thing, saying the government, you know, in certain states can decide the health care choices of a woman who is pregnant. And now the Supreme Court saying the government can decide the health care choices for transgender youth. And it is when she read it from the bench today, she ended with in sadness.

I dissent and I concur. And I think a lot of us all here on Midas and Legal F concur. It's a very sad day. The Supreme Court basically upholding an attack on the most vulnerable communities in America. The Supreme Court used to be the place of refuge to protect the downtrodden, the disadvantaged. It is no longer.

It is the place to protect the wealthiest, the most advantaged people. It seems to only exist to benefit an out-of-control imperial president.

It doesn't care about women. It doesn't care about the LGBTQ plus community. It seems to exist in a vacuum where none of these, and I know it's impossible, none of these six MAGA right-wing judges, ones that try to call themselves moderate when they're not, none of them seem to have anybody in their life that is in that community, the way they rule, because they're

John Roberts actually had the balls to pay lip service to, well, we're not saying that transgender people shouldn't be protected in other contexts. We're just saying here that

When it comes to health care and when it comes to pre-puberty or puberty issues, we think that's better left as a political question to the electorate of each individual state. And we're not going to find a federal constitutional protection over these people. It's the same thing. I mean, to say we're going to leave it to the we're we're not. This is like saying I'm trying to come up quickly with this analogy or this. It's like saying we're not saying.

That we're not going to protect somebody who's left outside to the wolves We're just not gonna open the door when they're knocking on it and let's see what happens Well, I know what's gonna happen I you know I know what happens when there's a pack of wolves outside and a disadvantaged animal or person is on is on one side of the door and not the other so don't yank my chain right don't pee down my leg and tell me that training and

Okay. Which is what Roberts is doing, you know, because there's another decision where they ruled that discrimination in the workplace is

that they would protect gay and transgender people. But they didn't extend it to this because, well, it's science again. We're back to abortion. It's reproductive and science. We'll leave it to the legislatures. Legislatures in half of our states, women are second-class citizens who don't have reproductive rights or rights over bodily autonomy at all.

And if they're not wealthy, they can't shoot out to another state like a blue state. And in some of their states, it's a criminal act that they do to try to get the reproductive care and health care that they want. So don't tell me, you know, they all sit there with this smug. It's the smugness that that that that galls me.

And not worrying about what the impact is going to be on transgender kids. It's just... Yeah, I know. I mean, the idea that somehow, you know, the majority rules, right? Like, it's a democratic process. It's just... It kills me because...

The minority, whatever that minority group is, will never be protected in that process. Right. And we've seen that over the years. Right. I mean, this is why we had to have the Supreme Court step in with all of their racial protections and civil rights protections and and and.

it's, it's like you said, it's the smugness, it's the entitlement. I still always remember Justice Kavanaugh and the oral argument for Dobbs. And he just said, what's, why not just leave it for the states? And I thought you have never ever had your rights question if you feel so okay with having the political process protect your rights. But when you are a minority, you know, you can't

you know, trust the majority that we've seen over and over and over. And here, the transgender community, so few people have ever met somebody who's transgender or talked to somebody who's transgender. Republicans have been able to use that as a lightning rod conversation and definitely fear-mongering and

othering and all of that stuff, there is no hope for them in the political process. And the Supreme Court lives in our world. They may sit in their robes on that court, but they watch TV like the rest of us and they hear the campaigning like the rest of us. And them doing it in this climate, knowing that

The political process is acting as if transgendering is some horrible evil. Makes this ruling even more disgusting to me. Couldn't put it any better than that.

So, look, that's what we do on Legal AF. That's what we do on the Midas Touch Network. We don't blow smokers sunshine. I'd like to sugarcoat this and say there's a silver lining and it's not all hope is not lost when it comes to this United States Supreme Court doing its job that they were appointed to a lifetime position to do. But

It's decisions like this that remind us again that elections have consequences. And I know it was a hard equation for some of the Democratic voters to put together that the president, whether you like them or not on the Democratic side, is the person who picks your federal judges and your United States Supreme Court. I mean, we are my entire natural born life so far, except for when I was a baby.

has been a Republican-dominated Supreme Court for 50-plus years. I have never, neither of you, I have never known a time when we had a moderate to liberal majority on the United States Supreme Court. Yeah, they've had the numbers, sometimes five to four, sometimes six to three, sometimes seven to two, for my entire day. Everything. But I've never known

been as disappointed and fearful about the United States Supreme Court, except in the last five years, the two Trump terms and the cases and the precedent that they're setting. There's a reason that you enshrine something in the Constitution, because it should not be a question of mob rule or state decision or up for a vote.

Because some things are so fundamental to our freedom and our liberty that the Supreme Court needs to declare it and protect it. But this is the same Supreme Court. First one in the entire history of the Supreme Court. The Dobbs decision is about a woman's right to choose overturning Roe versus Wade was the first decision. This is what broke the dam.

that ever took away a constitutional right that had been granted by a prior Supreme Court. They grant constitutional rights. They had never taken one away. When I saw that, all bets were off about what they were capable of doing.

Absolutely, because they're supposed to follow their own precedent. Right. And they reversed it for no, you know, nothing new had happened to justify that. And to your point that elections matter, this is something that we see. Some Democrats are trying to run away from this issue. They think they lost their

election over this issue when I heard Governor Tim Walz speak at the California Democratic Convention just a few weeks ago. You know, he reiterated, like, we have to not be afraid to say things because who are we then as a party? And I personally believe we should be not running from this issue, but embracing it. And all the blue dots in those red states, you know,

Hopefully this motivates you because maybe you can change one election, reverse something, slow it down. The Supreme Court obviously has so much power, but we might have to make changes in the state legislatures, in Congress, with president. In the meantime, we can't have all be lost.

And we cannot, as Democrats, run from this because to me, I'm like, if we can't protect the transgender community, then to me, I don't understand the party anymore. Yeah, agreed, agreed. And when we come back from our last ad break or last break, we're going to talk about what is coming up, I mean, in the next few hours, you know, between now and certainly the next two weeks till the end of the month. Every one of the things I'm about to talk about with you, Dina, is going to drop.

These are opinions of the United States Supreme Court based on briefing and oral arguments you and I have already covered. These are not the emergency applications, although I think birthright might still be. But these are the traditional writ of certiorari record briefing oral argument cases that have happened here. But who's in office and who's running the Solicitor General's office matters in Scermetti?

Biden, the Biden administration was the one that argued along with lawyers, including a transgender lawyer for the ACLU who argued. But as soon as Trump got in office, he filed reverse briefing, reversal briefing that said that he had changed his position. The presidency had changed its position of the United States of America. And so we're going to cover all of those things.

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Welcome back. We're in the homestretch of a special crossover episode, Unprecedented, with Dina Dahl and Legal AF Midweek with Michael Popak. So pleased to have Dina back. Dina, we're going to now run through what we can expect with the United States Supreme Court. I'll just do a quick kind of briefing on this, right? Yeah.

Court opens for a term the first Monday in October, and it runs until they're done dropping opinions, usually at the end of May. This one's coming in late because there's been over 20 emergency applications that they've had to deal with, and it's slowed them down on issuing their normal opinions, which the way that

a Supreme Court appeal normally works is that they take about 60 or 70 appeals during the year, not including the 20 or so emergency applications that they ended up taking this term because of Donald Trump. They do it on full briefings, sometimes with supplemental briefing. Friends of the court sometimes file briefs in addition. There's three total briefs plus whatever additional briefing that the Supreme Court allows. It's the person who's appealing. It's the person that's a

that's opposing the appeal and then the person who's appealing gets the third brief then there's oral argument there's always oral argument and then there's this long period of deliberation can last two months three months four months six months eight months before they start issue or longer before they start issuing their orders then their opinion drops the opinion is comprised of the majority opinion if there's if there's a majority and generally there is although we saw a case this year that where there wasn't and that is at least five votes

Somebody is assigned to write it by the chief judge. Usually it has to be somebody in the majority. Sometimes he takes the prerogative and if he's in the majority, he writes it. And then others can do what they want. They can write concurrences. I mean, in that last decision we talked about, about the transgender, everybody wrote something. There were concurrences and agreeing in part, but not in total. And this and that and dissents.

And then there's dissent. Sometimes we see statements when it's a emergency application, which is a weird way to get on the record for the judges, the justices.

And then that is the decision, unless it is one day overturned or revisited by the United States Supreme Court. Now, they also, at the same time, make other decisions along the way. Whether they're going to list a case, they're going to bring it up for next year, next term, they're going to deny it, they're going to deny a motion. They do all that in orders throughout the week while they're in session.

Not so much over the summer. Then they go away in the summer and the Republicans all go to some boondoggle paid for by the Federalist Society generally or somebody that has business before the court. You know, all the unethical things you and I talk about. Democrats don't do that. And then they come back usually –

By Labor Day, after Labor Day, they're back meeting in caucus to set the agenda and the docket for the next term along the way. That is the overview of what you and I follow every week on Unprecedented. Normally, when we started the show, we started Legal AF.

The summer was so slow. I would do one show with Ben before you and I met. I'd do one show with Ben about, that's a wrap. Let's talk about, let's look back what happened in 2024, 2023. And here's what we can expect in the future. That's over.

It's over with this administration, this rogue, lawless, abuse of power administration. Why don't you bring everybody up to date about the major decisions, and they are, they're going to be earth shattering one way or the other, that we can expect starting like tomorrow until the end of the month.

Well, probably the biggest one that I think our community is following is the birthright citizenship slash national universal injunction issue. As we know, the Supreme Court heard oral arguments on this, and they were really centered around

around the question of whether or not universal injunctions should exist, which is one judge issuing an injunction, not just for the parties that have come before the court, but for everybody throughout the whole country. And they're both sides don't really love this, right? We have, you know, Justice Kagan has come out kind of publicly, not really liking it. The Republicans have come out because they,

It gets used also by both sides, right? When Biden was in office, the Republicans used it. Now the Democrats are using it while Trump is in office. And the court had a chance to look at it in January, and they declined to look at it. The Biden administration actually asked them to look at it in January, and they declined. So this time they took a look at it. We heard their arguments. You and I discussed it live. And

And it's still a little bit unclear how it's going to come out because the really this case was like the worst case for the argument for abolishing it, because you're having to do with something as basic as citizenship, right? As basic as citizenship that clearly.

is universal, right? You don't really want a baby born in California to have citizenship, but not one born in Florida, right? So in a way, this was perhaps the best case to keep universal injunctions, which may mean that the court will come out and say that universal injunctions, you know, will keep it, let's say, and not...

Not change it. We could have something as little as that, which is basically them not maybe even making a huge opinion about it and deciding the law around universal injunctions, just letting the lower court universal injunction stay. And we could have something as little as that. We could have something as big as them going into the birthright citizenship question. This was a little bit different.

because it was an emergency appeal. There wasn't a question asked. Every time the Supreme Court takes a case, there's a question presented and it's like two or three lines. And that question is what the Supreme Court looks at because this was not

because this was on an injunction, appeal of an injunction, there was no question presented. So technically, they could look at birthright citizenships and fear the justices asked, like, do you want us to look at birthright citizenship? They may go into it a little bit because you can argue that whether or not to get an injunction, you look at the merits of the case. This is my prediction. You gave a prediction earlier, Popak, so I'm going to give my prediction this time. I've

I think we're going to see Alito and Thomas, no matter what the court decides, go into the issue of birthright citizenship. And they are probably going to say that the law, the Constitution, shouldn't be interpreted as if you're born in this land, then you are a citizen. And they are going to do it for the same reason,

That we saw Clarence Thomas do the whole special counsels, you know, that Jack Smith was basically illegally appointed. Right. And then we saw the judge out of Florida pick that up. And obviously that became moot since Trump became president that got dismissed.

But to your point of like, what's the how does a concurrence or how does a dissent contribute, let's say, to our legal jurisprudence is it gives an indication if Tom.

Thomas and Alito go into their legal arguments for why birthright citizenship shouldn't be interpreted as it has been interpreted for the last hundred years, you will see another case be brought using their argument. So I think that, um,

We are not going to see the court overturn birthright citizenship, but I imagine we will see Thomas and Alito argue for that in the hopes that their language gets used for a future case. Yeah, I agree with you. I think the birthright citizenship ultimately will be a loss for Donald Trump. It's sort of an easy gimme for the Supreme Court because it's such a ludicrous position to have taken.

And the more you heard the oral argument, the more you realized there was no basis for it. And while the Supreme Court is willing to turn over precedent,

You know, if anybody sneezes, they're not going to turn over 100 years of precedent about what the 14th Amendment means and about what the citizenship status is of millions and millions and millions of hundreds of millions of people, including those yet to be born. So I think that's that's an easy win. Affordable Care Act. We've got a major decision coming out about AIDS and preventative care. I can't believe people are opposed to this.

We're waiting on that one. We're waiting on online porn age verification. I think you actually, we talked about that once in Unprecedented, right? What's your view on, where do you think that one's going to come down? Yeah, that was basically a free speech argument that they made, whether or not to like check the box or not check the box. I don't,

That's a really good question because we see this conservative kind of religious right conservative obviously going to be against online porn. But they also are, you know, free speech, free speech, except they were willing to over, you know, banish TikTok. So they're not always free speech. I think that they are going to allow for the restrictions. I think they're going to allow for the online porn restrictions. And then there's also the puppy on parade case.

I love the puppy parade case. Not what I think the result's going to be. I love the name. Yes. Who's against puppy parade books? I know. That's a shorthand for something. Why don't you tell the audience what it's all about? Yeah, so this case is out of Maryland. And what happened there was this elementary school had as part of their curriculum reading books about

that were favorable, let's say, to the LGBTQ community, including like a puppy on parade, which was a puppy weaving through a gay pride parade, right? And it was parents... This was interesting because it was...

It was Muslim, Christian and Jewish parents banded together and sued the school district. And it went up, obviously, to the Supreme Court. The one feature of it that I think is going to make it so the school district loses here is they did not have an opt out feature. They did not allow the parents to opt out. And there was a member of the school board who said specifically because they were trying to.

enlighten, let's say, the children. And that was kind of what the court was latching onto, was that there was a motivation here in order to, it wasn't just like part of the curriculum and how, and so, but the problem here was how limited it should be. Because I don't remember if it was Kagan or Sotomayor, you know, brought up the fact, well, okay, if you say that if this

offends your religion, you can opt out. What about teaching evolution? Right. That can be considered against somebody's religion. Like you can be so broad. I mean, you know, you have sex education, right, in elementary schools and parents can opt out. That's like a very standard thing. But if you start to get to a Supreme Court ruling that requires

a school to give opt out, if you think it's going to offend somebody's religious sensibilities, you may be giving that school board like so many restrictions that they are like bound to trip up and be sued because somebody could say, I don't like the fact that you're teaching evolution, right? This is against my thing or who knows, maybe AI is against it. And so that was

The balancing act. I think there was a feeling that parents should be able, for the most part, to inform what their children receive in an educational setting. And on the other hand, you cannot make it so difficult to restrict the parents. If we're going to make another guess and I'm going to go ahead and do it.

is I think Justice Gorsuch is going to write this opinion. He wrote the opinion regarding transgender and workplace discrimination case that you just mentioned before. And he seemed particularly interested in the fact that the board member was motivated. And I can see the Supreme Court ruling in favor of the families, but doing it so limited that literally they have to show evidence such as that, that it wasn't just

that the school board approved curriculum that may offend you, but they did it because they were trying to, let's say, change your religion or change your religious point of view. And I think it's going to be as limited as that. That's my hope. Yeah, I agree with you. That one is going to be...

There's so many different ways they can go with that one. Well, that's what makes them so both confounding and sometimes...

pleasantly surprising. But I just, when it comes to religion and sexuality and First Amendment, they normally don't side the way that I want or the audience wants. So we'll get them. We'll get them in our hot little hands. We'll talk about them. And we do it in a number of places. We do it here on the Midas Touch Network with regular hot takes at the intersection of law and politics.

We've got the podcast, which I co-founded five years ago or so with Ben Micellis, that sits at the intersection of law and politics. We're on it right now. I think we're number one law and politics podcast on YouTube, top 50 or so on audio. We could use a few more audio downloads, to be frank.

You know, I don't want to give up on that. I want to keep us where we're at. That's part of the lift of what we do on Legal AF. And then we founded the Legal AF YouTube channel. So we got that going on, which is going to hit 700,000, I think, this weekend, which is a testament to the fervent support and the movement that we've built here with our Legal AF and Midas Mighty community. Legal AF, the sub stack, and...

Just the various ways to support sort of what we do along with our pro-democracy sponsors. I know that we mentioned a tariff case. You want to touch on that? Yeah, just really quickly. What it is, is if you remember... Live TV, everybody.

We're just, you know. So, yeah. So the win, we remember the win that was then like short win because the appellate court paused it. But basically we saw the D.C. court rule in favor of two specific, only two specific companies that brought the lawsuit in D.C. saying that Trump's

tariffs under this emergency act was unlawful that Congress needed to do it. And the federal court there approved. This is a little bit different, right? Then the international court of appeals that inter, sorry, the international trade court that also ruled against Trump's tariffs. So, um, what, uh,

What is happening is the two companies are asking the Supreme Court to just step in because now their win is essentially pause and they don't want to wait for the appellate court to decide. They say that going back and forth in itself is so bad for my business. The uncertainty is bad for my business. Waiting any longer is bad for my business. Supreme Court, can you please step in?

in and decide this issue. So we're waiting to see what the Supreme Court hears about that. And again, we've got a lot of tariff cases out there. We have the ones that the Koch brothers have financed in Florida. We have the state's attorney's general tariff lawsuit. So there's quite a bit of tariff

lawsuits against Trump. But this particular one that's being asked, the Supreme Court is being asked to review has to do with just those particular two companies. But of course, if the Supreme Court were to decide that Trump's application of the tariffs is in violation of Congress's right to impose tariffs, it's going to be a win for all of the cases, essentially. I was shocked by the numbers in that

And that tariff case that they're asking for emergency relief on by the small business. One small business in the record told the Supreme Court that like last year, the tariffs that they paid were 2.4 million. And now it's 100 million dollars. Wow. How were they ever prepared?

So Donald Trump, you know, Donald Trump hates small business. I mean, he's such the anti-Republican. He hates states. He hates conservatism. He hates small business.

You know, it's just remarkable to me that he's the standard bearer for that party. You know, and as I've said, we're one party short of a two party system. It's a party in the Democrats. And it's this thing, this pygmy thing, as they say on The Sopranos. It's this it's this stunted cult thing.

of fear-mongering and fearing their fearless leader and warped policies that result. I mean, I said this, we talk about undocumented. I did some hot takes about what's happening in the streets. And we talked about the Ninth Circuit decision. But why, and this is, I'll end it this way. This is a criticism of both parties. In 40 years,

We have not had an attempt at a coherent, dignified immigration policy in this country. No party wants to touch it, even when they have the House and the Senate, including Obama, including Biden. They don't want to touch it. Part of it is...

It makes good political hay. It makes good political conversation and drives votes. So they never want to... It's like the old line about the pharmaceutical company. They never want to cure the diseases. They just want to be able to continue to sell you the prescriptions. There's that theory. And so here...

Instead of trying to attack and arrest and deport 11 million mainly hardworking immigrants who are doing the dirty jobs, sometimes three of them a day,

and paying taxes, instead of trying to deport them and chase them through streets and churches and hotel lobbies and restaurant kitchens and Home Depot lots and 7-Elevens, why don't we give them a path to citizenship and a dignified path to become the Americans that they want to be? The way my grandparents were given that opportunity, the way my wife was given that opportunity.

Why are we making a criminal class? Why are we forcing, why are we deporting U.S. citizens in the form of babies and separating them from families? Why are we just finding a way to filter out the truly criminal element that's within that group? Very small percentage.

Focus law enforcement on that. And the rest, I don't know if it's a five-year path, a 10-year path, give them a way to get a green card or U.S. citizenship and not decimate our many industries. But certainly the Republicans don't want to do that. MAGA doesn't want to do that. It takes away a major way to divide and conquer the country and a talking point.

Democrats haven't really stepped up either when they've had the numbers. So... Although, don't you think Biden, I mean, he did have his immigration bill he tried to get passed. It was actually so catering to the conservatives in order to get them on board that our California Senator Alex Padilla was against it.

You know, so I think the Republicans have... That's a fair criticism. Yeah. You know, and it's sad. Here in Los Angeles, you asked me in the beginning, what does it feel like? There are people here, Hispanics, that are citizens, but are recent enough, they still have their accents, who are carrying around their passport cards. There's areas that are quiet. People aren't showing up to work. People are really scared, and it's...

so sad that it is happening, but they don't care about the legal or illegal. You know, as AOC has said, they're making them illegal. They're taking away people who, their legal rights, right? We've talked about the TPS. It is their white nationalist agenda. It's not really about whether or not somebody has like finished their citizenship process. Agreed, agreed. We'll continue it here on Midas Touch.

on Legal AF and over on Legal AF, the YouTube channel where you can catch Dina Dahl both places doing some tremendous and important legal and constitutional commentary for both channels. Dina, such a pleasure to have you here filling in for Karen anytime. So much fun. I always enjoy these shows with you. So I'm glad we had a chance to talk. You too. And shout out to the Midas Mighty and the Legal AFers.