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S2: I felt so vindicated that we accomplished what we set out to do in 2017, which was to not just protect DOCA, but to really change the way that we see and how we define what it means to be American.
S3: It’s an opinion that in its in its understated way, recognizes the equality of LGBT Americans every bit as much as the opinions of Justice Kennedy.
S4: Hi and welcome back to Amicus. This is Slate’s podcast about the courts and the Supreme Court and the rule of law and the Constitution, all that good stuff. I’m Dahlia Lithwick. I cover some of that good stuff for Slate and this week represented a truly extraordinary week. It was an extraordinary week for LGBTQ Americans, for 700000 Dreamers, for so many people with blockbuster decisions landing in the midst of continued lockdowns, discontinued lockdowns, mass protest, generalized national anxiety. We’re going to spend some time really thinking about what that means later on in the show. Slate plus, members will get to catch up with Mark Joseph Stern on the Supreme Court term that is circling, circling to a close above us. But we never know when it will end. And he’s going to try to answer the question, who is this new? John Roberts. Beyond the headline decisions, the high court swatted away a raft of gun cases, a challenge to sanctuary cities, laws and some opportunities to revisit its qualified immunity doctrine. That’s been a shield for police accountability. It’s persisted for decades over the objections of several justices and a surprisingly bipartisan group of critics. But the court did not want to play. We’re also seeing inspectors general and career officials pushed out of oversight positions in the Trump administration. That means that even the minimal accountability that’s been used to check this executive is sliding away. We also saw Bill Borris, Justice Department, filed a deeply strange civil lawsuit to try to halt publication of John Bolton’s new book, The Room Where It Happened, a book that probably most of us have read based on all the excerpts we’ve seen in the press. So, look, the country is gasping for breath as another black man was killed by the police in Georgia. New Corona virus case counts climb by upwards of 20000 each day. And his folks head to Tulsa, Oklahoma, the site of one of the worst massacres of black Americans in the 20th century. To hear from the president in a crowded, closed arena that everything is just awesome. Okay, buckle in, friends. It is a big fat show as befits an enormous week. Later on, we’re going to talk to Stanford Law School’s Pam Karlan. She argued part of the title seven cases last October. We’d spoken to her after she quite memorably invoked essentials, Pat, at oral argument. And it is wonderful to have her back. But first to another big, big surprise. On Thursday morning, the court, by a five to four vote, found that the Trump administration’s rescission of Dacca in 2017 was not lawful. Dacca is the Deferred Action for Childhood Arrivals program. It was announced by Barack Obama in 2012. It allowed more than 700000 young people known as Dreamers to avoid deportation, to remain in the United States and to apply for temporary status, allowing them to work. The status lasts for two years. It has to be renewed. It never provided a path to citizenship. And Donald Trump initially said he supported it. But Jeff Sessions announced in the fall of 2017 that it had been rescinded and thousands of dreamers were suddenly at risk of actual deportation. Well, on Thursday, Chief Justice John Roberts joined with the court’s four liberals to announce that the way the rescission had been handled was simply unlawful under the Administrative Procedure Act that lays out how agencies change their rules. The chief justice wrote, quote, We do not decide whether Dacca or its recision or sound policies we address only whether the agency complied with the procedural requirement that it provide a reasoned explanation for its action, end quote. The person I really wanted to hear from today was Luis Cortez Romero. He’s one of the attorneys on the legal team that prevailed in this litigation on Thursday. He’s a dreamer himself. Cortez Romero, a partner at the Immigration Advocacy and Litigation Center in Kent, Washington, graduated from the University of Idaho’s College of Law in 2013. And through his work with a young dreamer starting in February 2017, got involved with this massive docket challenge brought in California. It was one of three consolidated cases heard by the court. Luis sat at counsel table when the case was argued in November, something that young lawyers don’t get to do all that often. Luis Cortez Romero. I am so delighted to welcome you to the show.
S5: Thank you so much, Dahlia. I am very excited to be here. After a monumental win, it’s a high that we’re still writing. It might last. All through 2020. I think so. Well, it’s been a very great week. Maybe not for the maybe not for DOJ.
S4: Well, that makes it almost by definition. I’m so, so, so glad to have you on the show. And I thought maybe I know you’ve told it a thousand million times, but can you start with your own story and how? First of all, so many of the folks who listen, our law student. So tell us about your you know, how you grew up and how you got into law school and how that was almost imperilled. Just give us your give us your tale.
S5: Yeah. So I was born in Mexico and I was brought to United States. One is about one year old. And I knew from a really early age that I was not born here, but I never really understood what that meant in my whole life has really been a series of events of trying to figure out what it means and figuring out what it means by its limitations and complications from not being able to get a driver’s license in California until eventually when I went to college. You know, as someone without legal status, we can’t get financial aid. And so we had to pay all of it out of pocket. And eventually I had applied to a different law schools, but I again, I wasn’t eligible to obtain financial aid. So I it was easier for me to pay out-of-state tuition in Idaho than to pay in-state tuition in California. And so I had to go where the numbers made sense. And so I went to the University of Idaho College of Law, and it was my first year of law school where I I read an article in the L.A. Times about another undocumented law student who was unable to take the bar because of his status. And I had not thought about it before then, about taking the bar and how my status would impede that. It was yet another example of how my status. Again, you’re figuring out what it meant to be undocumented. And so my first year law school. It’s very difficult. I’m in Idaho. It’s you know, it’s it’s a snowy day and night goes around the Thanksgiving break. And when I got the news that when I read the news that I probably couldn’t practice law. So I figured, why finish if I don’t get to. That’s that’s a lot of work to to not get the practice law. So I had called my mom, I was going to study and I called her and I said, you know what, I think come Thanksgiving break, I’m going to pack my stuff and head back to California. And then I don’t think I’m coming back and I’ll figure out something else to do. And she gave me the most stern talking to I think I’ve ever had. And she ultimately said, you know, it’s hard for people like us to make it in those spaces. And regardless as to whether you get to practice law or not, they can’t unteach you what they’ve taught you. So you go in. You don’t come back. You go in there and you study and you’ll finish and then we’ll figure the rest of it out later. As I was sobbing in my car because I really wanted to go home and I was like, okay, I’ll go go sledding contracts as I. Okay, I’ll go learn about consideration. And so so I toughed it out in my law school career was really me trying to make the most out of trying to be a lawyer. And so I, I was working in the clinics at the College of Law, has an immigration clinic. So I submerged myself into that. I volunteered everywhere that I could to try to get those experiences, because as far as I was concerned, I had three years to be a lawyer. And it was in the summer of 2012, right when I was gonna go into my third year of law school. So I was everybody talking about clerkships and things like that. And I’m just trying to figure out what I’m going to do with my life after. And DOCA is announced right on as I am starting my my 3L year. And it seemed, you know, the timing could not have not been better on it. And I was very, you know, cautiously optimistic about what it was, because the ask was, give us all your information, all of your background, come into the ice office, which is the enforcement arm of the department, Homeland Security. Give us your fingerprints. Give us your photo. And if you give us all that information, we promise that we’ll let you stay and give you this temporary permit. Seemed a bit too good to be true as I was born yesterday, as I’ll wait and see what happens. And I started to see, you know, other people starting to get their DACA protections and a work permit and some of the basic building blocks that we need to participate in our society and try applied. I went into the office very nervously, gave them all my information, and a few months later I was approved. And I know that DACA itself is a temporary protection, but I think it’s oftentimes overlooked about the profound permanent change that it does to the soul, its heart. I didn’t know how heavy that sword of Damocles was of the threat of deportation until I didn’t have it anymore. And it changed me forever. And so I was able to graduate from law school. And then I got I said yes to the first job I could get, which was out here in Seattle, Washington. Working in immigrant rights.
S4: One of the reasons I wanted to talk to you is because I think there’s a story we like to tell Louise where we say this all starts with Donald Trump. But you grew up in the shadow of deportation threats. Your dad was deported. There wasn’t this didn’t start with Donald Trump. This enforcement of immigration laws and the sense that you were living under a sword of Damocles long predates the rescission of DACA.
S5: Oh, absolutely. And DACA was really a response to that fear. One of the things that President Obama really ran on in 2008 was this protection of immigrants. But what we saw by 2012 is that he was on pace to deport more people than any other president history. And in fact, he reached those numbers. By the time, you know, at the end of his presidency, he had already deported more people than George W. Bush had done in both terms. And so in the immigrants rights movement, it’s, you know, the direction that kind of veered off a little bit from let’s try to get legal permanent residency and citizenship for as many people as we can to let’s stop deportations of young people because young people are being deported in mass. And so it was a sustained, nonviolent movement of the immigrants rights that ultimately made it so that DACA was announced. And Darko was not a gift from Obama, was a political concession during a a an election year, 2012. And so it was very, very important to to protect DACA because it provided us the the the safeguard that we had lived under for so, so long, including during the Obama administration. So it it started way before President Trump. And it was important for us to protect it from him.
S4: So it sounds to me as though throughout law school you are thinking about doing immigration. This was not something that you fell sideways into. You were very purposive about doing immigration law. And I guess I’m curious what brought you to the Dacca case, because it seems that you went straight through law school knowing you’re going to do this. Your first job was doing this. And then one of the first things you did led you to DACA. Can you talk about that path?
S5: Yeah, I. I do. This is my favorite story and I think will continue to be my favorite story because I think it has so many intersections, particularly for young lawyers and law students, about pro bono work. When I saw ways February 2017, President Trump had just been inaugurated and we were all nervous about what that was going to mean on all fronts, but particularly the immigrant front. And so there was a young man, Daniel Ramirez, who got picked up by ICE, the Immigration and Customs Enforcement, and we get a call from his brother, very panicked on a Friday afternoon. He said Ice picked up my brother. He has DOCA. He told them he has DOCA and they still took him. And, you know, my I immediately became very concerned and I said, I’ll see him right away. He was detained at the Northwest Detention Center in Tacoma. One of the largest for profit detention centers in the U.S.. And so why I went to go see him because, one, I immediately imagined what Daniel must have felt like as a doctor ship in knowing that you thought you were protecting you and you you weren’t. So I went to go see him and his story didn’t make any sense. He said I they they were there for somebody else and they saw Daniel and they just picked them up. Later they said that they tried to accuse him of being a gang member, which Daniel would be the worst gang member in the world. He’s such a sensitive soul. And so it started there. And I started asking around to see if if maybe this was the new normal. I thought that maybe the DACA program wasn’t going to end structurally. Maybe it was going to end by death of a thousand papercuts, one by one. So I then and this is on Friday. I didn’t get contacted by Mark Rosenbaum, who is he was at the ACLU 40 years that a public counsel. He contacted me and he he’s like, I heard about this, you know, your client, Daniel’s case. And I want to help if if it’s possible. And I said, yeah, it’s like I’m still in the early stages. I just met him yesterday. Got to figure out all of what’s happening. Is that OK? Well, let’s talk tomorrow. And I said, OK. And so tomorrow comes now Sunday. And he calls me. He goes, I am here in Seattle. I flew up here. And would you mind if we meet and met with Daniel? So I said, OK, OK, I guess that’s my Sunday. Now I pick him up at the airport, we head down to the detention center and he’s asking me a few questions about DACA. We meet with Daniel. Daniel gives us this really heartbreaking story saying I told him I had DOCA. They said that they didn’t care. And and so we’re leaving the detention center, Mark says. Let’s go to your office in this meet for a little bit. As we’re driving to my office. He’s on the phone and he says we’re heading to his office. Now, we’ll meet you there. And I’m thinking we meet you there. Who’s we? Yeah. So we get to my office. And is there were I meets a sort of lawyer by Ethan. His name’s Ethan Detmer. He’s a partner at Gibson Dunn. And so US three, we start meeting in my conference room about what is DOCA really what are its legal contours? What is jurisdictional provisions? And we start getting into the real nitty gritty of what DOCA is and it isn’t. And ultimately, we start we can’t wrap array’s around it. And Mark says, I know who we can call any any, you know, puts his phone on speaker phone. He calls somebody and we start he starts asking about constitutional provisions. And I hear the voice and I recognize it immediately, almost from like a post-traumatic stress disorder from the bar prep, because it was Dean Chemerinsky on the phone. And I was star struck at other like I remember that from the bar, you know, from the bar prep it. So he then he got on the phone and then Mark had called Professor Leo Lippman, who at the time was at UC Irvine, and then he had called Professor Lawrence Tribe. We’re trying to figure this out together. This Sunday is moving now a lot faster than I thought it would. And so we ultimately think, oh, I don’t think it’s going to work. I don’t think that this the dark, you know, it has. I don’t you know, we think that’s going to be defeated on jurisdiction. So we call it a night and just chalked it up to be a really weird Sunday later that night. Mark calls me and he says, I think we figured it out. Let’s jump on a phone call altogether. And we have to draft this right away and file it by tomorrow, Monday. And I laughed because I thought he might have been kidding of drafting all night. But no, we had got a team together. The the Gibson Dunbar firm brought its whole team. The public counsel team brought his whole team in together overnight. We drafted a complaint about the protections of DOCA and that ultimately served as the blueprint of the jurisdictional issues, the provisions and all of these things that when Dacko was rescinded in September, a few months later, we already had some of the strong doctrine and arguments that we were able to use in district court. And so when DOCA was terminated, we saw that the state of California filed the lawsuit. The UC regents filed a lawsuit. But we wanted to make sure that we filed a lawsuit that told the stories of the doctors. Hipkins the interest of us who are going to be impacted. We really had a great team to to begin with. And so we decided, OK, let’s stick together. We were doing it with Daniel’s case. Now we’re going to take this on a more national scale. And that’s how it all started.
S4: First of all, I think the the idea of you sitting in a conference room getting goose bumps over Erwin Chemerinsky and Leah Lippman and Larry Tribe is the dorkiest the most beautiful thing. Only I am getting parallel goosebumps from those names. Talk a little bit about because I think it’s important. I think you said something that becomes in a weird way, the spine of of John Roberts opinion, which is there’s this reliance interest that a lot of people. I mean, you led with this, but a lot of people changed their lives in reliance on Dacca. And that seemed to be part of the keyhole that got to the chief justice on Thursday.
S5: I think that’s exactly right. And one of the things that was important to us was that it wasn’t just the doc recipients that relied on it. It was the entire community that relied on it, the teachers and their students, the doctors and their patients, the lawyers and their clients. We’re talking about millions of people here who relied on the government’s promise. And, you know, in order to shift chart sharply that that policy, there needs to be much more consideration than just an overnight, you know, change of heart. It seems like. And so I think that’s exactly right. And, you know, we knew it. And I think that’s why it was so important to tell the stories of what doc recipients are contributing to to our community, because, you know, it it it becomes a fabric of what makes America work. And I think without a without even taking those interests into consideration was very problematic. And I’m so glad that Chief Justice Roberts saw that, because that was really with a message that we were trying to get across. One of the things that I remember talking to the to the plaintiffs in September 2017, and I asked them if they wanted to be part of this case. And I’m one of them told me it’s like, let me just make sure I understand what you’re asking of me. You want me to be part of a. So that’s taking on one of the most powerful governments in the world, the U.S. government, for immigrants rights. That’s what you’re asking me to do. And, you know, it was. Yeah, that, you know, no big deal. That’s what I would like, Ed. And but what what we what I promised them, I was like, I can’t promise you that we’re going to win, but I can promise you that they were going to hear our stories. And that’s what we set out to do, really, is for them to hear our stories. And so I think ultimately that’s what got us to where we needed to go.
S4: And let’s just pause for a minute and really reflect on the fact they said it in the intro. But I want to say it again. This is not just telling your story. This is making yourself visible as also subject to deportation yourself. I mean, this is the downside not just for the plaintiffs, but for you. Amen. This is not what ordinary lawyers subject themselves to.
S5: I think that’s right. You know, and I would be lying if I said that I you know, there wasn’t of large parts of these moments where I wasn’t scared. And I think really what it came down to is doing it anyway. And I know that. You know, there’s a lot of people that before me that really risk themselves to get darker protections. And there’s a lot of people that were deported for it. And I knew that I was in a position of immense privilege of not just having backup, but being a lawyer when I was going through law school. I didn’t know any other doctor, recipient lawyers. I know any other undocumented lawyers. And I feel so lucky to get to do this. And so I. I knew that I. I couldn’t let that go to waste. And so, you know, I had talked about it with, you know, ah, the rest of our legal team or colleagues about what this would mean. And we knew that this was important. And I also felt so supported by, you know, my colleagues, the other lawyers I was working with. I wasn’t doing this alone. And I know that I had people who really cared about us and me and I. I am very thankful for them, too, because I wouldn’t I don’t know if I would have been able to do this without them. And I it gave me the courage that I needed to do it, even though it was very scary.
S4: So you were at arguments, you were at counsel table. You were, you know, in the big show and you probably saw what all of us saw, which is it did not appear to be going well. I didn’t have a lot of inklings that John Roberts was particularly susceptible to the argument that. Y’all were making. But I wonder if I missed something, if you saw something or if something got through to him after. I’m just curious if he I was talking to you the day after arguments, if you would have said to me, oh, yeah, no, we got it.
S5: No, I. You know, I. I think we left out of there concerned. It’s it’s hard to make out, you know, from the questions what their ultimate tension was. But I it didn’t it didn’t feel optimistic believing those leaving the courtroom. I think since the arguments, I think there’s two things that happened. I think, one, the Department of Homeland Security and at the time, the solicitor general, nor Francisco, he had explained to the chief justice, John Roberts, that dreamers will not be deported if DOCA ends. He made that statement very clear. And Chief Justice Roberts asked that and make sure to to get a clear answer. That changed. That changed this year in January. They have now said that they will proceed with enforcement and proceed with deportation. And so we we make sure to let the court know that there was a post argument brief that was filed and also the pandemic, I think, has a big play into it. The a lot of the doc recipients are health care workers. And weirdly enough, the American Medical Association submitted an amicus brief talking about the importance of the health care workers. And a part of the brief said, you know, in the event there’s a global pandemic, DOCA, health care workers are going to be very important. And lo and behold, there’s a global pandemic. I mean, this brief was submitted in October of 2009. And so I think the different contours of where what the consequences were going to be really highlighted, the reliance interests that we were trying to highlight from the beginning. And I think they made a much more apparent than concrete. And so I don’t know if it necessarily changed the argument, but I think it made it much more apparent that these things were not considered. And we are seeing what the consequences of those reliance interests really would be like now. So I think that that’s a lot to do with it. I you know, one of the things that happened earlier in the week was that we had a case that had protections for the LGBT community in the employment setting. And that decision makeup was, I think, unexpected. And to me, one of the things that it showed as well, maybe I can’t maybe I can guess how the court has got to decide. I you know, and so I left me more confused than anything. And so when I saw the decision and saw that Chief Justice Roberts sided with us, know, I was I was very pleasantly surprised. I was expecting a a bit of a sympathetic opinion of we’re so sorry, but we’re going to have to end this program. And that’s what I was expecting. But, you know, it it I think it’s now the second time that Chief Justice Roberts has told the presidential administration it’s not we’re not saying you can’t do it. You just didn’t do it. Right. So we saw that with the census case as well.
S4: I wonder if that makes you anxious. It makes me quite anxious, Louise, that, you know, I liken this to like my kids turning in a really crap paper and having, you know, the instructors say do it again and do it right. And you can fix it. And it seems that there are parts of the Roberts opinion that are almost literally a roadmap to if DHS had done this, if they had claimed this, if they had just done it. All you have to do is do this. And I might think differently. And I wonder if that isn’t slightly terrifying to you, that a slightly smarter DHS in a slightly better attorney general could have done this very, very easily, it looks like.
S5: Yeah, there’s a bit of me that is is concerned about that. What I what I consider is, one, they could have done this this whole time. The the you know, that was part of our argument. Our argument wasn’t ever he can’t do it. It was his idea. The procedure of it was was not correct. And so they could have just redone it at any point in the course of the litigation and they didn’t do it. And I think it’s because they want to keep at arm’s length of the decision. They really wanted to hide behind the court because the DOCA program is an overwhelmingly supported program in America. And so to own that decision, I think is going to do a lot politically. And now the you know, if he decides to terminate the program now and follows the Administrative Procedures Act, it’s going to go into November and he’s going to have to then terminate a program that’s very supportive and he’s going to have to do that. It’s not cost neutral. There’s going to be some political consequences to that. So he’s going to have to decide that. I, I think my anxiety about it will increase if he is re-elected to a second term so that he has that. Process to do so. So, you know, what it does is that it kind of reconfigures the Rubik’s Cube of what the conversation is going to look like in this political election. It’s so so, you know, what’s gonna happen to the fate of dreamers if if it goes on. And I suspect that we probably won’t have we won’t have enough time to do it before the election.
S4: So it kind of if there wasn’t already enough of a spotlight in this election, there is a much brighter one now, especially, as you said, with the data around how much dreamers have contributed on the health care front in the pandemic. I can’t imagine this would only look worse to do it. Mid pandemic, mid Cauvin.
S5: I 100 percent. And, you know, part of the Administrative Procedures Act is to consider what is happening and and whether the pollit the change of policy outweighs that. And so he’s going to have to explain all of that. One of the things that I am keeping a close eye on is the structural integrity of DOCA is now in place. I can tell you we’ve had protected it from President Trump, just terminating it outright. But Daniel’s case is now back at the 9th. It’s not what the Ninth Circuit and he now I think now more than ever, Daniel’s case is really important because we don’t want the administration to do that death by a thousand people because we thought he was going to do in February and just keep the program, but just chop the persons. And so part of what we’re trying to do with Daniel’s case is to make sure that the Department of Homeland Security continues to play by the rules, even on an individual basis, so that it doesn’t, you know, essentially leave just the shell of the program.
S4: Right. So I also want to ask you about this equal protection part, because that’s a poison pill here, right? I mean I mean, in the touchdown dance, we miss the fact that not only was there no sort of constitutional finding that there was racial animus put, there was only one vote. Right. John Roberts writes, There’s not a scintilla of they’ve made no showing of racial animus. It cannot be an accident that it’s Sonia Sotomayor writing for herself alone, who goes through Donald Trump’s history of slurs against Mexicans and says, you know, the idea that this does not amount to a showing, at least for purposes of this litigation, that there’s animus garners no votes. So I guess I want to ask that that is a loss. I mean, that would have been nice to get the five votes for that. But I wonder if you agree with some of the folks who said the poison pill in here is that that opinion makes such a showing harder going forward?
S5: It was it was difficult, I think, for me to really wrap my head around why it was there in the first place. You know, the chief justice Roberts could have decided on the AP ground and then just not ruled on the constitutional provisions on the case and just kind of disposed of it that way. So it’s a big it was a bit surprising for me to have him comment on it. It seemed to be gratuitous to the extent that he did. I it was a bit disappointing to see the that though there wasn’t more votes on the racial animus component, at least that this component of the litigation. Right. We’re here and in the preliminary injunction, we just have to make showing that there’s some racial animus to move forward with the case. And we you know, we had our courtroom doors closed on that. We knew that after during the course of the litigation of the doctor litigation, the Hawaii vs. Trump case came out and that happened right in the middle of it. And so that really changed the the landscape of how this discourse of of, ah, political speech and is ultimately ingrained in policymaking. And so we know it’s gonna be a tough a tough argument anyway. But it was really disappointing that it didn’t get more votes and that Justice Sotomayor was the only one who saw the race component here that we all felt really we all felt it. It’s you know, oftentimes the trouble with racial animus is that it’s is cloaked in dog whistles and things that, you know, coded words. And, you know, you don’t say it in one aspect, but you say it and others. And so if it was a bit disappointing, you know, and I and I think we’re going to have to continue moving forward to to show, you know, what racial and social justice looks like in legal justice.
S4: The Hawaii case we should just flag that was the travel ban case that the court determined was not motivated by racial animus. It’s true, I I came away thinking, Louise, that John Roberts was willing to split the baby in. So far as he would say, Donald Trump is sloppy, but he’s not racist. I mean, that’s how you can read this acceptance on the EPA, an absolute retreat. From the equal protection animus question, and it’s frustrating because as you say, and as Justice Sotomayor said, this is some seriously racist talk that that gets swept away. I guess before you go, I want to ask you, just as you as Louise, how is your life different today from a week ago? What do you I mean, in addition to being able to exhale, at least for a little while? What’s changed for you and what’s to come?
S5: I felt so vindicated that we accomplished what we set out to do in 2017, which was to not just protect DACA, but to really change the way that we see and how we define what it means to be American. And I think through the course of the DOCA litigation, more people became aware of what DACA was, what was at stake, who were the doc recipients in their community. And I feel so proud of the work that we’ve done and what we were able to do. And I am feeling so much more hopeful about our future in a time where there’s so much that, you know, it puts a damper on on on our communities. And I oftentimes think that it’s not you know, we measure our communities not by the bad things that happen, by how the community reacts to those bad things that happen. And I think this is a really great showing that it also really reminded me about the the importance of a court system, you know, being a lawyer and working in immigration law where I have enough to study about other countries, governments and how they operate. One thing that makes America so amazing, it’s its court system. It’s its court system, and it’s imperfect. But, you know, historically, we have seen that it’s the court system that has protected the rights of some of the most marginalized. And so I as I am so proud and and excited to be a part of it, you know, it feels like it’s not just a coincidence that DOCA was not only the thing that allowed me to practice law, but then I get to protect that program for others. And so it’s you know, it’s going take me a little while to reflect the thing fully. But it was an amazing moment. And I it gives me a lot of hope for the future, regardless as to who is in charge. We know that we as a community are going to do the right thing. So I’m very hopeful and happy about the outcome.
S4: Luis, I’ve been doing this show for a very long time and only doing it on Zoome since shelter in place since March. And yet this the first time where I’m just so freaking glad I get to see your face. It’s all you really, truly I think you represent that which is best about the American legal system. And I’m just very, very glad that you took a little time to be with us this week, because, like I said, I definitely needed to hear from you. Thank you for being here.
S5: Thank you so much for having me. It was such a pleasure.
S4: Luis Cortez Romero is one of the attorneys on the legal team that won big time in the DOCA litigation at the Supreme Court Thursday. He is a dreamer himself and a partner at the Immigrant Advocacy and Litigation Center outside Seattle, Washington. Thank you for being here. Thank you. On Monday, we back on Monday in an opinion so vast we couldn’t actually download it for almost 40 minutes. The U.S. Supreme Court handed down a six to three opinion finding that workplace discrimination against two gay men and one transgender woman is unlawful under Title seven of the 1964 Civil Rights Act. This is a watershed case. Some say a bigger win even than the marriage equality cases. And yet two of the three litigants in this case did not live to hear the holding read. Well, they wouldn’t have heard it. And yet two of the three litigants in this case did not live to read the holding. Last October, we spoke to Pam Karlan. She argued two of the three consolidated cases on behalf of Gerald Bostock, a child welfare coordinator in Clayton County, Georgia, fired after he joined a gay softball league. And Donald Zada, a now deceased skydiving instructor, fired for telling a woman not to be afraid of being strapped tightly to him because he was gay. The third case was brought by Amy Stevens, who’d worked for six years as a male funeral director in Michigan but was fired two weeks after she told her boss that she was transgender. Amy Stevens died earlier this spring. The surprise on Monday was that Justice Neil Gorsuch, a Trump appointee, an avowed conservative, joined the court’s liberals and Chief Justice John Roberts to pen an unequivocal ruling that the plain text of Title seven bars discrimination because of sex. Quote, It is impossible to discriminate against a person for being homosexual or transgender without discriminating based on sex, he wrote. That was precisely the argument that Professor Carlin made before the court in October. Let’s have a listen.
S6: Thank you, Mr. Chief Justice, and may it please the court. When an employer fires a male employee for dating men but does not fire female employees who date men, he violates Title seven. The employer has, in the words of Section 73, they discriminated against the man because he treats that man worse than women who want to do the same thing. And that discrimination is because of sex again, in the words of Section seven of 3A, because the adverse employment action is based on the male employees failure to conform to a particular expectation about how men should behave. Namely, that men should be attracted only to women and not to men.
S1: Pam Karlan is co-director of Stanford Supreme Court Litigation Clinic. She’s an assistant counsel and cooperating attorney for the NAACP Legal Defense Fund and a deputy assistant attorney general in the Civil Rights Division of the Justice Department under Obama. Pam also co-hosts Stanford Legal on Sirius XM and is the co-author and author of a Caerphilly in books on Con Law. Pam Karlan, welcome back to the show.
S3: Thank you so much, Dahlia. It’s great. It’s great to be back.
S1: Pam, I wonder if we could start at the very, very beginning here. Just the basics. Lay the table. What does Title seven say? Which groups does it protect? And how is it that all this matters?
S3: So Title seven of the 1964 Civil Rights Act covers any employer in the United States that has more than fifteen Full-Time employees. And what that means is a majority of American workers are covered by Title seven, but a majority of American employers aren’t because there are so many businesses that have fewer than 15 Full-Time employees. And what Title Seven says is that a covered employer cannot discriminate by refusing to hire somebody, by firing somebody, or by changing the terms and conditions of someone’s employment, because because of that individual’s race, color, national origin, religion or sex. And in the cases we’re talking about, it was that last one that was an issue. What does it mean to say that you’ve discriminated against somebody because of such individuals sex?
S1: Pam, can you just remind us if you know how many times Congress has tried and failed to amend Title seven so as to bar discrimination based on sexual orientation and gender identity?
S3: Well, there’ve been a series of bills proposed in Congress that would make explicit that because of sex includes sexual orientation or gender identity or the like. I didn’t keep full count of them because as you may remember, our position in the case was it doesn’t matter whether Congress tried to do this later because our claim was Congress did this in 1964.
S1: Also, just in the interests of setting the table, talk a little bit about what the federal courts have done in the absence of having amended language to title. And maybe also the role of the EEOC in changing how we have come to understand Title seven.
S3: As I said to the justices when I did the arguments in October, there were a number of early cases in which courts of appeals suggested almost in passing that Title seven would not reach firing somebody for being gay. But those cases have literally no analysis at all in them. And several of those cases didn’t even involve discrimination on the basis of sexual orientation. So the first of these cases was a case where a black gay man sued his employer and said, you’re treating me worse than white gay men. Now, that’s a race discrimination case. That’s not a sex discrimination. And it really wasn’t until the Seventh Circuit’s opinion in Hively, which is about three or four years ago now, that any court really sat down, looked at the language of Title seven and worked its way carefully through that language. And since that time, a majority of the lower court judges that looked at Title seven said it does forbid discriminating against somebody for being gay or for being transgender.
S1: And just as briefly as you can, and I know it’s a complicated opinion, but can you sketch out what it is that Neil Gorsuch, joined by the chief justice and the courts, four liberals, what it is that he holds and what it is that he roots that in?
S3: Yeah. So I could do it really quickly and say in three words, what he held is read the text. What he said was when the text talks about sex discrimination, when it talks about discriminating because of sex, what that means is if a man and a woman do exactly the same thing and you fire one of them, but not the other, that’s sex discrimination. And the example he gives us, if a man and a woman both date somebody named named Charles and you fire men who date Charles, but you don’t fire women who date Charles, that’s sex discrimination. And that’s what it is to fire somebody for being gay. You’re firing them for something that if they were of the opposite sex, if they were of a different sex, you would not fire them for at all. You wouldn’t object.
S1: And before we dig in to the majority opinion and the dissents and the wrangling over how he gets there, Pam, while we’re here, I wonder if you can help me understand a question that I’ve been asked in interviews all week long. Every other major LGBTQ rights case that has come before the court has been written by Anthony Kennedy and really soaring powerful language about dignity and equality and respect and regard and choices. This is not that this is stripped bare. There is not a lot of solicitude for the sort of long struggle in the history. In fact, we can talk about it later. Cabinet Justice Cabinets dissent seems to be more willing to recognize that this has been a decades long fight. And yet there is a way in which the stripped down quality, while maybe there’s not a lot of dicta there to lean on, it gets the job done. And I wonder if having you have done so much litigation that’s sort of reliant on the big picture and the soaring rhetoric of Anthony Kennedy, whether this feels like a rip off or if it feels like maybe there’s something to be said for just the bare bones analysis that Gorsuch gives you. So I don’t think of it as a rip off at all.
S3: I think of it as the court is going to apply the same kind of textural reading to the rights of gay Americans and the rights of transgender Americans as everybody else in its own interesting way. This is actually a huge and soaring victory, because what Justice Gorsuch is saying is we are going to apply the standard tools. And when those standard tools give gay Americans and transgender Americans their rights, we’re not going to flinch from that. And it’s in that sense, it’s really almost an equal protection decision interpreting a statute, which is we’re going to, you know, if firing people because they’re mothers, that is women with children at home. Is sex discrimination in the Supreme Court held that it was in its very first sex discrimination case, the Phelps against Martin Marietta case. Then we’re going to say firing a woman for having a wife at home is discrimination because of sex. And so in that sense, it’s a it’s an opinion that in its in its understated way recognizes the equality of LGBT Americans every bit as much as the opinions of Justice Kennedy.
S1: And I think you’ve probably at least partly answered my follow on question, which is. Some of when I don’t even know what to make of the game of how big a deal is this? But almost immediately there was a lot of, oh, this is a bigger deal than Oberg, a fellow. It’s not as big a deal. You know, it affects more people, more gay Americans want to work maybe than get married. So there was a lot of kind of totting up the numbers to determine whether this mattered more. In addition to the claims that I heard, that there’s just not enough soaring language here. I did hear this is just a statute. It’s not a constitutional case. And so it by necessity, has less force and meaning going forward than Oberg AFL did. But I think I’m hearing you say that’s actually not factually correct either.
S3: I think that’s right. That is this doesn’t have the kind of poetic language that Justice Kennedy often strove for. Which was both, you know, a strength in the public, but also sometimes a weakness in the opinions that is coming out of Justice Kennedy’s opinions. You don’t know whether discriminating against somebody because they’re gay requires a heightened level of scrutiny or not. All you know is this particular thing deprives gay people of dignity and, you know, justice. Gorsuch his language is not poetic in the same way. Indeed, Justice Gorsuch I think kind of rebels in the Chadi conversation, those contractions.
S1: Yeah, he did. Ain’t it the truth guy going to do it. Not going to do it.
S3: Wouldn’t it. It wouldn’t be know. So he has a very different style and that style doesn’t have the little tiny snippets that you could pull from Justice Kennedy. That is, I don’t think anybody’s marriage ceremonies in the future are going to contain language from Vosta, the way they contain language from Lorence or language from Oberg, foul language from mom from Windsor. But this is a big deal. A federal judge whom I know who had nothing to do with these cases, said to me afterwards, this a federal judge in a very red state city. This case will make more of a difference to the rights of gay people in my in my district than the marriage cases, because everybody needs to work. Not everybody wants to get married. Not everybody is married for their entire lives. But after you turn 18 or 20, wonder you finish college. You finish high school in the United States. You’ve got to work in. This gives a majority of Americans protection in the workplace that they didn’t have before. And that’s critical.
S1: How many states did not under their own state laws protect gay and transgender workers? You know, I think it was about 30. So so so really, this does absolutely shift the playing field for almost half the states, more than half the states.
S3: Yeah, I think it shifts the playing field from where it might be about half the states. But, yeah, it shifts the playing field there. I should say, the other thing it shifts, which is important, is even in the states that did prohibit discrimination on the basis of sexual orientation. I don’t know whether in all of those states, if you won your case, you got attorneys fees which matter to your ability to get a lawyer to bring suit on your behalf. So it might. And and this also allows you to go into federal court, which may also in a state that has elected judges, make a difference.
S1: So so let’s go back. I think you started to say this in the beginning, but I think we should be really clear about the limitations of Title seven. So you started to say you need fifteen employees. So that’s I think the statistic I heard, Pam, is that about 18 percent of gay workers would not be covered because they work in businesses that are too small. Does that ring true to you?
S3: It’s hard to figure out the number, the percentage of gay workers who wouldn’t be covered, because we don’t know whether gay people are more likely to work for larger employers that already have nondiscrimination policies in the first place. What we do know is that the vast majority of American workers, gay or straight, work for large employers who are covered by Title seven. Some number of American workers work for employers who aren’t covered by Title seven smaller employers. And one of the things we did in our brief to the court was to say that many of the employers that you might be most worried about a clash between the rights of gay, lesbian, bisexual, transgender Americans and the US, the feelings or sentiments or religious beliefs of the employers, many of those employers aren’t going to be covered in the first place. Those employers have never been covered. They’re free to discriminate on the basis of race. They’re free to discriminate on the basis of sex. As a matter of Title seven. Now, there are other laws that might that might restrict their rights, but it’s not titled seven. In the second group of employers that might be allowed to continue discriminating against LGBT Americans are employers who, for example, are discriminating with regard to a position that fits within the ministerial exception, which is an exception that the Supreme Court wrote into the statute to deal with the First Amendment freedom of religion. And so, for example, an employer with regard to somebody who counts as a minister is entitled to discriminate on the basis of all of the things that Title seven forbids. So a church can decide it’s only going to have male priests or a church could decide. It’s only going to have white priests, for that matter, as a matter of Title seven. And so, too, it can decide it’s only going to have straight priests or for that matter, it’s only going to have transgender priests. It’s it’s free to discriminate in either direction. And the Supreme Court has some in some cases on its docket this term that they haven’t yet decided that are really about the breadth of that ministerial exception. But it’s pretty clear that that ministerial exception does not extend to janitors. It does not extend to typists or I.T. professionals or the like. And so those people would be covered even if they worked for a religious employer.
S1: And I think the last thing I want to say, I feel like I’m this big thundercloud. I’m trying to like cabin cabin Kevin the protection. It is also true that even now, with the protection of Title seven, it doesn’t end the inquiry. Right. You can still all it does is it gives you legal recourse to sue your boss.
S3: Yet you’re still going to have to prove that the reason you were fired is because you’re gay and not because you didn’t keep the accounts correctly or you were fired because you were transgender and not because you came late to work or because you were insubordinate. And that has turned out to be in a lot of cases involving classic race discrimination or classic sex discrimination or classic religious discrimination to be hard sometimes to prove which is the employee comes in and says, you’re paying me less than my my white counterpart. And the boss says that’s because you’re less productive. And ultimately, a finder of fact, either a jury or a judge is going to have to determine whether there’s enough evidence to let you go forward on that. And if there is, whether you whether you’ve proved it right. So this is not about. This is not about saying, you know, gay people get a get out of being fired free card. This is about saying they have the right to go in and use this statute and prove that that’s the reason why they were fired or not hired in the first.
S1: And all of these plaintiffs were just explicitly told, don’t come back because you’re gay.
S3: There’s really no. That’s the thing that’s critical is the three cases are quite different. Amy Stevens was told don’t come back because you’re transgender. So now she wins that case. But both Gerald Bostock and Don Zadow, we’re told, don’t come back in in in in Gerald Bostick says don’t come back because you’re you’re not doing the accounts correctly. And he says, I was fired because you found out that I was gay when I joined the soft belly. And Don Xano was fired for making a for making a client uncomfortable. And it’s not clear whether she was uncomfortable because he was gay, which is what he says, or she was uncomfortable because he was. Touching her in a way that made her uncomfortable, which is what her boyfriend said, right. And so those are two cases that would still have to. There would still have to be a trial to figure out, well, why was Gerald Bostick fire? Why was Don’s ATA fired? Wasn’t because of their sexual orientation or something else. Now, Amy Stevens, we know she was fired for being transgender, and that’s that’s full stop.
S1: Right. So the pretext problem in no way goes away. And in fact, in some ways, bosses just get very smart about pretext. That’s not a problem, as you say, that we can solve for an other Title seven realm. So it just is what it is. I wonder if you can talk for just a minute, Pam, about this purports to be just about employment discrimination, but I think everybody agrees it ripples out into housing recent health care directives that would have allowed for discrimination on the basis of transgender status. I wonder if you can tell us how widely this sweeps and maybe whether it affects the military.
S3: So it sweeps very widely because and this is you know, you made an allusion to this earlier that it took a long time to get the opinion to load. One of the reasons for that is there’s an odd facsimile appendix in Justice Alito’s dissent. That’s a whole bunch of forms from the 1960s that show that government and all sorts of ways was discriminating against gay people back then. But the other appendixes opinion is a list of a gazillion federal statutes that say you can’t discriminate because of sex. And they range from the really broad ones like Title seven or Title nine, which covers educational institutions to ones that are super specific. So there’s one of the statutes in list is about highway funds and the like. And presumably all of those statutes, the phrase because of sex, has the same quality that the phrase does entitle seven. So in that sense, it could be a very broad ruling. There are a lot of areas in which where something might be because of sex, but it’s not prohibited. So I’ll just give you one from Title seven itself, which is Title seven itself says, you can discriminate on the basis of sex when the person’s sex is what’s referred to as a bona fide occupational qualification. It’s often shortened to BFO. Q So if it’s really necessary under these conditions that only a woman do this thing or only a man do this thing, then the employer is entitled to discriminate because of sex. It doesn’t change that. The discrimination is because of sex. It changes whether it’s legal or not. So the example that I give is there’s a Supreme Court decision in the decision we relied on quite heavily for other reasons in in our briefing and argument to the court called Dollard Against Rollinson. And this was a case that said when it comes to prison guards who are involved in observing inmates in intimate settings, that is, for example, watching the inmates shower and the like, conducting strip searches of the inmates. It is a bona fide occupational qualification for a prison system to decide that. Guarding female prisoners will only be done by female guards and guarding male prisoners will only be done by male correctional officials. And the Supreme Court comes right out and says, no opinion. Of course, they’re being discriminated against because of sex, but that discrimination is defensible. And so, conceivably, you could have some occasions on which it would be a bona fide occupational qualification that somebody be straight or that somebody be gay. You know, that’ll that’ll play out in future cases. So it’s important. I understand what the Supreme Court held here is that discriminate against somebody for being gay or lesbian or bisexual or transgender is discrimination because of sex. But that’s only the first step in an inquiry that then says. And is this sex discrimination legal or not?
S1: I think I want to get to the fight about originalism, if that’s OK with you, because that’s for me, where it gets just straight up jello wrestling, you know, flinging stuff. And, you know, Justice Alito accusing people of being pirates, which is just next level. Let’s talk for a timber. I was going to say, ah, I think there’s been a pirate theme in the last couple of amicus plus episodes. So it’s good to get the pirate stuff in early and often. But I think we have everybody laying claim, right. We have a majority opinion by Gorsuch that lays claim to originalism and certainly to textualism. Then we have a dissent by Alito that you just mentioned and then we have dissent by Justice Gorsuch and everyone’s claiming that they are, in fact, Antonin Scalia’s legitimate heir here. I think his name is cited 21 times in the majority, 19 times in the dissent. This feels like the fissure here has something to do with Justice Alito saying what did the folks who wrote the Civil Rights Act intend? And that’s where we get the dictionary definitions and Justice Gorsuch saying it doesn’t matter what they intended. It matters what the plain language suggests. And that’s right, a fight between originalism and textualism, I guess. But do you have any thoughts about who has the right of this beyond just the outcome, I guess, is what I’m asking.
S3: Sure. So here’s the thing. If you had asked the people who passed the Civil Rights Act of 1964. Are you protecting people who are gay or people who are transgender? They would have said we didn’t mean to do that. And I have no doubt that if somebody had pointed out to them that that is what their words meant in 1964, they would have written an exception into Title seven, the same way that they wrote an exception into the Americans with Disabilities Act. Even though mental diseases count as disabilities, that says kleptomania and pyromania don’t. So I have no doubt that if people had understood that the natural consequence of their language in 1964 was that they were protecting gay and lesbian Americans from discrimination, they would have written an exception into the statute. But the fact is, they didn’t write that exception to the statute. And so this idea that you ask, well, if they had understood better that the language that they used ineluctably inescapably leads to this conclusion. They would have used different language. That’s not that’s not an argument. Because it’s not absurd to say that this covers gay people and even Justice Alito at his angriest doesn’t say that. He just says they didn’t mean to cover these folks. And to which we say. So what they did come for them? I don’t really think of the majority as being an originalist originalist opinion at all, it’s simply saying these words were understood at the time as referring to male and female. And that’s all we’re doing here. But it’s not originalist in the sense that it’s not trying to excavate anything more than that’s what dictionaries said in 1964.
S1: So it really is the split between textualism, whatever that means, the originalism, whatever that originalism, whatever that means. And I think we’ve been sloppy, right, because we ascribe both to Scalia and Scalia sometimes. I think he was very, very wedded to the notion that he only cared about original public meaning. But I think there was some slippage there. And in some sense, you can say, OK, this is at least an elegant solution. Now we know we’re just looking at the text right where where this is about the words. And we’re now going to hive off any debate about what the framers wanted. So in that sense, maybe.
S3: Well, and now you’ve gotten a version in Justice Kavanagh’s dissent of the thing. You may remember a lot of us during the 2016 campaign. The question was, you take Trump literally or do you take him serious? Yes. Now you have justice carbonised. Simply say, well, there’s the literal meaning and then there’s the serious meaning. Well, which is he says, literally, Justice Gorsuch is right. But I just something people would have understood this all this way. And the interesting thing, both about his dissent and justice Leto’s, is there really a historic in the following sense? In 1964, nobody was really thinking about what does it mean to be transgender. They just always assumed that the sex you were signed at birth went along with the genitalia that a doctor observed as he pulled you out of your mom. And that was the beginning and end. But there was no discussion of gender identity back then. So Justice Alito said, well, you know, if you look in the dictionary, they didn’t say sex means sexual orientation or gender identity. But if you look in dictionary definitions of 1964, the phrase gender identity doesn’t appear. The phrase sexual orientation doesn’t appear. So it’s kind of you know, it’s it’s like a party trick to say, well, this isn’t how those words were defined then. You know, one of my co counsel, James SSX from the ACLU and I were talking as we were writing the briefs and James said, you know, here’s an irony. It’s precisely because we have been so successful at persuading people that people’s sexual orientation is an aspect of their personhood, that the idea of sexual orientation as a category exists. And now we’re fighting to go back to, oh, just ignore the phrase sexual orientation altogether. You don’t have to use that phrase at all to say discriminate against somebody because he’s a man who likes men. Right. And at several points in the brief, we use that phrase, a man who likes men or a woman who likes women to try and say, look, don’t even think about sexual orientation. The fact that you could describe it that way, as well as man who likes men is irrelevant to Title seven. And so it’s a kind of irony of the case that, you know, our very success at getting people to think about sexual orientation or to think about gender identity created the problem that Justice Alito thinks defeats a claim that if the phrase sexual orientation had never been invented, would have been a slam dunk.
S1: Right. That’s so interesting. It’s almost that like weird literary Harold Bloom relatedness. Right. Like, we’re trying to impose back then something that we all absolutely assumed to be true. And that’s.
S3: David Cole, who argued the transgender case took a number of classes with Harold Bloom when he.
S1: There you have it. So I think the other fisher here and this didn’t get as much attention as the intramural fighting about originalism and textualism. And no, I’m Scalia. No, I’m Scalia. But I think it’s another Scalia based fight and that is giving up on the legislature. And it seems to me that one interesting three line in the the majority and the dissents is OK. We all agree the legislature should have fixed this. Gorsuch is like, cool, cool, cool. It didn’t. We’re going to just now catch up. And one of the things that really is scorching both in Sam Alito’s dissent and in Brett Kavanaugh’s dissent is this. You are legislating from the bench, right? This is the Dissents and Oberg AFL. You are acting as an unelected, unchecked legislature. And I wonder if, in addition to getting some kind of clarity on this, how we’re going to think about originalism going forward. We got some clarity on how much water do you expect Congress to carry. And Gorsuch seems to just have said, yeah, OK, we’ll do this. Well. That’s really quite a fear here.
S3: You know, in constitutional cases, the claim of legislating from the bench is you’re taking a law that the people of the here and now, to use Alex Stickles phrase above, that the people of the here and now passed and you’re getting rid of it on the grounds that people long ago put in place a system that gets rid of it. So there you really do have but court overriding the legislative will. Here the question isn’t whether the court overrode the legislative well. The question is whether the words that a legislature used cover the facts before the court. And the fact that the legislature didn’t go back and clean this up or clarify it, that doesn’t change the words that are there. So it’s not the court legislating. I mean, the court is saying, here’s a statute. Here are the words in the statute. Here’s what we think the words mean. Now, you can disagree about whether they’re getting the meaning right, but they’re not claiming the statute never said this. But let’s let’s do it anyway. I mean, you might remember at the oral argument, the first question I got from the chief justice was a question that was. Do you agree with Judge Richard Posner of the 7th Circuit, who’s very much has a very different view of judging than the members of the Supreme Court when he said, you know, it’s our job to just update statutes if Congress won’t. And you’ll remember through just judge right under the bus. And I said, no, that’s not what we’re asking for at all. We’re just asking you to apply the words of the statute. And then I paused and nobody asked me any questions. This was about three minutes. The argument is, OK, I’ll just reserve the remainder of my time, which chivvied them out of their burrows. And they started asking questions quite vigorously. But that is not what we were asking the court to do. We were saying T8 we said for purposes of this argument, let’s take the dictionary definitions from 1964 and see where they lead this statute. So we weren’t asking the court to update the statute. In fact, what we were asking the court to do was sweep away a bunch of subsequent judicial interpretations that hadn’t looked at the language of the statute.
S1: So that leads me to Brett Kavanaugh. I find his dissent to be deeply weird, and I particularly find that stuff at the end, which is the high fives all around. You’ll have fought a good fight and I look forward to the next victory. But sorry, what do you make of that, or am I just fussing about something that isn’t worth fussing about?
S3: No, it was it was it kind of. It was a kind of junior varsity version of the chief’s statement at the very end of his opinion and Oberg AFL, where he said, look, you know, for people who care about these things, this is like a big victory you should celebrate. But that doesn’t have anything to do with the Constitution. And this seemed like this seemed like, you know, he was doing a cover album of the chief last words. And, you know, I’m not sure I’m not sure why and I’m not sure why once he admitted, which is dissent really does that the literal words of the statute mean this? And he wasn’t claiming that it was absurd to follow the literal words. I’m not sure what what he was trying to accomplish. I thought it was really quite telling that he didn’t join the Justice Alito dissents because the Justice Alito dissent is really angry. You know, there’s this one kind of weird hypothetical in the middle of it where he says, well, you know, the word sex also refers to sexual urges. Does this mean that rapists are now protected, which is, you know, which is ridiculous. It’s like right up there with saying, aren’t we worried that our children are all going to be molested now? You know, so I wasn’t sure what he was trying to accomplish with his dissent other of the other than to say, I don’t agree, but I’m not justice. Right.
S1: Right now, that’s how I read it, too. I think the last thing we really have to get to, at least for you to clarify for me, is what’s left on the table. And I think there’s a lot left on the table. And Justice Alito, we’re back to the bathrooms and the locker rooms and, you know, all the stuff that was pervading arguments. But but the religious liberty stuff is is really, I think, the thin edge of the wedge here. And Justice Alito, in his dissent, really sets that up. And as you said when you talked about the ministerial exception, really lights the fuse on what has become even in the days subsequent. This is gonna be the next front, which is religious objectors saying the same thing they said after Oberg AFL, which is, no, you are gonna force me to hire people and violate my religion. And this is what’s coming. And every single church is now on the line. This was all the tweets that we saw from some of the conservative legal groups that Donald Trump. Fundamental promise to evangelicals in 2016 has been betrayed by Neil Gore. Well, yeah, there’s that weird statement by Senator Whorley about how the conservative legal movement is now dead. Yeah, there was a lot of of it’s now dead. And I thought, man, this is you know, if the left turned on, it’s just this is the way the right does, you know, for for one opinion, then it would be a fascinating world. But my larger question is, what is left on the table and how seriously to take take out the conservative legal movement that’s fundraising off this. But how seriously to take the. Argument that, you know, Justice Gorsuch says, look, all of this religious stuff is going to be solved by Referer on the First Amendment and Title seven itself, as you just said. How seriously do we take the fact that it’s not clear that this is not going to be swallowed by claims of religious liberty and religious dissenters?
S3: One thing is to kind of clear away some of the underbrush there, which is an awful lot of workers are are employed by state and local governments. Those cases do not have any religious liberty interests in the middle because the government can’t have a religious liberty in objecting to homosexuality. So those workers are covered regardless. Then when you have large corporations, leaving aside a couple of idiosyncratic corporations like that, ever troubling for doctrinal reasons, Hobby Lobby, most large corporations don’t have a religious objection. Indeed, most large corporations. Two hundred and something of them filed on our side have policies that say we don’t discriminate on the basis of sexual orientation or on the basis of gender identity. So those employers have already made the statement. They don’t have a religious objection. And the thing is, if you’re going to raise this religious objection, you’re going to have to come into court and say this is a religious objection. And while the well, the correctness of your religious belief isn’t at issue, the sincerity is. And so an employer who has no written policies or anything that say we fire people for being gay may find it really hard once they fire somebody who’s gay to come into court and persuade a court that they actually have a religious objection. And even when you have religious employers, a lot of those religious employers do not have an objection to hiring people for large numbers of their jobs on the basis of those people’s sexual orientation or gender identity. So, for example, if you’re talking about large hospitals affiliated with religious organizations, I doubt that they would come into court and say our hospital has a rule that says that if you are married to a same sex spouse, you can’t be a dietitian. Right. So if you think about the areas where there’s actual friction, it’s areas that involve the propagation of the doctrine of a particular religion in a very in a very straightforward way. On top of that, of course, large numbers of very religious employers are very small and they’re not covered by this at all. So if you run a daycare center and you have four employees, nothing that happened in Bostik changes. You’re right to say I only want straight employees or I only want six gender employees. You know, in the same way that nothing about this prevented you before this from saying, I only want black employees or I only want white employees. I mean, there are other statutes, as I said, that might deal with race, but there aren’t other statutes at the federal level that deal with religion or sex or national origin. And so that kind of discrimination by small employers existed before. It can continue to exist. Discrimination by government employers like Clayton County can’t do that anymore. And then there are some gray areas, you know, of cases that are going to be litigated in the middle.
S1: And that’s where we’re all watching to see the ministerial exception and to see. Right really how wide that lane is going to be. Right.
S3: If you’re not even requiring somebody to be a member of your religion, can you have a religious objection to that? And are you exempt from all fair employment laws, all labor laws and everything like that? You know what I expect? I expect there’ll be some discussion about, you know, regulations on this. There’ll be lots of litigation, but that doesn’t take away from the fundamental holding of the case, which is discriminating against somebody for being gay, for being lesbian, for being transgender or for being bisexual. Is discrimination because of that person’s sex?
S1: Before I say goodbye. I absolutely have to ask you an utterly unrelated question that I’ve wanted to ask you since 10 million years ago when you testified in the impeachment hearing at one of the things you said at the impeachment hearing, the thing that plays on a loop in my head, which is not the joke that was later or what you got Internet famous for, but was the warning you made about if Donald Trump can be allowed to more or less extort the head of a foreign government to cooperate in an investigation? And you said Donald Trump could just tell a governor, I’m not I don’t have the words in front of me. You’ll say it better than me. He could just tell a governor, I won’t give you aid unless you help me. And everyone went, hahaha, that’s silly. And then we saw in. Months after. That’s exactly what’s happened in response to Kovin. So I just want to give you an opportunity, because I do feel like that point you made got lost a little bit in the whirlwind. And I I guess I want you to just reflect for a minute, if you would you or you can just spike the football and say, I told you so and we could wrap. But I think I want to give you an opportunity to say, just in light of what you’ve seen in the months since this really has happened under our noses and we did not clock it.
S3: Yeah. So I could just say I told you so. But the reason why I used the hypothetical at the impeachment hearings, which was just imagine that you are the governor of Louisiana or Texas and there’s a natural disaster and you call the president and you say, I’d like you to send the aid that Congress has authorized under these circumstances in the prison, says I’ll do it, but only if you do me a favor, which is something political. You know, the reason I use the hypothetical at the hearings was because I thought everybody would understand. Of course, that’s wrong. Of course, that’s impeachable conduct. And then they would reason outward from that to and doing the same thing with regard to the Ukraine is is impeachable. And I don’t think people. I don’t think people I think that people on. On the one side of the committee bought that. And the other side just ignored it completely. And then, of course, that’s exactly what happened. We know the president says if the governor of Michigan isn’t nicer to me, I’m not going to send aid for Kovac. I’m not going to send aid for the flood. If they don’t do something about sanctuary cities, I’m not going to send aid to the cities. And the idea that you would hold up. Aid that goes to help Americans who are in crisis because you want people to to flatter you or the like is just so antithetical to our notion of government. And what this nation is about. I just find it stunning.
S1: Pam Karlan is co-director of Stanford’s Supreme Court Litigation Clinic. She’s an assistant counsel and cooperating attorney for the NAACP Legal Defense Fund. And she served as a deputy assistant attorney general in the Civil Rights Division in the U.S. Justice Department in the Obama era. She’s also co-author of many, many books on the Constitution and the law. And I would be really unfair if I failed to mention that in Justice Alito’s dissent in Bostock, she’s referred to as, quote, the attorney representing the employees, a prominent professor of constitutional law. Pam, thank you so much for being with us.
S3: Oh, thank you so much for having me. As always, Dahlia, this is one of the high points of an otherwise sorry life book from my guest room to yours.
S1: Thanks, Pam. All right. And so now we have arrived at the part of the show that the super fans have been waiting for, and that is just the whole enchilada with Slate’s own Mark Joseph Stern, who covers the courts and the state supreme courts and the state of North Carolina and voter suppression. Same thing. Mark, welcome back.
S7: Good to be here. What a crazy week, right?
S1: Well, you’ve been patiently hitting refresh. Well, 40 minutes past as we waited for opinions. So let’s take a deep breath and maybe we’ll start with Thursday is Dukkha news. This was a big surprise for a lot of us who thought that arguments had not gone well. Yeah. Were you surprised?
S7: I’m super surprised. I have to eat crow here because after oral arguments, I was convinced that this case was a loser for the doc, a beneficiary. I thought it was a noble cause. I was glad that the plaintiffs had had brought these cases. It certainly delayed the repeal of DOCA. But I walked out of that courtroom thinking, there’s no way Roberts goes along with this. You know, he likes executive power. He doesn’t seem to care about dreamers. He doesn’t seem to understand the stakes. Right. There was this weird part in oral arguments where he said, well, no one’s saying that, that they’re going to deport the dreamers. Right. You know, they’re just going to take their benefits away. Trump would never deport Dreamers. And I thought, oh, they you know, Roberts just has his head in the clouds. And this is not going to go well. And I was wrong. I was dead wrong. And it turns out that for reasons we can sink our our claws into momentarily, Roberts decided to do in this case what he did in a sense of citizenship case, which was to say, look, you could have done this. The Trump administration could have done this legally, but you screwed up at every turn. This was sloppy. It was lazy. It was haphazard. It you know, it really was a dishonest attempt to shirk political accountability by providing blatantly false reasons for your decision. And so I’m not going to let you get away with that. I’m not going to be the chief justice who holds the bag for the Trump administration. And I thought that was a very principled stance. And in both instances, and it’s just not what I saw coming. This is a new side of Roberts that I think you and I are going to have to get used to.
S1: It’s interesting because I think there’s two things and I’m reminded of the piece that you and I wrote together when we wrapped up last term where after the census case, we said maybe the new watchword for John Roberts is lie. Just tell me better lies, you know, make a good pretext, bolster it with some findings of fact. And I’m not reimbursed job security. That always helps, too. But don’t lie to me and tell me, you know, that it’s a thing when in fact, neither in the census case nor with DHS, with Dukkha, did even the minimal bolstering, lying and pretext get advanced? And it makes me wonder a little bit, Mark, if this is just a problem of seemliness for John Roberts. I mean, I think you’re right. I think there’s an accountability issue here where he’s saying, look, this whole fight about Dacca was who’s holding the bag. Right? Nobody wants to take responsibility. It’s not gonna be on me. I think that’s a part of it. But I think there is also a part of it after both the census and Dacca, where he just doesn’t want to be a party to covering for sloppy, shoddy, bad lawyering. And I wonder if maybe the watchword isn’t just lie, but. But also, it is beneath the dignity of this institution to give cover to you, just doing slapdash shod, shoddy legal right.
S7: I remember last year you said you didn’t think that Roberts would have signed his name to the briefs in the census case if he were still at the Justice Department because they wouldn’t even meet his standards. And I think that really captures the problem here. When the Bush administration wanted something from the Supreme Court. It didn’t go to the Supreme Court clearly expecting a victory. It didn’t go to the Supreme Court and say, hey, I can count to five. There’s five conservatives and you’ll give me whatever you want. Right. The Bush administration at least went through the motions of presenting like a clear, coherent, compelling argument. And the Trump administration just hasn’t done that. And I think it’s really broken down in two different ways, because, first of all, you have these agencies like like the Department of Homeland Security, really botching the original explanation for why it’s doing whatever it’s doing. The agencies can’t figure out what narrative, if they want to presents. They can’t present like a clear legal reason for what they’re doing. It’s just super bad lawyering on their end and it’s bad policy making on their end. So they do this bad, bad policymaking and then they dump their mess in the laps of the Justice Department, which then has to take this really bad policymaking and try to turn it into something legally defensible. And they marched to the Supreme Court and say, hey, we put lipstick on this pig. So now it’s legally defensible. Right. And John Roberts increasingly says, no, I’m not going to pretend that this isn’t still a pig, even if it’s a dainty one, to stretch the metaphor a way too far. And so I think you’re right that Roberts number one concern is always institutional prestige and legitimacy of the court. And once you have the presidential administration and the Justice Department treating him like a water boy, he starts to get nervous and he starts to think, you know, maybe I have to push back here and push back is exactly what he did in both of these cases.
S1: So that leads us to the other big, big case, which is the title seven cases that came down on Monday. This is one that I think you called actually. You said you thought Gorsuch Neil Gorsuch might be more interested in the relief that the plaintiffs were seeking. I wonder what you make of John Roberts jumping on for the right there.
S7: I was really shocked by Roberts votes. I never thought that Roberts vote was in play. It didn’t sound like his vote was in play during oral arguments and after his dissent in Alberta fell. I thought this guy just kind of doesn’t like LGBTQ people. And so I was stunned when, after 40 minutes of waiting, I saw that Roberts had joined with corsets and the liberals in this case. And there are a lot of theories about what happened here. Some people think that Roberts only voted with Gorsuch and the Liberals so that he could assign the opinion to Gorsuch and that Gorsuch would write a narrower opinion than any of the liberals. But I think that theory fails because it’s not a narrow opinion. It’s not narrow at all. It’s it’s exactly how I would have written it. It’s exactly how the the plaintiffs in these cases would have written it. And so if that was Roberts goal, he failed. I think what’s more likely is that it was Gorsuch and the liberals who who sided with the plaintiffs first. Roberts dissented at first. And then as drafts were circulating, Roberts read the Gorsuch drafts of the majority. He read the Alito drafts of the dissent. And he said, I don’t think that I can sign on to Alito’s smear, the queered dissent. And I think I’d like to give my new son, Neil Gorsuch, a little bit of political cover here and maybe just jumped aboard the ship because it was already setting sail anyway.
S1: Yeah, it’s it’s interesting because it’s so hard to square his dissent in Oberg F.L., which reads like a lot like Alito’s dissent. Yeah. And Kavanagh’s dissent in Title seven. And you feel like does he feel no need to clarify what’s changed for him. And I think one of the things that’s very hard to get your head around this week is clearly the John Roberts of 2020 is just not the John Roberts of 2013, not the John Roberts of 2015. And one of the things you and have been flagging about is that call for No More Souters, No More Souters. He’s the new Suder. It’s the real feeling on the part of the conservative legal establishment that the entire project has failed. And it’s interesting because it does feel as though something has changed in John Roberts. And I still don’t quite know what it is.
S7: Well, so we were arguing about this. You said that if this keeps going, we have to call Roberts a moderate. Right. And liberal. No. Now, see, I think Roberts is conservative. The moderates on the court are Kagan and sometimes Breyer. I think Roberts is a genuine conservative. I think he hates Trump and the Trump administration. And I think there are some issues that we view as hot button, like left right, divisive issues that he doesn’t care about that much. He cares a lot about voting rights and making sure people don’t have them. I think that he cares about abortion and making sure people don’t have them. But it’s never been his issue to obsess about LGBT rights. He’s not like Scalia. He’s not like Alito, even though his Oberg if held dissent, I thought was really nasty. I didn’t get the sense that this guy is like a flaming homophobe. And so I think on these issues that he doesn’t care deeply about or these issues that implicate the Trump administration sloppiness, he is for some reason happy to build a bridge with the liberals and maybe with some some nudges from Justice Kagan and say, all right, you know, I’m just going to cast the fifth vote in the case of DOCA. I’m going to write the opinion and I’m going to let the chips fall where they may. While the conservative justices freak out at me. And I think that this is becoming a bit of a feedback loop where Roberts joins the liberals, the conservatives, the other conservatives flip out and then Roberts looks at them and says, why are you guys like voting me off the islands? You know, I just voted center in a centrist manner a few times. And you’re calling me essentially a traitor. And I think that pushes him more toward the liberals who are so happy to welcome him with open arms and sign on to what ever he wants to. Right. As long as he will be their fifth vote. And so if you’re Roberts and you are in the middle of these two blocks, do you want to spend more time hanging out with the dudes who hate you, the nihilistic four horsemen of the apocalypse? Or do you want to hang out with the four kind of chill cats and kittens who are like. All right, we’ve got four votes for whatever you want, as long as the bottom line is what it should be?
S1: I think there’s another feedback loop, and I haven’t quite formulated this thought in my head. But I actually think Roberts is in a really interesting tango with Donald Trump right now, because I think that Roberts seems to have no patience for the worst elements of Trump ism. And again, part of it is the unseemliness. Part of it is the sloppiness and the smug certainty that Roberts is their monkey who’s going to do whatever they want. And I think that the more Roberts stands as a bulwark against that, the more Trump behaves badly. And some of Trump’s tweets in the wake of certainly the Danforth case were so utterly cuckoo bananas that you realize that the person who seems to scrape on Donald Trump’s nerves more than anyone else alive, more than sleepy Jafo, more than Pocahontas seems to be John Roberts because John Roberts brings out the absolute worst in him. And it’s a very, very strange dynamic because I don’t think Trump quite is able to do what he usually does with the people who makes him nuts, which is diminish in shame and be little down. And it’s just a really it’s it’s there’s a weird way in which John Roberts has Donald Trump’s. No. And he must love that.
S7: He must. I think Trump is torn between two different impulses here. On the one hand, his advisers like Leonard Leo, have surely told him, like, don’t go out there and tweet about how John Roberts needs to fall down a well, you know, try to maintain some decorum when discussing the justices, even when you lose, because that’s how that’s how Trump convinced Kennedy to retire. By all accounts is by pretending not to be crazy when it came to the Supreme Court. And then I also think that Trump is Trumpy and wants to do Trumpy stuff like throw John Roberts down a well. And I think he was told by people like Leonard Leo that as long as he just kept his mouth shut and put Gorsuch in Kavanaugh on the bench, that he would get anything he wanted. He put Gorsuch in cabinet on the bench. He followed the instructions. And yet he is not getting everything that he wants. And so I think it’s difficult for Trump to figure out the right narrative here. He is definitely kind of floundering on Twitter. And I agree that if I’m John Roberts and I look at Trump doing that, I lack. Because I have owned him. John Roberts has owned Donald Trump. There’s just no other way to put it.
S1: Yeah. No, it’s funny. I was thinking today about Jeff Toobin book setting up the 21st century as a battle royale between Barack Obama and John Roberts. And here we are. It’s 2020. And the battle royale in earnest seems to be between Donald Trump and John Roberts. And they just seem to be like we all fate. We’re all cartoons in the background as this plays out. And I think in a deep way, John Roberts knows he has 30 more years on the bench. And he also knows that there might only be six months of Trump and Trump Trump ism. And if things keep going the way they seem to be going, the Senate might also be lost. And I think we’ve always said, you and I. John Roberts is playing the long game. And I don’t think Trump is in it for the long game in his mind. So it’s not only a kind of personal contempt anymore. I think John Roberts is thinking about, I don’t know, a president Josh Hawley, a president Nikki Haley, and something that looks a little more decorous. And that’s what he’s tilting toward. And there’s been a lot of talk today that John Roberts may have actually saved the Republican Party and conservatism by not throwing 700000 dreamers out of the country this week.
S7: Right. Although I don’t think that was his goal. I don’t think Robert said here I could help the GOP by diffusing this incredibly controversial issue. And I do think he’s looking ahead to optimistically to a future Republican Party that is not super Trumpy. I’m not convinced that party will ever arrive. But I think he’s also looking ahead to the glorious reign of our dear leader, President Biden, in a couple months or six months down the road and thinking, how do I build up enough political capital and goodwill to keep Biden in check as well? Because even though I think Roberts hates Trump, I also think Roberts probably doesn’t like Biden. Roberts didn’t. We know that Roberts didn’t really love Obama? Right. And so we view this as like. Yes, true. Like Roberts gets it. He hates Trump. He’s evolving. He’s Souter women. But I think probably Roberts would like put a pox on both their houses and we should not expect any, quote unquote, liberal decisions shoring up the Biden administration if if everything turns in November.
S1: So then I have to ask you this last question, because it is awfully. It sounded to me awfully close to hold me closer, John Roberts. I love you, and I don’t think either you nor I are quite ready for. Hold me closer, John Roberts, because I think there’s a shoe that’s going to drop. And one of the funny conversations all week has been, oh, my God, dude, medical is going to be even worse than anyone expected. The Maziar’s case is going to be a catastrophe. Part of me just laughs at the inability to take the win. Part of me thinks, look, we all know that John Roberts is not just playing the long game in the event of a Biden administration, but playing a long game in the event of the next couple of weeks. So what’s your thought? Do you feel like you can in any way read in to either Jude Medical or faithless electors or the financial records cases, anything that one of those is going to be a huge catastrophic loss for the left? Or do you think this is just a stupid Rorschach test where everybody is looking at John Roberts and saying, I can confidently predict X in June medical based on what we saw this week?
S7: So I think it’s funny that pretty much as soon as the doctor decision came down on the heels of the LGBTQ decision, liberals on Twitter immediately said, wow, June medical is going to be awful. And conservatives on Twitter immediately said, wow, June Medical is going to be awful. It was an identical reaction. Of course, they say these two groups define awful quite differently than the liberals think. Oh, well, Roberts is just buttering us up, you know, for the big blow. And conservatives think, ah, Roberts is lost. Now, he’s gonna be totally Souter all the time. And I don’t think either of those reactions is necessarily correct. You know, we can’t we can’t read too much into the tea leaves. But Roberts, as much as he loves compromise, as much as he loves splitting the baby, I don’t imagine that he’s so strategic and almost Machiavellian that he would say, OK, well, I’m going to plot out these two liberal votes on this week. And then the next week I’m going to turn around and I’m gonna hit up with overturning Roe v. Wade like he’s. That’s not how this guy operates. And even if he does vote with the conservatives in June, medical, I don’t think that we could have reasonably guessed that from the decisions that we got this past week. So this is just a way of me totally avoiding any answer to your question, because I don’t know how June Medical is going to turn out, because I think in a way, it kind of pits the two different sides of John Roberts against each other. On the one hand, there’s the side of John Roberts that dislikes abortion intensely and thinks that Roe is probably illegitimate. On the other side, as we’ve been discussing, there’s the part of him that doesn’t like being lied to, that doesn’t like being given all of this pretext. And that’s what the abortion case this term is all about. Louisiana cooked up all of this nonsense pretext to justify regulating abortion clinics out of existence. Which side of Roberts will prevail? I do not know. But I kind of thought that we were done with all these guessing games from Kennedy retired. And it turns out we’ll just be doing them for the rest of our lives.
S1: Right. We’ve just moved from deep psycho analysis of Anthony Kennedy to deep psycho analysis of John Roberts, neither of which is the thing that we learned in law school. It is, I will say. When you and I started talking about the term a couple months ago and how it was shaping up, I think we both felt that June Medical was the place that John Roberts might defect because it’s a story decisis case. Right. It more than anything else, in addition to raising pretextual questions about how different Louisiana is from Texas. If they close all their clinics, it really is a case about, as you put it on this show. Does substituting Brett Cavin offer? Anthony Kennedy changed the law. And that’s a terrible, terrible set of facts for John Roberts. So I always thought that was the one where there was the best chance that he would throw in with the Progressive’s only because that matters. Right. But now I think. Huh, maybe that’s not the central theme for him. And like you, I would never make any guesses about future behavior based on what we’ve seen this week, because I’m always wrong. But I do think that it is a really interesting moment to be looking at John Roberts, as you and I are right now, when Kennedy retired. You and I said over and over again, Roberts is no Kennedy. He has no median voter. He is no moderate. He is no Souter. Wow. We may have been wrong.
S7: Maybe. Let’s hope so. I’ve never been so happy to be wrong if I am.
S1: Mark Joseph Stern covers the Supreme Court and the state courts and voting rights and LGBTQ issues and pretty much everything else all the time at Slate. Mark, thank you so, so much for being with us. I know it has been a crazy week.
S8: Thank you. And that is a wrap for this extremely lengthy. But we think fatal episode of Amicus. Thank you so much for listening. And thank you so much for your letters and your questions and your feedback. You can always keep in touch with us at Emken since late dot com. You can also find us at Facebook dot com slash and podcast.