A Winning SCOTUS Term for Trump & Losing Term for LGBTQ Rights

0:00For big business, AI opened up a world of promise, but that world of promise turned into a world of pain. Cost spiraling, data trapped, security and governance risks multiplying, and ROI out of reach. That's why enterprises turned to Boomi to connect data, apps, and AI, helping them operate securely, efficiently, and at scale. Boomi turns a world of AI pain into a world of AI gain. As Boomi says, we got you. Head to boomi.com. That's B-O-O-M-I dot com. The world of business is constantly evolving, and Comcast Business keeps you totally in step with secure AI-backed networking in more than 100 countries.

0:41They're powering over 90 % of the Fortune 500 and millions of small businesses. That's a lot of muscle. And behind it all, thousands of experts answering your call at 2 a.m. like it's 2 p.m. One partner powering how business gets done for companies around the globe. When you add it all up, no one does business like Comcast Business. Some people treat ChatGPT like some kind of smart search engine, and some use it to get work done. ChatGPT Work is a new way of working in ChatGPT that can take action across your apps and files, stay with a project for hours if needed, and turn a goal into finished work.

1:18It's designed to help you move from a chaotic starting point to a reviewable first version. So all the source materials, briefs, and scattered information that you have to grind through to turn into something useful can just become something useful. Put ChatGPT to work on your most ambitious ideas and projects. Get started at ChatGPT.com by selecting Work Mode, available on Plus and Pro plans. This is Bloomberg Law with June Grosso from Bloomberg Radio. Chief Justice John Roberts repeatedly stresses the importance of judicial independence. In an interview in May, he said the judiciary is a co-equal branch of government.

2:03Its job is to obviously decide cases, but in the course of that, check the excesses of Congress or of the executive, and that does require a degree of independence. However, in its recent term, it doesn't appear that the Supreme Court did much to check the excesses of the current executive. In fact, the clear winner of the term was President Donald Trump, as the court sided with him on broad legal questions and emergency requests to let his policies take effect, from throwing transgender service members out of the military to opening hundreds of thousands of migrants to deportation. And for the second year in a row, the court ended the term with a decision handing Trump a major victory by essentially eliminating the main tool courts have used to thwart his ambitious agenda, the nationwide injunction.

3:00This was a big one, wasn't it? This was a big decision. An amazing decision, one that we're very happy about. Like almost all the high-profile cases of the term, the court divided six to three down ideological lines with the conservatives of the majority and the liberals dissenting. Joining me is constitutional law expert Michael Dorff, a professor at Cornell Law School. Mike, the finale of the term, if you will, was the decision in the case over Trump's ban on automatic birthright citizenship, where the conservatives stripped the lower courts of the power to grant nationwide injunctions, which have really been the only effective check on the Trump agenda.

3:45Trump thought the decision was important enough to call a press conference. How important do you think it is? That remains to be seen. The prohibition on most universal injunctions will have very serious bite if, but only if, the court makes it difficult for plaintiffs to bring class actions and makes it difficult for states to sue for statewide injunctions. Those are two potential workarounds, neither of which the majority directly addresses, but both of which, Justice Alito and his concurrence suggest, should be only available under a heightened standard of sorts. So what remains to be seen is whether plaintiffs challenging these executive actions, here it was the birthright citizenship order, but it applies to virtually everything, whether they can quickly convert to class actions and whether states can bring these cases.

4:47If they can, then I think this ends up not being such a big deal. Getting class action status is a lot more complicated, and I think we've seen just in the last few days how confusing it is for the lower courts to parse through this. I think that's right. The Supreme Court could have, and in my view should have, given more guidance on whether class actions are available and under what standard. One of the things that I think is easily overlooked is the ruling in the case is not a constitutional holding. The court doesn't say that the Constitution forbids this kind of equitable relief. What it says is that this power was not conferred by statute on the federal courts.

5:34Well, if that's the case, it's possible that Federal Rule of Civil Procedure 23, which is the class action provision that is empowered by the Rules Enabling Act, that that does confer this power. And that would be fully consistent. It would just lead to, you know, the availability of similar relief under a different mechanism. Why is the court allowing this rule to be applied retroactively? Because now President Trump says that the administration is going to move to lift holds that judges have placed on a number of his policies. He mentioned fights over refugee resettlement, federal spending and sanctuary cities.

6:11So, you know, it's going to open up a can of worms. Oh, I think that's right. I mean, I think this is in some ways the basic problem with the Supreme Court these days, which is it's treating the Trump administration like a normal administration rather than one that is committed to pushing the edge of the envelope and getting away with whatever it can. And so, you know, if you were thinking about the system as a whole and what's good for the rule of law, you would have been much clearer in your guidance and in what you're allowing and not allowing. Justice Sonia Sotomayor, in one of her dissents, said the court was rewarding lawlessness because the Trump administration has repeatedly, either explicitly or not so explicitly, ignored court orders, particularly in the cases of immigration orders.

7:00I mean, I think she's exactly right that it's one thing to say, as the court has said in some of these cases, well, we think the lower courts went too far in issuing this order. That doesn't mean that the administration was permitted to violate the order while it was enforced. The normal rule is if you don't like a court order, you appeal it. But unless you get a stay of that order and until you get a stay of that order, you have to comply with it. Often, the chief justice is the one who writes the majority opinion in the biggest cases of the term. Why do you think he chose the second most junior justice, Amy Coney Barrett, to write this majority?

7:41Well, I think there's a little bit of sort of doctrinal favoritism going on here. So the decision in Trump-Picasa relies on a precedent called Grupa Mexicano, which was written by Justice Scalia, who was, of course, the justice for whom Justice Barrett clerked, and she sort of sees herself in many ways as trying to carry out his legacy. So I think she was very much interested in applying Justice Scalia's view, which was that courts of equity have only the equity powers that they had in 1789, a view which, by the way, I think is somewhat far-fetched, but that is the precedent. And so it sort of fell into her wheelhouse.

8:27It turns out it's a very important case, but I think it was given to her because it was seen as falling within her area of some special expertise and interest. Let's turn now to a decision that has implications for transgender youth in more than half the states. The Supreme Court, in another 6-3 decision down ideological lines, upheld Tennessee's ban on gender-affirming care for transgender minors. Transgender advocates say the decision is devastating for LGBTQ youth and their families in the 27 states that have similar bans. Here's Kelly Robinson, the president of the human rights campaign. You're going to have families, families that have been in states that they live in for generations.

9:15I know a family that's been in Arizona for generations and generations. They are Arizonans. They're going to have to leave their states just to get access to care for their kids. In Justice Sotomayor's dissent for the liberals, she said this decision will open the door to more state discrimination against trans teens and authorize, in her words, untold harm to these families. Mike, the issue here was whether the law violated the Equal Protection Clause. Yeah, that's right. The underlying litigation raised a number of other questions, including whether this violated the bodily autonomy or substantive due process rights of the minors, the rights of parents to make medical decisions for their children.

10:01But as it came to the Supreme Court, the only issue was whether this was a violation of equal protection. And the court, in a sense, I wouldn't say ducked that issue, but sort of mooted it by saying, well, there isn't a sex-based classification or even a transgender identity-based classification at issue here, so we don't have to apply the intermediate scrutiny that would normally apply to such laws. and therefore we only have to say whether it's rational and of course states get to make all sorts of medical judgments. You subject those to rational basis scrutiny. They're almost always going to survive.

10:41So in a sense, the case doesn't tell us that much about the status of discrimination on the basis of transgender status under the Constitution going forward because the court said, well, we don't have to address that here, except that several justices in concurring opinions, did address that and said, even if it is transgender-based discrimination, that's okay because that kind of discrimination doesn't trigger any heightened scrutiny. They didn't say that about sex. What they said there was that it's not sex-based discrimination. And in that sense, those concurring justices differed with respect to their constitutional analysis from what the court said a number of years ago as a matter of statutory interpretation in employment discrimination cases.

11:32I mean, the same drugs that Tennessee bans for the purpose of gender affirming care for transitioning minors are allowed for a number of other purposes in non-trans minors. How do they get away from saying that's not an equal protection violation? Right. So the plaintiffs and Justice Sotomayor in dissent, I think, are very clear. Look, if a boy wants to take this drug to give himself facial hair, you allow it. If a transgender boy who is assigned female at birth wants to take it, you disallow it. It's the same drug, same effect. How could that be anything other than sex discrimination? And what the court says is, well, it's not the same treatment if it's being prescribed for a different condition.

12:22In the boy who's taking this to give himself facial hair, it's being prescribed because he has low testosterone. in the transgender boy who's assigned female at birth, it's being given to facilitate sex transition. And that, of course, is a different treatment. Now, they analogize to something like, you know, different off-label uses. So that something might be approved for as a treatment for hypertension, and people discover, hey, this also can cure baldness. Normally, if a drug is approved for one purpose, it can be prescribed off-label, but states can forbid certain off-label uses if they think the risks and benefits are different.

13:07So that's the analogy that the majority draws. The difficulty with that, as I think Justice St. Manar convincingly says in dissent is, well, here what makes this a different treatment is simply the sex assigned at birth of the person taking it. And you're sort of gilding the lily or double counting by working that in. So the three conservative justices you were referring to who wrote concurrences, would they reject intermediate scrutiny for any anti-trans laws? I think that's right. I mean, Justice Barrett actually is the one who writes most extensively on this. And she says, look, we have criteria for deciding whether something is a suspect or semi-suspect classification and transgender status doesn't meet those criteria.

13:54Now, I think she applies them a little bit strangely. One of the things she says is that in order for something to be a so-called immutable characteristic, it has to be identifiable at birth. And transgender status doesn't emerge until later. Well, that's a kind of backwards analysis because, of course, the whole point of someone wanting to transition to address their gender dysphoria or other mismatch between their experience of themselves and the sex assigned at birth is that what they were treated as at birth was not accurate. And so it's a very odd thing to say. Well, because when you were an infant, you didn't realize, or other people didn't realize that you were a male inside of a female body or vice versa, then that's not real in some sense.

14:45So there's a way in which it's a kind of denial of the existence of transgender persons at all. I mean, she doesn't say that, but I think that's a logical implication of that particular criterion. Well, the court also allowed the Trump administration to oust transgender military on the emergency docket without even a full hearing on the merits. It seems like transgender rights are not in favor at the court. I think that's right. Now, of course, we don't know what the basis for that decision was exactly, because it was on the emergency docket without explanation. We do know that there is traditionally greater deference shown to the political branches, both Congress and the executive, with respect to military matters.

15:39And so it would be possible to say that transgender status discrimination generally triggers intermediate scrutiny, but not with respect to who can be in the military. There were some cases in the 1990s and early 2000s before the abandonment of the so-called Don't Ask, Don't Tell policy in which courts upheld the ban on gays and lesbians serving openly in the military, even while saying they weren't deciding the broader question of what kind of scrutiny sexual orientation discrimination gets outside of the military. context. Can we read anything into the Supreme Court throughout appellate rulings in favor of transgender people in clashes over health care and birth certificates in four states and ordered the judges to reexamine the cases in the wake of this Scrimetti decision?

16:41Do we read anything into that? Oh, yes. So I was probably going to be a little bit hopeful there to say that, you know, Now, as a matter of the official holdings, the court has not foreclosed the possibility that sometime in the future it could say transgender status discrimination is sort of presumptively invalid in the same way that sex discrimination is. But reading the tea leaves, I think it's pretty clear that that's not the direction that this court is going. And another way to put that is that they are going to increasingly treat the Bostock decision, which is the case that held that sexual orientation and transgender status discrimination were sex discrimination for purposes of Title VII.

17:26They're going to treat that decision as a kind of outlier, the case that gets distinguished. And they specifically say in Scrimetti, well, we're not addressing this Bostock analogy. Title VII might be different. So I think they're teeing that up. and sort of cutting back. You know, the anti-trans backlash that we've been seeing in the political realm, I think is now flowering in the Supreme Court as well. Coming up next, we'll continue this discussion of the Supreme Court's term. The court, once again, bolsters religious rights. I'm June Gross, and you're listening to Bloomberg. The world of business is constantly evolving.

18:04Every day, new challenges, new opportunities, new ways of working. Comcast Business keeps you totally in step with secure AI-backed networking built to power the way modern business gets things done today in more than 100 countries around the world. That's some serious muscle. And get this, Comcast Business powers over 90 % of the Fortune 500 and millions of small businesses. Behind it all, network engineers, cybersecurity specialists, support teams, thousands of experts answering your call at 2 a.m. like it's 2 p.m. Always on, always ready. That's a lot of coffee. One partner powering how business gets done for companies of every size all around the globe.

18:48When you add it all up, no one does business like Comcast business. For big business, AI opened up a world of promise, but that world of promise turned into a world of pain. Cost spiraling, data scattered across disconnected systems, security and governance increasingly complex, AI initiatives struggling to scale, and ROI that remains frustratingly out of reach. The challenge isn't AI itself, it's having the infrastructure AI needs to succeed, which is right where Boomi says we got you. Tens of thousands of enterprises trust Boomi to connect data, applications, processes, and AI. With Boomi, businesses can eliminate silos, automate workflows, strengthen governance, and create the foundation AI needs to perform at scale.

19:35The result? Faster innovation, more efficiency, better business outcomes. Boomi turns a world of AI pain into a world of AI gain. As Boomi says, we got you. Head to Boomi.com to learn more. That's B-O-O-M-I dot com. This podcast is brought to you by Navy Federal Credit Union. Kick off unforgettable travel journeys with Navy Federal's flagship Premier Card. You'll get four times points on all travel. Yes, all travel. So if you book a hotel, you'll earn four times points. If you book a flight, you'll earn four times points. Even if you book a ride share, you'll earn four times points. Plus, you'll earn three times points on dining.

20:16And like other cards, it doesn't require you to use any booking portals and has no rewards limits. So earning points couldn't be easier. It's all the travel, none of the baggage. So whether your next journey takes you hiking through a national park, relaxing on the beach, staying at a resort, or visiting somewhere on your bucket list, you can earn four times points on all your travel with the Flagship Premier card. Visit NavyFederal.org slash Flagship Premier to find out more. Navy Federal is insured by NCUA. Terms and conditions apply for rewards. I've been talking with constitutional law professor Michael Dorff of Cornell Law School about the Supreme Court's term.

20:58There was another case involving LGBTQ rights, and in a 6-3 ruling, once again with the conservative justices in the majority and the liberal justices in the minority, the court ruled that public school parents have a right to opt out of classroom lessons that intrude on their religious beliefs. And in this case, it was because the lessons involved the reading of LGBTQ-themed storybooks. Religion versus issues involving LGBTQ rights, religion always wins in the Roberts court. Yeah, that's right. I mean, you can think of this as sort of the finale for now of a trilogy that began with the Masterpiece Cake Shop case, continued with the 303 Creative case, and now here we have a similar situation where the religious claim wins out as against the effort to, in this case, have an LGBTQ plus inclusive curriculum.

22:02To my mind, what's so sort of surprising about this case is how quickly and easily the court dismisses the administrative burden that it's placing on school districts. What the court says is, if there is a burden on religion, then the government school district has to give an exemption unless it can satisfy high scrutiny. And the burden on religion here is, as the dissent points out, that kids are being exposed to ideas that are contrary to what their parents want to teach them as a matter of religious faith. And if you just think about that for a moment, you quickly realize, well, that could cover a lot of things.

22:56You know, there are a great many people in this country who, as a matter of religious faith, don't believe that humans descended from other animals through evolution. Does that mean that religious parents can opt their kids out of biology? People believe, in the millions, that the earth is only 6 ,000 years old, even though, you know, geology suggests that it's four and a half billion years old. Can parents opt their kids out of geology? I think those issues are probably unlikely to arise in large numbers, but the real impact will be these concerted efforts to have parents object to what they see as woke curricula on religious grounds.

23:42And because the administrative burden is so great, the school district might conclude, well, you know what, it's just easier not to teach this stuff at all. And that is the point that the dissent makes, I think, very effectively. You mentioned the trilogy of cases. And this reminds me of the 303 Creative case, which involved a website designer who didn't want to design websites for gay marriages. However, she'd never been asked to. And here you have a case where the curriculum for using these LGBTQ books isn't even established yet. It seems like the court is just jumping in before there's a real controversy.

24:28I think a fair criticism of the court would be that in these cases where there are religious objections to gay rights, trans rights, et cetera, that are statutory, the court's standing rules seem to be flexible. You know, you can make a case that there is standing both in 303 Creative and here. But again, some of the same justices who might be sticklers in other contexts, in this context, tend to say, well, of course, you can challenge this policy. And the court is not stepping away from these issues. Next term, it's going to hear a challenge to Colorado's ban on conversion therapy. And the challenge is from a licensed counselor who says she views her work as an outgrowth of her Christian faith.

25:20So I think we're going to see the same result in that case. Maybe I'm jumping the gun, but... No, I don't think you are. And, you know, if you want to sort of juxtapose that with Scrimetti, right? So in Scrimetti, the court is all about giving deference to Tennessee's ostensibly medical determination that it's not in the interests of minors and they're not sort of fully able to give informed consent to have puberty blockers and hormone therapy, right? I don't think you'll see the same kind of deference given to Colorado in its judgment that this kind of therapy is not in the interests of minors.

26:06There were three Second Amendment cases, and the justices upheld federal regulations for build-at-home ghost gun kits, refused to give gun manufacturers broad immunity from civil suits, and turned away constitutional challenges to state bans on assault weapons and high-capacity magazines. Does this signal that the court won't eviscerate gun control measures, or is it too soon to tell? I think it's a little of both. The Vanderstock case, that's the Ghost Guns case. There the statute is pretty specific, and you look at that versus the Bumpstock case that they had where they came out the other way.

26:49You can just see those as statutory construction. You know, the same thing goes for Smith and Weston. I mean, after all, Mexico did lose that case, so they're unable to bring the lawsuits. I don't count that one as a sort of pure victory for gun regulation. And then Hanson, which is the case where they denied CERT from the District of Columbia, CERT denial doesn't set a precedent. and you can make an argument, I think, that I think the other case involved a limit of 10 rounds on a gun. You can make an argument that the gun that is in common use, that's the term for Second Amendment purposes, is the handgun.

27:32And then you ask, well, is it consistent with the history of regulation of guns to limit them to 10 rounds? Well, you're not going to find guns that were capable of firing more than 10 rounds at the founding. So there's a way to get to this result that I think is consistent with what they've said before. And I think it's far too soon to say that the court is sort of easing up on the Second Amendment revolution that it began in 2008 with the Heller case. Okay, stay with me, Mike. Coming up next on the Bloomberg Law Show, I'll continue this conversation with Professor Michael Dorff of Cornell Law School.

28:11We're going to take a look at the court's emergency docket and how the justices gave Trump some or all of what he asked for. I'm June Grosso, and you're listening to Bloomberg. The world of business is constantly evolving. Every day, new challenges, new opportunities, new ways of working. Comcast Business keeps you totally in step with secure AI-backed networking built to power the way modern business gets things done today in more than 100 countries around the world. That's some serious muscle. And get this, Comcast business powers over 90 % of the Fortune 500 and millions of small businesses.

28:51Behind it all, network engineers, cybersecurity specialists, support teams, thousands of experts answering your call at 2 a.m. like it's 2 p.m. Always on, always ready. That's a lot of coffee. One partner powering how business gets done for companies of every size all around the globe. When you add it all up, no one does business like Comcast business. For big business, AI opened up a world of promise, but that world of promise turned into a world of pain. Cost spiraling, data scattered across disconnected systems, security and governance increasingly complex, AI initiatives struggling to scale, and ROI that remains frustratingly out of reach.

29:34The challenge isn't AI itself, It's having the infrastructure AI needs to succeed, which is right where Boomi says we got you. Tens of thousands of enterprises trust Boomi to connect data, applications, processes, and AI. With Boomi, businesses can eliminate silos, automate workflows, strengthen governance, and create the foundation AI needs to perform at scale. The result? Faster innovation, more efficiency, better business outcomes. Boomi turns a world of AI pain into a world of AI gain. As Boomi says, we got you. Head to boomi.com to learn more. That's B-O-O-M-I dot com. This podcast is brought to you by Navy Federal Credit Union.

30:18Kick off unforgettable travel journeys with Navy Federal's flagship Premier Card. You'll get four times points on all travel. Yes, all travel. So if you book a hotel, you'll earn four times points. If you book a flight, you'll earn 4x points. Even if you book a ride share, you'll earn 4x points. Plus, you'll earn 3x points on dining. And like other cards, it doesn't require you to use any booking portals and has no rewards limits. So earning points couldn't be easier. It's all the travel, none of the baggage. So whether your next journey takes you hiking through a national park, relaxing on the beach, staying at a resort, or visiting somewhere on your bucket list, You can earn four times points on all your travel with the Flagship Premier card.