July 1, 2025 • 35 mins
The TribCast gang is finally reunited, and joined by Georgetown Law Professor Steve Vladeck to recap the big cases and unresolved questions from the U.S. Supreme Court's recent rulings.
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Episode Transcript
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Speaker 1 (00:19):
Hello, and welcome to this week's episode of The trib Cast.
I'm Eleanor Klibanoff, joined as always by my co host
Matthew Watkins.
Speaker 2 (00:27):
Hello, welcome back, Thank you.
Speaker 1 (00:28):
It's been several weeks since we've been able to do
this together. I think last time we did together in
the Arlington.
Speaker 2 (00:33):
That's right. Yeah, and not much has happened since.
Speaker 3 (00:37):
Hardly anything.
Speaker 1 (00:38):
Yeah, I've been traveling and it's mostly for work though,
But it's crazy to step away from your phone for
like three hours to do an interview or something and
you come back and you're.
Speaker 4 (00:46):
Like, oh god, I I'm sure you listened to the
podcast you were on and so but I'll allow me
to extend my apologies in person for Jasper and I
making fun of you for predicting special Session this year.
Speaker 1 (01:01):
Yes, yeah, that's I was wanted to come back and
do like a I wanted to be part of it
and uh way in. But maybe we'll have him back
on and we can uh you know, make him suffer
for absolutely through the special Session.
Speaker 3 (01:15):
Well, we are going to jump in.
Speaker 1 (01:16):
I as I told Matthew before it got started, We're
going to talk with our guests for a little bit
and then I do have a fun trivia fact that
I think I can maybe stump Matthew with at the end.
So stick around after our conversation if you want to
hear that. But you know, a lot, as you said,
a lot to talk about, So we'll go ahead and
jump right in. We are joined by a very special
guest all the way from Washington, d C. Georgetown law
(01:40):
professor Steve Laddock.
Speaker 3 (01:41):
Thanks for joining.
Speaker 5 (01:42):
Us, Thanks, Elinor nothing great to be with you.
Speaker 1 (01:45):
And many of you probably know him as former UT
law professor Steve Laddock.
Speaker 2 (01:51):
Yeah, he's a reformed longhorn.
Speaker 1 (01:54):
Yes, yeah, yeah, to get to d C, to escape it.
Speaker 5 (01:58):
I mean, I'll just say that that the Georgetown athletics
don't quite have the same vibe and energy and excitement
as the Texas athletics.
Speaker 4 (02:07):
I could believe that they've at times had a good
basketball team.
Speaker 5 (02:11):
You know, it's been a minute. I mean, you know,
I knew we were in trouble when they asked me
if I still had any eligibility left.
Speaker 1 (02:19):
Yeah. I went to the other DC university, not American,
the other DC university, George Washington, which doesn't even have
a football team. So, as they say, got to Texas
as fast as I could.
Speaker 4 (02:31):
You know, sometimes I wish my school didn't have football team.
Speaker 1 (02:36):
We've asked another texts Pat DC resident this question, Steve,
what do you miss most about Texas? Man?
Speaker 5 (02:48):
I think probably some combination of breakfast, tacos and the
winter weather compared to what we get in the Northeast.
Speaker 4 (02:56):
That's fair enough wrong answer. If you had said HB,
they might have Ain't you a goodie basket?
Speaker 3 (03:01):
Patrick's text at AGB and they said.
Speaker 5 (03:04):
I mean, my family complains about not having AGB all
the time. My girl, we've been on a quest to
find a local ice cream store that has cookies over Texas.
Speaker 3 (03:13):
Some variation thereof someone tells me you're not finding that.
Speaker 5 (03:18):
Listening and you want to send some cookies over to Washington.
Let me know.
Speaker 1 (03:22):
Yeah, we'll have your kids on next and we'll get
them to do this for us.
Speaker 5 (03:25):
They're much ertatum.
Speaker 1 (03:26):
Yeah, well, you know, we invite you on to talk
about the exciting end to a exciting Supreme Court term.
Speaker 3 (03:36):
As usual.
Speaker 1 (03:37):
They got us out of here before the fourth of
July and got themselves onto their summer vacations. May you
tell us a little bit just to start, Like what
your big takeaways are from this Supreme Court term?
Speaker 3 (03:49):
That sort of the headlines for you, sure.
Speaker 5 (03:52):
I mean I think in one sense, I mean, yes,
the court is off for at summer recess eleanor. But
one of the big headlines to me actually is that
the term is really not over because you know, at
least formally it goes to October. Usually no one cares,
but the Court has been so inundated with emergency applications,
with cases that have reached the court, you know, out
(04:12):
of the normal flow of boring technical appellate processes, including
nineteen already from the Trump administration, and those have been
some pretty big cases, whether it's you know, birthright citizenship
or you know, alien enemies removals or mass firings of
federal employees, and so, you know, to me, the real
sort of top line takeaway is that this term has
(04:35):
already been dominated not by the sort of traditional big
ticket cases that we're used to talking about, but by
all these late breaking emergency applications in the mind run
of which the majority of the Court has cided at
least temporarily with President Trump.
Speaker 1 (04:51):
Is there if anyone wants to, like, read a book
about this process of things happening off off the main docket,
would where would you point them?
Speaker 5 (05:01):
I mean, so, I will say the part of why
I wrote this book called the Shadow Docket a couple
of years ago is because I had thought already that
this was becoming an increasingly important part of the Supreme
Court's work. You know, I think this term proved that
in spades, and it's important in a couple of respects.
It's important because we're not used to thinking about the
Supreme Court as a twenty four seven, three hundred and
(05:23):
sixty five operation. It's important because when the Court rules
on these emergency applications, it's rare for the Court to
actually explain what it's doing, let alone to do so
in any detail. And so you get these cryptic orders
that folks look at online and say, well, wait a second,
where's the opinion? There Usually isn't one. But also I
think eleanor it's rare to see them in this volume.
(05:44):
I mean, you know, not that long ago, we were
seeing maybe a couple of these high profile emergency applications
a year, and many of those were in capital cases,
so you know, individual death cases that were very important
of course to the death row. Prisoner, to the state,
to the victims, but maybe not nationally important from a
(06:05):
policy perspective. You know, now we're seeing one of these
a week, and I think that's problematic wholly apart from
the results that the Supreme Courts reached it in those orders,
because you have the Supreme Court issuing massively important decisions
and doing very very little to explain why, and putting
policies into effect without explaining whether or not they're even legal.
(06:28):
And so you know, that really is a fundamental shift
in what the Supreme Court's doing in ways that at
least to this point, have favored the Trump administration without
actually upholding almost any of its policies.
Speaker 1 (06:41):
Right, Yeah, interesting, it does feel like I mean, when
you look at even the cases that sort of came
out at the end of term, like the high profile cases,
like some of them moved through the normal, like years
long process to get to the Supreme Court, but some
of them are things that you know, have really only
popped up since since January, That's.
Speaker 5 (06:58):
Right, And so you know, I think it really is
the tale of two terms. And I apologize to Charles
Dickens for for for that reference, but it's a tale
of two terms in the sense that you do have
like this you know regular docket, which has some big
cases on it, I mean scurmetti about you know, upholding
Tennessee's ban on gender affirming medical care for transgender adolescents.
(07:19):
You have you know, the mo Mood case about whether
parents can opt their children out of having to read
books in public schools that have LGBTQ plus thematic elements
in them. I mean, those are massively important decisions. You
have a bunch of cases where the court reversed the
Fifth Circuit, the Federal Appeals Court for you know, Texas, Louisiana,
Mississippi on issues that could have been huge if the
(07:42):
court had affirms so for example, you know the non
delegation doctrine vis a vis something called the Universal Service Fund,
which a lot of folks don't know about, but it's
actually a massive pool of money. That's how a lot
of folks in America, including in Texas, have access to
the Internet. And so those were big cases by any metric.
But given the sort of contrast between those cases and
(08:04):
what really feel like fundamental rule of law cases about
you know, whether migrants have a right to do process
before their designated alien enemies and removed from the country.
About whether you know, the president can unilaterally change what
it means to be entitled to birthright citizenship. I guess
you know, Eleanor That's why it feels unusual as we
(08:25):
sit here when the court has finished up what we
might call the sort of regular part of its work,
but the Trump rule of law stuff is ever ongoing.
Speaker 4 (08:36):
Can we talk about this birthright citizenship case because I
think this, Do we have to?
Speaker 3 (08:40):
Yeah? It's hardly I mean, I don't. I don't get
the sense it's gonna be a huge deal.
Speaker 4 (08:44):
Right, yeah, yeah, yeah, yeah, you know, first and foremost,
can you just explain to us what the court decided
in what it didn't decide in this in this real.
Speaker 5 (08:53):
Yeah, I mean, so the first thing to say is
it didn't decide anything about whether the president's executive order
purporting to limit birthright citizenship is legal or not. And
so you know, there was nothing on that. The whole
fight in that case is about something called a universal
or a nationwide injunction. And to do the sort of
thirty second Oh my gosh, I'm really happy I didn't
go to law school version. The typical injunction says, hey, defendant,
(09:16):
you can't do this thing to that person, and it's
specific about who the defendant is prescribed from acting against.
What makes a nationwide injunction different is that it's not
that specific. It just says, hey, defendant, you have to
stop doing the same period. And so it's not that
it's nationwide, it's that it's not planef specific. But no
one really wants to use that term. What the Supreme
(09:37):
Court said in the birthright Citizenship cases is that in general,
federal court should not be issuing those kinds of injunctions,
that in most cases federal court should be issuing injunctions
only that benefit the planiffs. And so if that was it,
if that was the end of the story, that would
be a massive kneecapping of the power lower federal courts
(10:01):
to basically stop nationwide federal policies. Right, you'd have to
have hundreds of thousands of lawsuits. Every single undocumented immigrant
who's going to have a child would have to sue
themselves to challenge the Birthright Citizenship Executive Order. What is
messy about last Friday's ruling in the birthright Citizenship case
is that the Court hasn't closed the door to other
(10:23):
ways that plaintiffs, both in these cases and in other cases,
could still try to get some kind of broader nationwide relief.
They could try something called a nationwide class action, where
a handful of plaintiffs represents everyone in the country who
is like them, and then in order that benefits them,
ends up benefiting everybody. Or even Justice Barratt's majority opinion,
(10:46):
in which she said we're getting rid of universal injunctions,
had a caveat unless she says, you have to provide
nationwide relief to give the plaintiff everything that they're asking for.
And so, you know what's really frustrating guys to me
about this case is it's a huge deal analytically because
of how it curtails the power of lower federal courts.
(11:08):
How big a deal it is practically really depends on
what happens next as opposed to anything that the Court
actually did or said on Friday.
Speaker 4 (11:16):
This These nationwide injunctions have been a headache for administrations
of both parties. You have written and talked about in
the past about you know, our Texas District Judge Matthew
has Merrick, who has been known to issue a lot
of those or was known and.
Speaker 1 (11:32):
Judge read O'Connor and Judge Wesley Hendrix and judge like Texas.
I don't know that Texas actually came up with this idea,
but Texas certainly has used this nationwide injunction trick.
Speaker 2 (11:44):
A lot, exactly exactly, and so.
Speaker 4 (11:49):
And you know, the idea of the frustration was, you know, one,
you know, to use a term of the right activist
judge could essentially, you know, play decider for the fate
of a law for the entire country. And that has
been frustrating to some people. I mean, I guess what
you're sort of saying here is that it's too soon
(12:10):
to know how much that practice has been curtailed. It
kind of depends on how this order is interpreted and
taken from here.
Speaker 5 (12:17):
That's right. I mean, so, you know, nothing stops the
same judges who were the focal point for so much
of this judge shopping from certifying a nationwide class action,
which is technically a different procedural device, but which would
produce the same outcome, which is to say, a federal
policy is blocked on a nationwide basis, or even from
(12:37):
using the caveat in justice Barrett's opinion and saying, oh, well,
here's one of those rare cases where I have to
provide universal relief. Matthew. What's frustrating to me is that
I think folks have conflated criticisms of nationwide injunctions with
the kind of abusive forum shopping and judge shopping that
(12:58):
you know you just mentioned that, you know, you could
fix that problem without getting rid of the power of
district courts inappropriate cases to actually stop lawlessness by the
executive branch. And I think part of why, folks, part
of why you've seen such a I think bipolar reaction
to Friday's ruling is because for folks who look at
(13:18):
the current president and see lawlessness everywhere, it looks like
a Supreme Court that is basically, you know, pulling the
rugout from under the ability of lower federal courts to
slow that down. And for folks who look at the
current president and see, you know, very see what they've
you know, quote what we voted for unquote, and things
that don't bother them, you know, this looks like it's
(13:40):
almost hypocrisy on the part of folks who criticize these
kinds of injunctions. During the Biden administration. So, you know,
I think the problem is that the answer is somewhere
in the middle, that you know, district courts had been
doing this too often, but that that was exacerbated by
things having nothing to do with nationwide injunctions and everything
to do with the fact that you can bring a
(14:00):
lawsuit in Amarillo that had no relationship to Amarillo and
be guaranteed to draw someone like Judge Chasmeric and so
I guess, you know, part of what's tricky about this
case is that there are you know, decent, substantive arguments
against nationwide injunctions as a pure, boring, formalistic legal matter.
(14:22):
What is exasperating is that the Supreme Court took this
moment at this you know, in this concept and frankly
in these cases, to you know, hand on that mandate
to draw that line in.
Speaker 3 (14:33):
The sand, right.
Speaker 1 (14:35):
I mean, it is interesting, I mean, and I think
this is something like Justice Corsich has been very outspoken about,
like the nationwide injunction is a relatively new thing, Like
we basically didn't have them for a long time, or
judges weren't weren't issuing them, and then suddenly this has
become a thing that really has taken off, and like,
what do you see as you know the reality if like,
(14:55):
let's say this sort of does end up playing out
and is curtailed. What looks different a year from now,
two years from now by the time you know this
sort of is inacted.
Speaker 5 (15:05):
I mean, so I think the problem is, right, take
a president who probably gets a new executive order that
we all agree is unlawful. Right, how are we going
to establish its unlawfulness in a way that prevents it
from harming people? And so the virtue, I mean, there
are cost a nationwide junctions, but the simple virtue of
the nationwide injunction was it was an express train to
(15:25):
blocking unlawful federal policies in the world you're describing eleanor
we're doing everything retail, not wholesale. And that means you're
gonna need a lot more lawsuits. It means those folks
who don't have the resources to bring lawsuits might actually
be harmed even by a policy that we all think
is unlawful. It puts more pressure on federal courts to
(15:48):
actually entertain more and more of these cases as opposed
to a small handful of them. And so you know,
the guys, the right answer is probably somewhere in the middle,
where you know, certain kinds of claims really should be
able to produce nationwide relief and certain ones shouldn't be.
The problem is that I think those kinds of policy
calibrations are ones that the Supreme Court is especially ill
(16:11):
suited to do on its own. And if we had
a functioning legislature, you know, that could actually resolve these
kinds of policy debates, we might be able to find
an answer that Democrats and Republicans could both agree to
versus the sort of unilateral disarmament that we're seeing right now.
I'll say, just really quickly, I mean, I'm cautiously optimistic
that instead, what's going to happen is we're going to
(16:33):
see a resurgence of class actions, and we're going to
see a resurgence of you know, a handful of especially
sympathetic plaintiffs bringing a lawsuit in which they claim to
represent everyone who's harmed by a nationwide policy, and district
courts letting those cases go forward. But you know, if
that's what happens, guys, it's the same problem because which
(16:54):
district courts are the class actions filed in right, You're
going to have one district judge in one part of
the country who is yet again right, at least as
a temporary matter, being tasked with providing a nationwide relief
on a federal policy. You don't make that problem go
away just by making the nationwide injunctions go away.
Speaker 4 (17:12):
Are the stakes for this different in Texas than they
are in other places? In part because of what we
just described some of the judges that we have here,
but also because we have an attorney general right who
sides with the Trump administration right. Like you can see,
you know, a lot of these nationwide injunctions are in
cases where our attorney general would be less likely to
(17:35):
be bringing a case against the federal government than say,
in California.
Speaker 5 (17:40):
Yeah, I mean, I think the short answer is yes,
it was already true, of course that you know, Texas
assumed the Biden the sorry, the Trump administration a lot
less than to the Biden administration. You know, so far,
the only lawsuits we see between Texas and the Trump
administration are the collusive ones where the federal government sues
Texas and Texas immediately settles. But I I guess, Matthew,
(18:00):
my reaction is that The real question is, by the
time there's another democratic president, has some procedural device emerged
that is playing the same role as the nationwide injunction,
be it a nationwide class action or something else. If so,
then I don't doubt that you know, whoever the Texas
Attorney general is then will be just as aggressive in
(18:22):
trying to utilize those devices. If not, then yeah, I mean,
you know, then maybe we actually do see a return
to the pre twenty twelve, twenty thirteen you know world
where every time a president of either party does something significant,
it's not immediately challenged in court by an attorney general
from a state of the other party.
Speaker 4 (18:42):
I know, eleanor you probably want to move on, But
just one last question on this subject.
Speaker 1 (18:46):
Kidding me, judge shopping nationwide injunctions?
Speaker 3 (18:48):
I love this stuff.
Speaker 4 (18:50):
What about the issue the issue of birthright citizenship? I
mean that I know the court and you know, put
a thirty day pause on this, you know, going back
what happens next in this case, in what you would
be watching in terms of the future of that, particularly
in Texas again, because of the situation we have here
with our journey general.
Speaker 5 (19:08):
So I mean, the short answer is I think it's
incredibly likely. I mean, like, you know, north of eighty
to eighty five percent that before that thirty day period
runs out, there's yet another ruling by a district judge
somewhere that has nationwide effect. And there are two ways
that could happen. You could have certification of a nationwide
class of planiffs, or you could have a case where
(19:29):
the Court says, even under Justice Barrett's reasoning, this is
the rare example of a case where nationwide relief is
necessary to give the PLANEFF everything they need. Probably not, Matthew,
a case where you have an individual PLANEFF, but like
New Jersey, for example, has really good arguments about why
a New Jersey specific injunction would actually cause real harm
(19:50):
if states like Texas were not bound by it, right,
if you could still have people born in Texas and
not be citizens under the executive order. So, Matthew, my
best guess is that the policy still never goes into effect.
But you know that's going to depend not just on
a district court somewhere following one of these two pathways
that the Supreme Court decision has left available to go
(20:13):
back to where we started, Guys, it's going to depend
upon the Supreme Court then letting the district court do that. Right,
it's going to depend upon the Supreme Court denying the
inevitable emergency application that the Trump administration will file when
a district court issues that relief. And so you know,
we're going to be talking by the end of the
summer about the second round of birthright citizenship cases. And
(20:34):
this goes back to why I think this is a
very unusual term in that the summer could end up
being just as busy right as the spring and the fall,
because it's not just birth right slazenship. They're going to
be any number of disputes where that's going to be
the fight over the next eight weeks.
Speaker 1 (20:51):
Wow. Yeah, I mean certainly not like playing out maybe
as the original dividers of our powers imagined all of.
Speaker 3 (20:59):
This would go.
Speaker 1 (21:00):
I do want to talk about some of the like,
like you said, the more substantive cases that came up.
You mentioned Scrimmetti, my Mood and we here obviously had
a free speech alliance.
Speaker 3 (21:09):
Vee Paxton.
Speaker 1 (21:10):
What stands out to you about sort of the Court's
rulings on these on these cases that are all around
sort of similar ideas and similar topics.
Speaker 5 (21:21):
I mean, I think there's one theme that actually cuts
across all of those cases, and the theme is reducing
the degree of scrutiny that we're applying to the underlying
state laws. So you know, in I mean, I guess
my mood's probably the sort of the tricky one here.
But if you take the free speech Coalition case, and
if you take Scrimeti, in both of those cases, eleanor
(21:44):
a lot of the fight between the majority and the descent,
and in both of those cases it's six to three, right,
A lot of the fight between the majority of the
descent is what standard of review applies. What that means,
right in English, is how skeptical should we be of
why the government is due and what they're doing. How
heavy a burden does the government have to meet to
(22:04):
justify what it's doing. And you know, in Scurmeti, by
saying that, you know, singling out people of transgender status
doesn't require heightened treatment. In this context, the Court was
able to uphold Tennessee's regulation, even though it certainly appears
to be motivated at least in part right by animis
against transgender individuals in a way in which if we
(22:26):
applied heightened scrutiny that would kill it, and the free
speech coalition in case is another great example of this right.
The type of restriction in the Texas law, the age
verification requirements for visiting websites with you know, sensitive adult content,
in almost any other era, would have triggered what's called
strict scrutiny, meaning Texas would have had to prove that
(22:47):
there was no less restrictive way of keeping minors away
from you know, websites with porn. Because the majority says no,
this only gets what we call intermediate scrutiny. Texts actually
has allowed a lot more wiggle room, And so you know,
I see what I see in both of those cases
is the Supreme Court basically softening the tests in a
(23:10):
way that gives the justices more wiggle room and more
discretion to sort of pick and choose which of these
laws they like and which ones they don't. Whereas if
you had the most rigid form of scrutiny eleanor there'd
be no wiggle room. Right, it would be almost an
objective inquiry into whether there was any narrower way for
the state to do what it did.
Speaker 1 (23:29):
Interesting, Yeah, yeah, we maybe talked about this here before,
but I wrote with my colleague Kayla our story about
the pre Speech Coalition, the lawsuit involving you know what
is often referred to sort of the porn Hub case,
and I really want to make sure that I had
my byline on it. Kayla like wrote a day of
because stories we do that have the word porn hub
(23:52):
in the headline do better than any other story on
our website.
Speaker 3 (23:55):
It is just like page view bonanza.
Speaker 5 (23:58):
It's not great, but I I mean, that's you know,
but at the risk of turning that into a substitute
point though, I mean, I think it's also lawyers, no,
but Eldor. But this is the problem, right, which is
it is really hard in this space to regulate websites
(24:18):
in a way that's not massively overbroad. And you know,
historically over breadth is a huge concern for First Amendment purposes.
We don't want states, even if they have the most
like absolutely compelling interests, we don't want them chilling speeches
otherwise constantly protected. We don't want you know, adults who
wish to remain anonymous, who don't want to share this
(24:40):
information with the state, you know, to have to sort
of see their speech rights chilled unless there's no other
way to do this, and so eleanor you know, it's
it's the sort of it's the visibility of these kinds
of websites that make this actually, I think, less of
a difficult First Amendment case than it should have been.
And part of why the majority opinion relate accident on
(25:00):
the standard of scrutiny is to be so problematic. Right,
It's like, no one thinks kids should have access to
porn websites. The issue is how much should adults be
the collateral damage when states are trying to implement that policy.
Speaker 4 (25:14):
If I remember from reading your article correctly, the minority
in this case seem to suggest that had this issue
been held up to strict scrutiny, Texas may still have prevailed.
I mean, it does seem like, you know, the there
are not a lot of other great ways to prevent
(25:35):
kids from looking at porn. And I'm just curious, like
what you think about you know, had they reviewed the
case in the way that you feel they should have,
do you think they would have come to a different outcome.
Speaker 5 (25:48):
I mean, so the whole case would have been litigated differently,
It would have been discussed differently, right, because Matthew, then
the question would have been can Texas, you know, can
sort of Texas or can the challengers I identify any
other way that would have been less restrictive to reach
the same goal. And if the answer was no, then yeah,
it would have survived struck scrutiny and it would have
(26:09):
been upheld. And so that's my concern. My concern is
not that the Supreme Court upheld Texas's age verification law.
The concern is how much violence are you doing to
the doctrine in ways that are going to affect plenty
of other cases. And the reason why this matters, I mean, guys,
the Supreme Court's deciding you know, fifty five of these
cases a year, but the lower federal courts are deciding
one hundreds and thousands of them. And so, you know,
(26:31):
I get nervous when, even in the context of a
compelling fact pattern, the Supreme Court waters down the standard
of scrutiny because it means that in other contexts where
maybe we're not all on the same side of this
as the state, right, it gives the state room to
do things that I think are potentially quite nefarious.
Speaker 1 (26:52):
Well, and that's like what these websites argue, right, is
that like adult websites, pornography websites are like the canary
and the coal mine for whiling away at free speech,
and so you know, like they're kind of easy to
go after. But it may be and I mean Texas's
law sort of talks generally about like adult content. You know,
there has been like talk certainly from I've heard this
from like LGBTQ advocates who say, like what prevents the
(27:15):
state from saying, you know, well, kids can't transition, you know,
why that's adult content to even show them information about
gender transition or things like that, so.
Speaker 5 (27:24):
Or even or even things about like sam Set's weddings, right,
I mean, like you know, is that is that is
that adult content because it's about topics that are too
sensitive for minors. I mean, you know, I think we're
not there yet, Eleanor. But like, the problem is is
that once the Supreme Court mixed this kind of significant
doctrinal step, it provides the foundation for the next step
(27:44):
and the step after that. And so my concern about
most of the big cases on the normal side of
the Supreme Court's dock at this term is that ten
fifteen years from now, we're going to look back on
them as the sort of early steps of bigger and
more troubling shifts in all of the doctrines.
Speaker 3 (28:01):
Well, that is sort of my question.
Speaker 1 (28:02):
I mean, to sort of wrap it up, is like,
you know, this is year one of the Trump administration, right,
I mean, if we can believe it, we've got three more.
Speaker 3 (28:11):
You know, what does what do you think?
Speaker 1 (28:13):
You know? It looks like by the end of the
Trump admistrative we sort of stay on this path.
Speaker 5 (28:18):
I don't know, and I think, you know, anyone who
says they know, I think is selling something. What's really
striking about the Trump cases of the last I don't
know five six months, is in only one of them
did the Court say anything positive on the merits in
favor of what President Trump wanted to do. Only when
(28:40):
President Trump fired members of the National Labor Relations Board
and the Merit System's Protection Board. Only on that emergency
application do we see any sign from the Supreme Court
that they're likely to agree with Trump on the merits.
Almost every other case right, either is on procedural grounds
or the Court said nothing. So Eleanorn, I'm really interested
in what we might call the second generation Trump cases.
(29:03):
When these cases start getting to the Supreme Court on
the merits, when the question is are all of these
policies legal as opposed to you know, are you the
right plaintiff? Did you sue in the right court? Are
you entitled to an emergency stay? What do we see
from the Supreme Court? And you know, I think we
saw a lot from the Court over the last couple
of months that leads me to worry that there aren't
(29:26):
five votes to push back fairly aggressively against what, to
my view is unprecedented lawlessness from President Trump. But what's
really striking about the you know, sort of the bill,
the Butcher's Bill for the entire turn, is that the
Supreme Court hasn't really committed itself on that question. It's
just sent a whole lot of signals, many of which
(29:46):
are to me concerning but not necessarily conclusive.
Speaker 1 (29:50):
Interesting, so much more to watch, and not the end
of the term in any meaningful way.
Speaker 5 (29:56):
But you know, well we'll just have to do this again.
Speaker 3 (29:59):
Yes, serves as a marker of some kind. Yes.
Speaker 4 (30:02):
I just love how in all branches of government, all
the times that used to be quiet are.
Speaker 2 (30:06):
No longer quiet.
Speaker 4 (30:07):
It really does wonders for vacations.
Speaker 1 (30:11):
Shadow dockets. Yeah, it's great. Well, thank you so much
for joining us, Professor. Like I said, we're going to
kick you off now and now I'm gonna give Matthew
my trivia question.
Speaker 3 (30:22):
But thank you so much.
Speaker 5 (30:25):
Well.
Speaker 1 (30:25):
So to be clear, I don't necessarily think this will
stump you, because I think you will.
Speaker 3 (30:28):
I think maybe you've even been there.
Speaker 1 (30:30):
But I'm curious how quickly you can get this, which
is that over the weekend, I made a pilgrimage to
an important Texas location. I was up near Wichita Falls,
very north Texas.
Speaker 2 (30:42):
Booked up.
Speaker 3 (30:43):
Dang it, I really was going to do a whole No,
that's fine. I may.
Speaker 1 (30:49):
I went to Larry McMurtry's hometown in Archer City and
his what is it is no longer booked up due
to not some sort of legal thing. It is the
Larry McMahon Literary Center. It was at one time four
hundred thousand books that he collected in four bookstores across
Archer City population like a, yeah, it was twelve hundred. Yeah,
(31:12):
they chip and Joyana Gaines bought it for a while,
sold it back to or gave it I don't know
to what is now the Larry McMurtry Literary Center.
Speaker 3 (31:21):
It was amazing. Have you been.
Speaker 2 (31:23):
I have not. I really want to go. I have
big regrets.
Speaker 4 (31:28):
My friend Josh, one of my oldest friends and a
big reader as well and a big fan of Lonesome Dove,
we talked about going when he had the sale, you know,
because basically when he was getting up in age, he
sold a whole bunch of the books because he didn't
want to leave his kids with four hundred thousand.
Speaker 3 (31:49):
Books, which did not diminish it by much, honest.
Speaker 4 (31:52):
Yeah, but we never made it out. It's Archer City
is a tough place to get to, but I am
determined to get there at some point.
Speaker 3 (31:58):
Yes, it was.
Speaker 1 (32:00):
They are now down to just one bookstore, and they
someone the woman who was working there, who's like a
you know, part of the organization now, gave me a
little tour.
Speaker 3 (32:08):
It was great. I bought several books.
Speaker 1 (32:10):
I do need an advance on my paycheck how to
get me through the rest of the month for the
amount of money I spent on books. But she told
me that to get the books out of booked up
two across the Street to booked up one. They got
the whole Archer City football team to just move them
across the highway, which is great.
Speaker 4 (32:26):
So Archer City is the basis for oh Man, now
I'm forgetting the name of the fictional city, Talia, Texas.
Speaker 2 (32:35):
And Last Picture Show? Have you read or seen last Week?
Speaker 3 (32:38):
I have seen it, I have not read it.
Speaker 4 (32:39):
Okay, great movie, also a great book. The football team
in the movie is notably terrible, so maybe the carrying
of the books that was also you know, supposed to
be like seventy years ago, so maybe they've improved it.
Speaker 1 (32:52):
Right. Yeah, I will say I bought a copy of
Walter Benjamin at the Dairy Queen, which is his sort
of reflections of growing up in this town. And then
I went and ate at the Dairy Queen, which was,
I'll be honest, the only place that was opening.
Speaker 3 (33:06):
But it was great. It was a real Texas pilgrimage.
Speaker 2 (33:09):
Have you read Lonesome Dove?
Speaker 5 (33:10):
Yes?
Speaker 1 (33:10):
So I read Lonesome Dove in high school. I would
like to reread it, but I read in high school.
I did not know that he wrote, oh gosha, Now,
terms of endearment, Terms of endearment and broke Back Mountain.
Speaker 3 (33:23):
Yes, I learned a lot about it there.
Speaker 2 (33:24):
He wrote the movie.
Speaker 1 (33:28):
Yes, the movie Broke By, but not the book that
it was based on, right, I think that's correct. Yeah, yeah,
but they're like really reviving at all. Only parts of
it are open because they he left so many books
that they have, like books in the hall and books
on the you know, everything's falling off. It was great,
It's really I highly recommend going out there.
Speaker 2 (33:45):
I will, I'm I'm going to do it sometimes soon
put on the list.
Speaker 3 (33:49):
Yeah.
Speaker 1 (33:49):
Also, I found a copy of you know, he just
would buy books from book you know. You know, I
don't think he hand picked each of them, which explains
why I found a copy of Gossip Girl in the
mass and I like to imagine that Larry mcmurtury picked
out gossip Yeah.
Speaker 4 (34:03):
Of course, you know, he was a very very versatile writer,
so you never know, you never know.
Speaker 2 (34:08):
Yeah.
Speaker 4 (34:09):
My two like literary destinations are the Bookstore in Archer
City and the Willa Cather House in Nebraska, which I
also would really like to go to. And recently at
a conference in New Orleans, met someone from I believe
it's Red Cloud, Nebraska and scared everyone away at our
happy Hour reception, repeatedly asking questions about Willa Cathers.
Speaker 1 (34:32):
And they were like, I just live here, man, Yeah,
I don't know. There's a dairy queen. Yeah, I presume.
Speaker 3 (34:37):
Yes.
Speaker 1 (34:38):
Well, that is our episode of the trip Caast this week.
We appreciate you all joining us. Thank you to Steve
Laddick for taking the time, and sounds like we will
all be back here talking about the second term of
the US Supreme Court coming up soon. You can get
tripcast anywhere you get your podcast. Follow us on YouTube,
review us, like us, subscribe, and our producers are Chris
(35:00):
and Rob and we will be back next week.
Speaker 5 (35:03):
Yes,
Hello, and welcome to this week's episode of The trib Cast.
I'm Eleanor Klibanoff, joined as always by my co host
Matthew Watkins.
Speaker 2 (00:27):
Hello, welcome back, Thank you.
Speaker 1 (00:28):
It's been several weeks since we've been able to do
this together. I think last time we did together in
the Arlington.
Speaker 2 (00:33):
That's right. Yeah, and not much has happened since.
Speaker 3 (00:37):
Hardly anything.
Speaker 1 (00:38):
Yeah, I've been traveling and it's mostly for work though,
But it's crazy to step away from your phone for
like three hours to do an interview or something and
you come back and you're.
Speaker 4 (00:46):
Like, oh god, I I'm sure you listened to the
podcast you were on and so but I'll allow me
to extend my apologies in person for Jasper and I
making fun of you for predicting special Session this year.
Speaker 1 (01:01):
Yes, yeah, that's I was wanted to come back and
do like a I wanted to be part of it
and uh way in. But maybe we'll have him back
on and we can uh you know, make him suffer
for absolutely through the special Session.
Speaker 3 (01:15):
Well, we are going to jump in.
Speaker 1 (01:16):
I as I told Matthew before it got started, We're
going to talk with our guests for a little bit
and then I do have a fun trivia fact that
I think I can maybe stump Matthew with at the end.
So stick around after our conversation if you want to
hear that. But you know, a lot, as you said,
a lot to talk about, So we'll go ahead and
jump right in. We are joined by a very special
guest all the way from Washington, d C. Georgetown law
(01:40):
professor Steve Laddock.
Speaker 3 (01:41):
Thanks for joining.
Speaker 5 (01:42):
Us, Thanks, Elinor nothing great to be with you.
Speaker 1 (01:45):
And many of you probably know him as former UT
law professor Steve Laddock.
Speaker 2 (01:51):
Yeah, he's a reformed longhorn.
Speaker 1 (01:54):
Yes, yeah, yeah, to get to d C, to escape it.
Speaker 5 (01:58):
I mean, I'll just say that that the Georgetown athletics
don't quite have the same vibe and energy and excitement
as the Texas athletics.
Speaker 4 (02:07):
I could believe that they've at times had a good
basketball team.
Speaker 5 (02:11):
You know, it's been a minute. I mean, you know,
I knew we were in trouble when they asked me
if I still had any eligibility left.
Speaker 1 (02:19):
Yeah. I went to the other DC university, not American,
the other DC university, George Washington, which doesn't even have
a football team. So, as they say, got to Texas
as fast as I could.
Speaker 4 (02:31):
You know, sometimes I wish my school didn't have football team.
Speaker 1 (02:36):
We've asked another texts Pat DC resident this question, Steve,
what do you miss most about Texas? Man?
Speaker 5 (02:48):
I think probably some combination of breakfast, tacos and the
winter weather compared to what we get in the Northeast.
Speaker 4 (02:56):
That's fair enough wrong answer. If you had said HB,
they might have Ain't you a goodie basket?
Speaker 3 (03:01):
Patrick's text at AGB and they said.
Speaker 5 (03:04):
I mean, my family complains about not having AGB all
the time. My girl, we've been on a quest to
find a local ice cream store that has cookies over Texas.
Speaker 3 (03:13):
Some variation thereof someone tells me you're not finding that.
Speaker 5 (03:18):
Listening and you want to send some cookies over to Washington.
Let me know.
Speaker 1 (03:22):
Yeah, we'll have your kids on next and we'll get
them to do this for us.
Speaker 5 (03:25):
They're much ertatum.
Speaker 1 (03:26):
Yeah, well, you know, we invite you on to talk
about the exciting end to a exciting Supreme Court term.
Speaker 3 (03:36):
As usual.
Speaker 1 (03:37):
They got us out of here before the fourth of
July and got themselves onto their summer vacations. May you
tell us a little bit just to start, Like what
your big takeaways are from this Supreme Court term?
Speaker 3 (03:49):
That sort of the headlines for you, sure.
Speaker 5 (03:52):
I mean I think in one sense, I mean, yes,
the court is off for at summer recess eleanor. But
one of the big headlines to me actually is that
the term is really not over because you know, at
least formally it goes to October. Usually no one cares,
but the Court has been so inundated with emergency applications,
with cases that have reached the court, you know, out
(04:12):
of the normal flow of boring technical appellate processes, including
nineteen already from the Trump administration, and those have been
some pretty big cases, whether it's you know, birthright citizenship
or you know, alien enemies removals or mass firings of
federal employees, and so, you know, to me, the real
sort of top line takeaway is that this term has
(04:35):
already been dominated not by the sort of traditional big
ticket cases that we're used to talking about, but by
all these late breaking emergency applications in the mind run
of which the majority of the Court has cided at
least temporarily with President Trump.
Speaker 1 (04:51):
Is there if anyone wants to, like, read a book
about this process of things happening off off the main docket,
would where would you point them?
Speaker 5 (05:01):
I mean, so, I will say the part of why
I wrote this book called the Shadow Docket a couple
of years ago is because I had thought already that
this was becoming an increasingly important part of the Supreme
Court's work. You know, I think this term proved that
in spades, and it's important in a couple of respects.
It's important because we're not used to thinking about the
Supreme Court as a twenty four seven, three hundred and
(05:23):
sixty five operation. It's important because when the Court rules
on these emergency applications, it's rare for the Court to
actually explain what it's doing, let alone to do so
in any detail. And so you get these cryptic orders
that folks look at online and say, well, wait a second,
where's the opinion? There Usually isn't one. But also I
think eleanor it's rare to see them in this volume.
(05:44):
I mean, you know, not that long ago, we were
seeing maybe a couple of these high profile emergency applications
a year, and many of those were in capital cases,
so you know, individual death cases that were very important
of course to the death row. Prisoner, to the state,
to the victims, but maybe not nationally important from a
(06:05):
policy perspective. You know, now we're seeing one of these
a week, and I think that's problematic wholly apart from
the results that the Supreme Courts reached it in those orders,
because you have the Supreme Court issuing massively important decisions
and doing very very little to explain why, and putting
policies into effect without explaining whether or not they're even legal.
(06:28):
And so you know, that really is a fundamental shift
in what the Supreme Court's doing in ways that at
least to this point, have favored the Trump administration without
actually upholding almost any of its policies.
Speaker 1 (06:41):
Right, Yeah, interesting, it does feel like I mean, when
you look at even the cases that sort of came
out at the end of term, like the high profile cases,
like some of them moved through the normal, like years
long process to get to the Supreme Court, but some
of them are things that you know, have really only
popped up since since January, That's.
Speaker 5 (06:58):
Right, And so you know, I think it really is
the tale of two terms. And I apologize to Charles
Dickens for for for that reference, but it's a tale
of two terms in the sense that you do have
like this you know regular docket, which has some big
cases on it, I mean scurmetti about you know, upholding
Tennessee's ban on gender affirming medical care for transgender adolescents.
(07:19):
You have you know, the mo Mood case about whether
parents can opt their children out of having to read
books in public schools that have LGBTQ plus thematic elements
in them. I mean, those are massively important decisions. You
have a bunch of cases where the court reversed the
Fifth Circuit, the Federal Appeals Court for you know, Texas, Louisiana,
Mississippi on issues that could have been huge if the
(07:42):
court had affirms so for example, you know the non
delegation doctrine vis a vis something called the Universal Service Fund,
which a lot of folks don't know about, but it's
actually a massive pool of money. That's how a lot
of folks in America, including in Texas, have access to
the Internet. And so those were big cases by any metric.
But given the sort of contrast between those cases and
(08:04):
what really feel like fundamental rule of law cases about
you know, whether migrants have a right to do process
before their designated alien enemies and removed from the country.
About whether you know, the president can unilaterally change what
it means to be entitled to birthright citizenship. I guess
you know, Eleanor That's why it feels unusual as we
(08:25):
sit here when the court has finished up what we
might call the sort of regular part of its work,
but the Trump rule of law stuff is ever ongoing.
Speaker 4 (08:36):
Can we talk about this birthright citizenship case because I
think this, Do we have to?
Speaker 3 (08:40):
Yeah? It's hardly I mean, I don't. I don't get
the sense it's gonna be a huge deal.
Speaker 4 (08:44):
Right, yeah, yeah, yeah, yeah, you know, first and foremost,
can you just explain to us what the court decided
in what it didn't decide in this in this real.
Speaker 5 (08:53):
Yeah, I mean, so the first thing to say is
it didn't decide anything about whether the president's executive order
purporting to limit birthright citizenship is legal or not. And
so you know, there was nothing on that. The whole
fight in that case is about something called a universal
or a nationwide injunction. And to do the sort of
thirty second Oh my gosh, I'm really happy I didn't
go to law school version. The typical injunction says, hey, defendant,
(09:16):
you can't do this thing to that person, and it's
specific about who the defendant is prescribed from acting against.
What makes a nationwide injunction different is that it's not
that specific. It just says, hey, defendant, you have to
stop doing the same period. And so it's not that
it's nationwide, it's that it's not planef specific. But no
one really wants to use that term. What the Supreme
(09:37):
Court said in the birthright Citizenship cases is that in general,
federal court should not be issuing those kinds of injunctions,
that in most cases federal court should be issuing injunctions
only that benefit the planiffs. And so if that was it,
if that was the end of the story, that would
be a massive kneecapping of the power lower federal courts
(10:01):
to basically stop nationwide federal policies. Right, you'd have to
have hundreds of thousands of lawsuits. Every single undocumented immigrant
who's going to have a child would have to sue
themselves to challenge the Birthright Citizenship Executive Order. What is
messy about last Friday's ruling in the birthright Citizenship case
is that the Court hasn't closed the door to other
(10:23):
ways that plaintiffs, both in these cases and in other cases,
could still try to get some kind of broader nationwide relief.
They could try something called a nationwide class action, where
a handful of plaintiffs represents everyone in the country who
is like them, and then in order that benefits them,
ends up benefiting everybody. Or even Justice Barratt's majority opinion,
(10:46):
in which she said we're getting rid of universal injunctions,
had a caveat unless she says, you have to provide
nationwide relief to give the plaintiff everything that they're asking for.
And so, you know what's really frustrating guys to me
about this case is it's a huge deal analytically because
of how it curtails the power of lower federal courts.
(11:08):
How big a deal it is practically really depends on
what happens next as opposed to anything that the Court
actually did or said on Friday.
Speaker 4 (11:16):
This These nationwide injunctions have been a headache for administrations
of both parties. You have written and talked about in
the past about you know, our Texas District Judge Matthew
has Merrick, who has been known to issue a lot
of those or was known and.
Speaker 1 (11:32):
Judge read O'Connor and Judge Wesley Hendrix and judge like Texas.
I don't know that Texas actually came up with this idea,
but Texas certainly has used this nationwide injunction trick.
Speaker 2 (11:44):
A lot, exactly exactly, and so.
Speaker 4 (11:49):
And you know, the idea of the frustration was, you know, one,
you know, to use a term of the right activist
judge could essentially, you know, play decider for the fate
of a law for the entire country. And that has
been frustrating to some people. I mean, I guess what
you're sort of saying here is that it's too soon
(12:10):
to know how much that practice has been curtailed. It
kind of depends on how this order is interpreted and
taken from here.
Speaker 5 (12:17):
That's right. I mean, so, you know, nothing stops the
same judges who were the focal point for so much
of this judge shopping from certifying a nationwide class action,
which is technically a different procedural device, but which would
produce the same outcome, which is to say, a federal
policy is blocked on a nationwide basis, or even from
(12:37):
using the caveat in justice Barrett's opinion and saying, oh, well,
here's one of those rare cases where I have to
provide universal relief. Matthew. What's frustrating to me is that
I think folks have conflated criticisms of nationwide injunctions with
the kind of abusive forum shopping and judge shopping that
(12:58):
you know you just mentioned that, you know, you could
fix that problem without getting rid of the power of
district courts inappropriate cases to actually stop lawlessness by the
executive branch. And I think part of why, folks, part
of why you've seen such a I think bipolar reaction
to Friday's ruling is because for folks who look at
(13:18):
the current president and see lawlessness everywhere, it looks like
a Supreme Court that is basically, you know, pulling the
rugout from under the ability of lower federal courts to
slow that down. And for folks who look at the
current president and see, you know, very see what they've
you know, quote what we voted for unquote, and things
that don't bother them, you know, this looks like it's
(13:40):
almost hypocrisy on the part of folks who criticize these
kinds of injunctions. During the Biden administration. So, you know,
I think the problem is that the answer is somewhere
in the middle, that you know, district courts had been
doing this too often, but that that was exacerbated by
things having nothing to do with nationwide injunctions and everything
to do with the fact that you can bring a
(14:00):
lawsuit in Amarillo that had no relationship to Amarillo and
be guaranteed to draw someone like Judge Chasmeric and so
I guess, you know, part of what's tricky about this
case is that there are you know, decent, substantive arguments
against nationwide injunctions as a pure, boring, formalistic legal matter.
(14:22):
What is exasperating is that the Supreme Court took this
moment at this you know, in this concept and frankly
in these cases, to you know, hand on that mandate
to draw that line in.
Speaker 3 (14:33):
The sand, right.
Speaker 1 (14:35):
I mean, it is interesting, I mean, and I think
this is something like Justice Corsich has been very outspoken about,
like the nationwide injunction is a relatively new thing, Like
we basically didn't have them for a long time, or
judges weren't weren't issuing them, and then suddenly this has
become a thing that really has taken off, and like,
what do you see as you know the reality if like,
(14:55):
let's say this sort of does end up playing out
and is curtailed. What looks different a year from now,
two years from now by the time you know this
sort of is inacted.
Speaker 5 (15:05):
I mean, so I think the problem is, right, take
a president who probably gets a new executive order that
we all agree is unlawful. Right, how are we going
to establish its unlawfulness in a way that prevents it
from harming people? And so the virtue, I mean, there
are cost a nationwide junctions, but the simple virtue of
the nationwide injunction was it was an express train to
(15:25):
blocking unlawful federal policies in the world you're describing eleanor
we're doing everything retail, not wholesale. And that means you're
gonna need a lot more lawsuits. It means those folks
who don't have the resources to bring lawsuits might actually
be harmed even by a policy that we all think
is unlawful. It puts more pressure on federal courts to
(15:48):
actually entertain more and more of these cases as opposed
to a small handful of them. And so you know,
the guys, the right answer is probably somewhere in the middle,
where you know, certain kinds of claims really should be
able to produce nationwide relief and certain ones shouldn't be.
The problem is that I think those kinds of policy
calibrations are ones that the Supreme Court is especially ill
(16:11):
suited to do on its own. And if we had
a functioning legislature, you know, that could actually resolve these
kinds of policy debates, we might be able to find
an answer that Democrats and Republicans could both agree to
versus the sort of unilateral disarmament that we're seeing right now.
I'll say, just really quickly, I mean, I'm cautiously optimistic
that instead, what's going to happen is we're going to
(16:33):
see a resurgence of class actions, and we're going to
see a resurgence of you know, a handful of especially
sympathetic plaintiffs bringing a lawsuit in which they claim to
represent everyone who's harmed by a nationwide policy, and district
courts letting those cases go forward. But you know, if
that's what happens, guys, it's the same problem because which
(16:54):
district courts are the class actions filed in right, You're
going to have one district judge in one part of
the country who is yet again right, at least as
a temporary matter, being tasked with providing a nationwide relief
on a federal policy. You don't make that problem go
away just by making the nationwide injunctions go away.
Speaker 4 (17:12):
Are the stakes for this different in Texas than they
are in other places? In part because of what we
just described some of the judges that we have here,
but also because we have an attorney general right who
sides with the Trump administration right. Like you can see,
you know, a lot of these nationwide injunctions are in
cases where our attorney general would be less likely to
(17:35):
be bringing a case against the federal government than say,
in California.
Speaker 5 (17:40):
Yeah, I mean, I think the short answer is yes,
it was already true, of course that you know, Texas
assumed the Biden the sorry, the Trump administration a lot
less than to the Biden administration. You know, so far,
the only lawsuits we see between Texas and the Trump
administration are the collusive ones where the federal government sues
Texas and Texas immediately settles. But I I guess, Matthew,
(18:00):
my reaction is that The real question is, by the
time there's another democratic president, has some procedural device emerged
that is playing the same role as the nationwide injunction,
be it a nationwide class action or something else. If so,
then I don't doubt that you know, whoever the Texas
Attorney general is then will be just as aggressive in
(18:22):
trying to utilize those devices. If not, then yeah, I mean,
you know, then maybe we actually do see a return
to the pre twenty twelve, twenty thirteen you know world
where every time a president of either party does something significant,
it's not immediately challenged in court by an attorney general
from a state of the other party.
Speaker 4 (18:42):
I know, eleanor you probably want to move on, But
just one last question on this subject.
Speaker 1 (18:46):
Kidding me, judge shopping nationwide injunctions?
Speaker 3 (18:48):
I love this stuff.
Speaker 4 (18:50):
What about the issue the issue of birthright citizenship? I
mean that I know the court and you know, put
a thirty day pause on this, you know, going back
what happens next in this case, in what you would
be watching in terms of the future of that, particularly
in Texas again, because of the situation we have here
with our journey general.
Speaker 5 (19:08):
So I mean, the short answer is I think it's
incredibly likely. I mean, like, you know, north of eighty
to eighty five percent that before that thirty day period
runs out, there's yet another ruling by a district judge
somewhere that has nationwide effect. And there are two ways
that could happen. You could have certification of a nationwide
class of planiffs, or you could have a case where
(19:29):
the Court says, even under Justice Barrett's reasoning, this is
the rare example of a case where nationwide relief is
necessary to give the PLANEFF everything they need. Probably not, Matthew,
a case where you have an individual PLANEFF, but like
New Jersey, for example, has really good arguments about why
a New Jersey specific injunction would actually cause real harm
(19:50):
if states like Texas were not bound by it, right,
if you could still have people born in Texas and
not be citizens under the executive order. So, Matthew, my
best guess is that the policy still never goes into effect.
But you know that's going to depend not just on
a district court somewhere following one of these two pathways
that the Supreme Court decision has left available to go
(20:13):
back to where we started, Guys, it's going to depend
upon the Supreme Court then letting the district court do that. Right,
it's going to depend upon the Supreme Court denying the
inevitable emergency application that the Trump administration will file when
a district court issues that relief. And so you know,
we're going to be talking by the end of the
summer about the second round of birthright citizenship cases. And
(20:34):
this goes back to why I think this is a
very unusual term in that the summer could end up
being just as busy right as the spring and the fall,
because it's not just birth right slazenship. They're going to
be any number of disputes where that's going to be
the fight over the next eight weeks.
Speaker 1 (20:51):
Wow. Yeah, I mean certainly not like playing out maybe
as the original dividers of our powers imagined all of.
Speaker 3 (20:59):
This would go.
Speaker 1 (21:00):
I do want to talk about some of the like,
like you said, the more substantive cases that came up.
You mentioned Scrimmetti, my Mood and we here obviously had
a free speech alliance.
Speaker 3 (21:09):
Vee Paxton.
Speaker 1 (21:10):
What stands out to you about sort of the Court's
rulings on these on these cases that are all around
sort of similar ideas and similar topics.
Speaker 5 (21:21):
I mean, I think there's one theme that actually cuts
across all of those cases, and the theme is reducing
the degree of scrutiny that we're applying to the underlying
state laws. So you know, in I mean, I guess
my mood's probably the sort of the tricky one here.
But if you take the free speech Coalition case, and
if you take Scrimeti, in both of those cases, eleanor
(21:44):
a lot of the fight between the majority and the descent,
and in both of those cases it's six to three, right,
A lot of the fight between the majority of the
descent is what standard of review applies. What that means,
right in English, is how skeptical should we be of
why the government is due and what they're doing. How
heavy a burden does the government have to meet to
(22:04):
justify what it's doing. And you know, in Scurmeti, by
saying that, you know, singling out people of transgender status
doesn't require heightened treatment. In this context, the Court was
able to uphold Tennessee's regulation, even though it certainly appears
to be motivated at least in part right by animis
against transgender individuals in a way in which if we
(22:26):
applied heightened scrutiny that would kill it, and the free
speech coalition in case is another great example of this right.
The type of restriction in the Texas law, the age
verification requirements for visiting websites with you know, sensitive adult content,
in almost any other era, would have triggered what's called
strict scrutiny, meaning Texas would have had to prove that
(22:47):
there was no less restrictive way of keeping minors away
from you know, websites with porn. Because the majority says no,
this only gets what we call intermediate scrutiny. Texts actually
has allowed a lot more wiggle room, And so you know,
I see what I see in both of those cases
is the Supreme Court basically softening the tests in a
(23:10):
way that gives the justices more wiggle room and more
discretion to sort of pick and choose which of these
laws they like and which ones they don't. Whereas if
you had the most rigid form of scrutiny eleanor there'd
be no wiggle room. Right, it would be almost an
objective inquiry into whether there was any narrower way for
the state to do what it did.
Speaker 1 (23:29):
Interesting, Yeah, yeah, we maybe talked about this here before,
but I wrote with my colleague Kayla our story about
the pre Speech Coalition, the lawsuit involving you know what
is often referred to sort of the porn Hub case,
and I really want to make sure that I had
my byline on it. Kayla like wrote a day of
because stories we do that have the word porn hub
(23:52):
in the headline do better than any other story on
our website.
Speaker 3 (23:55):
It is just like page view bonanza.
Speaker 5 (23:58):
It's not great, but I I mean, that's you know,
but at the risk of turning that into a substitute
point though, I mean, I think it's also lawyers, no,
but Eldor. But this is the problem, right, which is
it is really hard in this space to regulate websites
(24:18):
in a way that's not massively overbroad. And you know,
historically over breadth is a huge concern for First Amendment purposes.
We don't want states, even if they have the most
like absolutely compelling interests, we don't want them chilling speeches
otherwise constantly protected. We don't want you know, adults who
wish to remain anonymous, who don't want to share this
(24:40):
information with the state, you know, to have to sort
of see their speech rights chilled unless there's no other
way to do this, and so eleanor you know, it's
it's the sort of it's the visibility of these kinds
of websites that make this actually, I think, less of
a difficult First Amendment case than it should have been.
And part of why the majority opinion relate accident on
(25:00):
the standard of scrutiny is to be so problematic. Right,
It's like, no one thinks kids should have access to
porn websites. The issue is how much should adults be
the collateral damage when states are trying to implement that policy.
Speaker 4 (25:14):
If I remember from reading your article correctly, the minority
in this case seem to suggest that had this issue
been held up to strict scrutiny, Texas may still have prevailed.
I mean, it does seem like, you know, the there
are not a lot of other great ways to prevent
(25:35):
kids from looking at porn. And I'm just curious, like
what you think about you know, had they reviewed the
case in the way that you feel they should have,
do you think they would have come to a different outcome.
Speaker 5 (25:48):
I mean, so the whole case would have been litigated differently,
It would have been discussed differently, right, because Matthew, then
the question would have been can Texas, you know, can
sort of Texas or can the challengers I identify any
other way that would have been less restrictive to reach
the same goal. And if the answer was no, then yeah,
it would have survived struck scrutiny and it would have
(26:09):
been upheld. And so that's my concern. My concern is
not that the Supreme Court upheld Texas's age verification law.
The concern is how much violence are you doing to
the doctrine in ways that are going to affect plenty
of other cases. And the reason why this matters, I mean, guys,
the Supreme Court's deciding you know, fifty five of these
cases a year, but the lower federal courts are deciding
one hundreds and thousands of them. And so, you know,
(26:31):
I get nervous when, even in the context of a
compelling fact pattern, the Supreme Court waters down the standard
of scrutiny because it means that in other contexts where
maybe we're not all on the same side of this
as the state, right, it gives the state room to
do things that I think are potentially quite nefarious.
Speaker 1 (26:52):
Well, and that's like what these websites argue, right, is
that like adult websites, pornography websites are like the canary
and the coal mine for whiling away at free speech,
and so you know, like they're kind of easy to
go after. But it may be and I mean Texas's
law sort of talks generally about like adult content. You know,
there has been like talk certainly from I've heard this
from like LGBTQ advocates who say, like what prevents the
(27:15):
state from saying, you know, well, kids can't transition, you know,
why that's adult content to even show them information about
gender transition or things like that, so.
Speaker 5 (27:24):
Or even or even things about like sam Set's weddings, right,
I mean, like you know, is that is that is
that adult content because it's about topics that are too
sensitive for minors. I mean, you know, I think we're
not there yet, Eleanor. But like, the problem is is
that once the Supreme Court mixed this kind of significant
doctrinal step, it provides the foundation for the next step
(27:44):
and the step after that. And so my concern about
most of the big cases on the normal side of
the Supreme Court's dock at this term is that ten
fifteen years from now, we're going to look back on
them as the sort of early steps of bigger and
more troubling shifts in all of the doctrines.
Speaker 3 (28:01):
Well, that is sort of my question.
Speaker 1 (28:02):
I mean, to sort of wrap it up, is like,
you know, this is year one of the Trump administration, right,
I mean, if we can believe it, we've got three more.
Speaker 3 (28:11):
You know, what does what do you think?
Speaker 1 (28:13):
You know? It looks like by the end of the
Trump admistrative we sort of stay on this path.
Speaker 5 (28:18):
I don't know, and I think, you know, anyone who
says they know, I think is selling something. What's really
striking about the Trump cases of the last I don't
know five six months, is in only one of them
did the Court say anything positive on the merits in
favor of what President Trump wanted to do. Only when
(28:40):
President Trump fired members of the National Labor Relations Board
and the Merit System's Protection Board. Only on that emergency
application do we see any sign from the Supreme Court
that they're likely to agree with Trump on the merits.
Almost every other case right, either is on procedural grounds
or the Court said nothing. So Eleanorn, I'm really interested
in what we might call the second generation Trump cases.
(29:03):
When these cases start getting to the Supreme Court on
the merits, when the question is are all of these
policies legal as opposed to you know, are you the
right plaintiff? Did you sue in the right court? Are
you entitled to an emergency stay? What do we see
from the Supreme Court? And you know, I think we
saw a lot from the Court over the last couple
of months that leads me to worry that there aren't
(29:26):
five votes to push back fairly aggressively against what, to
my view is unprecedented lawlessness from President Trump. But what's
really striking about the you know, sort of the bill,
the Butcher's Bill for the entire turn, is that the
Supreme Court hasn't really committed itself on that question. It's
just sent a whole lot of signals, many of which
(29:46):
are to me concerning but not necessarily conclusive.
Speaker 1 (29:50):
Interesting, so much more to watch, and not the end
of the term in any meaningful way.
Speaker 5 (29:56):
But you know, well we'll just have to do this again.
Speaker 3 (29:59):
Yes, serves as a marker of some kind. Yes.
Speaker 4 (30:02):
I just love how in all branches of government, all
the times that used to be quiet are.
Speaker 2 (30:06):
No longer quiet.
Speaker 4 (30:07):
It really does wonders for vacations.
Speaker 1 (30:11):
Shadow dockets. Yeah, it's great. Well, thank you so much
for joining us, Professor. Like I said, we're going to
kick you off now and now I'm gonna give Matthew
my trivia question.
Speaker 3 (30:22):
But thank you so much.
Speaker 5 (30:25):
Well.
Speaker 1 (30:25):
So to be clear, I don't necessarily think this will
stump you, because I think you will.
Speaker 3 (30:28):
I think maybe you've even been there.
Speaker 1 (30:30):
But I'm curious how quickly you can get this, which
is that over the weekend, I made a pilgrimage to
an important Texas location. I was up near Wichita Falls,
very north Texas.
Speaker 2 (30:42):
Booked up.
Speaker 3 (30:43):
Dang it, I really was going to do a whole No,
that's fine. I may.
Speaker 1 (30:49):
I went to Larry McMurtry's hometown in Archer City and
his what is it is no longer booked up due
to not some sort of legal thing. It is the
Larry McMahon Literary Center. It was at one time four
hundred thousand books that he collected in four bookstores across
Archer City population like a, yeah, it was twelve hundred. Yeah,
(31:12):
they chip and Joyana Gaines bought it for a while,
sold it back to or gave it I don't know
to what is now the Larry McMurtry Literary Center.
Speaker 3 (31:21):
It was amazing. Have you been.
Speaker 2 (31:23):
I have not. I really want to go. I have
big regrets.
Speaker 4 (31:28):
My friend Josh, one of my oldest friends and a
big reader as well and a big fan of Lonesome Dove,
we talked about going when he had the sale, you know,
because basically when he was getting up in age, he
sold a whole bunch of the books because he didn't
want to leave his kids with four hundred thousand.
Speaker 3 (31:49):
Books, which did not diminish it by much, honest.
Speaker 4 (31:52):
Yeah, but we never made it out. It's Archer City
is a tough place to get to, but I am
determined to get there at some point.
Speaker 3 (31:58):
Yes, it was.
Speaker 1 (32:00):
They are now down to just one bookstore, and they
someone the woman who was working there, who's like a
you know, part of the organization now, gave me a
little tour.
Speaker 3 (32:08):
It was great. I bought several books.
Speaker 1 (32:10):
I do need an advance on my paycheck how to
get me through the rest of the month for the
amount of money I spent on books. But she told
me that to get the books out of booked up
two across the Street to booked up one. They got
the whole Archer City football team to just move them
across the highway, which is great.
Speaker 4 (32:26):
So Archer City is the basis for oh Man, now
I'm forgetting the name of the fictional city, Talia, Texas.
Speaker 2 (32:35):
And Last Picture Show? Have you read or seen last Week?
Speaker 3 (32:38):
I have seen it, I have not read it.
Speaker 4 (32:39):
Okay, great movie, also a great book. The football team
in the movie is notably terrible, so maybe the carrying
of the books that was also you know, supposed to
be like seventy years ago, so maybe they've improved it.
Speaker 1 (32:52):
Right. Yeah, I will say I bought a copy of
Walter Benjamin at the Dairy Queen, which is his sort
of reflections of growing up in this town. And then
I went and ate at the Dairy Queen, which was,
I'll be honest, the only place that was opening.
Speaker 3 (33:06):
But it was great. It was a real Texas pilgrimage.
Speaker 2 (33:09):
Have you read Lonesome Dove?
Speaker 5 (33:10):
Yes?
Speaker 1 (33:10):
So I read Lonesome Dove in high school. I would
like to reread it, but I read in high school.
I did not know that he wrote, oh gosha, Now,
terms of endearment, Terms of endearment and broke Back Mountain.
Speaker 3 (33:23):
Yes, I learned a lot about it there.
Speaker 2 (33:24):
He wrote the movie.
Speaker 1 (33:28):
Yes, the movie Broke By, but not the book that
it was based on, right, I think that's correct. Yeah, yeah,
but they're like really reviving at all. Only parts of
it are open because they he left so many books
that they have, like books in the hall and books
on the you know, everything's falling off. It was great,
It's really I highly recommend going out there.
Speaker 2 (33:45):
I will, I'm I'm going to do it sometimes soon
put on the list.
Speaker 3 (33:49):
Yeah.
Speaker 1 (33:49):
Also, I found a copy of you know, he just
would buy books from book you know. You know, I
don't think he hand picked each of them, which explains
why I found a copy of Gossip Girl in the
mass and I like to imagine that Larry mcmurtury picked
out gossip Yeah.
Speaker 4 (34:03):
Of course, you know, he was a very very versatile writer,
so you never know, you never know.
Speaker 2 (34:08):
Yeah.
Speaker 4 (34:09):
My two like literary destinations are the Bookstore in Archer
City and the Willa Cather House in Nebraska, which I
also would really like to go to. And recently at
a conference in New Orleans, met someone from I believe
it's Red Cloud, Nebraska and scared everyone away at our
happy Hour reception, repeatedly asking questions about Willa Cathers.
Speaker 1 (34:32):
And they were like, I just live here, man, Yeah,
I don't know. There's a dairy queen. Yeah, I presume.
Speaker 3 (34:37):
Yes.
Speaker 1 (34:38):
Well, that is our episode of the trip Caast this week.
We appreciate you all joining us. Thank you to Steve
Laddick for taking the time, and sounds like we will
all be back here talking about the second term of
the US Supreme Court coming up soon. You can get
tripcast anywhere you get your podcast. Follow us on YouTube,
review us, like us, subscribe, and our producers are Chris
(35:00):
and Rob and we will be back next week.
Speaker 5 (35:03):
Yes,
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