Can Religious Parents Veto Books in Public Schools?
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Hello, and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We're your hosts today. I'm Leah Littman. And I'm Kate Shaw. Melissa is unfortunately out this week, but do not worry, she will be back for the next episode. And here is our plan for today. We're going to recap the big arguments the court heard this week, focusing on the major case about LGBTQ inclusive reading material in the public schools. And that case is going to give us some pretty terrifying insights into the minds of both Neil Gorsuch and Sam Alito. And listeners, it's real dark.

Oh, my God, especially Alito. It's so dark. Both. I mean, yeah, definitely mostly Alito. No, they're both just like unspeakably dark places. Okay, we'll get there. We will also cover the argument in the case about the Affordable Care Act's mechanism for ensuring insurance coverage for preventative care.

We're then going to provide you with some updates on the Alien Enemies Act litigation and also cover assorted other news, including an executive order we have been kind of expecting but was still a gut punch to read and try to think through. And this is the executive order targeting the Civil Rights Act. And

And then we will end with a special segment on something we've averted to in passing, but wanted to take more time on. And that's the rising creepy pronatalism movement that we are seeing unfold. And for that segment, we are going to be joined by Emily Amick. So first up is Argument Recaps.

This was really a banner week for homophobia at the Supreme Court. And I'm actually not just talking about Sam Alito. I am talking about what I think is a notable trend in what the court now describes as religious discrimination and how the court describes religious objections related to LGBT equality.

Let's maybe start with a little bit of background. So you have heard us talk about cases such as 303 Creative v. Olenis and Masterpiece Cake Shop v. Colorado Civil Rights Commission. In 303 Creative, the court held that states could not apply their nondiscrimination ordinances to a wedding website designer who didn't want to make websites celebrating same-sex weddings.

And in Masterpiece Cake Shop, the court sided with a Colorado baker who didn't want to make a cake for a same-sex wedding, concluding that the Colorado officials charged with implementing the state's nondiscrimination laws had demonstrated hostility toward religion in their dealings with the baker.

So in those cases, the litigants challenging the nondiscrimination protections, as well as the justices who said the nondiscrimination measures couldn't be enforced, had insisted, albeit implausibly, but insisted nonetheless, that the cases did not involve discrimination on the basis of sexual orientation, that is, discrimination against gays and lesbians. Rather, they insisted, the cases merely involved people who didn't want to send a message celebrating or recognizing same-sex marriages.

Obviously, that is slicing the bologna quite thin. But the point is that the justices and litigants still felt compelled to frame their objections as against same-sex marriage and conscripting people to send a message supportive of same-sex marriage, not about objections to the very existence of LGBT people. And now, listeners...

Even that thin veneer, that mask is off. And that became clear in the two big cases the court heard this week, Mahmoud v. Taylor and Kennedy v. Braidwood management. And we'll start with Mahmoud.

So this is the case challenging the Montgomery County Public School District's decision to incorporate LGBTQ plus inclusive reading material in the district's public schools. So the board selected a range of books involving characters from a range of backgrounds, which included LGBTQ characters. And during that selection process, it engaged in a careful and public and participatory selection process that welcomed and included apparent feedback.

The county subsequently decided not to allow parents to opt their children out of the classroom for instruction related to these storybooks. The county reasoned that opt-outs would just not be feasible, in part because of the way early childhood instruction works. There aren't usually separate classes or hours in which some subjects are taught. It's pretty fluid. You're in a single classroom. And fluctuating attendance also made an opt-out policy difficult to carry out. So

So the school board also noted that students and LGBTQ plus families felt stigmatized when classmates were excused from classes that featured content related to the structure of their families. And for all those reasons, it just wasn't feasible to use an opt out scheme.

As we noted when we previewed the case, there really was no good reason for the court to take this case. So the law had been clear until now that merely being exposed to certain ideas or content does not constitute a substantial burden on religion. And the complaint in the case provides no details, or at least any details it does provide are threadbare, about how the books are incorporated into instruction or teaching. The complaint doesn't really provide any reason to question the determination that opt-outs would not be feasible.

But no matter, Sam Alito really wanted to rant and rave about the gays. And we will play you some excerpts, so brace yourself. But maybe let's first talk a little bit about the sweeping rule the court appears poised to embrace in this case.

The six Republican appointees on the Supreme Court really, truly do seem inclined to say something like the following. If teachers read books to students that contain ideas that parents find objectionable from the perspective of their religious convictions, or if teachers assign books to students that contain ideas those parents find objectionable on the same grounds, that is unconstitutional. A parent can demand that their child be excused from that portion of the instruction.

Given the realities of how public schools operate, you have one teacher for a lot of students. This would, in effect, give parents the option of controlling what schools can teach because a teacher cannot create bespoke, individualized curriculum and instruction for every single student. So the schools are likely to revert to whatever curriculum doesn't generate objections. So they can just run a single classroom. So less Pride Puppy, more Dick and Jane, maybe just Dick and Ayn Rand. Yeah.

Um,

For pre-K especially. Definitely. You can never start them too early on the NRA. Exactly. Just like the little graphic novel of Atlas Shrugged. Yeah, I can see it. That's what's coming next year to a public school near you. Okay. So let's think not about what they would like their ideal offerings to look like, but what range of instructional content might generate hypothetical objections. And some of that came out in the hypotheticals offered by Justice Kagan and Justice Sotomayor.

This is a rule that applies as well to a 16-year-old in biology class saying, you know, I don't, you know, the parents say, I don't want my child to be there for the classes on evolution or on other biological matters which conflict with my religion. It would apply just as well to that.

We know that those don't happen very often because country... But it would if there were. Certainly, and schools have. There are laws, for example, in states that allow students to opt out of dissection because they don't want to participate in that. I'm sorry. I have a whole list of cases where parents have objected to biographical, I'm quoting, biographical material about women who have been recognized for achievements outside of their home because some people believe women should not work.

So too, parents have objected to teachers reading books featuring divorce, interfaith marriage, or in modest dress. Forget about the evolution because that's come too. You've just said, are these all coercive?

Basically, we are potentially looking at a world where there might not be biology instruction or evolution, maybe no more acknowledgement of interfaith marriages, no more items depicting women wearing sinful outfits like pants or tank tops. Maybe no women having professional achievements. You know, how about a book that says racial equality is good?

Because you can imagine some Trump MAGA heads saying my religious beliefs are opposed to DEI, by which I mean any material with characters who are racial minorities. Like that's Stephen Miller's entire personality and might also be his belief system. There is a case that is ongoing right now. I don't think it's in litigation, but this was in the local press like a month or so ago. A public school teacher with an everyone is welcome here poster in her classroom with kids raising their hands, which passersby.

which happened to be of different shades or hues. And she was told to take it down and initially did and then push back. And I'm not sure if she is suing. It sounded like she was going to have till the end of the school year to keep it up and then they were going to revisit it. But yeah, I mean, I imagine that some people would object to those raised hands on the same basis as some of the storybooks at issue in this case. And I mean, I think that that just illustrates the

how expansive the ask that these parents are making of the court is. And at one point, Justice Kagan just seemed totally astonished by what the lawyer representing the parents was saying. She was just like, you're not giving me anything other than if it's a school and a sincere religious parent has an objection, that objection is always going to result in an opt-out and

And though she was looking for some kind of limiting principle, the lawyer basically just said, yep, that's right. Yeah. And Justice Kagan was almost taken aback. Like she was inviting the lawyer to provide her with a limiting principle. And she said, you know, once we say something like what you're asking us to say, it's just going to be opt out for everyone.

And I think in light of that kind of boundless expansiveness of the plaintiff's ask, Justice Barrett actually seemed like she was trying to find a way to cut back on some of the

absurdity of the limitless rule the court seemed maybe poised to adopt. Or at least maybe she was trying to just make the arguments offered by the parents look somewhat less ridiculous and limitless, maybe without actually being less ridiculous and limitless. So let's play a somewhat long exchange that she has with the attorney for the parents, and then we can talk about it.

But to clarify, what are your clients objecting to? Are they objecting only to exposure or are they objecting to what they're calling indoctrination?

If by exposure you mean having the books read to them, they do object to that. They're not objecting to the books being on the shelf or available in the library without a teacher requiring them to read it or reading it to them. So you would not be making the same claim based on your client's religious beliefs if they were just on the shelves or just in the library? Correct. Could another parent bring that claim? I suppose they could, but then you would... I mean, again, we don't see these kinds of claims happening, but they would almost certainly lose because...

Strict scrutiny would easily be satisfied if every student were allowed to say, I want this book or not that book. No student has the right to tell the school which books to choose or what curriculum to teach or what other students will have to learn. And so we think those would easily fail under strict scrutiny. Okay, so it's not about exposure. It's not about books on the shelf. It's not about books in the library. It's about actually reading the books with the text that communicates the ideas that are contrary to your client's sincerely held religious beliefs.

So what she seems to be saying here and trying to get the lawyer to agree with her is you're not challenging just the exposure to something someone might find objectionable, right? You're just challenging indoctrination, which is something different.

And maybe that sounds more reasonable, only it turns out that she and her fellow Republican colleagues and the lawyer representing the parents think that indoctrination includes a teacher reading a fucking book to students. So whatever you call it, like that's just mere exposure. And in any case, the lawyer basically said in response to her question, eh,

we kind of object to exposure anyways, to which Justice Barrett took the let's just pretend you didn't say that approach. And that moment was really striking to me because it called to mind an eerily similar exchange from 303 Creative, the case involving the wedding website designer. Yeah, so...

In that case, 303 Creative, Justice Barrett asked a lawyer representing the designer, well, this case isn't about sexual orientation, right? You'd refuse to make a website for same-sex couples or straight couples, right? To which the lawyer equivocated and suggested, no, they'd offer websites to straight people. So Justice Barrett came back later and offered her the chance to, quote,

clear up her answer to say that, no, she wouldn't make a website for straight people that wanted to celebrate same-sex marriages. And yes, indeed, she would make websites for gays and lesbians, just not websites for their weddings, just all of the websites for straight weddings they were asking for. I don't remember. I didn't go back and re-listen to or read the transcript, but it wasn't, that kind of worked, right? The lawyer was like, oh,

Oh, yeah, yeah. The opposite of what I said before. That actually is what I meant. Yeah. She's like, great. I'm picking up what you're sending, Justice Barrett. I got you. I got you. Yeah. So, again...

I am just going to take this moment to once again plug pre-ordering my book, Lawless, How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes. It's out May 13th. And that exchange between Justice Barrett and the 303 Creative Lawyer features prominently. Oh, Kate is holding up the book. I finally have my physical copy.

I ordered a bunch more. I pre-ordered them. They haven't arrived yet. So you two will have to wait to get your books when you pre-order them. But I did get an early copy from Leah and it's amazing. But I feel like somewhat vindicated. Writing a book on this topic is hard because obviously so much is changing. But from Masterpiece Cake Shop and through Creative, it was so obvious that they were just changing the definition of what constitutes discrimination on the basis of sexual orientation in ways that would just

allow discrimination on the basis of sexual orientation. So if you kind of want to see the through line and hear my hate snark or reads on Justice Barrett and the others who do that, you can get the book. Pre-orders are super important. They basically determine whether the book gets attention and how many copies are made and whether they're sold in other places. So that's why I am basically flogging this nonstop.

And, you know, we are your wingwomen in Flogging Nonstop. It is both penetrating and genuinely really funny. And I'm going to recommend it at the end of the episode. But this is an early plug right now. Okay. But for now, back to the Mahmood argument, which I am sure will make it into the, you know, like updated introduction to the paperback. Alan Schoenfeld, who was representing the school district and who was great, very clearly explained what kind of instruction would be unconstitutional, namely instruction that is more than mere exposure to ideas and requires certain conduct. So,

So this included something that the parents' lawyer brought up in his opening, making a Muslim student look at an image of the Prophet Muhammad. That would emphatically not be the same thing as reading a picture book with a gay character. The former makes a Muslim engage in prohibited conduct, being required to view an image of the Prophet Muhammad. The latter does not.

Also, to be clear, despite the insistence of the attorney for the parents in using this example in trying to elide the distinction between that scenario and this one involving the picture books, I am virtually certain there is no public school in this country using storybooks that contain pictures of the Prophet Muhammad because those are forbidden and anyone with a passing familiarity with Islam knows that fact. And it is so offensive to suggest that that is the same thing as stories about gay characters. Yes.

Let's now talk, as we promised we would, about Sam Vergogna Alito. And I think for our newer listeners, we should say why we keep using this word, Vergogna, which is Italian for shame. And this is the word that Mrs. Alito was caught on an audio recording last year talking about when she told an undercover journalist that she wanted to put the word Vergogna on a flag saying,

that she could fly when her neighbors brought out their pride flags. Yes, that really happened. So back to the argument. We are going to play a series of clips because in some ways you can only really get a sense of the dripping disdain for LGBT people and the concept of tolerance that resides within Sam Alito, as well as his mischaracterizations of the record in this case from hearing him. So

Again, brace yourself, maybe get a stiff beverage. And here we go. Uncle Bobby's Wedding. I've read that book as well as a lot of these other books. Do you think it's fair to say that all that is done in Uncle Bobby's Wedding is to expose children to the fact that there are men who marry other men?

The book has a clear message, and a lot of people think it's a good message, and maybe it is a good message, but it's a message that a lot of people who hold on to traditional religious beliefs don't agree with. I don't think anybody can read that and say, well, this is just telling children that there are occasions when men marry other men.

Uncle Bobby gets married to his boyfriend, Jamie, and everybody's happy and everything is, you know, it portrays this. Everyone accepts this, except for the little girl, Chloe, who has reservations about it. But her mother corrects her. No, you shouldn't have any reservations about this. But I think it clearly goes beyond that. It doesn't just say, look, Uncle Bobby and Jamie are getting married. It expresses the idea subtly.

but it expresses the idea this is a good thing. "Mommy," said Chloe, "I don't understand. Why is Uncle Bobby getting married?"

Bobby and Jamie love each other, said Mommy. When grown-up people love each other that much, sometimes they get married. I mean, that's not subtly sending a message this is a good thing. I think that's a way of a mother consoling her daughter who's annoyed that her favorite uncle is distracted and doesn't have time for her. But even if the message were some people are gay, some people get married, I don't think there's anything impermissibly normative about that.

So now that you've poured yourself on Martha Rita wants to pause over these clips. So he is equating, in essence, a mere acknowledgement of the existence of LGBT people and LGBT relationships with targeted discrimination against religious conservatives. He's like, don't say gay, right? That the First Amendment requires that.

And he's doing that in part by adopting these unhinged readings of the books. He takes the message of Uncle Bobby's wedding to be, you must accept same-sex marriage, when it's about a kid who's worried that her favorite uncle will have less time to spend with her if he gets married. Now, her favorite uncle happens to be getting married to a man who he loves. And that is apparently the affront to Sam Alito's delegate sensibilities. And...

This is just so deranged. I mean, I am not married. I do not have kids. When I read books about people who get married and have kids and describe these things as positive experiences in their life, I do not feel personally attacked. And he does. And I just...

I want to opt in Sam Alito to some actually pro-gay content, like full on clockwork orange. We're watching Drag Race together and you just have to sit there. The thin skin is it is literally the exposure to ideas that don't align with his narrow conception is an attack on him. And you can sort of see the kind of predicament.

projection and defensiveness, and also honestly, like cowardice in terms of how he even frames his objections sort of on display throughout the argument. But I think that your point here, Leah, is that you can have a message of tolerance and acceptance, maybe without approval or endorsement, and also without singling out for punishment or disapproval, people who make other kinds of choices. Sam Alito doesn't seem to be able to perceive the difference, which

Which seems more about him than about the books. Yeah, he needs so much therapy. So much therapy. And what does his book club look like? What would Sam Alito's book club look like? Yeah, I mean, the Ayn Rand picture books, I think, are a good start. Ayn Rand picture books. Gosh, okay. I got in a little trouble last week for making so many of these jokes, but I'm just going to say it anyways. What?

Little Fountainhead to warm the palate up for Mein Kampf. Yeah, people don't love these comparisons. And you know what? I think that's not a reason to stop making them. Yeah.

So as we said, it was not just Alito doing this kind of stuff. You can hear that in this clip. And this is, I mean, in some ways, this was almost a cringier exchange than many of the Alito ones. So this is Alan Schoenfeld for the school district starting off and in a colloquy with Justice Gorsuch that made me want to crawl under my desk. And anyway, here you go.

So Pride Puppy was the book that was used for the pre-kindergarten curriculum. That's no longer in the curriculum. That's the one where they are supposed to look for the leather and things and bondage, things like that. It's not bondage. It's a woman and a leather... Sex worker, right? No. No? That's not correct. No. Gosh, I...

I read it. Is it drag queen and drag queen? Drag queen and drag queen. Correct. The leather that they're pointing to is a woman in a leather jacket, and one of the words is drag queen in the search. And they're supposed to look for those? It is an option at the end of the book, correct. Yeah, okay.

Just want to clarify for our listeners, there are no sex workers in Pride Puppy. I have to say, I did not read Pride Puppy in preparation for this conversation, but I am quite sure that actually a sex worker and a drag queen are not the same thing. Right. I mean, like, look, maybe there are sex workers in Pride Puppy in the sense that maybe there are some sex workers in Pride and Prejudice, since neither book identifies any characters as sex workers. But who knows?

Yeah.

He, like Alito, is telling on himself, like very 50 shades of I don't know what, because I see a woman in a leather jacket and I think, one, when is Reputation Taylor's version coming out? And two, like the person in the leather jacket is probably cooler than me. There's lots of things that one could say about leather. Yes. Like, yes, that is automatically making you think about bondage in a kid's book. I thought was pretty, pretty questionable. Yeah.

So, you know, there is, as Alan noted, a drag queen in the book. But again, the idea that that is problematic equates the mere exposure to the idea that drag queens exist to some affront to religion and religious believers. Plus,

As Pete Hegseth reminded us last week, we're all born naked and the rest is drag. This is a reference to the fact that our Secretary of Defense reportedly has a makeup room, had a makeup room installed at the department to help him get ready for press hits.

No shame, right? Men can wear makeup. I don't have a fucking problem with that at all. But guess what? You should not be persecuting men who wear makeup while you have a makeup room installed at your office. I mean, when you read, I want to kick trans military members out of the service and smear them as unpatriotic and unfit to serve and presumably hold yourself out as like the manliest of manly men and just like,

also on the sly have a makeup studio installed in the Pentagon. Like, it's just an enraging... Yes. ...round of hypocrisy. ♪

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This Mother's Day, be the dad who went to Jared. So obviously I do think I stand by Alito as the worst offender during this argument. But I think it's important to just remind everyone that lest you think that Gorsuch or Barrett are like drifting left or becoming moderate because of their occasional votes with sort of sanity, including in the most recent Alien Enemies Act case, think again. Yeah.

But we do need to return to Sam Alito. There's just a couple more clips to play from him because he wanted you to know that he was just aware of some people who are opposed to gay marriage who are definitely not him.

So throughout the argument – His friends were telling him, you know, that they know people who – Yeah. Right. And he's worried about those people and their children being subjected to this content. So that was part of, I think, what I thought was the most galling about Alito's performance during this argument, which is the combination of, like, rank bigotry and this cowardly refusal to just own it, which I think actually made it a real low point even for him. So let's play a clip that I think illustrates what I'm talking about.

It goes further than that.

A school says, we're going to talk about same-sex marriage, and same-sex marriage is legal in Maryland, and it's a good thing. It's moral. It makes people happy. Same-sex couples form good families. They raise children. Now, there are those who disagree with that. Catholics, for example, they disagree with that. They think that it's not moral, but they're wrong, and

they're bad and anybody who doesn't accept that same-sex marriage is normal and just as good as opposite-sex marriage is not a good person. Now, what if that is what the school teaches students? Just another example of how he is equating acknowledging that gay people exist with targeted discrimination against Catholics and he is suggesting that the problem in this case arises in part because same-sex marriage is legal in Maryland and

Yeah.

But at the time, we and many other people said, you're saying that, but the logic of the opinion you just wrote definitely calls those cases into question. And it is scary to hear him seem to kind of reveal that, oh, I'm – you know, he does not accept that marriage equality is settled constitutional doctrine.

And it's yet another reason to take with a grain of salt that insistence in Dobbs that Obergefell is safe. OK, so it is not just the Republican appointees on the court kind of trafficking in the idea that acknowledging the existence of gay people is

could be illegal because it hurt Sam Alito's feelings. Once again, this set of commitments of the Republican justices definitely overlaps with the Trump administration's agenda. And that's true in many ways. One example came to light just last week when Mother Jones reported that the Department of Health and Human Services plans to cut the National Suicide Hotlines program for LGBTQ youth.

In February, that program received more than 2,000 contacts per day. It can be a lifeline. It costs very little money. It is insane that the administration is talking about cutting it. And I do want to say that some of these announced cuts, when they are vicious and sadistic and unpopular enough and people mobilize against them –

That has worked, and these announced cuts have been walked back. So also last week, the administration announced that the National Women's Health Initiative, this incredibly important and long-running study of women's health, the administration announced that it was canceling, and people were horrified and made a ton of noise about it. And within, I don't know, 48, 72 hours, something like that, the administration turned tail. And with respect to other announced cuts like this National Suicide Hotline announcement,

concentrated pushback actually could work. So I think it's really important that people engage in that. Yeah. And just to take another example of that, the administration also announced it was changing course on eliminating the records of student visas, in part because they were getting so much pushback because of it. So if you want to look for examples of how public coordination and pushback works, we are seeing examples of that.

It can work. Absolutely. So that was about the Department of Health and Human Services plans. And of course, the court heard a case about HHS in Kennedy versus Braidwood management. And that is the challenge to the Affordable Care Act system for requiring insurance companies to cover certain kinds of preventative care. So

So under the Affordable Care Act, the Preventative Services Task Force, a group of individuals appointed by the HHS secretary, exercises their scientific and medical judgment to designate certain kinds of preventative care as required for purposes of insurance coverage. So here the employer specifically objects to the task force requiring companies to cover PrEP drugs, so that's pre-exposure prophylaxis drugs, that COVID.

reduce the spread of HIV. So the employer here objects because they say this facilitates, quote, homosexual conduct, which they say they have religious objections to. It's quite a week at the Supreme Court. Yeah, this is a death cult that is violently opposed to the existence of LGBT people. Again, the mask came off this week. This is not about marriage, as they insisted in 303 Creative. It's just about being gay. That is apparently the problem.

Okay, so the specific objection the court was being asked to consider in this case concerns the method for appointing the task force members and whether that method comports with the Constitution's Appointments Clause. So that provision of the Constitution requires the president to nominate and the Senate to confirm what are called principal officers, whereas if the officers are inferior, then a department head like the Secretary of Health and Human Services can nominate those people if Congress gives the secretary the power to make those appointments.

So the challengers in this case argued, and they were successful before the Fifth Circuit in that argument, that task force members were principal officers because the statute describes them as independent and because they can impose certain obligations to cover certain forms of health care on employers and on insurance companies.

So the federal government argues that the task force members are officers, but they are merely inferior officers because the secretary can remove them at will and thus can influence their decisions. And also, the government points out, the secretary can block one of their recommendations and prevent it from going into effect.

They're also – this is why last week I was just like I'm so incensed by the suggestion that these people could be principal officers because they're not full-time federal employees. They're basically part-time volunteers. They have other jobs. Nothing about these positions looks remotely like anything we have ever considered before to be a principal officer. Right.

As we also said last episode, the government's reading of the statute would give the Secretary of Health and Human Services a lot of power, which, given that the current Secretary of Health and Human Services might believe that heroin might cure ADHD and that mental illness should be treated by sending someone to harvest organic vegetables, might be a little concerning, but small blessing. The government agrees that the HHS secretary cannot review a decision by the task force to

not recommend coverage for an item. That is, the HHS secretary could not force the task force to tell insurance companies to cover dead bear carcasses or ketamine, though, of course, he probably could fire people who wouldn't do that and appoint people who would, and Matt Gaetz might be in the market for a job.

Then Botox would be – that would be required preventative care. That's true. That's true. In any event. Okay. So looking for happy crumbs in this argument, there are I think five justices who will say that this task force can continue, that there is not a majority to effectively disable the entity that requires insurance companies to cover preventative care. The three Democratic appointees –

Obviously, they're sane. That's not news. It seems in this case as though Justices Barrett and Kavanaugh seem to be there with them. It is a fascinating phenomenon that you have this sort of three solid sanity issues.

And then you have a rotating cast of the occasional fourth and fifth member of Team Sane. But it's not the same one or two. It's sometimes the Chief and Barrett. It's sometimes Kavanaugh and Barrett. It's sometimes the Chief and Gorsuch. It's almost never more than two. It's like they have some kind of mutual pact that they won't need to join with the Democrats too often. In any event, these justices seemed in part drawn to this conclusion, but...

by the idea that what the challengers were asking for was to read the statutory reference to the task force's independence to create a constitutional problem by completely insulating the task force from oversight. There's a somewhat complex background because the task force existed before the Affordable Care Act. And so it's just actually not totally clear. Some of the features of this task force just have to be reasoned from oversight.

Yeah. There was also this hilarious Justice Kagan barb directed at the court and her Republican colleagues in part that I had wanted to highlight. Yeah.

I mean, we don't go around just creating independent agencies. More often we destroy independent agencies. You know, the idea that we would take a statute which doesn't set up an independent agency and declare it one strikes me as pretty inconsistent with everything that we've done in this area. I just, I laughed. Like, it's like she's laughing so she won't cry.

And I felt so seen there. Yes, exactly. Exactly. I was like, Justice Kagan, if you need dark humor to cope with your colleagues on the Supreme Court, do I have a podcast invitation I could extend to you? Yeah.

But, you know, I did want to point out that on some level, I guess this is a positive development that in the last go round over the Affordable Care Act, the first Trump administration tried to demolish the entire Affordable Care Act on the basis of this insane severability unconstitutionality theory that's not worth getting into that they literally wanted the courts to take down the entire Affordable Care Act. And here they are defending it. So I just found this fascinating.

notable and yeah, a positive development. It has been over a decade of attacks from states, from businesses, and from the federal government on the Affordable Care Act. But

I think it's now just kind of outlasted all the heaters. And so they've sort of capitulated. I mean, obviously, it's, you know, the first big challenge did successfully undermine a key pillar of the Affordable Care Act when it invalidated the Medicaid expansion. But all of these existential challenges have been rebuffed. And yeah, like maybe the steam has gone out of the opposition. Yeah.

I also wanted to point out this question from Justice Alito that was about ostensibly about this independence question, which really was central to the debate about how to understand the nature of this task force and these positions. But that I also read as sort of low key menacing as to the government's lawyer in the case. So let's play that clip here. That's an incredibly strained interpretation of the term independent. Are you independent of the president?

No, Your Honor. I mean, he is counting on you to exercise a degree of independent judgment. But if somebody's removable at will, that person is not in any ordinary sense of the term independent.

Did you also like sort of stop in your tracks when you did sound to you like Alita was saying to Mupan, who's the one of the deputies in the SG's office? Do you feel like he was basically saying, I'm going to call Trump if you say you're independent? Like, I want I want the president to know what you think your obligations are here. It's really hard to know. I mean, his tone always sounds a little threatening.

So I didn't know exactly what to take from that. But we do know he does have phone calls with Donald Trump about prospective employees in the Trump administration. So exactly. And then I also just found when he then this is again, this is like

We saw this so much in the Mahmoud argument, which is him saying, I'm not saying what I'm saying. Like when he says repeatedly, some people might think that same-sex marriage is immoral. But I mean, I've heard that anyway. Here, it is like he asks, like in a very pointed way, are you independent? And then kind of jumps in to say, actually, of course, lawyers are doing something somewhat independent and not just channeling the president's will. And Trump would want that.

It just felt really fraught in light of DOJ literally firing people for not towing the party line. I just did not know what to make of it, but I just – I can't imagine anything good. No. One other note about, I don't know, tone in the argument, which is Jonathan Mitchell, who was arguing the case on behalf of the employers challenging the Preventative Services Task Force, sounded notably irritated by the end of the argument. Like –

Yeah.

to some other goings on at HHS and specifically in the Food and Drug Administration. So the Daily Beast reported that the FDA apparently plans to end most of its food safety inspections because we want to make E. coli great again, like mega maga, because real men shit their pants. So, you know, Kate, when you were waxing poetic on the last episode about the stories of the wonderful work federal employees do, federal officials do, it's stuff like preventing E. coli outbreaks.

I have to say, I was like opening a box of pre-washed lettuce to like make a salad for my kids yesterday and was like, I cannot believe that we are living in a timeline where I have to be really scared, at least like soon. You know, I don't actually even know if all this has gone into effect yet, but where we have to be really scared about the food that we buy in our grocery stores not being tested for basic safety and feeding it to our families. It's so outrageous. ♪

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Okay, briefly, let's just note the other cases the court heard last week. One was Parrish v. United States about whether a notice of appeal is timely when a litigant initially filed too late if the district court reopens the case. The court seemed to be leaning toward the petitioner who was arguing with the support of the federal government, which is that the notice overrides the court's decision to re-open the case.

was timely. And in this case, because the government agreed with the petitioner, the court appointed an amicus to defend the decision below. And of course, they went with their usual type, white male, SCOTUS clerk. I wrote an article about this years ago if you're interested in reading more. And there was, because I am sort of fixated on this question of the Supreme Court's appointments, both

like the incredible like sort of demographic predictability in terms of the appointments that they make, but also the weirdly underspecified nature of the role. Like you're appointed to defend the judgment below, but then sometimes you get beat up for defending the judgment below. It's a little confusing. And actually I thought that came out in sort of a funny way in this one exchange. If you'll indulge me, let's play that.

Well, it reinforces the point that you would like the Rules Committee to decide this and not us. But in the interim, what you're asking us to do is to make the rules unfair to pro se litigants who already didn't get timely notice to appeal because they didn't get notice within the 30 days. All right.

And now they're supposed to get notice within 14, and given the way the post office is working, it's unlikely they're going to receive any notice in 14 days. So, Justice Sotomayor, it's —

notice enough to file in time is next to nothing. So if I might make two points in response to that. The first is, it's not me who's seeking to make the rule unfair. I'm here advocating that the court— Yes, but you could advocate a reading that's totally consistent with background principles, not addressed directly by 4A. And so you're—I know, we appointed you as a media— But he was appointed to defend the judgment below.

So the court also heard Commissioner of Internal Revenue versus Zuck. The case is about complex proceedings involving the Internal Revenue Service and when they try to collect unpaid taxes by going after some of your property and basically when that dispute becomes moot, i.e. no longer live under some change in the facts.

Not sure I got a read here where the court was leaning, maybe for a respondent, i.e. for saying it's not moot, but hard to know. I have no idea. Gorsuch was just so annoying in the argument that I wanted to put my head through a wall. So I honestly was so distracted I couldn't even tell.

Yeah. So the court also heard Diamond Alternative Energy LLC versus EPA. This was the important standing case we mentioned last week about causation and redressability. The question was whether these oil and gas companies have standing to challenge the EPA's decision to allow California to create its own air quality regulations on vehicle manufacturers.

These companies argue that if a court invalidated the EPA's go-ahead to California, then car manufacturers would change their behavior, would do less electric vehicles, more like traditional vehicles, and that change in behavior would increase the demand for liquid fuels.

I don't know if we're going to get a ton of clarity on causation and redressability here as we thought we might in this case. It sort of seemed like a majority of the court was probably leaning towards saying, yes, there was standing here. All of the requirements are satisfied, or at least that the lower courts needed to do more analysis of standing.

And, you know, if there's likely going to be some redress based on, you know, reasonable expectations about the way markets and players will react to particular changes, that might be enough. So maybe we won't sort of learn much more about what the court thinks about this part of the standing analysis. Yeah. The fights seem to be about whether the court should adopt a rule or just reaffirm that the standing inquiry is more context and fact specific. Yeah.

Okay, so some additional matters to briefly cover. We got just one opinion last week. The case was Velasquez v. Bondi. The court held that a voluntary departure deadline that falls on a weekend or a legal holiday extends to the next business day.

Seems uncontroversial, but it was only a 5-4 opinion with, as we sort of alluded to earlier, different members of the rotating cast of characters who can join three to create a sanity caucus. Here it was Justice Gorsuch authored the opinion. The chief justice joined as well. And then there were the three Democratic appointees. So they formed the majority. So that's the kind of continuance of that trend.

We also wanted to note some developments in the rapidly unfolding Alien Enemies Act litigation over the president's extraordinary renditions of certain Venezuelan nationals to an El Salvadoran mega prison with no due process. So Judge Sweeney in the district court for Colorado issued an important ruling holding that the Alien Enemies Act does not apply. That is, it cannot be invoked.

to apply to Trente Aragua because one, there's no invasion. Two, there's no predatory incursion. And three, TDA is not a foreign nation or government. So basically none of the preconditions for the Alien Enemies Act are met.

The decision also held that the government can't apply the proclamation to anyone in Colorado without 21 days notice and opportunity to file a lawsuit. And this is the first case to rule on the legality of the president's invocation of the Alien Enemies Act. That is, whether even assuming due process and judicial review and appropriate procedure are provided, the administration can carry out these renditions for this group of individuals.

And on the notice and opportunity timing, the Department of Justice, by contrast, is arguing that they are giving 12 hours for people to raise an objection and 24 hours total to sue. This is obviously super reasonable because everyone carries around with them ready-made habeas petitions that they can just pull out and file whenever they are detained. And it's not like habeas is hard or anything. I honestly think that

State judges should probably be carrying pre-drafted habeas petitions around with them at the moment. We will get to that in a second. This is scary, scary times. But, I mean, the point is that this is insane as a deadline. It is just like an FU to the idea that some process is required. No one can put together a habeas petition in that kind of timeline. So it is the most –

Yes.

There is other litigation, including in the Southern District of New York under the Alien Enemies Act. And in that case, Judge Hellerstein extended a TRO that he had previously issued barring the government from carrying out renditions of Venezuelans who are detained in the Southern District. During a hearing on extending that TRO, Judge Hellerstein referred to the lack of process and conditions in the Salvadoran Terrorism Confinement Center and said, quote, what way is that to treat a human being?

The government also filed some extraordinary papers in one of the cases that had paused the government's removals to third countries. That is the practice of removing people not to their country of origin, but to some other place.

As we had noted, courts had paused these actions for people in certain jurisdictions, this one in the District of Massachusetts, and the government argued it did not violate the court's temporary restraining order against those renditions slash deportations because, get this, the Department of Defense sent the individuals to El Salvador, and the Department of Defense wasn't a defendant in the case. Only the Department of Homeland Security was. You

talk about superficial gestures toward compliance without substantively complying with the court's order. Also wanted to tie this to two other developments. One is, as the court is going to be taking up the question of nationwide injunctions, I feel like this underscores sometimes the importance of binding non-parties.

Yeah.

And that kind of formalism allowed the courts to nullify the constitutional protections for Roe. And it's the same kind of formalism about naming the right defendant and whether this specific defendant, right, is similarly situated or different from another department in the federal government. It's just absurd.

It's also just like the fact that there are DOD planes is not – DOD is not the one making the calls and thus would not be a defendant that a normal – a lawyer challenging these – Right. It would be the most insane kind of formalism. And because this court has done that kind of formalism before, it scares me because it's an awful argument that it's not impossible to see them accepting. Yeah. I'd also like to –

tie this to the evolving nature of the unitary executive theory because, of course, we've had it hammered into our heads that the entire executive branch is a singular entity, the president. Here, however, it turns out that DOD and DHS are so totally different, a judgment against DHS cannot possibly mean that DOD cannot

carry out these illegal renditions. Such a great point. Yeah. And, you know, also on the majesty of the unitary executive, I wanted to highlight some reporting by Chris Geidner, who runs the indispensable law dork substack. He reported that despite the Department of Justice representing to the Supreme Court that a pending habeas case would block someone's expulsion under the Alien Enemies Act, that as DOJ said, the government will not remove people pursuant

to the Alien Enemies Act if they filed a habeas petition. Yet in a different case, an assistant field office director for Immigration and Customs Enforcement said, actually, there might be some fact-specific exceptions to that, such that the government would remove someone who's filed a habeas petition. Super unitary.

Two more Alien Enemies Act updates, one involving another judge, not Judge Zinnes in the District of Maryland, but a Trump appointee in that same district, ordered the administration to facilitate the return of another man sent to El Salvador because his – so this is not a Braygo Garcia, but another –

individual sent to El Salvador whose deportation violated a prior court settlement. The settlement barred his removal pending the adjudication of an application for asylum. We don't know his name because he's identified by a pseudonym in the litigation. And then finally, the district judge presiding over Kilmar Obrego-Garcia's case, he of course is the Maryland resident wrongfully expelled to El Salvador because of a paperwork error. The

The judge stayed for the discovery in the case until April 30th after some sealed filing. So we know from the docket that filings went in, but we don't know what they said.

It's intriguing. I mean, I hesitate to get hopes up about sanity kind of returning. And returning seems wrong because I don't think it was ever there, but that the rule of law prevailing. But there is at least a glimmer of hope that something constructive is happening and that they are finally taking some steps to facilitate this return. But there's, of course, a very significant chance that those hopes get dashed, but it is at least possible.

possible. And kind of speaking of that, the Atlantic broke the news that three days after Kilmar Obrego Garcia's family sued the government for his wrongful deportation, career officials, United States officials, began working on a plan to fix the mistake because that is the normal course for wrongful deportations. That is, they wanted to ensure his safety in El Salvador and bring him back. But then the Trump administration intervened and vetoed, basically torpedoed those efforts. Can I just rephrase

read a couple of excerpts sort of on that point from this interview with Time magazine that dropped just like a couple hours before we sat down to record. So this is an interview, you know, like kind of a hundred days look back with President Trump. And there's a series of questions about the Abrego-Garcia case that I feel like really deserve a lot of attention and I presume will end up in filings in this case in the District of Maryland. So here's a question that was posed to the president.

Okay.

Here's Trump's answer. I'm sorry. I'm going to try to do this with a straight face. Well, that's not what my people told me. They didn't say it was. They said it was the nine to nothing was something entirely different. This, of course, calls to mind Stephen Miller in the Oval Office with President Bukele of El Salvador basically engaging in, as you described it, Leah, magical thinking about the fact that the Trump administration won the election.

like in its entirety, this case. So maybe that's what he was referring to? Maybe. So I want to do the next excerpt because it's on this unitary executive beach. So the reporter then follows up. Let me quote from the ruling, quote, the order properly requires the government to facilitate Abrego Garcia's release from custody in El Salvador, end quote. Are you facilitating a release? To which Trump said, I leave that to my lawyers. I give them no instructions. If they want...

And that would be the Attorney General of the United States. I don't make that decision, end quote. I mean, OK, let's just read a little bit more because the reporter then follows up. Have you asked President Bukele to return him? The president answers.

I don't totally even know the inflection to give this because like much of this, it's so garbled. But here's what he says, according to the transcript. I haven't, uh, he said he wouldn't. Reporter then asked, did you ask him? Trump, but I haven't asked him positively, but he said he wouldn't. Question, but if you haven't asked him, then how are you facilitating his release? Answer, well, because I haven't been asked to ask him by my attorneys. Nobody asked me to ask him that question except you.

Oh my god.

Yeah. Stephen Miller is running the federal government, and this is terrifying. On the topic of these deportations, expulsions, we also wanted to highlight some deeply disturbing reporting by both the New York Times and Miami Herald, which suggests that some of the individuals the administration arrested and either deported or expelled have literally disappeared in the sense there is no record of where they were actually sent. So the Times describes the case of Ricardo Prado Vasquez

a Venezuelan immigrant on March 15th. He told a friend he was housed in Texas and expected to be deported to Venezuela. But that night, that is when the Trump administration flew the planes carrying Venezuelan migrants to El Salvador. And Mr. Prada has not been heard from or seen. He's not on a list of people sent to El Salvador and he no longer appears on the ICE detainee locator. And that's not the only case.

So another individual, Mr. Leon Rengal, another Venezuelan immigrant, was detained in Texas in March and federal agencies supposedly claimed he was affiliated with TDA while detaining him. He was briefly held at a Texas facility and then nothing like he's not in ICE's online system. He's not on the list of people sent to El Salvador. ICE told his girlfriend he was sent to Venezuela, but the family has searched Venezuela and say he isn't there.

And if that wasn't bad enough, a judge, a judge appointed by Donald Trump, raised concerns that the Trump administration may have deported a two-year-old United States citizen to Honduras with no meaningful process, even though the child's father was trying to keep her in the country. The child's mother and sister are Honduran and were deported as well.

And the judge has serious questions about how the determination was made to deport the two-year-old United States citizen. I repeat, the two-year-old United States citizen with them. The judge scheduled a hearing in two weeks, quote, in the interest of dispelling our strong suspicion that the government just deported a U.S. citizen with no meaningful process, end quote. This is why due process is required. This is why due process is important.

And somehow, somehow, this is not the only baby United States citizen that the Trump administration has exiled or kidnapped or rendered extrajudicially with no due process. I know deported isn't the right word here because these are United States citizens we're talking about and U.S. citizens cannot be deported.

And in addition to the two-year-old exiled to Honduras while her American father was reportedly trying to keep her in the country, the Washington Post reported that the administration also exiled a four-year-old and seven-year-old U.S. citizen. Oh, and the four-year-old has stage four cancer and was reportedly shipped off without medication or the ability to contact their doctors.

If exiling a four-year-old citizen with stage four cancer isn't a red line for you, I don't know what would be.

And these, whatever the right word is, kidnapping, renditions, exiles are horrifying enough on their own. I do want to point out that it seems like maybe these measures are ways the Trump administration is basically trying to skirt the injunctions, halting the administration's wildly illegal efforts to strip birthright citizenship from some individuals, because who

Who are the individual U.S. baby citizens they are deporting? U.S. citizens with birthright citizenship, which the administration is attacking. And since courts wouldn't allow them to strip birthright citizenship across the board for certain categories of people, they're maybe just trying to eliminate birthright citizenship on a case-by-case basis. So as the Washington Post reports, quote, "...the government is not disputing the immigration status of any of the three children."

That is the fact that they're citizens. Quote, instead, officials contend that the undocumented mothers opted to take their citizen children with them back to Honduras, end quote. Sure, Klan. I mean, this just has such echoes of the first Trump administration's failure to keep proper records of some of the family separation. Yep. They lost people then, too. And they are doing it again. It is just terrifying. Yeah.

Okay, so a few other pieces of news. Mahmoud Khalil, the Columbia graduate who was whisked away by ICE and has been in detention for over a month now, and Marco Rubio is attempting to deport him.

For his speech, full stop. His wife gave birth to his son while Khalil remains in ICE custody. He was denied a request to temporarily leave while subject to a monitoring ankle bracelet, sadistically turned down in his request to do that.

There was also some real fascist fuck shit developments on the investigation slash prosecution front. So in deeply disturbing news underscoring the politicization of the Department of Justice and the erasure of any boundaries between DOJ and the White House, the president directed the attorney general, Pamela Jo Bondi, to investigate platforms that facilitate major Democratic fundraising, such as ActBlue.

And as we alluded to earlier, the federal government arrested a Milwaukee judge. So on Twitter, FBI Director Kash Patel wrote in a subsequently deleted tweet that the FBI had arrested a county judge on charges of obstructing immigration enforcement based on allegations that she intentionally misdirected federal agents away from an immigrant being pursued by federal authorities.

The allegations in the case, as well as other individuals who have been talking about it, suggest ICE did not present a warrant. And it's not clear whether they possessed a warrant. And they wanted access to her chambers. And she didn't believe that ICE and federal immigration officers, especially without a warrant or maybe the particular type of warrant that they had, could come into the court room.

DOJ subsequently issued a press release indicating they had also arrested another judge, this judge in New Mexico, as well as the judge's wife on federal charges of obstructing immigration enforcement proceedings. We don't yet have as many details about this case, though.

Completely outrageous. It does feel like another escalation of the already very, very serious rule of law crisis in which we are residing. This is not the most important thing, but I also do think that the FBI director is seeming to completely violate FBI policy in making this announcement on Twitter. And then at some point, someone flagging for him that he had done that and so taking it down. I mean, it is just...

You know, kind of the malevolence and incompetence compounding one another as opposed to tempering one another just sort of reaches ever new crescendos. And I think we are seeing that here. But also, I mean, the Act Blue piece is just so reminiscent of and yet somehow worse than...

Many of the worst acts of lawlessness during the Richard Nixon administration, which resulted in his resignation in disgrace, facing certain impeachment. And yet it's just, you know, Thursday afternoon in Trump 2.0.

Yeah. And obviously using prosecutorial powers to undermine funding for political opposition and, you know, in the case of the Milwaukee judge to criminalize political opposition, that is a big F for fascism. And of course, it can be permissible for the federal government to prosecute state and local judges for federal obstruction in some instances. But given everything that has happened,

And the threats the administration has made on this front from the Eric Adams case to threatening the New Jersey governor and attorney general with criminal liability, we cannot presume that it's all on the regular or on the up and up. And PJB, the attorney general, essentially confirmed that in where else? An interview on Fox. Of course.

They're deranged is all I can think of. I cannot believe, I think some of these judges think they are beyond and above the law and they are not. And we're sending a very strong message today. If you are harboring a fugitive, we don't care who you are. If you are helping hide one, if you are giving a TDA member guns, anyone who is illegally in this country, we will come after you and we will prosecute you. We will find you.

So all of that is really bad. We do have an update that is good, and that is involving the litigation surrounding the race for the North Carolina Supreme Court. So this is the race that Alison Riggs won, but whose results loser Jefferson Griffin is attempting to get thrown out in court.

So since we last recorded, a 2-1 panel of the U.S. Court of Appeals for the Fourth Circuit issued a stay of the North Carolina Supreme Court decision that had set off a race to cure ballots. That is, people would have to provide additional documentation and information to have their ballots counted, even though they were lawfully cast last November. And if they didn't, they would now be thrown out.

So this from the federal appeals court is a stay, meaning it's temporary. And it also means that the trial court will decide if Justice Riggs has a winning constitutional challenge to the North Carolina state court cases that threw out the ballots.

I mean, we think, spoiler, she definitely does. But whatever happens in the district court is likely to end up in the Fourth Circuit and then potentially the Supreme Court. But this is encouraging. It is a 2-1 victory. The majority includes conservative Judge Paul Niemeyer. And if he is with Riggs, that at least is a pretty strong signal that it's hard to imagine the full Fourth Circuit and honestly the Supreme Court siding with Griffin's insane effort.

So we're hopeful that this is finally a really positive development that's going to put this lawless effort to throw out the results of this election to bed for good. But we are not going to take our eye off the ball on this case.

And one more piece of good news is that a judge enjoined the wild executive order asserting presidential power to regulate elections and making it harder to participate in elections. That order is clearly unconstitutional, and it's not surprising but still heartening that a federal judge agreed with that and that two judges have enjoined the executive order's threatening school funding if they continue to use DEI programs.

Some additional news, not good news, but funny news. There's another cycle of insanity coming out of the DUI hire for Secretary of Defense Pete Hegseth. So there are more signal chats sharing operational details. The New York Times reported that Hegseth shared detailed information, quote, about forthcoming strikes in Yemen on March 15th in a private signal group chat that included his wife, brother and personal lawyer, end quote. That's a separate signal chat than the one with Atlantic journalist Jeffrey Goldberg.

And this signal chat was created by Hegseth and named Defense Team Huddle. Apparently, the information shared on that included info he had acquired from a top general's secure messages. And Hegseth also reportedly had signal installed on his office computer. So obviously, this isn't a big deal. It's not a crime to talk about big things going on at work or in your life. And it's not bad to be a wife guy. There is a distinct possibility that Melissa manifested this.

entire thing because last episode when we were talking about the lack of masculine energy coming from article two she suggested that next week we're going to find out their wife guys i think i'm just saying this is an unfair smear to wife guys to call this guy a wife guy totally fair totally fair um also think we should stop bragging about our manifesting skills for our future trials or due process list proceedings when we are accused of being witches

Also probably a good idea. But unfortunately, in the manifesting department, we have to talk about one of the latest executive orders that we got. This one coming after, yes, it really is the Civil Rights Act. So we have said numerous times that the administration's attacks on what they call DEI are really attacks on civil rights, the civil rights movement, democracy.

integration and equality under the law. Like, they really are. And the administration has basically now made all of that clear. So on Wednesday night, the president issued an executive order directing the federal government to, quote, "...eliminate the use of disparate impact liability in all contexts to the maximum degree possible."

The executive order specifically focuses on disparate impact liability under Title VI of the Civil Rights Act. We're going to explain this just a bit, but also let's note at the outset that this is one of the things that Project 2025 specifically called for.

Who's that? Don't know her. So what is the Title VI they're attacking? It is the law that, quote, prohibits discrimination against or otherwise excluding individuals on the basis of race, color, or national origin, end quote. That's what they're going after. And they're doing it by going after disparate impact liability. So what is disparate impact liability? There are different kinds of discrimination. The most explicit type is a school saying something like, we don't admit black students.

OK, that is facially discriminatory. The discrimination is written into the words of a policy. But a school could also say something like, we won't admit students who don't have a family member who attended this school prior to 1954.

Given the persistence of segregation in schools, the policy, while it doesn't mention race, would have the effect of excluding black students by excluding people whose family members were not in that school prior to 1954, which is the year that Brown v. Board of Education disallowed segregation in public schools. So that's basically the idea of disparate impact liability, instances where a law or policy doesn't explicitly mention race, but where its effects are to disproportionately negatively affect racial minorities.

The EO's argument is that disparate impact liability is racist against white people because it, quote, requires individuals and businesses to consider race and engage in racial balancing, end quote. The latter isn't true, and the former amounts to the idea that trying to avoid disadvantaging black people is the real racial discrimination. Sure, Klan. So disparate impact liability has been and is a huge tool for integration to dismantle lingering effects of segregation, more generally to eliminate unnecessary obstacles and policies with no real important purpose.

And it's not just the Civil Rights Act in Title VI that includes disparate impact liability. Other civil rights laws do, too. You know, the president cannot repeal a law by an executive order, but he can direct the Department of Justice not to enforce any disparate impact liability provision. And that would mean only private litigants are able to enforce those provisions.

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Jared knows what moms really want for Mother's Day. The opportunity to just sleep in and dream of idle playgrounds, empty sinks, and perfectly folded laundry. Of course, there's no better way to compliment mom's peace of mind than with a piece of fine jewelry from Jared Jewelers. A sparkling diamond pendant necklace or even 14-carat gold hoop earrings. Perfect for the woman who keeps everything in your family perfect.

This Mother's Day, be the dad who went to Jared. In the final segment of today's show, we are going to do a special segment talking about what is being described as a rising pro-natalism movement in the United States. And to help us with that discussion, we are delighted to be joined by Emily Amick.

Emily is former counsel to Senator Chuck Schumer. She is the co-author of the New York Times bestselling book, Democracy in Retrograde, How to Make Changes Big and Small in Our Country and in Our Lives. She's also the author of the wonderful substack, Emily and Your Phone. And she recently published a piece on the pronatalism movement, which also covered the recent New York Times piece on that movement. Emily, we're so happy to have you. Welcome to Strict Scrutiny. I am so happy to be here, though slightly remiss about the topic. Yeah, not the best of circumstances. That's a compliment.

common thing on this podcast. Common for lawyers entering any room, to be honest. Yeah, but it is at least cathartic to be able to process all of this with like-minded people. Indeed. So maybe let's start by asking you to tell us, what are we talking about when we talk about a rising pro-natalism movement?

So it's a really interesting question because I think like a lot of conservative movements we've seen around women in the family over the last 20, 30, 40 years, on its face, it might seem like decently reasonable. They are conceivably people concerned about the birth rate going down and wanting to increase fertility, particularly focused on making sure women have more babies.

In the proper family, of course, not just any women, proper ones. Good American families. And, you know, pro-natalism, we've seen it really take off, especially in Hungary with Viktor Orban, who has made a lot of policy changes there to promote motherhood, specifically having a lot of children. And people like J.D. Vance have really taken up this mantle. And, you know, Donald Trump has called himself the...

Fertilization president and Elon Musk. So creepy. Elon Musk. I've said we should call him the surrogate king. I mean, I think there's we know of 14 children at this point, but there was a recent Wall Street Journal article that went into the legal negotiations between him and his most recent child's mother, Ashley St. Clair, and she revealed that they really tried to pressure her to have an NDA. So there's implication that there might be one

or more other women out there who have had children with Elon. On this Elon Musk thing, I'd also just add to that there was this horribly creepy moment after Taylor Swift endorsed Vice President Harris and Governor Walz that Elon Musk was like,

he would put a baby in Taylor Swift. It was so grotesque. Anyway, sorry, that just... You know, well, I think that really gets to the heart of it, which is like when you take a step back and look at everything they're doing and the way these men who are in charge think about women, it's as...

Like we are skin and bones surrounding a baby making machine. And he, the way Elon views these women is a transaction. How much money can he pay to get the creation of his Legion, which is what he told Ashley St. Claire he is trying to build. And what,

When you look at the White House conversations, these internal conversations that were reported by The New York Times, they're ludicrous, right? Like it's a motherhood medal, which everyone has the same thought when they hear motherhood medal. They're like, oh my God, is it, you know, Stalin or Germany? What are we talking about here? But one of the things I also really wanted to bring to the table to this podcast really early is that this isn't disconnected from litigation, right?

in the Missouri v. FDA litigation over male delivery of abortion medication.

The states, Missouri, Idaho and Kansas, they say in particular a problem with abortion medication via mail is that it hurts states and it's express injury to the states because it lowers the birth rate. And furthermore, the harm is that it lowers the birth rate in teen girls who are proficient on the internets.

That is literally their theory of standing in the case. I couldn't believe it when I read that. It's shocking. Yeah. So, okay. That is kind of a summary of like what we're talking about when we're talking about pronatalism as we kind of suggested there's a

fair amount of like creepiness in there with like the obsession with ensuring women are pregnant or impregnating them as well. Also, in the last week, we got this super weird statement by RFK, the Secretary of Health and Human Services, expressing concern about teenage boys' sperm counts. So we're just going to play that clip here. A teenager today, an American teenager, has less testosterone than a 68-year-old man.

Firm counts are down 50%. You know, I'm not going to say anything else about that. I'm just going to leave that there. Suffer together. Right, exactly. Creepy AF. But there is something even more pernicious happening here, you know, besides a lot of men's giving off the icks. Could you tell us more about why people should be paying attention to this rising pronatalism right now? So,

that there's two sort of sides to this coin. One of the things that the conservative movement has been really effective at is understanding the emotionally resonant cultural war tactics, right? Like see where people are breaking and providing a solution. And I've been talking about trad wives for a lot of years, which I think people have sort of blown off as this weird, kooky internet thing. But I'm like,

No, what it is is that women are exhausted because it is incredibly hard to be a mother, to work full time, to do everything in our society that's not supported, where they're not able to pay for child care, where they're not able to pay for a house. They can't pay, you know, all of these things. And what the conservative movement has done is offered a solution. It's a terrible solution. It's a solution to sell your rights away.

And what I think we're seeing with all of this motherhood conversation is they're like, we'll just give you a medal. That'll be good. And I'm getting like a pat on the back, ladies. You can get a Fulbright scholarship. I had like a bunch of friends DM me. They were like, what's a Fulbright scholarship? I feel like you would know. And I was like, oh, yeah, I've applied. I would know. And.

That's not the plan, right? Like the plan to get women having more babies is not in fact the metals and even making IVF insurance coverage more available, which is another thing that I think is what they're actually planning. It's about curtailing access to reproductive rights.

It's about curtailing access to the workplace and fair employment accommodations and all of those types of things that are going to drive women back into the home. It's about the nascent plan to take away no-fault divorce.

and force women into relationships. And then it's the culture war. And if you are online, you see the Andrew Tate of it all, the manosphere, the red pilling, right? And what they are telling men that they are entitled to, which is women who birth their babies. Yeah. So we want to follow up, I think, both on kind of ReproWrites and Dobbs and also on Andrew Tate, but actually just briefly to dial back for one second. So you mentioned Fulbright. So

One of the things in the Times piece a couple of days ago was the administration at this point is just batting around ideas, right, to create various kinds of incentives for baby making and baby having. And one of them would be like set asides in the Fulbright program, like 30 percent of like positions or slots in Fulbright scholarship programs would go to people who are married or have babies. And then there was another possibility that was floated, which I can see.

can see them doing some version of, which is a one-time $5,000 payment for people who have a baby. And that one I think is actually really important. That'll fix it, right? Right. No, exactly. But I do think it's important to talk about because for sure, cash assistance is important. And in the first year, particularly if you are struggling to make ends meet, that could be a lot of money. But the idea... So this is why I'm worried that this is the kind of thing I could imagine them doing and actually getting some support behind. So it's just

So important to, I think, say a couple of things in response. Like one, short term, big, big impact, $5,000. Long term, that is not helpful when you are trying to raise a whole ass person. Like that is not really going to help, especially when we are talking about an administration that has been so radically hostile to everything from education.

to affordable childcare, to paid leave, to creating the conditions in which you can like raise a family that is safe and that is not getting E. coli from the vegetables that their parents are serving them, like dismantling all of the structures that provide a degree of safety and security in which you can actually raise children is way more important in the long term than a one-time cash payment. But I worry that it's the kind of thing that they could try to do and get some short-term benefits from. LESLIE KENDRICK

It's also important to point out that Republicans don't support the child tax credit, which is which Harris obviously. Yes. And Harris ran on expanding. And that obviously would be a much bigger difference than a one time payment and not embedded in this crazy.

Creepy, creepy, right, pronatalism worldview. Okay. So, but you mentioned repro rights. And can you just like maybe talk a little bit more about the kind of overlay with Dobbs and, you know, an effort to restrict access to abortion and reproductive health care in general?

Yeah. So, you know, I spend a lot of time on the Internet and I follow a lot. Me too. As one does. Just too much, you know, too much. That's a whole other conversation. But I follow a lot of these conservative girly pop influencers, as I call them.

And one of the things I've seen over the years has been a really cognizant effort to marry these two things, right? To marry motherhood and the war on abortion access. And it's been really interesting. We can have another conversation to talk about how contraception and IVF fall into this, which are interesting as legal subject matters, as well as culture war matters. But what Dobbs opened up

for these people was the opportunity to say like, you don't need an abortion because your true purpose is motherhood. And not only that, that's what will make you happy. That is your true purpose. And I get so much content, beautiful, beautiful women with these like toe-headed children. They're making sourdough. They're having the time of their lives. I'm like, oh my God, I would love to be A, 20 and B, you know, living this fantastic life. And they're like, why would anyone ever sell me the idea that this isn't my dream?

And I think what's important to note is, right, like in this dream, you have no ability to decide not to have children. I actually saw Grant Cardone's wife post a video. He's like this big MAGA influencer, posted a video about how you absolutely should never say no to sex with your husband, that she's never done that, right? So this is all part of this broader agenda of changing the way we think about women's access to and control over their own bodies in marriage.

And it's also about really changing the Overton window on how we think about these issues. And birth control, I think, is the best example there because what I see a lot, and I hear it from women who I know, who I'm friends with, tons of conversations about how birth control is bad for you. And it's bad for women. And when you think about the path to overturning Griswold, the

That's the path. The path is we're just doing it for women. And when you look at the Mifepristone litigation, right, like the Mifepristone litigation to overturn FDA approval of the drug is that it's unhealthy for women. It's unsafe for women. And so I just want to link this to right Dobbs as well, because, of course, in the lead up to Dobbs, we got that anti-abortion shibboleth.

in Justice Kennedy's opinion in Gonzalez versus Carhart about how women who have abortions come to regret them. And so that launched all of this women protective, restrictive abortion laws too. Sorry. A hundred percent. A hundred percent. You know, like it's, you step back and you see how it really all fits together. And it's all within this exceptionally patriarchal, um,

There was a great opinion article from, I think, Michelle Goldberg in The Times last week where she was like, she reported on this economic macroeconomic study. When you actually look at the countries that do not have dropping birth rates, it's because there are not patriarchal societies. There are societies in which women are allowed to thrive and be and do not have to, like, take on the drudgery of being treated as objects that are to be controlled. And this makes, like, very logical sense to any woman who's existed in the world.

You know what I mean? Like when I talk to my friends who are trying to decide to have children, they're like, well, that's a lot more laundry I'm going to have to do. And I'm like, I wish that weren't the decision making. But I think that it's very, very disconcerting. And the pro-natalists

coming out of this administration, I think is going to be ramping up a lot. Yeah. And I think the... I'm so glad you brought up the Michelle Goldberg piece and the study she's talking about by the Nobel Prize winning economist Claudia Golden, Babies in the Macroeconomy, because the point that that study and the piece are making and that you were gesturing toward earlier is that

The declining birth rates are in part a function of gender hierarchies and sex stereotyping and the idea that it is women's role to care for and raise children and that the burdens of parenthood do not fall equally on mothers and fathers. And so long as that is the case, you are not actually addressing one of the obstacles to parenthood and one of the reasons why people might not have children. And yet that is wrong.

what the natalism movement is exactly doing, right? They are trying to reinforce these gender roles. So you mentioned Andrew Tate, you know, Michelle Goldberg's piece noted that Andrew Tate had said, quote, everyone should look at their father like a superhero. It's hard to be a superhero if you're home every day arguing with your wife changing diapers. That's not what a man should do, right? And it's reinforcing there are gender roles in parenthood and the father just doesn't have to do shit.

It's so discouraging at times. And one of the things we're seeing is how this is really impacting Gen Z. And there's a lot of polls coming out, and I've had a lot of conversation with Gen Zs in my life, and I think they're really confused.

And they're really confused. You know, young women are not wanting to have children. And that is why we're seeing people who are the top conservative influencers having children and talking about how that is their most important role as women. Right. And they are trying to shift that over to the window because it's happening. It's happening very quickly. I'll end on a sort of funny note, which is that there was a pro-natalist conference a couple of weeks ago.

And in the lead up to the conference, the organizers were online begging women to show up for the speed dating event because they could not find any women who wanted to attend the pronatalist forced marriage meetup. Right. I mean, like, who would have thunk what wasn't appealing about that? Yeah.

So a few notes before we go, and Emily is going to stick around for our new favorite concluding tradition. But one thing we wanted to remind our listeners about is that the D.C. bar election is ongoing. You can vote until early June for the Board of Governors for the D.C. bar. Bar elections aren't always something that people pay close attention to. But in this one, a bondie is running. So just...

Be aware. Also, federal workers are facing the largest mass firing in history and they urgently need legal support. So We The Action, the AFL-CIO, and a coalition of labor and democracy partners recently launched Rise Up, federal workers' legal defense network. To connect federal workers who have been fired by the Trump administration with free legal support, lawyers who join the network will receive free training and can volunteer from anywhere. Sign up to offer pro bono help at workerslegaldefense.org.

And now our new favorite tradition, things we read and liked in the last week. It is such a nice pick me up because it's so much dark, bleak content in an hour of trying to digest like the executive branch and judiciary's madness. And it is a good reminder there is that in conditions of horror, sometimes great journalism and art can emerge. Yes.

So the ones I was going to recommend is one is a piece by Chris Geidner at Lawdork called SCOTUS Conservatives Seem Eager to Increase Parents' Religious Rights in Public Schools. That was an argument recap for Mahmood, and it captured, I think, quote,

quite well how disturbing the argument was, as did Mark Stern's piece in Slate, how Sam Alito inadvertently revealed his own homophobia from the bench. Also wanted to draw attention to Ahilan Arulantanum's piece at Just Security, Deportation to Secot, the Constitutional Prohibition on Punishment Without Charge or Trial, exploring the constitutional issues that arise with the administration's apparently irrevocable deportations of individuals to Secot.

Other, so Emily Amick, sorry, gonna embarrass you. We like to do this. I loved Emily's piece revealed Elon and Trump's plans to mint more mothers. That's of course the piece on the navalist movement that we have been discussing. And then on a different note, Sarah McClain, one of my favorite, favorite romance authors who usually writes

historical fiction romance has a forthcoming book called These Summer Storms and I got an advanced reader copy of it. I loved it and recommend it. So yeah.

Nice. I, in the last week, have been pretty focused on wrapping up the semester, so I have not done any fiction reading. And I'm going to shout out a couple of things. Actually, this is a very New York Times-focused list of recommendations. But Michelle Goldberg, who we mentioned earlier and have mentioned a lot on the show and just is doing great, great work in her opinion column for The Times, wrote a piece called The Trump Victim I Can't Stop Thinking About.

And it's not about Kilmar Abrego-Garcia. It's about Andrea Hernandez Romero, another individual, a gay makeup artist who was also put on the same plane or one of the same couple of planes that Abrego-Garcia was on. Just a reminder that the outrage and the injustice does not extend to the mistaken expulsion of Abrego-Garcia, but encompasses everyone on those planes.

And also, like, all of their names should be names that we know. And so this is Andrea Hernandez Romero. And kind of in a similar vein, there was a piece in The Times by Senator Markey and Congressman McGovern and Congresswoman Presley, all representatives in Congress from the state of Massachusetts, whose constituent, Ramesa Ozturk, is the Tufts grad student who was –

grabbed, snatched off of a street and has been also like Khalil in ICE detention, I think, for a month now. And again, her name, Ramesa Ozturk, should also be a name people know. Every minute she is in this detention for an op-ed she wrote in a student paper is an outrage and an affront to constitutional principles, not just the First Amendment, but principles like due

due process, equal justice under law, the idea that we are governed by laws, not whims and not men. So I think it's really important to keep talking about her for as long as she remains in detention. Emily, thank you for joining us for this part. What did you read that you want to recommend to our listeners this week? So I come

with a little bit more lighter fare to the great. Honestly, very welcome. So I'll start with sort of the article that I was going to bring up, which is from the Guardian. It's called Now Comes the Womanosphere, the anti-feminist media telling women to be thin, fertile and Republican.

So if you want a primer on what's going on there and to see Candace Owens holding a sign that says make him a sandwich, which is apparently the new feminist movement, you can do that. I did get an advanced copy of my friend Joe Piazza's new book. Everyone is lying to you. And it's a trad wife murder mystery.

I think it's going to be the beach read we all need this summer, to be honest, about a trad wife who takes back her autonomy. And you can guess where this goes for a murder mystery. So you can pre-order that now for your beach read reading. I also have read recently, this is not a new book, but I read The Testaments, The

The Handmaid's Tale sequel. The sequel. And I hadn't read it before. Of course, like the, you know, we're in the final season of the television show and I just chose to give myself. I thought you were going to say the final season of The Handmaid's Tale in the United States, but. Late stage Gilead. That's where we are. Right.

And I loved it. And I also hit up another old favorite because I really needed some break from the world over the weekend. And I read a Tana French novel. And so she is one of just my favorite, favorite fiction authors. Which one did you read? I read The Witching Tree. The Witching Tree. I haven't read that. Yes. Cool. Yeah. But I love them all.

One of my big things that I've been pushing folks recently is like to give yourself a break. You know what I mean? Whatever that means to you, whether it's art or gardening or reading. I'm big into needlepoint. I got my needlepoint in the back here. So, you know, we all need we all need a little bit of rest for our weary brains. Amen. And I'm going to say one more thing, which, as I mentioned earlier in the episode, I have my physical copy of Leah's book, Lawless. We're going to do an actual episode conversation about it. But but it's I put on Instagram that I felt like a

proud auntie who in this book arrived at my house like I feel like I am like sort of you know a relative to this book and she's beautiful and like actually the acknowledgement section will confirm that yeah no I know thank you that's it's wonderful um anyway it's the book is I'm both super excited about because it's Leah's book but also super excited that it's actually fantastic um well thank you Emily so much for joining us again listeners Emily's sub stack is emilyinyourphone.com

Would highly recommend. I feel like it's like the perfect balance for strict scrutiny listeners where it's substantive, analytical, but like the tone is like irreverent and fun and it just makes it engaging and like you can actually digest it as well. That's the goal. And it's a little bit different. It's a different bag of chips. So it's a good compliment to you guys.

Awesome. Emily, thank you so much for joining us. Thank you. Okay. And one other thing. In case you haven't grabbed tickets for our Bad Decisions Tour, now is the time to do so. Missing the tour would be the worst decision of all.

Maybe not the worst, because we don't know what Sam Alito has in store for us, but still pretty bad. Anyways, we already sold out our New York City show, but we have two other shows for you. May 31st in D.C. at Capital Turnaround and October 4th in Chicago at the Athenaeum Center. Come out and let's talk about the wild judicial timeline we're living in. Head to crooked.com slash events for more information.

Thank you.

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