Supreme Court Rulings This Term Impact Immigrants, Transgender Youth, EPA Regulations
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From KQED. From KQED in San Francisco, I'm Nina Kim. Coming up on Forum, the Supreme Court this morning said that states can cut off Medicaid funding to Planned Parenthood. We break down that decision and look at some of the most significant cases of this Supreme Court term, both decided and not yet decided, like the Trump administration's effort to limit national injunctions as the president seeks to end birthright citizenship.

Law professors Melissa Murray and Rory Little join us to take your questions. Forum is next, right after this news. Welcome to Forum. I'm Mina Kim. So far this term, the U.S. Supreme Court has allowed states to ban gender transition care for youth, made it easier for white people or other majority group members to bring workplace discrimination claims, and cleared the way temporarily for the Trump administration to deport people to countries they are not from.

And this morning, in a 6-3 ruling, the court said Planned Parenthood and a patient cannot sue to stop South Carolina from blocking Medicaid funding to the health provider.

This hour, we talk about the impact of these rulings and look ahead to the biggest decisions expected tomorrow with Rory Little, Emeritus Professor of Constitutional and Criminal Law at UC Law San Francisco. Hi, Rory. Hi. Very happy to be here. Glad to have you. And Melissa Murray is with us, Professor of Law at NYU, co-host of the Strict Scrutiny podcast. Hi, Melissa. Hi.

Hi, Amina. Great to be here. Yeah, glad to have you to talk about this Planned Parenthood ruling. So, Melissa, by siding with South Carolina, what did the Supreme Court essentially do?

So this question is really a procedural question about whether and in what circumstances individuals who are public rights beneficiaries, like individuals who receive public benefits under Medicaid, can sue for a deprivation of their rights under the funding statute. So here the Medicaid statute provides states with funds that can be then used to reimburse Medicaid providers for the services that

They provide and Planned Parenthood, which provides abortions, yes, but also provides a range of other healthcare services, has been denominated a qualified provider of Medicaid services. But South Carolina in 2018, the governor issued an executive order saying that because money is fungible, any subsidy to Planned Parenthood in South Carolina for the provision of health services ultimately goes to fund abortion. And for that reason, South Carolina prevented

Medicaid from selecting Planned Parenthood as a qualified provider. And that means that when you go to Planned Parenthood in South Carolina for healthcare, you cannot be reimbursed for what you spend. It's all out of pocket. And the fact that you're

The question here is whether or not a patient at Planned Parenthood and Planned Parenthood itself could sue on the view that South Carolina is denying them their rights under the Medicaid statute, whether they could use a traditional civil rights statute, Section 1983, as a vehicle for suing for their deprivation of rights under that statute. And the court said here that they cannot, that that kind of private enforcement under

Federal civil rights statutes, it's unavailable here because the Medicaid statute does not explicitly say that it is conferring a cause of action or a right to sue or creating a right under the statute for individual private litigants. And

That's going to be a really important precedent, not just for Planned Parenthood in this public health context, but going forward for a range of different public beneficiaries, public benefit statutes and civil rights litigation more generally. This was a reversal, too, right, of the Fourth Circuit Court of Appeals that said Planned Parenthood's lawsuit was

could move forward. One of the things that legal analysts are saying is that this is going to pave the way, and I think you just alluded to this, for more states to exclude Planned Parenthood from their Medicaid programs. And so do you see that as a likely outcome, Melissa? But then also you were saying it goes beyond that as well that we all have to pay attention to.

Yes, I think this is going to embolden other states to issue similar kinds of decrees, stripping Planned Parenthood from those Medicaid programs. But I also want to say this is a precedent more generally about how civil rights may be enforced and whether private litigants can bring lawsuits to enforce their civil rights. We are seeing this same impulse in the context of Section 2 of the Voting Rights Act, where the conservatives are saying,

launching this new argument that the Section 2 litigation, which is litigation aimed at challenging suppressive voter laws, cannot be brought by private litigants. It can only be brought by the federal government or the states, which is ludicrous if you think about it, because if states are suppressing voting rights, they're not going to sue themselves.

And certain presidential administrations are not going to be in a position or have a desire to challenge suppressive voting laws. So private litigation is often the only way to enforce civil rights. And the court is paving the way for taking that off the table entirely. Right. So, Rory, to Melissa's point, if a patient can't sue a state when it blocks them from seeing the provider they want, right?

And they said, where else can they go to seek remedy? Essentially, Melissa saying very unlikely anywhere else. Well, right. I mean, Justice Gorsuch, I think, would say, oh, you know, Congress could make this all better if it wants to. All it has to do is clarify. And we all know that's kind of a joke. Congress is not going to do anything right now, certainly not in favor of anything that might support abortion.

And Melissa is exactly right. This is a big civil rights decision. Katonji Brown Jackson dissents in this case, and she compares it to cases from the 1870s and 80s where the Supreme Court cut way back on what the 14th Amendment would do in terms of protecting our civil rights. Congress passed some civil rights statutes in the wake of the Civil War when slavery was eliminated and black people were given equal rights.

And those statutes—and this is one of those statutes today—

were limited by the Supreme Court in very surprising to some interpretations of the statute. This is exactly the same thing. This is the Slaughterhouse case or the Krukeschank case for 2025, cutting back on the ability of people to claim rights where the statute here says you have the right to request any qualified provider of medical services and

And and then South Carolina says we don't think they're qualified because they support abortion. So essentially the right to choose your own doctor. Melissa, can I ask you, were you surprised by this outcome? No, I'm not surprised by this outcome at all. What did surprise me, though, is this court's utter disdain for precedent. We have almost 60 years worth of precedent where the court, not this court necessarily, but earlier courts have essentially blessed abortion.

These statutes that were enacted under the auspices of Congress's spending power. And many of these statutes were passed in the 1960s, like the Medicaid Act. And they don't say specifically we confer a particular right. But everyone understands that that was what Congress was doing, creating an entitlement for individuals and that those kinds of entitlements traditionally have been passed.

enforced by virtue of these civil rights statutes. And the court has blessed that for over 60 years. And indeed, just two years ago, in a 7-2 opinion in a case called Tulefsky, the court, in the context of the Federal Nursing Home Reform Act, said that, yes,

someone who was receiving benefits under that federal statute could sue under Section 1983 for a deprivation of his rights under the statute. And seven members of this same court said that it was a rights-confirming statute and Section 1983 was an appropriate vehicle for bringing that suit. So this apparently is altogether different. I'm not quite sure how, but I'm not on the Supreme Court. So there we are.

We're talking this hour about the Supreme Court and the most significant cases from this term, both decided and not yet decided. This morning, a ruling came down holding that states can cut off Medicaid funding to Planned Parenthood that states

The organization and the private individual who was seeking care from Planned Parenthood did not have a right to sue. Listeners, what questions do you have about this decision and other decisions yet to come? Is there a case that you are following closely? Tell us why. Looking back at this term, how would you characterize this court? The email address is forum at kqed.org. Find us on Blue Sky, Facebook, Instagram, or Threads at KQED Forum, or call us at 866-733-6786.

Again, that's 866-733-6786. So, Melissa, last week the court issued another major decision in terms of health care access, and this is its decision in Scrimeti, one of the most closely watched cases this term, I would say, and it concerned minors' access to gender-affirming care in Tennessee. Can you remind us of that case?

Sure. So Tennessee passed a law denying the use of certain kinds of medical treatments if they were intended to thwart the onset of

gender that the person was identified with at birth. So for example, if you were born and identified at birth as a female, you could not use puberty blockers to stop the onset of female puberty and therefore transition toward being male. So it was

challenged on the view that the law distinguished on the basis of sex, that you couldn't get these medical treatments if you were a particular sex and you wanted to use it to deny your sex as assigned at birth, and that they also targeted transgender persons. And the court

Again, in a very fractured six to three decision and lined up in predictable ideological lines, the court said that this was not sex based discrimination. So the statute, despite its words, does not distinguish on the basis of sex and therefore should be reviewed under disciplinary.

the lowest standard of review, rational basis review, and it doesn't distinguish on the basis of transgender status and again, should be reviewed under rational basis review. And so that means that the court upheld it, gave deference to the state of Tennessee in passing this law amidst what the court called considerable debate

over the efficacy of these kinds of medical treatments and protocols. And what was, I think, the saving grace of all of this is that it seemed very clear that at least some members of the court would have gone even further, not just upholding

the Tennessee law depriving individuals of this care, but they would have gone further to suggest that transgender status is not a suspect or quasi-suspect classification for purposes of the Equal Protection Clause and therefore entitled to more rigorous constitutional review from courts. Are you talking about Amy Coney Barrett's concurrence in this case?

I am talking about Justice Barrett's concurrence, which is highly ironic given the New York Times had written a kind of fawning profile of her just days before suggesting that maybe she was drifting to the left. She basically came out and said she's pretty much where she is on these things. And not only did she suggest that she does not believe that transgender persons constitute a suspect or quasi-suspect class, she suggested that in determining

who are members of suspect or quasi-suspect classes, we shouldn't just look to whether or not a group has experienced a history of discrimination, which has been the traditional test or part of the traditional test, but that we should look to whether they have been subject to a history of de jure discrimination.

which is discrimination by law. And I think there's a lot of evidence to suggest that transgender persons have been subject to discrimination by law, a history of that. But the fact that they are narrowing or she's attempting to narrow the criteria for determining who is a member of a suspect class is actually quite concerning more generally for civil rights and this court's view of classes that it must protect. And we are coming right up on a break, and I'm so sorry to throw this to you, Rory, but

How expansive do you think this ruling or this holding will be? Like, could it extend to gender affirming care from adults or for adults? Or does this reasoning, as Melissa say, you know, suggest that how it will rule to limit the rights of transgender people? Well, I think it's a very important decision and it could be broadly applied in other areas.

I think we have to wait and see what happens. Invidious discrimination is still a permitted basis. But boy, the Supreme Court to say that this doesn't involve sex discrimination in any way is just counter linguistic. More after the break. I'm Mina Kim.

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Welcome back to Forum. I'm Mina Kim. We're breaking down the Supreme Court's rulings this term, what kind of impact they're expected to have with Melissa Murray, professor of law at NYU School of Law, co-host of the Strict Scrutiny podcast, and Rory Little, emeritus professor of constitutional and criminal law at UC Law San Francisco. He's a former federal prosecutor and criminal defense attorney. And we're hearing from you, our listeners, your questions and reactions to these cases at 866-733-6786.

at the email address forum at kqed.org and on our social channels at KQED Forum. And let me go to Mike in Mill Valley. Hi, Mike, you're on. Oh, wow. Thank you so much. Yeah, I mean, I have just a sort of a basic overall question that I was telling, asking about. I mean, basically, some of this stuff is just so anxiety producing, so annoying.

and so so backwards and horrible i'm just wondering what will who and when and how and why holds the supreme court accountable if i can express it right cool what is the check on the supreme court you know we have other checks and balances supposedly no more of course but from going on now for six seven months and it's like every week something bad something worse

something horrible usually affecting people that don't have much say the downtrodden you know the poor the disenfranchised and it just goes on and on and it never ends and i know what myself along with fifty million other people are just going crazy about where does it end and who puts the checks on things like this and like the woman said they just said it was ok a couple of months ago and now all of a sudden

This whole thing with the Planned Parenthood is not okay. So it's just, when does it end, is my question. It's just insanely frustrating and scary at the same time. Thank you so much. Mike, thanks for your comment. I think Sam on Discord would agree with you. Sam writes, it boils my blood when I see people leveraging their freedoms to limit the freedoms of others. Rory, do you want to take a first stab at Mike's question about checks on the Supreme Court? Where do they exist? Yeah, so...

It's not a happy story right now. It's just not a happy story. And the court is controlled by people who were appointed by President Trump. And until there's a new president appointing different justices, you know, that majority is going to stay in force. You know, the real question is, what is the role of the Supreme Court in our system? Because we are now looking to the Supreme Court to be a check on the authoritarian executive branch.

The idea that the Supreme Court is always negative, I think, is a little too strong right now that we're in an unhappy conservative stage. But the Supreme Court has traditionally also stood in there as a check on the other branches. They don't have enforcement power. They don't have a military. So they can only be persuasive by their writing. And there are nine of them. So at least we hear some dissenting voices. Justice Sotomayor, Justice Jackson, Justice Kagan dissent very vigorously in many cases.

But, you know, the Supreme Court ruled somewhat in favor of people who are being removed right now by saying they're entitled to due process and that they're entitled to get some kind of notice and a hearing before they are removed. So we look to the Supreme Court as one of the branches to control the other branches. The only control on the Supreme Court is congressional and presidential by the appointment power.

And the force of their reasoning, in other words, if the American people won't accept what they say, then they'll be ignored. Brown versus Board of Education is a great example. It's an old one. But they said, you know, you got to desegregate your schools, even though a lot of people in the United States don't want this. And the American people came around to that point of view. And today it is accepted as an absolute premise of our system. So...

I can't disagree with Mike on the negativity, but I can only say look towards the future and be glad there is at least some branch that can check the other branches.

Well, can I? Yeah, go ahead. I would just suggest to the listener that it's true that Congress can check the court by limiting its jurisdiction. The people, though, the public are also, I think, an unsung check on the court, which is not to say that, you know, just campaigning because you hate a particular decision and like picketing the court is going to result in anything. But

Public scrutiny does matter. A few years ago, there was a lot of discussion about the justices having emotional support billionaires. And I think we are seeing more compliance with the court's disclosure

as a result of the public outcry over that particular scandal. I think the court is sensitive to particular issues in the public zeitgeist. Last year, in an election cycle, the court punted on two really big decisions regarding abortion, the EMTALA case and the FDA Mifepristone case. They didn't actually issue decisions and sort of

Likely because they recognize that abortion was an issue of real public salience, particularly in an election cycle. And maybe they didn't want to be fueling that kind of sentiment. And this term, we saw Justice Barrett recuse herself from a major school choice case, St. Isidore's versus Drummond, because of

We don't know exactly, but we might speculate that one of her very good friends from her time as a faculty member at Notre Dame Law School was advising the litigants on that case. I don't know that we might have seen that if there hadn't been public outcry over the close relationships between litigants and the court that has come out over the last couple of years. Right. That decision, this was...

in a case where a Catholic school was trying to get publicly funded, essentially, that it would have established the nation's first publicly funded religious charter school. But in fact, they deadlocked on 4-4 on this with Amy Coney Barrett recusing herself. Melissa, I'm curious if you think that that is a case that will come back because of the deadlock.

Certainly. It is going to be litigated again in some other place where there are litigants that do not know Justice Barrett, and it will come back before the court and Justice Barrett will be the deciding vote. Even as, I mean, wildly different from the way things have worked, a religious school...

getting public funding would be. All right. Well, that's one to look for in the future. But in the meantime, I guess maybe, Rory, we should talk about a case where the court actually ruled unanimously. The one that I'm thinking of that got some attention is the Ames case. Can you tell us about that? It's a workplace discrimination case. Yeah, the Ames case, just in very gross summary, basically it's a white woman who sued for race discrimination under the federal statutes.

In her employment, she said, you know, she was adversely affected by an employment decision because of her race. She said, you know, she was selected. There were other people of other races selected over her. It's kind of a... Oh, I thought it was because she was straight or maybe I'm... There's that as well. There was both race and sex, I believe, in the case. Melissa will correct me. But unanimously and written by Katonji Brown Jackson, the court said, you

we're not going to have a separate category or a higher scrutiny for people who are not part of a minority group. Even if you're part of a majority group, the employment decisions and the employment discrimination statutes are individually focused. She made an individually focused claim on the right criteria. And so unanimously, the court said you can do that. There was disagreement among the justices as to the correct approach on how to analyze these kind of claims.

And they were not unanimous on that. And that could have reverberations for the future. But thank goodness, Katonji Brown-Jackson said these statutes are going to be available. The interesting thing is, of course, the conservative side and the liberal side in some sense coalesced for different reasons. Katonji Brown-Jackson wants strong enforcement of the employment discrimination laws.

And other people say, well, we ought to, you know, white people should have the same rights. So it's a very weird combination of reasons. But it is a, I think, a good decision, really strongly enforcing the employment discrimination laws. So, Melissa, this was not necessarily a decision that was determining, and it was not, in fact, determining whether or not she was discriminated against. It was more of a question of the process she had to use to bring the claim.

Right. The real question is an evidentiary question in a circumstance where here the woman was straight and her supervisors were also straight, but she was claiming that she was discriminating. She was discriminated against because she was straight. Was this employer, the straight employer, the likely employer to discriminate against its own kind? Did she have to proffer discrimination?

some additional evidence that would overcome the kind of expectation that maybe there was no discrimination here and the court ruled that she didn't have to show anything additional in order to bring her claim. Let me say something though about the fact of the unanimous court here. I think there are a lot of reasons as Rory suggested why both the liberals and the conservatives could find common cause in this case. But I think especially for the liberals here,

Joining the conservatives means that they can probably extract some kinds of concessions, maybe narrow the scope of this decision. And in the case of Justice Jackson, maybe even get to write the decision yourself as opposed to having someone else write it. And if you look at this particular case, there was a very stinging concurrence from Justice Thomas.

who often writes some off-the-wall concurrences. And in this one, Justice Thomas, who was joined by Justice Gorsuch, suggested that the traditional three-step test that's used in Title VII cases to develop a discrimination claim, it's the McDonnell-Douglas framework. Justice...

Thomas essentially invited a reconsideration of whether that should be the framework for discrimination cases writ large going forward. And so I think one of the reasons why the three liberals were so quick to sign on and make this unanimous is to forestall having that kind of language in the majority opinion, keep it consigned to the concurrence, and then have a chance to write a narrower majority opinion.

So earlier, Melissa, Rory was talking about how we rely on or we are looking to the court right now to be a check on very important.

ambitious executive branch that is trying to expand presidential power in new ways. And one of the things he pointed to was the fact that they were a check to some degree on their efforts to try to deport people like Abrego Garcia.

I'm wondering, though, about what you make of the decision recently that the Supreme Court said the Trump administration could at least for now deport immigrants to countries other than their own without giving them the chance to show that they risked torture in those so-called third countries.

Right. So this is the shadow docket decision that was issued in DHS versus DVD, the third country deportation case, where a majority of the court really didn't say much of anything. It's a shadow docket decision. They're not obliged to explain their reasoning. It was only because we had a very stinging dissent from the three liberal justices that we were able to sort of suss out what the divisions on the court were in this case. But I will just say,

To Rory's point, it is true that this court has stood up over the last five months, made very clear in the Abrego-Garcia case, as well as in the Alien Enemies Act case that was before Judge Boasberg in the District of the District of Columbia, that due process is not discretionary. It is not an itinerant or selective commitment, and the courts are obliged to enforce and provide for adequate process.

process for these individual deportees, which is why this shadow docket decision is even more confounding, because this is a decision that effectively allows the administration to continue deporting individuals to third countries. So these are countries that are not their country of origin or nationality and indeed countries to which they may have no connection at all and countries where they may face the risk of violence, torture, trafficking, whatever.

the court ostensibly should say that there is some expectation of due process. And instead, they have allowed the administration to continue their policy of deporting individuals to these third countries. So again, you know, the court giveth, I guess, and the court taketh away. But the fact that this is on the shadow docket means that we don't get a reasoned opinion and we don't get an explanation. And it makes it much harder for lower courts to enforce what the court

is saying because they don't know what the court is saying. Rory, I read that there were over 100 decisions made on shadow docket cases. Can you remind listeners why they use the shadow docket and why you've expressed concerns about how much they are using it? Well, so using that DVD case, that's just the initials of the alien,

as an example, they issued an opinion, they just stayed a lower court injunction, and immediately after issuing that opinion,

which they did without oral argument, without full briefing, that's on the so-called shadow docket, the emergency motion docket, the Trump administration went back and said, "Oh, wait, wait, could you clarify this and make it even more restrictive on what we're, you know, support us better?" Now, they haven't done that yet. They haven't acted on that motion. That's pending. But my concern is to take this to a higher level.

The Trump administration is trying to turn the Supreme Court into a trial court. They're trying to turn them into a court that decides issues on the first opportunity without full briefing, without evidence, without trials, and in some sense skip the lower district courts. In fact, the Trump people are saying that lower district courts are obstruction. I'm very concerned about, you know, 100 emergency docket. The number of emergency docket orders or shadow docket orders is

is just huge right now. Now, the Trump administration says, well, that's because everybody's enjoining us and the district judges are the problem. That's not true. The real problem is the Supreme Court is allowing the Trump administration to use them as though they were a trial court. What they ought to do is simply affirm whatever lower court injunctions have been made, if they're temporary injunctions in particular, which only lasts for two weeks,

and allow the process, the normal process of litigation to continue and better develop the evidence on these things. Judge Boasberg was on his path to developing a lot of good evidence in the Garcia case, and they blocked him. At the same time, they said, oh, you have to facilitate return of this accidental deportation, but they blocked him from his further process. It's still ongoing.

So I'm concerned about the shadow docket as – it doesn't matter who the plaintiff is. To me, the Supreme Court should not be the first place people look to to act on these things. Lower court judges are doing their job, and the Supreme Court should stay out of it to the extent they can. Well –

Speaking of injunctions and speaking of the shadow docket, actually, the case against national injunctions or the complaint that the Trump administration brought on this in the case of Trump v. Casa, that was one that was on the shadow docket. But as I understand, it was actually moved to the regular schedule. Melissa, this is a case that many are considering the biggest of the term. Can you explain it? Because the primary issue is not birthright citizenship. It's national injunctions.

No, that's that's exactly right, Mina. So you're right about the procedural posture. This appeared on the court's shadow docket or emergency docket and was then subsequently migrated to the merits docket. And there was full briefing and oral argument in the case. The oral arguments took place in May after the formal end of oral arguments for the term.

You're right, this is not a case that is going to decide the substantive question of whether Section 1 of the 14th Amendment confers a right to birthright citizenship. Instead, the Trump administration didn't even ask the court to answer that question, likely because they know they would not win because

Most of the justices can read and it says very clearly in the 14th amendment that birthright citizenship is still very much a thing Instead the Trump administration asked the court to answer this procedural question whether and in what circumstances are nationwide injunctions or universal injunctions an appropriate judicial remedy and the Trump administration has argued that when an individual

files a claim in a district court, say in Massachusetts, for example, and the Massachusetts district court finds that the administration has violated the Constitution and issues a nationwide injunction stopping the administration, not just in Massachusetts, but throughout the entire country,

They argue that that district court judge has effectively thwarted presidential policy by invoking a nationwide injunction, and it shouldn't be allowed to do that. And so the court is being asked to determine when and in what circumstances a nationwide injunction should ever be appropriate. And obviously, the administration would like to narrow considerably the opportunities in which

federal district courts can issue those nationwide injunctions because it will mean then that litigants will have to challenge the administration in every district throughout the country in order to stop the administration from doing something that is unconstitutional or lawless. The fact that this is connected, though, to birthright citizenship is a head scratcher, right? Because you would never want citizenship, Roy, to be something that is state by state, for example.

I think it's a crazy idea. The birthright citizenship case ought to be a national injunction because the 14th Amendment applies to everybody.

in the nation. It would be crazy to have, as you say, state-by-state challenges, and now they've lost in three different courts. So I'm hopeful that at least the court will say there are going to be some situations where a nationwide injunction is the proper solution for the nationwide constitution that we operate under. And let me just say, to add a little humor, I

When Melissa says most of the justices can read, that's why I love Melissa Murray. That kind of just, she slipped that in there and she's probably right. Well, I can't wait to hear what Melissa thinks about how this case will play out right after the break. Stay with us, listeners. This is Forum. I'm Nina Kim.

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You're listening to Forum. I'm Mina Kim. This hour, we're breaking down the Supreme Court's rulings this term, what kind of impact they're having and are expected to have. And we're also talking about decisions that have not yet come down, including, for example, the president's seeking to end birthright citizenship by limiting

national injunctions as one potential avenue to be able to put something like that out. And we're talking about it with Melissa Murray, professor of law at NYU, Roy Little, emeritus professor of constitutional law and criminal law at UC Law San Francisco, and with you, our listeners.

What questions do you have about the Supreme Court's decisions and decisions yet to come this term? Is there a Supreme Court case that you're following closely and have a question about? Looking back at this term, how would you characterize this court? The email address is forum at kqed.org. Find us on Blue Sky, Facebook, Instagram, or threads at KQED Forum, or call us at 866-733-6786. 866-733-6786.

Rick writes,

What about the EMTALA one? Oh, Melissa, do you want to take that on EMTALA? Well, EMTALA is still out there as a question. The administration has effectively revised the guidance around EMTALA, suggesting that it will no longer require hospitals that are in receipt of federal funds, which is most hospitals throughout the United States, to provide emergency stabilizing care to individuals, including pregnant individuals,

when that care might be, for example, an abortion in the case of miscarriage management or whatnot. So EMTALA, which ordinarily would have created a federal right to have that treatment in circumstances where there's a conflicting state law in an emergency medical situation, is no longer going to be interpreted by...

by the HHS of this administration to provide that sort of care. So we could have dealt with this much clearly and much more clearly and quickly last term when this case came before the court. And instead, the court decided that Sarsha Rari had been improvidently granted and dismissed the case in advance

as I said before, of the election, maybe avoiding the prospect of looking like they were inserting themselves into the abortion issue in an election year. But it means that there's less clarity here and the administration has stepped in to answer how EMTALA is going to be used going forward, at least for now.

This listener on Discord writes, I don't feel like there's much I can tangibly do that would be impactful in other states, but I do not vacation to abortion-banning states or otherwise do business there. Before the break, Mosai was mentioning that I would love to hear how you think, and I know it's very hard to predict, but how you think this case related to national injunctions will play out with regard to birthright citizenship.

- Oh, I actually don't think it's very hard to predict. When I was listening to the oral argument in May, it seemed like there was some appetite on the court to narrow the scope of nationwide injunctions. And to be very clear, administrations of all stripes have railed about nationwide injunctions. During the first Trump administration,

There were questions about nationwide injunctions. The Biden administration complained about nationwide injunctions when their student loan plan was basically enjoined by a nationwide injunction from a district judge in Texas, I believe. So

This is something that people on all parts of the ideological spectrum can get behind, maybe the need to narrow it. I will say, though, that this court never took up any invitation to narrow the scope of nationwide injunctions until this administration raised the question. And I think what is likely to happen tomorrow when that opinion is released is that

We are obviously not going to hear anything about the 14th Amendment and birthright citizenship because it's not on the table. But we are going to see the court perhaps limit the circumstances where a nationwide injunction will be available. And if that happens, that is going to be an enormous win for the Trump administration because right now, in the absence of a Congress that is functioning as a check on this administration, the only remedy that we have for

Do you agree, Rory?

I'm not quite sure that it'll be. They're definitely going to say it's a big win. First, I think you will hear something on the merits of birthright citizenship, maybe by Justices Sotomayor and Ketanji Brown Jackson, who may just say, you know, you ought to read the 14th Amendment. You know, it's very clear and they've lost in every district court that they've tried this in.

And I do hope there'll be at least some footnoting or some reservation of some issues, because at the oral argument, there was some understanding that if you can't have a nationwide vote,

order, at some point, it's going to be impossible to enforce nationwide rules. I mean, federal statutes apply across the nation. Constitution applies across the nation. So I'm hopeful, you know, it's one of these things where you look for the small victories within the big losses. I think I'm hopeful that some people will reserve some questions here. And, you know, Justice Thomas, Justice Gorsuch,

Justice Barrett, I do think Justice Barrett occasionally does disagree with her colleagues. I think you may see a group of separate opinions here. We'll see.

Tomorrow, we're also expecting a decision on the religious freedom case Mahmoud v. Taylor. Rory, can you tell us about that case? Oh, my gosh. Well, that arises in a high school in Maryland that had, you know, discussions in class about books that involve LGBTQ, you know, LGBTQ issues. And the question is,

Can a high school student and their parents opt out of such classroom discussions because it offends their religious beliefs is the claim. This is going to be a huge case, and I don't think it's going to come out favorably for the liberal side.

So giving people the right to opt out of any class discussion that kind of upsets them and they put a religious belief patina on top of that is going to mess up the way high schools are structured all around the country. So maybe this will be one where they limit it to certain things. But it's also...

a crazy theory of education to say high school students should not be exposed to ideas that upset them. That ought to be the purpose of education. You're better off for it, and you certainly are better off for it if you can then discuss it in the class and say, well, I don't agree with that. So this will be a very important decision that'll come out tomorrow and almost certainly come out against the liberal side, and we'll just see how broadly or how narrowly they write it.

One of the questions was, there was some henring about whether this case should have been brought at all. If the school just should have let these parents opt out and sort of moved the case, I guess, essentially. Yeah, although this is going to be an issue. This is an issue in high schools all around the country about when can people opt out of things. I mean, you know, they unfortunately or fortunately, they do give opt outs. I mean, if you don't want to dissect a frog in most high schools, you don't have to dissect a frog in your biology class. So

The fact that we do allow some opt-outs, but those opt-outs haven't been based on this religious foundation and the power of religious claims now to drive the agenda of the Supreme Court and how open they are to religious claims is really...

in my opinion, warping the law in various areas where otherwise it wouldn't be warped. And in some sense, we'll see. They've got a case they've scheduled for next term on whether forcibly shaving somebody's dreadlocks that they've grown for 20 years in prison for religious reasons, forcing them to shave their dreadlocks, whether there's a private cause of action, a right to sue on that.

We'll see how seriously they can take religions when they're not in the mainstream. Melissa, I want to ask you about another decision just to do one or two more in terms of what we're waiting for tomorrow. This is a decision on Louisiana's voting districts. And I'm wondering about the ramifications of a decision in this case. Just remind us what it's about and what could come next.

So this is Louisiana versus Calais. And the facts are actually very similar to a case that was heard two terms ago in Allen versus Milligan. In Allen, it involved Alabama's drawing of its congressional districting maps. And Alabama has a very high percentage of African-American voters and could have sustained the drawing of two majority black voters.

districts in order to ensure that African-Americans were represented by the candidate of their choice. But instead, Alabama chose to simply divide the state in a very particular way so as to create only a single minority district. This was challenged as a racial gerrymander.

The court in an emergency docket, shadow docket decision in February in advance of the midterm election allowed the map to go into effect, even though lower courts had ruled that it was a racial gerrymander. The map was used in the midterm elections. I think it may likely have contributed to the election.

outcome in the Alabamian congressional delegation in the midterm elections. But then later in June of that year, or 2023, after the map, I'm sorry, in 2024, after the map was used, the court held that the map was actually improper. And so it basically affirmed the lower court decision.

In the interim, Louisiana was going through its own districting process and drawing its own maps and had a similar question of whether it could support multiple minority, minority, majority, minority districts. And it could. And instead, the state drew only one. And that was challenged. It was viewed as a.

a racial gerrymander in light of the court's decision in Allen versus Milligan. Louisiana was told to go back and redraw the maps, and they redrew the maps, redrew the maps to allow for an additional district. This new map was challenged on the view that

considering race in the drawing of the new maps was itself a species of race discrimination in violation of the laws. And that's essentially what's been presented to the court. I think we're going to find, at least of oral argument, is any indication that the court is somewhat receptive to Louisiana's claim. Justice Thomas was quite exercised in the oral argument on the view that

You cannot consider race at all in the drawing of maps, even if it is to remedy the earlier fact of the discovery or the identification of a racial gerrymander. And so there's a lot of circular reasoning here. And I think what comes out very clearly is this court, under any circumstances, is skeptical of the use of race, even if the use of race is intended to ensure the better representation of racial minorities.

And you are my listeners. You are listening to Forum. I'm Mina Kim.

Pamela writes,

Earlier, I know you were both talking about where there are opportunities for people to have a say, but appreciate Pamela writing in. Another listener, Noel, writes, everyone should watch the HBO documentary series Dark Money. The last episode details the takeover of SCOTUS by the Federalist Society.

Rishi on Discord writes, my friend who works at the U.S. Geological Survey mentioned that her summer plans hinge on a decision on the firing of government workers pending at the Supreme Court. Could you talk about this? Rory, can you talk about this? Well, that's another emergency docket case, shadow docket case, having to do with the rifts, the reductions in force. And the question for the Supreme Court is, are they going to stay some of the district court injunctions that have been levied here?

And that's been pending now for a very long time. So one can anticipate that there's going to be maybe tomorrow, maybe not. They don't have to decide these emergency docket cases within the argument term that they've set for the merits cases. But everybody is waiting to see what happens on that one because it's been pending much longer than we would have thought it would have been.

And yes, thousands, I think, if hundreds, if not thousands of people's jobs depend on whether these district court injunctions are stayed or not.

Suzanne writes, in the oral arguments for Scrimeti, it seemed as though justices had read very different preparatory documentation. The conservative justices were informed of international research and were able to debunk myths like the suicide myth. The liberal justices appeared to be prepped by activists. How does this happen and how can we protect against this in the future? Melissa, I'll go back to you on Scrimeti.

- So I think debating medical evidence is a difficult prospect at the court. Not one of these justices is armed with a PhD in science and interpreting scientific studies. There were a lot of different studies that had been conducted over the course of the time that this law went into effect and was being litigated. And as the listener says,

The conservative justices relied on a certain subset of the available data, while the liberal justices relied on a different subset of the available data. That's going to be par for the course. The court, however, in Scermetti seemed to be of the view that any time that there is some kind of debate over an issue, whether that debate is over the veracity of scientific studies or something else, that is a prime opportunity.

for the question to be resolved, not by courts, but by the legislatures. I just want to sort of pause on that. There are lots of questions that are subject to debate, but the Equal Protection Clause, which was the constitutional provision that was at issue in Scermetti,

It's not about removing certain things from the judicial process because they are debated or unpopular. I mean, in fact, the Equal Protection Clause is to provide a mechanism for individuals who are from unpopular groups to nonetheless have their rights secured.

We just have a couple of minutes left, and I do want to ask you at least about next term as well. Rory, you mentioned one of the cases that you're interested in. Another one is Ham v. Smith. What is that? Oh, my gosh. Well, Ham v. Smith has to do with the death penalty and the Supreme Court's opinion long ago, Atkins, which says you can't execute somebody who is so mentally disabled that they cannot appreciate why they're being executed.

That's turned into lower court litigation over IQ tests. Here's somebody who has five different IQ tests ranging from, I think, a score of, let's say, 68 to 72.

And the question in this case is, how do you figure that out? The lower courts seem to have settled on 70 as being the score that will separate death penalty from not. Do you count the 68 as putting them in the intellectually disabled or the 72? Or do you average them out? This is another case where the science is just highly debated. IQ tests in general are highly debated.

And the idea that somebody's life can turn on the mechanics of these hotly disputed testing mechanisms to begins with is just disturbing. So they're going to decide how to evaluate these IQ things for mentally disabled. It's not like it's a pro-death penalty court these days with the majority, but it's a macabre exercise in deciding who is so disabled that they shouldn't be executed versus who

They're barely able to function, say, at a 72 level, but you can still execute them. It's really a terrible exercise. Quick, and I'm so sorry to do this to you, Melissa, look-ahead question, but I was struck by something you told our producer, Mark, that there are rumblings that there could be resignations or that even Justice Alito might step down?

There have been some, I think there's always at this point in the term, questions about who might step down. I don't think Justice Thomas is likely to step down, and he's enjoying the most career satisfaction that he's ever had in his time on the court, and he's on track to be, at the end of this term, I think the second longest serving justice on the court, and it may be the case that he's in it to be the longest serving justice in the history of the court. But there have been some rumblings about Justice Alito. That would be a very consequential statement

appointment for the president and the opportunity to replace a septuagenarian conservative with, you know, perhaps a teenager conservative on the court for 50 or 70 years. Who knows? Justice J.D. Vance. Melissa Murray. Thank you so much, Professor of Law at NYU School of Law. Rory Little, Emeritus Professor of Constitutional and Criminal Law at UC Law San Francisco. Appreciate you as well. And as always, appreciation to our listeners for their questions about the

about the Supreme Court and the cases that are drawing their attention. You've been listening to Forum. I'm Nina Kim.

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