Executive Lawlessness: Leah Litman on the Supreme Court Enabling Presidential Overreach
During Donald Trump s first term the Supreme Court made chosen effort to check his power But that era is over The court has ruled that Trump cannot be prosecuted for actions he took as president including for his role in the January attack on the Capitol and it just wrapped its latest term by restricting lower courts power to block his unlawful orders on issues like birthright citizenship abortion care and immigrants basic rights What the Supreme Court did is it limited lower courts ability to use what has been the bulk effective tool that lower courts have to reign in the Trump administration s lawlessness which is to block a plan on a nationwide basis says Leah Litman author of the new book Lawless How the Supreme Court Runs on Conservative Grievance Fringe Theories and Bad Vibes This week on The Intercept Briefing newsroom counsel and correspondent Shawn Musgrave speaks with professor and attorney Litman and politics reporter Jessica Washington about how the Supreme Court s right-wing supermajority is laying the legal foundation for unchecked executive lawlessness and signaling to Trump that it won t stand in his way Listen to the full conversation of The Intercept Briefing on Apple Podcasts Spotify or wherever you listen TRANSCRIPT Shawn Musgrave Welcome to The Intercept Briefing I m Shawn Musgrave newsroom counsel and correspondent for The Intercept During President Donald Trump s first term the U S Supreme Court seemed at least somewhat interested in holding him accountable to the law But even before Trump was reelected the Supreme Court proved signs that it wouldn t stand in his way in a second term CBS Well you ve been watching a special statement The nation s highest court has ruled that former President Donald Trump is entitled to specific level of immunity from federal prosecution for official acts he took while in office PBS Former President Donald Trump is immune from criminal prosecution for any so-called official acts taken as president WHAS Absolutely immunity for core constitutional powers SM Last summer the Supreme Court ruled that Trump couldn t be prosecuted for actions he took as president including for his role in the January attacks on the Capitol And this past June the Supreme Court finished its term by limiting lower courts authority to block any of Trump s unlawful orders on issues like birthright citizenship abortion care and immigrants basic rights The Supreme Court s conservative supermajority also greenlit Trump s horrific practice of deporting people to countries they ve never lived in countries where they may face torture and inhumane detention like South Sudan The Court did so with barely any explanation at all For good measure this term the Court also signed off on a slew of conservative attacks on transgender and reproductive healthcare pornography and even basic representation of queer people in society school classrooms All of these are perfectly legal and constitutional according to Chief Justice John Roberts and the six rightwing justices Joining me now to discuss the Supreme Court and how we got here is Leah Litman a law professor at the University of Michigan and co-host of the Strict Scrutiny podcast In May Professor Litman published a new book Lawless How the Supreme Court Runs on Conservative Grievance Fringe Theories and Bad Vibes Welcome to the show Professor Litman Leah Litman Thanks so much for having me SM Also joining us is Jessica Washington politics reporter for The Intercept who s been covering legal battles over reproductive rights and other issues Welcome Jessica Jessica Washington Thank you for having me SM We re speaking on Friday July Professor Litman before we get into the Supreme Court s train wreck of a term could you set the scene a bit Your book essentially argues that the Supreme Court s conservative supermajority is no longer practicing law It s just doing conservative politics using judicial language How did we get here LL So I think we got here in a number of different means One is a story of the decline of our democratic institutions In part because of the Electoral College and Senate malapportionment it became easier for a party that enjoys only minority encouragement to win control of the Senate and the presidency And of module those are the institutions that then select Supreme Court nominees And so you almost have this double layer of democratic deficit that is built into the modern Supreme Court And that court therefore became increasingly secure catering to an increasingly narrow segment and minority of the country You add to that several choices that the Republican Party itself made to really lean into the politics of minority rule deciding to basically channel the backlash to feminism channel the backlash to the civil rights movement and go all-in on oligarchs and corporate interests And that made them a party that then depends on minority rule And so in order to constantly whip their base into a frenzy they invariably portray themselves as the casualties And so when that is the message of the political party and that party can obtain power through minority rule that s what you are going to see in the justices they appoint Particularly because they also perfected this judicial selection machine where they could identify people who are willing to go all-in on several of the more fringe elements of the party SM And we ll get into this a little bit when we talk about particular of the contemporary decisions But what role does originalism the judicial doctrine favored by the six of the justices now and kind of depending on how you count specific of the other liberal ones maybe they re also originalists too but how does originalism play into your framework and kind of what we re seeing of late from the court Can you first talk about what originalism is and what role it s playing LL Of curriculum So originalism refers to a method of interpreting the Constitution and it generally maintains that the Constitution means what it meant when it was originally ratified whether that s in the s or in the occurrence of particular of the amendments s or afterwards And so it directs decision-makers to a time when the country was much less democratic And therefore it s not really surprising that originalism cropped up as a way of resisting certain of the civil rights movements and advances of the th century The first time you start hearing things about how the Supreme Court departed from the original intent of the framers was in the aftermath of Brown v Board of Training when segregationists are criticizing the court declaring segregated population schools unconstitutional And then it really picks up steam during the s in the rise of the Federalist Society and as the Ronald Reagan administration decides to lean into the backlash to feminism and the civil liberties and civil rights revolution of the s And so originalism starts to become trumpeted and advertised as the method of getting courts to roll back those civil rights advances And I think it kind of naturally lends itself to doing so So how does it fit in I mean it was a project that was pumped out and advertised as a way of accomplishing specific of the Republican Party s agenda And it s no surprise that in the hands of a super majority Republican dominated Supreme Court that it does just that SM So let s talk about how this has played out in particular current decisions specifically decisions around reproductive healthcare Jessica in June you wrote about a ruling that paved the way for South Carolina and other red states to target Planned Parenthood s funding Can you tell us about that decision and how it relates to ongoing fights about defunding reproductive medical JW Yeah definitely So Medina v Planned Parenthood at South Atlantic which is the development you re referring to can effectively be boiled down to Can states bar Medicaid patients from accessing a healthcare provider in this episode Planned Parenthood for ideological reasons And the court s answer was more or less yes they can To take a major step back though in South Carolina s Governor Henry McMaster attempted to exclude Planned Parenthood from the state s Medicaid undertaking limiting the healthcare options for the million South Carolinians who were in the scheme McMaster was explicit that he did this because Planned Parenthood provided abortion care and I think it s really pivotal when we talk about this remember that Medicaid in South Carolina does not cover abortion care except in extremely limited circumstances And lower courts have repeatedly sided with Planned Parenthood arguing that the Medicaid act kind of ironically when we re talking about originalism explicitly allows recipients to pick the provider of their choice in a clause known as the free choice of provider provision But in June the Supreme Court rejected those earlier interpretations in a six-three decision They ruled against Planned Parenthood and that Medicaid recipients do not have a right to pick a specific provider Obviously as you ve mentioned this comes in a long history of Republicans trying to defund Planned Parenthood any way they can And this ruling extends so far beyond South Carolina essentially granting other conservative states the leeway to also exclude Planned Parenthood from their Medicaid programs This has massive implications for millions of low income Americans I believe nationally about a third of all women have received healthcare services from Planned Parenthood And now we re talking about limiting access to reproductive and sexual healthcare in places where access is already abysmal and incredibly limited I mean we have incredibly high rates I think in South Carolina of maternal mortality of sexually transmitted diseases and really limited access to contraceptives and of discipline abortion care SM So Professor Litman this sounds like a pretty technical decision but Justice Ketanji Brown Jackson writing for the three liberals wrote a pretty fiery dissent slamming it as part of a project of stymying one of the country s great civil rights laws How does this decision about Medicaid and Planned Parenthood and interpreting one federal statute fit into broader efforts over the decades to chip away at reproductive rights and other civil rights LL Absolutely So I would highlight two aspects of this decision that I think are relevant One is that in my view it really underscores that the movement that led to the rise of originalism the movement that led the court to overrule Roe v Wade it was never just about originalism It was never just about letting the voters decide whether abortion access is protected It was inevitably about this broader backlash to women s sexual autonomy their sexual freedom feminism and civil rights more generally And so of lesson right this decision is not about originalism it s not about the constitution It is about how to interpret this set of federal statutes And so it s no surprise that even when they re not turning to this methodology originalism that again was advertised as a way of rolling back Roe v Wade and other social guidelines advancements that they would do the same thing and accomplish the same end just through a different method here interpreting statutes Now when you say Justice Jackson links this to the broader project of rolling back civil rights as Jessica described the question in this occurrence is whether patients and providers can sue states when states violate federal law the Medicaid act Again no real question here that South Carolina s decision to boot Planned Parenthood violates federal law Supreme Court right doesn t deny that it does The question is whether you can do anything when a state violates that federal law and the patients and providers had relied on this federal statute section which is known as the General Civil Rights Law That law was passed in the wake of the Civil War during reconstruction as a way of ensuring that private citizens can enforce their federal civil rights and get their day in federal court when states are attempting to deny them their rights And that is the federal law that the Supreme Court says these patients and providers cannot rely on when South Carolina is attacking women s access to healthcare And Justice Jackson links the court s decision to narrow civil rights remedies and the ability to enforce civil rights to the Supreme Court largely dismantling reconstruction in the aftermath of the Civil War And so I think that those are really the two projects on display in this Planned Parenthood decision both an attack on the project of multiracial democracy that reconstruction represented and also this attack on feminism the idea that women have rights SM So there s another way that this has played out not long ago in the reproductive healthcare arena Last summer two years after overturning Roe in the Dobbs decision the Supreme Court punted in another major abortion scenario out of Idaho and we re now starting to see the fallout from that move under the Trump administration The episode last summer was about patients rights to crisis abortions under the Federal Urgency Medicinal Remedy and Operational Labor Act or EMTALA The Supreme Court sent the affair back down to lower courts without ruling on what s literally protected or not under that federal law Jessica so what has the Trump administration been doing of late to weaken protections for crisis abortions JW Thank you for asking about this So just to start off EMTALA or the Emergency Physiological Remedy and Labor Act requires that hospitals that take Medicare provide stabilizing care to patients experiencing anatomical emergencies So in after the fall of Roe the Biden administration provided guidance clarifying that if abortion care was necessary to stabilize a person in an emergency situation hospitals were required to do so regardless of the abortion laws in the state and whether or not they contradicted that effort So in June the Trump administration rescinded that guidance with a super vague message essentially saying we re rescinding this but kind of nothing really changes and we don t interpret it the same way And they explained that and I ll read it cause I think it s helpful to CMS will continue to enforce EMTALA which protects all individuals who present to a hospital emergency department seeking examination or healing including for identified emergency diagnostic conditions that place the healthcare of a pregnant woman or her unborn child in serious jeopardy It s really not clear what they meant here They didn t add a ton of extra information HHS informed me that effectively nothing would change when I demanded But when I talked to providers they recounted a very different story They commented the confusion caused by this new guidance would get women killed in these really uncertain and fast-paced clinical emergencies where every second counts So essentially what the Trump administration has done here is add a bunch of confusion into our diagnostic system that already had a ton of confusion and this confusion gets people killed SM Professor Litman let s talk about the Supreme Court s role in the confusion This seems like another example of the conservative majority on the Supreme Court using a procedural or technical maneuver to give anti-abortion Republicans and the Trump administration now free reign They didn t technically weaken or change the federal law EMTALA but they also declined to say what it meant So can you talk about what you see in the road ahead for reproductive rights under this court LL I mean the Supreme Court has its hands all over the unfortunate catastrophe that is unfolding because states are basically being informed maybe you don t have to abide by EMTALA when it comes to abortions So what the Supreme Court did in this EMTALA event is it dismissed the writ as improvidently granted which just means they decided not to decide whether EMTALA veritably does prevent states from enforcing their abortion bans to prohibit hospitals from providing robustness and stabilizing care when that care is an abortion When a woman shows up to an crisis room and she s experiencing severe complications and the question is can we stabilize her by providing an abortion and particular states restrictive abortion laws say no you can t And EMTALA right should say no you have to And so by declining to decide whether EMTALA does indeed prevent states from enforcing their abortion bans in those circumstances the Supreme Court left open the possibility that states can continue to enforce their abortion bans in those curative emergencies And so that is what creates the uncertainty that Jessica is alluding to whether indeed these abortion bans can be enforced against hospitals and doctors that are trying to provide life and medical saving care to their patients I think the second way in which the court is responsible for this catastrophe is during the period in which the Supreme Court was ostensibly deciding to decide whether to decide it they had stayed a lower court ruling that had blocked the state from enforcing its abortion ban in these cases of curative emergencies So what happened when the state could enforce its abortion ban in these cases of health emergencies women had to be airlifted out of the state in order to receive crisis care If you read the stories of these patients it is appalling SM Yeah it s horrifying LL Right like they are telling the helicopter pilots and whatnot tell my children I love them They don t remember what is happening Women are being informed maybe get helicopter insurance because the price of these rides is just immense And so the Supreme Court again allowed the state to enforce its abortion ban during the period in which it was deciding whether to decide this event opted not to decide it and thereby cleared the way for the Trump administration to signal to states don t worry you can enforce your abortion bans in these healthcare emergencies SM Let s turn to chosen of the other signals the Supreme Court is sending to the Trump administration and conservatives around the country Let s start with the birthright citizenship affair The conservative majority didn t address whether we all still have birthright citizenship as a bedrock constitutional concept via the th amendment Instead they ruled that district courts couldn t issue nationwide injunctions in a staunchly originalist decision that Justice Jackson torched in her dissent as a smokescreen of legalese So Professor Litman what s the real impact of this decision and how does it fit into your framework of a vibe-based Supreme Court LL Yeah so the impact of this decision I think is twofold One is the practicalities in litigation that is where it might authentically undermine people s ability to enforce their rights And then the second is more atmospheric and what signals they are sending to the Trump administration as far as emboldening their attacks on lower courts So I ll just start with the first kind of like the practical rubber hits the road What the Supreme Court did is it limited lower courts ability to use what has been the majority effective tool that lower courts have to reign in the Trump administration s lawlessness which is to block a program on a nationwide basis Because what the Supreme Court is saying is in order to block the administration from applying its protocol to anyone anywhere you need one of two things to happen One is your circumstance demands to proceed as a class action and the second is a scenario could be filed by a state and a court would have to conclude that in order to remedy all of the harms to a state the guidelines has to be blocked on a nationwide basis Now specific cases involving specific policies are going to be able to clear those procedural obstacles but not all of them are And so what that means is in specific set of cases the Supreme Court is going to say no you can t have a class action here or your state can t get a nationwide injunction And what that is going to create is what Justice Jackson called a catch me if you can regime of executive lawlessness where in order to prevent the executive brand from violating your rights you would have to sue And that allows the executive branch again to potentially implement its illegal policies in several places that didn t opt to sue against particular people who weren t able to get a lawyer or weren t able to be part of a class action that was certified And that s going to create this patchwork of lawlessness where the executive branch is basically free from its legal obligations In particular solutions I think the more concerning aspect of this decision although that is certainly very concerning The more concerning aspect of this decision is the Supreme Court s choice to resolve this issue now in the context of a affair that involves various of the majority of egregious and blatant lawlessness Because the Supreme Court had a choice about when to decide this question of nationwide injunctions what episode to decide it in and also had a decision about what issues in the situation to decide That is whether they would also say sure you can t get a nationwide injunction but by the way this executive order super illegal in multiple solutions The plaintiffs challenging it requested the Supreme Court to decide those questions and by opting to decide that the issue in this event that warranted their time is the behavior of the lower courts rather than the behavior of an executive branch that is violating the Constitution violating federal law and refusing to comply with court orders That the challenge is the lower courts That is really going to embolden the executive branch in their continued attack on the legitimacy of lower courts enforcing federal law against the executive branch SM Yeah and since the birthright citizenship situation we ve seen smaller decisions on the shadow docket from the Supreme Court of them just saying no literally we re just going to reverse this injunction that the lower court issued LM Right SM No explanation That s what they did in the South Sudan situation So vibe certainly seems to be the way to think about it Break SM Maybe let s turn to perhaps the largest part vibe based decision of the term in my opinion The Pride Puppy scenario LL OK I think I would agree with you Laughter SM Yeah Yeah it s a tough category I would put it between this and maybe the porn occurrence but the Pride Puppy development Jessica can you briefly give us the background on this one JW So in this event parents in Montgomery County sued over the inclusion of LGBTQ inclusive books These books included as you ve mentioned Pride Puppy along with a host of other books celebrating people of different queer identities Parents argued that because they weren t given the option to opt out of these lessons their religious liberty was violated So in this occurrence the court ended up siding with the families And it s a little more complicated than that but that saying that they were entitled to a preliminary injunction while their lawsuit went ahead Now I think what s essential in this affair to talk about is the dissent So in the dissent Justice Sonia Sotomayor noted this was an incredibly slippery slope and I think a lot of legal analysts could agree This really opens the floodgates for parents to challenge on lessons from everything from evolution to civil rights if it violated their specific religious belief This also clearly opens the floodgates as well for litigation from families over the inclusion of LGBTQ books and classrooms generally So I think this is a event where you can really see this kind of slippery slope argument going forward And also when you re talking about this affair we re really talking about just the inclusion of queer people in general in stories for children We re not talking about books that mentioned you have to be trans or anything like that We re talking about books that just tell children it is OK to be different SM Or just that they exist JW Or that they exist SM Their inclusion as characters JW Yeah their inclusion as human beings and people with equal value and rights And this is definitely a backward slide LL Jessica I agree with your reading of the books But I think Shawn why this decision takes the cake on the greater part vibes-based is because when Justice Samuel Alito and the other Republican appointees looked at the books they picked up different vibes And the vibes they picked up is these story books which again involve a pride parade and a puppy in a rainbow bandana and a woman in a leather jacket and a book in which a girl s favorite uncle is going to get married just so happens gets married to a man and the girl s concerned that her favorite uncle will have less time to spend with her SM Filth absolute filth LL Laughs The vibes that he picked up and the other Republican appointees is what the books were saying is you have to accept marriage equality or trans people because otherwise you are evil Like literally if you read the opinion Justice Alito talks about this storybook Uncle Bobby s Wedding and says the book is coy about the precise reason why little Chloe objects to her uncle s wedding And it s like it s not coy about this at all But again he picks up specific different vibes because the books involve gay people and trans people and he just can t live with that SM So this ties into a chapter of your book about the Supreme Court s really scavenger hunt for religious discrimination as part of the conservative blowback to queer people just certainly getting specific legal rights in landmark cases like Lawrence v Texas in which struck down state sodomy laws and of lesson the Obergefell decision in which legalized same sex marriage So can you give us a bit of the historical context for how we got to Justice Alito s very particular reading of Pride Puppy LL Yeah So here too the story really starts with the political and social movement that the Republican Party capitalized on And in the midst of this backlash to feminism there is also a backlash to advancements in LGBT rights So my book talks about Anita Bryant who is this former pageant queen who appeared in Florida orange juice commercials and she kinda leads this crusade against LGBT rights And she insists she s not doing so out of hate but out of love And that the obstacle is that as she calls it the homosexuals around the country have the aid of liberal politicians and they re filled with religious bigotry And so it s these ideas that get incorporated into the Republican Party s resistance to LGBT equality where they paint efforts to obtain civil rights for the LGBT society as really attacks on those religious believers who are opposed to LGBT equality And you start to see these ideas surface in the dissents to those major cases that represented victories for LGBT equality In Obergefell v Hodges the marriage equality decision Justice Alito talks about how that decision to again recognize that same sex couples can get marriage licenses how that is going to facilitate the marginalization of people with traditional views about marriage And he says it will call to mind the harsh remedy of gays and lesbians in the past As if allowing gay people to get married is just like prohibiting them from getting married and a period in which you could be institutionalized for consensual sexual intimacy with a person of the same sex That s the mindset that was in play among the Republican appointees on the Supreme Court and that is now the mindset that you can see surfacing in their majority opinions They deny that there is discrimination against LGBT people at the same time that they insist any and all equality for LGBT individuals is authentically discrimination against the religious and social conservatives who are opposed to LGBT equality And based on that idea they are chipping away at LGBT equality and giving people with objections to marriage equality the ability to opt out of civil rights laws that prohibit discrimination on the basis of sexual orientation or gender identity And so it s that kind of long arc that I trace in political and social movements and then identify in the writings of the Republican appointees on the court the present day SM Right One of the really formative moments for me in law school was reading Justice Scalia s descent in Lawrence LL Oh yeah SM And I mean I had heard of Scalia all my life as this kind of lion of originalism and rigorous legal thought but then if you read the entirety of his dissent there s selected pretty bigoted zingers in there that didn t quite make the news coverage at the time LL Yeah He talks about how people are entitled to protect themselves and their families from what they view as an immoral or destructive lifestyle That is how he talks about that circumstance SM Yeah And the capture of the homosexual agenda LL Oh yeah The court has signed on to the homosexual agenda It s like oh my gosh SM Before we wrap up I want to talk a bit about the court s two preponderance in recent weeks endorsed justices There s Justice Amy Coney Barrett the conservative appointed by Trump who going into this term was being framed as a moderate or kind of a wild card in the conservative majority by several commentators especially compared to selected of the other Trump picks for SCOTUS And then there s Justice Ketanji Brown Jackson who s leaning into the role now of writing these blistering very clear-eyed dissents sometimes just for herself So Professor Litman what did we learn from this term about these two justices LL I think what we learned about Justice Jackson is that she is really the next frontier of what I hope will be Democratic appointees to the courts in that she recognizes what her Republican colleagues are up to and she is willing to call it out in tactics that lay plain You know the slipperiness of their maneuvers how selective they are in their approach to legal rules and the underlying ideology that is doing work at issue in these cases And I think her willingness to do that is from my perspective greatly appreciated very powerful and calls more attention to the Supreme Court than they would otherwise get in a world of more subdued dissents or a world where the Democratic appointees are engaged in appeasement and trying to make compromises with the Republican appointees to accomplish what I don t know but I appreciate her recognition that that is not the strategy right now Especially in a world where the court is six to three Republican appointees And I have located her writings and her statements off the bench to just be incredibly persuasive and memorable and also accessible Justice Barrett I was not one of the people that thought she was particular secret moderate liberal squish So what we learned is that people trying to sell that narrative were selling us a false bill of goods This is a rock-ribbed right-wing conservative who just so happened to say a state court in New York could engage in an electronic remote sentencing of Donald Trump on those felony convictions as long as he was going to impose no prison time Like that was one of the cases in which she departed from her Republican colleagues in which everyone was making certain big deal about it And then I can go into the other examples But the point is they weren t that big a deal And she was with them on the big ticket cases and in fact she s to their right on specific issues SM Yeah exactly LL In Skrmetti the event about yeah the ban on gender affirming care for trans kids the Chief Justice s majority announced oh this law doesn t certainly discriminate against trans people And she wrote separately to say but even if it did I would be fine with that and still treat it as constitutional So this is not certain secret moderate who s going to save us SM Yeah Her concurrence in Skrmetti was wild especially since from her wing of the court you re not supposed to talk about things that are necessary to the decision So to kind of pull in this really farfetched argument that it would be really hard to show that trans people have been subject to de jure or by law discrimination was the thrust of her concurrence which Justice Thomas signed onto And what world this century or another can you make that message with a straight face It s not a moderate development I agree Jessica do you have any thoughts particularly reading particular of the dissents that you ve covered from Justice Jackson JW I think what s really thought-provoking to me is in Washington collegiality is so essential Waiting your turn is so crucial you know not speaking before your time And the fact that she s been willing to especially in the Supreme Court throw that out the window speak openly speak often speak forcefully call out her colleagues I think we re seeing as Professor Litman pointed out we re seeing really this shift in Jackson and hopefully a shift that we see maybe from specific lawmakers as well But this recognition that we re not in regular times we are in this really quick descent I would argue towards something akin to fascism And the fact that she recognizes that and is willing to speak on that is such a shift in this court and it feels so key in this moment SM I agree We ve talked about the bleakness of latest Supreme Court decisions Let s end maybe by looking to the future and how our democracy might find techniques to repair particular of the damage Professor Litman in your book s conclusion you come out in favor of expanding the court and also give certain other thoughts on countering the conservative reshaping of the judicial branch So how can we get past all the damage that the Supreme Court has inflicted so far and supposedly will keep inflicting at least for the rest of Trump s term LL It s really two things One are the specific proposals you can enact into law to democratize an institution like the Supreme Court And then the second is all of the things that need to be done in order to get us to a point where we can certainly adopt those reforms So it s easy enough to list the things that I think have to be done from Supreme Court expansion to limiting the Supreme Court s authority to strike down laws like the Voting Rights Act to ethics transformation to all of the other things that would be very helpful to making the Supreme Court a better functioning institution giving Congress more control over the kinds of cases the Supreme Court hears or creating term limits like all of that would be great And then the question is OK how do we get from here to that world And this answer is invariably frustrating to people and they don t like to hear it but it s going to take a while to change an institution like the Supreme Court And there are going to be things we have to invest in that are not going to yield immediate returns From population tuition and information to organizing to investing in state and local elections and primaries to identify those democratic leaders who understand the situation in the same way that Justice Jackson understands the situation contra other democratic politicians and leaders So those are particular attempts and that involves organization that involves learning and that involves staying committed to the strategy over the long haul because again it s not something that s going to get fixed merely by securing a good outcome in the midterms or the next presidential electoral process because the reality is the Democratic Party is still the way it is And part of the work that has to be done is either reshaping and reforming the Democratic Party so that it understands and responds to the situation we find ourselves in or changing enough people s minds to create enough pressure on the current democratic leaders and democratic political elites to do that SM Jessica do you have any thoughts JW So my two cents are definitely from the people I ve spoken to court expansion and then also just the extent to which we ve seen so much corruption within the court really unchecked unchecked by Congress even though that is their role So definitely specific real checks and balances on the Supreme Court that we just haven t seen before seems to be very significant especially with everything that has come out thank you ProPublica about Clarence Thomas It definitely seems like a little more rules in the Supreme Court would help us out SM Alright And with court expansion and Pride Puppy I think we re gonna leave this conversation there Thank you so much Professor Litman for joining us on the Intercept Briefing LL Thanks for having me SM And thanks for joining Jessica JW Thank you SM Last month the Supreme Court upheld a ban on gender-affirming care for trans kids in Tennessee In her dissent Justice Sonia Sotomayor wrote The majority subjects a law that plainly discriminates on the basis of sex to mere rational-basis review By retreating from meaningful judicial review exactly where it matters the bulk the Court abandons transgender children and their families to political whims In sadness I dissent Ella from Los Angeles gave us a call to share how her mom and other mothers of trans children are organizing Here s Ella Ella My mother I don t know that she would personally call herself an activist but her and a bunch of moms from greater Los Angeles who have trans children are in the present working on a massive spreadsheet of essentially hundreds and hundreds of trans support They re trying to find tips about attainable laws talking to lawyers and have created a really incredible and powerful arrangement of help I think it s really moving the lengths that these women are going for their children Something that I cling to when I think of how scary a lot of these times are SM Thanks for sharing Ella That does it for this episode of The Intercept Briefing We want to hear from you Share your story with us at -POD-CAST That s - - You can also email us at podcasts at TheIntercept com This episode was produced by Truc Nguyen Laura Flynn is our Supervising Producer Sumi Aggarwal is our executive producer Ben Muessig is our editor-in-chief Chelsey B Coombs is our social and video producer Fei Liu is our product and design manager Nara Shin is our copy editor Will Stanton mixed our show Legal review by David Bralow Slip Stream provided our theme music You can promotion our work at theintercept com join Your donation no matter the amount makes a real difference If you haven t already please subscribe to The Intercept Briefing wherever you listen to podcasts And tell all of your friends about us and better yet leave us a rating or a review to help other listeners find us Until next time I m Shawn Musgrave Thanks for listening The post Executive Lawlessness Leah Litman on the Supreme Court Enabling Presidential Overreach appeared first 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