Supreme Court Exposed from the Inside as Justice Goes Nuclear

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2:15Michael Popok:Donald Trump is scared by and hates transgender Americans, and the MAGA 6 in the United States Supreme Court is enabling him to do exactly that. We have a new ruling by the emergency docket, shadow docket MAGA 6 of the Supreme Court, which are forcing transgender Americans to have stamped on their passport a gender description that doesn't match and is incongruous with how they self-identify, subjecting them to psychological torment and trauma and physical attacks and assaults at TSA locations in airports around the country. all because Donald Trump on election day and on inauguration day made good on his threat to attack transgender people because he found them to be corrupt and corrosive to exist in society.

3:07Michael Popok:And rather than side with the underprivileged and rather than side with the most fragile, the United States Supreme Court decided instead to let Donald Trump have his foreign affairs power to make sure that people only had listed on their passports their gender assigned at birth by some doctor, not how they actually self-identified. And Ketanji Brown Jackson, as she has done time and time again, over a dozen times since this administration started, she has issued a scathing dissent that speaks not only to history, but to morality, to ethics, to reminding the court that they forgot their assignment and that they are supposed to not be doing back-of-the-envelope analysis, picking winners or losers on incomplete records, but they're to side with people who have real irreparable harm, like the transgender community.

4:00Michael Popok:I'm Michael Popok. You're on Midas Touch and Legal AF. This Donald Trump versus Ashton Orr case that just came out by the United States Supreme Court and may also have a signal as to where they are in the tariffs issue, if you can believe it, is important. It's important not just for the transgender community, but for all communities that need the protection of the United States Supreme Court. Ketanji Brown Jackson takes seriously her role as a justice, her title as a justice. And here's what she says in her dissent. Just to frame it, the Trump administration issued an executive order on the inauguration day, which declared that it was the policy of the United States that there only be two sexes.

4:51Michael Popok:And then the Supreme Court, after it went through the lower courts, the district court level, and then the First Circuit Court of Appeals, they sided with the plaintiffs. And they said, no, for 33 years, we've allowed people to place on their passports as an identifier, their sex or no sex or X or binary or the sex of their choice and not be accused of having a false passport. Joe Biden went as far as to allow people to put X for binary. This, of course, put MAGA into rage, who wants to, in a dictatorian way, authoritarian way, crush the hopes and dreams of people and other Americans. And we're talking about Americans here.

5:31Michael Popok:I want to remind people, when we're talking about passports, we're talking about Americans who are also transgender. And here's what Ketanji Brown-Jackson said against the MAGA-6, who blocked the order of the First Circuit, which now means that people in applying for passports need to list the gender of their birth. As is becoming routine, Ketanji Brown-Jackson wrote in her dissent, the government seeks an emergency stay of a district court's preliminary injunction pending appeal. As is also becoming routine, this court misunderstands the assignment. Our task in deciding stay applications is not simply to make a back-of-the-envelope assessment of which party has the better argument.

6:18Michael Popok:Rather, the actual nub of the project, if we choose to involve ourselves in the matter at all, is to fairly determine whether the applicant's showings justifies our extraordinary intervention, she says on page three of her decision. For the past 33 years across six presidential administrations, transgender Americans have been able to obtain U.S. passports with sex markers that match their gender identity. She drops in a footnote what she has been observing from her perch as a United States Supreme Court justice, the youngest justice. I would offer the smartest justice, the bravest justice, and the one whose voice will resonate through history.

6:59Michael Popok:She says on a footnote on page eight, not only does this court's state determination produce inequity, but is also part of a broader pattern of this court using its emergency docket to cavalierly pick the winners and losers in cases that are still pending in the lower courts. This way of handling state determinations jeopardizes procedural fairness as well, because the lower courts have an obligation to fully and fairly consider the merits of the plaintiff's legal claims, despite the majority's declaration of the likely winner. The court's stay-related pronouncements cannot be permitted to thwart the full legal process that our judicial system demands.

7:37She says the irreparable harm is not on the president and his

7:43Michael Popok:foreign affairs powers being impinged. And I want to talk about that as it relates to the tariffs. I can't believe I got to connect transgender analysis to tariffs, but I will. She says that the injury, the irreparable injury and harm are to the, it's to the transgender American community who have an increased level of suicidal ideation and self-harm if they can't identify themselves on government documents appropriately. And that's what the record says. She says, the plaintiffs have shown on page 11, they will suffer concrete injuries if the government's passport policy is immediately enforced.

8:22Michael Popok:Namely, they will be unable to obtain passports with sex markers that match their gender identity. The district court found, the lower court found, that this is a significant harm, noting that transgender people who encounter obstacles to obtaining gender-congruent identity documents are almost twice as likely to experience suicidal ideation and report more severe psychological distress than transgender people who do not face such barriers. The record demonstrates that transgender people who use gender incongruent passports are exposed to increased violence, harassment, and discrimination. And then she goes through the several plaintiffs by name and what has happened to them.

9:00Michael Popok:A.C. Goldberg, who is transgender and intersex, asserts that he has been sexually assaulted by TSA officers conducting searches on his body. Chastain Anderson attests to have been strip searched when traveling with identity documents that don't match her current gender expression. Ziya Persian has been subject to invasive pat-downs by TSA agents to confirm her identity. And two others have been accused of presenting fake identity documents and were forced to out themselves as transgender and non-binary to TSA agents. She says the documented real-world harms to these plaintiffs on page 12, obviously outweighs the government's unexplained and inexplicable interest in immediate implementation of the passport policy.

9:46Michael Popok:In other words, what's the hurry? Wait for the case to come up through a normal process over the next year or two. Continue to issue passports to people until we get a full record. The State Department already admitted they're allowing people who currently have a transgender passport matching their sex identity to use them. So how serious of a foreign affairs problem is this? See, the majority said, oh, the Trump administration has foreign affairs powers, so documents that are foreign-facing have to match their policies. Really? We're just going to ignore the harm to a fragile population in America that traditionally the Supreme Court has protected?

10:29Michael Popok:That's where we're at right now? She says on page 12 to continue,

11:01Michael Popok:that equitable standards apply equally to all litigants, to transgender people, and the government alike. Now, let me tie it to the tariff argument this week. I don't like the fact that in their order, blocking or forcing transgender people to self-identify on their passport in a way that matches their birth gender. I don't like the constant refrain about foreign affairs implications on page one of the decision of the majority. Because that's exact language that John Sauer, the Solicitor General, used during the oral argument about Donald Trump's tariffs. He argued, it doesn't matter whether the International Economic Procedures Act mentions tariffs.

11:47Michael Popok:You look to Article 2, you look to the power of the president, and the power of the president in areas of foreign affairs is almost not, is almost not restraintable or reviewable. Foreign affairs, foreign affairs, foreign affairs. And every time this Supreme Court wants to give Trump as president more and more power and take it away from the other two branches, including their own, they cite the foreign affairs. So I'm worried that this bell ringing here, this is a preview, even though this came out just a day after the oral argument. It was obviously these words were chosen on purpose. Don't think it's a coincidence that foreign affairs and the power of the president in the areas of foreign affairs and foreign facing things is being mentioned here so soon after that oral argument and a six to three decision on an emergency application.

12:44Michael Popok:I'll continue to follow it all right here. Hit the free subscribe button. Slide over to Legal AF YouTube channel. Do the exact same thing and help us grow our Legal AF Substack community by becoming a paid member. It pays for our reporting and our fair commentary. It's$6.77 a month. I'll overwhelm you with quality material and quality information every day on Legal AF Substack. And we're almost, I mean, we're at 900, almost 920 ,000 subscribers on Legal AF YouTube on our March to 1 million before this year is over with your help. We will reach it. Till my next report, I'm Michael Popak. Can't get your fill of Legal AF?

13:23Michael Popok:Me neither. That's why we formed the Legal AF Substack. Every time we mention something in a hot take, whether it's a court filing or a oral argument, come over to the Substack. You'll find the court filing and the oral argument there, including a daily roundup that I do call, wait for it, Morning AF. What else? All the other contributors from Legal AF are there as well. We got some new reporting. We got interviews. We got ad-free versions of the podcast and hot takes where Legal AF on Substack. Come over now to free subscribe.

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