The MAGA Supreme Court's Assault on America

[MUSIC] >> Welcome to Pots of America, I'm Dan Fifer. We're about to hear a great conversation I just have with Leah Litman, a law professor, a co-host of Preach Media's strict scrutiny, an author of Lawless, How the Supreme Court runs on conservative grievances, fringe theories, and bad vibes. We talked about this week's monumental Supreme Court decisions on the Trump administration's immigration policy, what's making Leah anxious about the upcoming decision on birthright citizenship and the legacy of Roe v. Wade, including how it's playing in the race to unseat Susan Collins in Maine. We also talked about some of the other decisions we're expecting to come out of the court soon, including decisions on male ballots, transportation in sports, and the independence of the federal reserve. It was a great conversation and we'll get to it in a minute, but before we do, please consider becoming a paid subscriber of friends of the pod. Subscribers get access to ad free episodes of Pots of America. Subscriber only shows like Pots of America only friends in my show, Polar Coaster, and discounted tickets to crooked media events, including this fall's crooked con. Plus it's the best way to support independent pro-democracy media, head to crooked.com/franc to subscribe today. Also, check out my sub-stack newsletter, The Message Box, which is where I share all of my best, most in-depth takes. And I have a special deal for Potsave America fan. Signed up now at Crooked.com/EyesWeDan. Get 20% off your subscription for an entire year. That's Crooked.com/EyesWeDan. All right. Here's my conversation with Leah Litman. Leah Litman, welcome back to Potsave America. Thanks for having me. Under these great services. Originally when we sketched on this, we thought there was a chance a Supreme Court would have released all of its big monumental decisions at the end of this quarter. Per usual, Samolito, John Roberts have screwed up our best laid plans. But they have released a number of very important decisions that I want to talk to you about. And then I want to talk about the decisions that are looming, that are doomed to possibly ruin many people's Fourth of July break. Let us start with the case that I think has the most impact for the most people. Can I just start with the timing point? Please, please do, please. Because it's not just that you thought they would finish by the end of this week. It's that traditionally and historically, the Court has finished releasing opinions in argued cases before the holiday week. And these guys have one fucking job. And they're not even doing that. Right. They cannot bother to do law. And yet they can't finish according to schedule. Despite loving history and tradition, they cannot conform to this most basic tradition about how the Supreme Court works. Which is important for many reasons, but primarily for podcast recordings. Exactly. Yes. Exactly. Super inconvenient. OK. So good. This is an important point. I'm glad you made that point. I want to start with the case that I think has the most impact on the most people. This is the six three decision. Everyone listening to guests who the six and who the three are that will allow the Trump administration to rescind temporary protective status for 350,000 Haitian immigrants. This case is about a lot of things. It's a big deal. Talk to me about what was it's taking this case and what the ruling says. Oh my gosh. This case is so maddening. I have just become angrier about it with every passing hour. So the case involved actually two different revocations of the temporary protected status program. And TPS is a method where the executive branch can offer immigration relief to individuals who undergo a rigorous vetting process. Who are from certain countries when returning them to those countries would be horrific because of conditions in those countries. And so Haiti was one such country after you know devastating natural disasters coupled with you know the basic failure of the government. It's super dangerous to be in Haiti and so temporary protected status was offered so to with respect to Syrian nationals. And so early on in the Trump administration fall 2025. Christine Ohm says we're just going to end these TPS programs for individuals from several different countries and those decisions to end the program were challenged and these cases involve challenges to the end of TPS for Haitian nationals and Syrian nationals by statute Congress because of the importance of the TPS program to people's lives you know they structure their lives around being able to live and work in the United States require the executive branch to undergo a fairly rigorous process before deciding to end TPS and specifically the executive branch had to consult among different agencies to determine that conditions in that country were indeed sufficiently different that ending TPS was justified. And there's almost no question that the Trump administration didn't do that with respect to Haiti in particular emails suggest that the Department of Homeland Security asked the State Department to weigh in about conditions in Haiti and then went ahead and cancel TPS before State Department even weighed in that's not actually consultation and I don't think there's any argument on that point you add to that the fact that the president said while horrible grotesque things about Haitian nationals and it sure looks like they decided to end TPS not because conditions in Haiti had changed but because the president just wanted to fulfill Stephen Miller's white supremacist immigration dreams. And so those were the challenges that the Trump administration violated statutes by not following the required processes and violated the Constitution by implementing this policy out of racial animus discriminating on the basis of race. And in the six to three opinion Samolito was like I don't care do you know on the statutory arguments he said who cares whether or not they complied with the statute courts can review whether they violated the statute or not. So it's a new finding right that is a new entirely new rule for decades it has been understood that even though the statutes don't allow courts to second guess the secretary's determination ultimate determination about whether to end TPS they do allow courts to ensure that the secretary followed the required process to ensure sound decision making. And Samolito and co wipe away all of those rules and render all of these statutes unenforceable they're basically guidelines at this point the executive branch faces no consequences for openly flouting them Donald Trump. And Donald Trump Mark Wayne mullen could stand up tomorrow and say we're not going to follow these statutes and there's not a thing that courts could do about it in light of the rule. But what is the reason you know it seems like a pretty basic thing congress rights laws the executive must follow said laws if executive is not follow those laws someone who is standing soos and the courts come in and say you did not follow those laws you must do something different. Is there something that they find an inherent authority of the president immigration what is the basis for saying the laws don't apply on this particular issue. It's so wild to hear you say that because this unfortunately was a theme of almost all of the court's decisions from this last week saying that people whose rights were violated can't do a thing about it can't sue to challenge in federal court so here their rationale was congress had actually decided to impose these rules on the executive branch and to foreclose the possibility that courts could review whether the executive branch. complied with those rules so they put the decision at congresses feet rather than saying the constitution doesn't allow courts to review those determinations. So now let's get to the racial animus point and why that matters here because I think for people who have been following the saga for a long time the Haitian immigrants are the ones that Trump and J. And the entire media accused or the 24 campaign of eating the pets in Ohio that that's what we're talking about here right well and it wasn't just that it is the president said people from Haiti have a he called it a shithole country he said they were his nationals poisoning the blood of the country. A bunch of racist vile remarks and Sam Alito does not even have the backbone to recite those remarks in his opinion he just declares they're not overtly racial I have no idea what that means given that the president also said he wanted to admit more people from Sweden and Norway. Again he tried to say I guess there's xenophobic and really about opposition to immigration policy which makes no sense and also in any case I don't understand why that would be constitutional. And if he cannot bring himself to recite the remarks of the person who he saying isn't racist I think that's a pretty big indication that maybe the person is racist and saying racist things but he just kind of said nothing to see here and legalized what the president did and said. And so this means for patients that there are 350 thousand of them I believe many of them is country for quite a while now I think TV has been around for almost a decade right yeah more than a decade and so these people can all be deported now either in there when they go to because you have to go to a regular check in right and so they go to the next time they encounter a nice officer CBP officer they could be. They could be deported same as true of serians now I know Stephen Miller was on Fox News minimize. seeing the dangers in Haiti and comparing it to Chicago, St. Louis, Los Angeles. But Syria seems like a harder case to make that this is a totally safe and fine place to go back to. I mean, I think Haiti is a really tough place. Yeah. I mean, maybe even tougher than Syria actually is at the time of the time. Yes, exactly. And so this would be the largest de-legalization in United States history. So while these cases specifically are about Haitian nationals and Syrian nationals, the Trump administration has attempted to end temporary protected status for individuals from other countries, including Venezuela, Nicaragua, El Salvador, and more. You know, when Trump took office, there were more than a million people living in the United States with temporary protected status. And suddenly all of those people potentially lose their legal authorization to remain in the United States. And your point about check-ins just drives home that people they are penalizing are the people who followed the immigration rules. They underwent this vetting process. They do check-ins with immigration officers. And so now the federal government knows who they are, where they are, and could be poised to effectuate these mass deportations. In her dissent, Justice Kagan says, as a result of the court's order, they're basically telling the executive branch, you can put these people on the next plane and send them off. And it's just cruel what the Supreme Court is potentially allowing and inviting the Trump administration to do. So for the non-Syrians, non-Hations who have protected status, like you mentioned, Venezuelans, all we also talk about, people from Afghanistan, many of whom fled after the fall of the Afghan government, people who helped the American military and diplomats there, talking about Ukrainian refugees, all these other groups. Can the Trump administration now just sign a piece of paper and remove their TPS or go through the fake process, if they don't even have to go through it anymore? Are we just one Stephen Miller email away from 1.2 million or whatever it is, people potentially being deported? Potentially, yes. And there have been cases challenging the rescissions of the other temporary protected status programs as well. But in light of this decision, telling courts they can't review any of the statutory claims and excusing the president's gutter racism, it's going to be really hard for any court to pause those rescissions. Great. So, this is not, this is honestly truly terrible. And so then we have a second, we had a second immigration decision that came down. Now, this one is less immediate in its consequences and hinges as I understand it on the meeting of the word arrive in immigration law. Can you explain? This is another 6-3 with the typical 6 and the typical 3 decision. Can you explain what's going on in this case? Yeah. So, this case is about the meaning of a silent law under international law and statues that Congress has passed. Individuals who arrive in the United States are entitled to claim asylum and they are entitled to have their asylum claim assessed in a legitimate process and procedure. What the Supreme Court said is an individual doesn't arrive in the United States and therefore they aren't entitled to claim asylum or have their asylum claim assessed if they are stopped outside of the physical borders of the United States. As Justice Sotomayor pointed out in her dissent, this creates a giant loophole. It tells the executive branch so long as you physically block people from entering the United States, you do not have to consider their asylum applications. You can just turn them away wholesale and that decision was entirely unnecessary. Part of what is so, I think, heinous, both about the asylum case and the TPS case is that the Supreme Court did not have to reach them on this asylum case. The case originated as a challenge to a policy that isn't in existence. It was a challenge to the so-called metering policy that began almost a decade ago and under that policy, immigration officials would turn away people and say we can't process your asylum applications if the quota for the number of individuals who could be processed at the border had been met. That policy was ended. There was not in effect any policy that presented this question about whether the Trump administration could refuse to process asylum applications from people who they stopped outside the border. Instead, the Supreme Court went ahead and just told them, well, we've decided you could do this thing that you may want to do and therefore paved the way for them to implement another callous immigration policy. In the original metering policy, which began at the end of the Obama administration, you would show up and they would say we just had too many people today. We're not going to be able to get to your case. Come back tomorrow and we will look at your case. At that point, it wasn't an attempt to deny them. It was essentially recognizing you've shown up at the door. We can't let you in the door, we're acknowledging you have the right to make your asylum case and we are going to or we are going to allow you to do that on a different day when there is an actual someone who can hear it, basically, right? Yes. That was the answer. Now, this seems like such an insanely stupid decision on so many levels because it doesn't it seem to argue that if you or someone who has a, you believe you have a legitimate asylum case, you're a Communist United States to avail yourself of your human right to seek asylum consistent with our laws and traditions, you are better off sneaking across the border exactly. And getting caught and then claiming an asylum case, then showing up at the front door and asking to present your case. This decision is unhinged as Justice Sotomayor wrote in her dissent. The consequences are predictable, more people will die and among the reasons is it creates this incentive for people to try to sneak across the border because only if they manage to get into the United States borders, would they be able to claim asylum? This is another example of the Supreme Court adopting a rule that penalizes people who are trying to comply with immigration law by presenting themselves at the border and trying to assert an asylum claim. It's basically funneling them into these trafficking organizations that are making money to get them into the country, as opposed to just, it's so, to me, that's what it seems so insane about it. And that result of this other than the consequence of the people who then now get injured, get hurt, get killed, are trafficked, you know, young women and children who go to these groups and up in very bad places often and then attempt to get to the United States. What is going to happen is the Stephen Miller could just tell the CBP, don't let anyone, like no one, no one gets in. So we will not recognize any legitimate asylum claims that come in through the normal process. Yes. It does not matter if someone could prove beyond a reasonable doubt that they would be persecuted, tortured, killed in their home country. The administration can just refuse to consider that. Now in this, I learned from your very, the very excellent emergency, strict scrutiny pockets you guys did that came out today, yesterday. What is today? Time is coming. More it's June, Friday, I listen to it this morning, and, but that during the release of this decision that something very dramatic and quite and perhaps unprecedented issues, Supreme Court happening, could you, could you lay that out for us? So it's not entirely unprecedented, although it's deeply rare. By tradition, what happens is when the Supreme Court releases an opinion, the author of the majority opinion will provide some remarks and offer a brief summary of their case occasionally, but only in rare circumstances will the author of the dissent then proceed to summarize their dissent. And reading portions of your dissent from the bench is reserved for very strongly held dissents where you want to signal a very obvious strong objection to what the majority has done. So in the asylum case, just as so to my or red portions of her dissent. And then Sam Alito proceeded to respond. And having the author of the majority opinion respond after the author of the dissent, summarizes their dissent has happened maybe once or twice before, and Justice Alito also intimated that well had he known, Justice Sotomayor, would have summarized more of her dissent. He definitely had additional things. He would have said because he could totally rebut all of her arguments. It's just so petulant and yeah, on unbifitting justice. Well, I mean, which is a long pattern of behavior for Sam Alito, going back to the 2010 Supreme State of the Union where he was so upset that Barack Obama dain't disagree with the decision to allow corporations, billionaires to buy our political system that he had to react viscerally and loudly during the state. He had basically had to heckle the president of the state in the state. Exactly. You think, right, the Tea Party or whoever else invented heckling at the state of the union? No, no, no, no, no, no, no, sweet summer child. It was Sam Alito. Yes. A man who clearly has impulse control problems. Yes. Particularly when criticized perhaps by who wins by-- Definition of a judicial temperament. Yes. When criticized by people who bike wins, it's happening to people of color. Right. So the bottom line. Particularly. Right. Right. Right. Right. This podcast is sponsored by Squarespace. 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The headlines will still be there in the morning, boy, will they? You might as well wake up ready for them. Okay, another big case happened here. And this one caused a different corner of the internet to be a flame. The maha corner of the internet is very upset about a case where the Supreme Court tossed out a suit against Monsanto's parent company involving claims that the weed killer roundup caused cancer. And this one is interesting because this is not our traditional 6-3 group of the six, the three weed no one love and the six we have come to to test it in many cases. This is a 7-2 decision where Kagan and Sotomayor actually were with the majority and Kentucky round Jackson and of course that I believe were with were the ones who dissented. Talk to me about this case and did the majority get it right in this one? So the case is about the federal insecticide, fungicide and redenticide act or fifre. Fifre as we call it, yes. Case shot has called this one of her favorite statutes. I don't know why. But it's a federal law that gives the EPA the environmental protection, agency the authority to regulate pesticides, etc. And what happens is companies submit their proposed label for their pesticide to the EPA and then the EPA signs off on them. And the question in this case is whether an individual could sue a pesticide manufacturer saying that the label that the EPA had approved did not contain enough information to adequately warn them about the danger of the product. And so here the allegation was Monsanto's product roundup contains an ingredient that causes cancer and that's not disclosed on the EPA warning label. And so what the Supreme Court said here is, this statute gives the EPA and the EPA alone the authority to determine what goes on a label. And the label can only be changed if the EPA orders a change or if the EPA approves a change. Private parties, states they can't impose additional requirements beyond what the EPA has decided, is warranted. And so where do you come down on this as a law professor in legal scholar yourself? Yeah. So I think the court probably got it right here. And part because the agency has a lot of authority over how these labels are made and what goes on them. And I think there was a congressional choice to prioritize a uniformity over other considerations and wanting a single process, a single decision maker to determine what goes on these labels and valuing the EPA's expertise over the expertise of, say, state juries or state decision makers. And that's a choice Congress considered the pluses and minuses. And I think the court was probably right to say we need to respect the choice that Congress has made. Now I have other issues with the Monsanto decision, just considered in light of some of the other cases that the court made, but I think standing alone the court probably got it right. And now this was about one specific case in Missouri, but there are other suits against Monsanto out there that will be tossed out because of this. Exactly. Yes. And does this have an impact on broadly on corporate liability or the ability of individuals to sue companies along lines, or is it pretty specific to this one? Fifra-related ruling. It's pretty specific to the Fifra statute itself because the court focused on the fact that Congress in that statute has a provision labeled uniformity. And in the statute gave the EPA a bunch of authority over all stages of the labeling process. And that's not necessarily going to be true in other statutes. And so, yes, it's going to insulate this set of corporations from this particular type of lawsuit, but not beyond that. And could these individuals sue the EPA for the label not being fully fulsome enough to give them what they needed to know to make the right decisions here, or are these people just kind of screwed? Yeah. So they can file administrative procedure act lawsuits against the EPA and challenge the agency's actions with respect to these labels that is not going to get them damages for any harm that they might have experienced because of a failure of these warning labels, but they could try to get the EPA to change them going forward. And you said that you, while this in a vacuum, maybe with the right decision, you have concerns more broadly. I take it. That is the fact that corporations are like 1 million and O in the Roberts quarter of the last 22 years or whatever it is, that would be the general flavor of the objection. And even if you just look at the decisions from this past week. So, Monsanto, corporations can't be sued for labels that allegedly contain insufficient warnings that cause people to get cancer. Earlier this week, the court said, you can't sue corporations for abetting human rights abuses that foreign governments commit. They said corporations, however, can sue foreign governments, namely Cuba for taking their oil. They said individuals who are incarcerated, they cannot sue state officials who violate their religious freedom rights. They said TPS recipients can't sue to challenge the executive branch for violating their rights under the statute. And another immigration case, they said effectively lawful permanent residents can't enforce this statute protecting their right to re-enter the United States at the border. So, who gets to sue to enforce their rights, corporations? You can't sue corporations for violating international law for potentially violating state tort law. You can't sue state officials for violating federal law. You can't sue federal officials for violating federal law. And so, if you just aggregate all of these decisions together, it's like, okay, who has rights, who doesn't, corporations, everyone else. You're bringing up the TPS thing. I was going to go back to something I met to ask you before. Given this decision, what would stop a president, AOC, Gavin Newsom, Kamala Harris, who ever else from just deciding on day one that they wanted to grant TPS to everyone from, say, Mexico? It's so funny you say that, Dan, because that was actually an argument. In the case, that the challengers said, look, if you completely insulate these decisions from review, they can be abused in either direction. So in one of the final passages of the opinion, Samolita suggests, well, look, the plaintiffs in these cases, they throw out these hypotheticals, were not going to necessarily say those would be unreviewable, but maybe Congress could fix them. And so there was this narrow potential caveat that the court reserved for itself because they view themselves as the ultimate decision maker to potentially say, maybe some wholesale abdications might be. So just perch if perchance say a democratic president wanted to unveil themselves of the executive authority that they found inherited Donald Trump's actions, there was a way for them to stop that from happening. Ding, ding, ding, ding, ding, perfect, perfect, perfect, perfect, good. It's make sure, you know, I didn't go to law school, but I'm sort of picking up what's happened at air. I mean, from these decisions, it's not Claire Samolito did either. Yeah, that's fair enough. Okay, let's get to the cases that have not yet been released and will maybe release Monday or Tuesday of next week. We think we hope who knows. Do we hope, honestly, like, there's bad things. I mean, I hope I hope for you as someone who has a podcast schedule. You have to add to that that happens earlier in the week. Rather, I would say for everyone Monday and Tuesday, then Thursday, perhaps. Okay, all right. The biggest one is that everyone's waiting for is the one on birthright citizenship. Everyone seems to think that since the Constitution is quite explicit on this, that it would be seemingly impossible for the Supreme Court to do this. You had a piece of the contrarian where you raised some real question. You have some worries about this. I like to hear what those worries are. And I think it also raises some measure of concern that they've been sitting on this. Like, this is something they could have done in a one sentence order a year ago. And we've been waiting and waiting and waiting. And just based on what I've read and reserved, the fact that they're waiting so long on this, at least suggest that there's something going on. So what is going on here? Tell me about the case. Tell me about why specifically you have worries about what this decision might say. Yeah, so the case is a challenge to the president's executive order. That reports to deny birthright citizenship to some people who are born in the United States, even though the first sentence of the 14th Amendment says all persons born and naturalized in the United States and subject to the jurisdiction thereof shall be citizens. So it's a wildly illegal executive order. And I think most people, even after the oral argument, and even now think it's more likely than not that the Supreme Court will say that order can't be enforced and it's unconstitutional. But, and this is a big, but the recent immigration decisions are really concerning. The fact that the court adopted such broad reasoning in cases where they didn't have to do so at all, I think is causing some people to rethink their confidence in what the court might do on birthright. I think the delay could also signal that the decision isn't going to be unanimous. And if it's not unanimous, that's going to meaningfully alter the over-tune window as far as what people's understanding of our constitutional multiracial democracy is. You know, if you have dissents by Justice Thomas and Alito, is birthright citizenship going to become a new litmus test for Republican appointees where the expectation is you will only be selected for a judicial seat if you would overrule birthright citizenship just like you could only be selected for a judicial seat if you would overrule Roe versus Wade. It would also invite, you know, future challenges to birthright down the road. So I think those are some of the things that are on people's mind. But then there's this additional consideration for me, which is even if the court does the right thing. I mean, they just cannot get all of the credit and all of the plots that are inevitably going to keep on them for standing up to the president. When, as we were just talking about, they bent over backwards to green light, some of the more xenophobic, white nationalist elements of his immigration agenda when they didn't have to do so, they are the ones that created the need for this case on birthright citizenship and indeed demanded that the federal government bring the case to them when last year in the nationwide injunction case, they refused to just come out and say, even if lower courts can't block this policy on a nationwide basis, we Supreme Court can because it's wildly unconstitutional. And instead, they made the solicitor general promise that he would appeal any unfavorable ruling back to them to give them the opportunity to be the hero. And so they were the ones that created this potential opportunity for great PR for themselves that will give them cover for who knows what else they might do in addition to all of the terrible things they've already done. Yeah, it's interesting because John Roberts is a very political individual and he is tries, and he's not a very good political individual, but he tries to be one. And so I can see in his simple-minded view where he's like, we're going to do all these terrible things. And then we're going to head into fourth of July, break with this decision that will cause everyone to say, see all those liberals who want to expand the court and do term limits and say where a bunch of mega-shills are wrong. And then there will be a series of legal pundits who will then applaud John Roberts and he will write off into the sunset as a hero, right? I mean, you say he's simple-minded and not that great, but the end of your sentence, I just think is correct. When the court, if and when the court rules against birthright citizenship, there will be all of those takes and people talking about how the court has stood up to the president and isn't just in the bag for Maka and isn't on board with all of Trump's agenda and therefore you live and you progressives who want to reform the court. What would you do if Donald Trump could reform the court when he disagreed with it? Like that there's going to be so much of that. But those takes are why America's most popular influential Supreme Court podcast exists, right? You will be, you, you, Kate Muscle will be on that wall fighting back against that. I know that. Yes. I mean, we have been screaming about this for over a year. And trust in the Supreme Court is at an all-time low. So don't think you're not, you have not put your wheel to the, your shoulders of the wheel of history. Yes. Yeah. Since Strix Group need to more friends challenge. But no, I mean, it's not to say it's going to work, but it is going to generate some of a coverage that they want. And it's just going to be annoying as fuck when it does. Yes. So let's say, hypothetically, this is a seven-two decision and, you know, Alito and Thomas, whoever else they are against it. Can you fathom in your brain what that argument would be? Like it is hard to find something as plain text as this in the, with as, with as a simple and specific application as this, you know, it's like, obviously freedom of speech is in there, but then they're all kinds of different applications. You can take on it. This is basically like, if this happens, you are a citizen. And Trump administration is arguing, if this happens, you are not a citizen. Like what is the, what is the, the legal argument someone could muster as bullshit and fake as it would be that would say that birthright citizenship is not a lot. Can they could be curtailed or stopped by an administration? Yes. So having ventured into the dark recesses of right-wing legal circles, I can offer you at least two. One would be to say that there is a recognized exception for birthright citizenship. That birthright citizenship does not extend to the children of invading armies. You know, if for example, Canada decided to invade the United States and, you know, officers who participated in that invasion had children born in the United States while they did so, then those children would not be citizens of the United States. And some on the right have argued that unauthorized immigration is the equivalent of an invasion of the United States, you know, borrowing on great replacement theory and other white nationalist tropes. And so one possible legal theory is the justices could equate unlawful unauthorized immigration with an invasion and say children who are born to individuals without legal status in the United States are the equivalent of the children of invading armies. That's one possibility. Another possibility is the court basically reads the exceptions to be the rule. So the phrase, as we were talking about in the 14th Amendment is all persons born and naturalized in the United States and subject to the jurisdiction thereof are citizens. And part of that exception recognizes that children of foreign diplomats, for example, you know, they are not born as United States citizens, just like children of invading armies are United States citizens. And so part of the federal government's argument is to basically take those quite narrow exceptions and generalize them into a rule that basically swallows the rule of birthright that says, well, individuals whose parents don't have an allegiance to the United States, their children can't be citizens. And so those are two possible avenues. Both are ridiculous and I think rest on underlying racist tropes about who is sufficiently American that birthright citizenship was intended to rebut. That's exactly what Dred Scott versus Sanford did when it concluded that individuals who were descendants of its slave persons couldn't be citizens because they too weren't American enough and didn't have allegiance to the United States, et cetera, et cetera. But I think that those are two of the theories that are on hand. That's very dark and very disturbing. Thank you for visiting the Dark Side to share that with us. I think it's also notable that maybe the decision will come out right about the time the United States World Cup team is playing in the knockout round where the leading scorer World Cup team is someone who has their citizenship through birthright citizenship. Just a fact for that. Now, obviously, if they were to rule this, I know we're in a dark hypothetical place here, it wouldn't be, they couldn't, would they make it retroactive or like? So this is part of the uncertainty. You know, the administration developed guidance about how they would implement the birthright order, but courts blocked that before the order would take effect. So we don't know whether the Supreme Court would say those injunctions vacated individuals who were born in the United States after this executive order was promulgated, they are not citizens. You don't know whether the court would say no, this just applies prospectively now that we have said it can be enforced. It's all TBD. This new lawless, very uncertain era. It's all for grabs. Pots of America is brought to by simply safe. No one wants to imagine their home getting broken into, but the scary statistic is that every 26 seconds in the U.S. a family experiences a break in. Scary? Yes. But that's why simply safe has worked to make home security accessible to more American families. Here's one American family right here. Yeah. The love American family. 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There is one about whether the president was able to fire Lisa Cook from the from the fed board and then there are two election cases. Am I missing any any other big ones out there? Are those the ones? Are the ones that I would say are the big ones? Well, so when you said Lisa Cook, it's not just a case about Lisa Cook. There's also a case about whether Trump can fire the head of the federal trade commission and all other. Are these those cases? Independent cases. They're not joint. They're two separate cases. Okay. You maybe explain this to cases for us. Sure. Yeah. So one case involves whether Donald Trump can fire a commissioner of the federal trade commission and all other independent agencies that are led by these independent multi-member commissions like the Securities and Exchange Commission or the Equal Employment Opportunity Commission or you name it National Labor Relations Board, et cetera. The Federal Reserve? First, that's separate. Well, the Federal Reserve is that separate case because what happened is earlier in the Trump administration, Trump fired a bunch of these heads of multi-member commissions even though the Supreme Court has a case that's nearly a centuries old that says Congress can limit the president's ability to fire the heads of these multi-member commissions, specifically the Federal Trade Commission. So Donald Trump fired people in violation of these laws and the Supreme Court said actually will let him do that while the litigation is ongoing because we Supreme Court have decided to adopt this great new rule. It's called the Unitary Executive Theory and it means the president gets to have near plenary power to fire people who exercise significant executive power. But then they added a sentence except the Federal Reserve Board because that has a distinct historical tradition in the tradition of the Bank of the United States. That bespoke Fed exception, of course, illustrated that their new Unitary Executive Rule was catastrophic immediately once it would be unleashed onto the world because it would give the president the power to effectively blow up the United States and global economy. But that didn't give them pause instead they just created that bespoke exception. So what did Donald Trump do? He went ahead and tried to fire a governor of the Federal Reserve Board because when you give a fascist a cookie, what happens? They tried to take another cookie. So then the Supreme Court ended up with these pair of cases. And one set of cases asks, is it constitutional for Congress to attempt to limit the president's ability to fire the heads of these multi-member commissions? That's a hugely important case because if the court hands the president that power, they will be giving him the power to control these agencies that exercise such sweeping powers over our lives, over government contracts, over whether corporations have to comply with the law. Federal Trade Commission, for example, they police Amazon, they police anti-trust law. If you tell the president, you can fire people who don't enforce anti-trust law the way you want them to, that's allowing him to give murderers to his friends and penalize his enemies. So that case is super consequential. But they also have that case about Lisa Cook. And that case asks, well, given that this statute does limit the president's ability to fire Lisa Cook, did the president comply with those limitations? So I don't want the Cook case to kind of obscure the significance of the other case, which will affect every other independent agency. Let me ask a question on the independent agency case. Now the president gets to appoint the heads of all of these jobs, right? And they are approved by the Senate. And the reason the president can't just fire them like he could fire his Department of Home, his Secretary of Homeland Security or whatever else is because the way the law is written says they can only fire them for cause. Exactly. Because Congress decided these agencies would just run better if they were somewhat insulated from politics and relied more on expertise. And then the question before the court is whether the president's inherent executive authority override that whether the Congress does not have the constitutional authority to hem in that specific executive authority, right? Exactly. Whether the Constitution entitles the president to say you're fired, no matter what Congress is. And then the possible exception of the Fed because of its unique tradition. Because the justices have stock portfolios. Yes. Exactly. They're all quite wealthy. And Clarence Thomas says several very close friends who need that money to send him on vacation in elsewhere. Exactly. Private jet fuel. Don't pay for itself, Dan. Okay. All right. Let's get to the transports case. This one, if I remember correctly, from the oral arguments earlier this year seemed quite dire and what we thought the court would read, but maybe talk about that case. And if there's any see any hope here. Yeah. So this case is about whether state laws that effectively ban transgender athletes from participating in sports violate either title nine, which prohibits discrimination on the basis of sex in educational programs or educational institutions. And also whether the state laws violate the federal constitutions, guarantee of equal protection. The oral argument in the cases was awful. The lawyer for the federal government who of course was arguing in support of these state law bans and against trans athletes said one of the more grotesque things I think that has ever been said at the Supreme Court lectern when he referred to trans athletes as males who take performance enhancing drugs. And I just don't think there's any question that the six Republican appointees are going to say these state laws are consistent with title nine. The only lingering question is whether they're also going to say these state laws are constitutional or whether they will instead send the case back to the lower court to decide that constitutional question perhaps with some additional fact finding. I honestly think that is the best we can hope for at this point. And the other thing to watch for is whether you get separate writings that say not only does title nine permit states to ban trans athletes from participating at sports, potentially it requires states and schools to ban trans athletes from participating in sports. So that's kind of the spectrum of possibilities. It's very bleak. Yeah. So we have two sort of major things that I guess go beyond sports participation, right? One is suggesting that title nine would require some measure of discrimination against trans people, whether that could be in anything involving education, right? Funding, scholarships across the board, right? So that's one. seems quite bad. And then even worse, I would imagine, is making some case that, I mean, am I over reading this that the net result of an equal protection finding here would be that trans people have no equal protection rights that the being trans would not guarantee equal protection rights in the way that being black or a woman or of a certain religious group? Yeah. The danger is the Supreme Court says laws that discriminate against trans people do not trigger any kind of meaningful judicial scrutiny, so courts should just defer to governments that discriminate on the basis of gender identity and give those laws a pass. Given the extent to which states and the federal government have been trying to erase trans people and strip trans people of their rights, that would be a really concerning development because it would make challenging all of those laws or policies that are anti-trans in court. Could Congress, then, in a different world with a different Congress and a different president do something to address that by passing laws that would guarantee, like, either a many Title IX or like, what would a Congress do that would solve that problem? Potentially, yes. So Congress could enact a statute, maybe the statute itself just prohibited discrimination on the basis of gender identity, no matter the context in school and elsewhere. Maybe Congress creates a spending program that says, "Look, if you receive any federal funds, you have to promise not to discriminate on the basis of gender identity." Those are two possibilities. And yet I am left with but the Supreme Court does not rule out the possibility that this court would invalidate those laws, maybe saying, "Well, they exceed Congress's powers. Maybe the court would say, well, those laws actually discriminate on the basis of sex in violation of the federal constitution." Maybe the court would say they had another spending clause decision. This is one of the other awful decisions from this week where they basically said spending programs can't be enforced against the state officials who are carrying them out. So maybe they would make those spending conditions effectively toothless. But there are things Congress could do, but basically anything Congress could do that is good, requires a different Supreme Court. Which is true of all things. That is true of all things. All things. Yes. Stipulated. Agreed to. We have to deal with that. The Supreme Court is also considering a Mississippi law that allows the five-day grace period for male and valet receipt after election day to be counted. This law is of course being challenged by the RNC. And this has implications both for Mississippi and perhaps more broadly, like in California now, where Spencer Pratt, who is a mega favorite, his chance spot in the runoff went away as more votes came in. So talk a little bit about this case and if it has broader implications for this grace period for male and valeting, which is Trump is trying to road executive order to try to stop the Postal Service from delivery male and ballots, although that was stopped by federal courts. Just talk a little bit about what's going on there. Yeah. So the challenge here, the Republican National Committee says this federal law that creates election day as this first Tuesday in November, that prohibits states from counting ballots that are received after election day, even if they were postmarked on or by election day. If this Supreme Court adopts that theory, that would nullify or change how votes are counted in 29 some states. And of course, we are a few months away from the midterms. I think there's a real concern that changing the rules of the election at this point would put state and local election officials in a really tough spot because they have already begun to prepare to administer the election in accordance with what their state rules are now. And requiring them to all of a sudden change on a dime because the Supreme Court read election day to be this magical unicorn of a date on which everything but only some things have to be completed by would be hugely destabilizing. I also think it would create a lot of voter confusion and chaos that could potentially lead to voter suppression and people, you know, not actually returning their ballots and whatnot. So I am very concerned about that case just because of its potential destabilizing and sweeping implications. And also because of what it might invite next. If the Supreme Court says states can't count ballots that are received after election day, why can states count ballots that are received before election day? If election day is this magical day that everything is supposed to happen by, why can they count ballots after election day even if the ballots were received before election day? So part of what is so concerning about this case is that could call into question so many established voting practices that we have just taken for granted in addition to fucking with the midterms. And the sea change here potentially is that the courts to date have given states because of the constitution, why latitude and how they conduct their elections? And many of the cases that were have been thrown out, even some Trump cases in 2020 or based on that principle that the Constitution grants the states to do it. They have to do it in accordance with the constitution. But beyond that, you want to do your election all by mail. You can do that. You want to count ones that arrive after election day, but at post-market for, you can do that. But that could open the door to other things going forward here. Potentially. So even though states, of course, have the general authority to run elections, Congress can establish rules regarding federal elections. Now the president can't. So all of his unhinged theories about what he can then can't do and what he doesn't want, right, I think are still wildly illegal no matter what the Supreme Court says in this absentee ballot case. But this federal law that just again creates an election day in no way displaces how states have conducted elections for years. And so I think the challenge is what other challenges to other state laws, you know, this theory would invite in addition to the position it would put state and local election officials in the lead up to the midterm elections. And it probably is worth noting that the people who will probably be most disenfranchised with this are military members serving overseas, which are where a lot of the ballots come from. They show up after election day. That is indeed true. Indeed the practice of, you know, voting outside of election day partially originated during the Civil War to ensure that union soldiers would not be disenfranchised. There is always a possibility that the Republican appointees announced no ballots can be counted after election day. If they're, you know, received after election day, except for overseas uniformed officers. No, that might not protect the families of people who are stationed overseas and whatnot. And that would also create its own form of chaos. But who knows? Pots in America is brought to you by armor a colostrum. When you prioritize your body's baseline, you're better equipped to show up with focus and energy, no matter what the day holds. 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Receive 30% off your first subscription order. Go to armor.com/cricut or enter crooked to get 30% off your first subscription order. Select ARMRA.com/cricut. The other case is actually one that has gotten very little attention, but it has potentially dramatic impacts. Some have said that this case, which involves whether party committee parties can coordinate with candidates, would be the biggest campaign finance decision since it's United, which is saying a lot of cases like McCutchen and others in the middle here. Also in the oral arguments here did not seem particularly encouraging, so maybe try to explain this case to people why they should care about it. Yeah. It sounds technical because it's a challenge to what's called a coordination limit as you were saying, which is a political party's ability to coordinate how they spend their money with a candidate. It effectively amounts to a ban on political parties donating money to a candidate because if they coordinate, they're effectively giving the money to the candidate to decide how it could be spent. There's a concern that if you say, well, contribution limits, actually, those might be unconstitutional, but it is like the last remaining vestige of campaign finance law because even as the Supreme Court has opened up these pathways for corporations, super PACs to spend an unlimited amount of their own money doing their own advertising. They have not yet struck down limitations on billionaires and corporations' ability to give money directly to candidates. actually contribution limits, those are no good either, then that invites individuals giving directly money to candidates. And I think that's one of the big concerns about this case. Yeah, like in practical consideration, right? So there's two things. There's what this case would mean right now and how elections are conducted today. And then there is the larger question about whether contribution limits at all are now a violation of free speech, which leads to instead of Elon Musk writing $132 million or whatever it was to in a series of outside groups to elect Donald Trump. He just gives Donald Trump $132 million dollars. Cut out the middleman. Yes, that seems bad, but just like as you think about it now, you can give about $7,000 to a candidate, a half in the primary, half in the general. As an individual, whether you are you or me or Elon Musk, that's the most we can give directly to Grand Platinum or John Ossoff or a Cooper, whoever else. You can give an individual can give $132,000 $139 to the DNC or the RNC. And so now instead of giving my $7,000, my low over $7,000 to Grand Platinum, I just give $132 to the DNC and then they spend that on behalf of this matters more in presidential campaigns than it does than anything else because that's Ruby spent directly, but it does have big implications and just once again gives more power to rich people. This is almost certainly going to the court will approve this. This is in line with every other decision they've made since John Roberts became the chief justice and the Trump administration isn't even defending in the law here. They are on the other side of it because it's the NRSC, National health and health and central committee is the plaintiff in the case. So this one is, this is a big mess. This is one for election nerds are paying a lot of attention to people who work on elections, but they get some pretty big implications for what else is to come in our politics. Yeah, completely because in the short term, it would just rapidly increase the amount of money that rich individuals can give directly to candidates, but then in the longer term, it potentially opens up a pathway for no limits at all. There is a small outside chance that the court says there's no actual controversy here in the case is moot and they don't decide it. But that is the best scenario. I mean, look, I mean, this court Supreme Court, there's always hope, right? Like we can't give them that. One thing they've earned is a benefit. Bed of the doubt. All right. Before we go, I want to hit on Roe v. Wade this past week was the four year anniversary of the DOBS decision, which overturned the Roe v. Wade decision. The legacy of that decision continues to live in our lives and our politics everywhere. It is coming up in this main Senate race, where Susan Collins is running against Grandpa and she got asked about it on Fox News. I wanted to play the clip and get a reaction to it. You held up for quite some time on your vote of support for just now justice, Kavanaugh. Is this an issue that you think is troublesome for you in this race now that Roe v. Wade was overturned in Maine across the country? Well, first of all, let me make clear that I disagreed with the Supreme Court's six to three decision overturning Roe v. Wade, but the fact is that whether justice, Kavanaugh were confirmed or not, Roe v. Wade would have been overturned given the six to three vote. Not true, Samolido says. Could you maybe explain where Susan Collins has her facts wrong on this one? We're here to start. I am going to step out of the way and let you go. Okay. We'll start with the factual inaccuracies. Had justice, Kavanaugh, not been confirmed, there were not five votes to overrule Roe v. Wade. Chief Justice Roberts did not vote to overrule Roe v. Wade. He instead voted to change the legal test in a way that would have expanded state's ability to restrict abortion more so than they could have done before the decision, but not to the point of overruling Roe v. Wade. So that's just factually inaccurate. There were just five justices who voted to overrule Roe. And to be clear, she confirmed the fifth justice. And she confirmed Brett Kavanaugh, exactly. Who was one of those five. So facts, not so great. Second, I absolutely just despise this framing of, I disagree with the court's decision. I don't regret my vote because it just makes me wonder what great things has Brett Kavanaugh done that make the loss of women's lives, their fertility, their health worth it, like how many women have to lose their lives for you to conclude that actually maybe you do regret your vote. So that is just horrifying. And then there's this sense that maybe she, you know, made this decision, but it didn't really affect manors, which is also wrong because, you know, people who live in Maine, which still has abortion access might travel. And sometimes people experience medical emergencies that might require medical care, including abortion care. And if you're traveling in a state where after Roe abortion is banned, you are potentially in a circumstance where you could not receive medical care. Add to that the fact that the medication abortion rulings potentially jeopardize access to medication abortion, even in states like Maine that want to protect abortion. And I just think she is really papering over so many of the horrific consequences that her vote to confirm the fifth vote to overrule Roe have had. And it just, one of the more tragic things about the 2024 presidential election is, I think people came away from it thinking, well, actually the Republican Party isn't going to bear any consequences for overruling Roe. And the public has just decided not to force them to pay a price for again, the loss of lives, health, fertility, more that we have seen in the wake of Roe being overruled. And I hope that is not the case. I hope that in 2026, you know, people who enabled this post-Roe landscape are held accountable. But it is just very depressing. I think any time I think about the fact that people just decided to give a bunch of politicians a pass for what they have unleashed on people in this country. So let me, can I give the counterpoint to that because I just, I talk to some Polar Coaster this past week because of the anniversary of dogs. And what is really interesting about the polling on this is abortion was a very divisive issue in this country up until the moment of dobs. Yeah. And the number of Americans who, who can say themselves pro-choice reached in all time high right after dobs. And four years later has stayed the same. It has not gone down. As obviously in that immediate aftermath in that election in 2022, as these republics states are rushing to pass their bills, abortion was the number one issue in politics that was discussed everywhere. People were dealing with, it was just a topic conversation. As it's dropped in salience, it has not changed the politics of which I think is very positive and creates the path for accountability for these people. And there are opportunities in 2026 to hold these people accountable. You have Susan Collins. Yes. You have Ken Paxton. You have an array of officials in Ohio, right? In a whole bunch of other states that passed some of the most, the cruelest and most retrograde reproductive rights laws in this country can all pay the price. Everyone should go to votesafeamerica.com to figure out how to do that. But I really do believe Donald Trump was this unicorn figure because even though he is the person of the Susan Collins most responsible for robbing overturned, no one actually believed that he truly was anti-choice. Like I remember in focus, people would say people, if you asked in a focus group, if Donald Trump was anti-abortion or anti-choice, they would laugh and would say that he'd Donald Trump would probably-- He believes in nothing. Yeah, and he'd probably be like, I mean, here's a guy who cheated on all his wives, sleeps around. He's a disgusting kid. He's from Manhattan. He probably obviously doesn't care about abortion. That is not true for the rest of these Republicans. It's certainly not true of Ken Paxton who is a principal architect of that law and the enforcement of that law. And so there are opportunities to hold people accountable here. And like this is-- I do believe that dobs was a-- it did not-- it did not bear fruit in 2024 because of a long list of unique circumstances that be deviled that election that we don't have to get into. But was a fundamental signature moment that changed politics in this country in ways that will ensure those people are held accountable. And more and more states will elect the right people to put in place laws. And maybe one day we'll have a Supreme Court that can undo the damage that was done there. I very much hope you are correct. And I just worry that I have rarely gone wrong in estimating the amount of misogyny that Americans will tolerate in their politics. And again, I very much hope you are right. May it be the case. And-- And we have the ability to impact that ourselves right now, everyone that's actually able to impact that. In many different ways, whether that is like calling your officials to remind them that actually you do care about abortion access and reproductive rights are your senators confirming nominees, giving blue slips to nominees, right, who you don't think will protect reproductive freedom. Yeah, for instance, yes. You know, not naming names, but someone who was on the ballot in 2028. It will be a space of primary challenge, yes. - Yes. Or again, electing officials, helping to get out the vote to help elect officials who will protect reproductive freedom, and to vote against people who didn't, all of those are ways to make this happen. And I think we kind of need to make reproductive freedom a salient issue. I think it's part of protecting democracy, like you can't really separate these two things. So yeah, fingers crossed. - See, that seems, what was perhaps not the most optimistic and hopeful pod that we've done in Pots of America for the last many years, although quite insightful, interesting and entertaining, I would say. Maybe we can end on that positive ish? No, Leah Libman, thanks so much for joining us. And everyone, check out Strix Crutney, you guys can have another podcast out this week. On Monday, we're talking to some of these decisions, and then maybe more, depending on what we hear from the rest of the court, is that right? - That is all correct on your episode on Monday, and then likely additional episodes, whenever the Supreme Court does, fuck knows what. - Yeah, Leah, thank you so much. - Thanks, Leah, for stopping by. John, John, and Tommy will be backing your feed with a new episode on Tuesday. Bye, everyone. Pots of America is a crooked media production. Our show is produced by Austin Fisher, Saul Rubin, McKenna Roberts, and Ferris Safari, with Reed Charlene, Elijah Cohn, and Adrian Hill. Our team includes Matt DeGroat, Ben Heffkoat, Jordan Cantor, Charlotte Landis, Kirol Peliviv, David Tolls, Mia Kelman, Ryan Young, and Naomi Single. Our staff is probably unionized with the writer's Guild of America East. (upbeat music)