The cruelty really does appear to be the point, as discussed on today’s BradCast. [Audio link to full show follows below this summary.]
On Wednesday, the hateful creeps who have been fired up for years by Fox “News” and the Republican Party against trans kids, had their day at the U.S. Supreme Court, which heard some two and half hours of oral argument for and against the state of Tennessee‘s Big Government ban on safe, medically prescribed gender-affirming care for minors.
U.S. v. Skrmetti, as CHRIS GEIDNER of Law Dork, our guest today, pointed out in his coverage last night after sitting through the full hearing at the Court, should have been an “an easy case, in some ways.” The actual legal question for the moment is whether the U.S. 6th Circuit Court of Appeals, which upheld TN’s cruel ban, applied the proper standards when hearing the case. If the law banning medical care for youths, as recommended by their doctors and approved by their parents, is based on sex, it should be subject to at least “intermediate scrutiny” by the court, meaning the government needs to prove “there is an important government interest and the law is substantially related to it,” Geidner explains. “You need to have a reason” to adopt such a law that may discriminate on the basis of sex.
No such scrutiny was applied to TN’s Senate Bill 1 when its challenge was heard and the law upheld by the lower court. The Biden Administration and the ACLU attorney representing the private challengers in the case made clear that the law is, in fact, based on sex and therefore should be remanded to the lower court to be heard under heightened scrutiny to ensure there us a legitimate governmental interest in enforcing the law which, plaintiffs argue, violates the 14th Amendment’s Equal Protection clause.
That said, Wednesday’s hearing became, at times, more of a culture war over trans rights in general, as 25 other largely GOP-controlled states have adopted similar bans in recent years. Their laws will be affected by whatever happens in this case currently at SCOTUS. That, as Donald Trump and his allies have vowed to roll back protections for transgender people at the national level after he takes office again next year.
The matter, in short, is very high stakes. But the stakes are the highest at the moment for the kids who will be — and already are being — unconscionably harmed by these insidious laws meant to help Republicans gain or hold power under the guise of keeping children safe. These laws do no such thing. They are actively harming children rather than help them.
Geidner breaks down what happened at the High Court on Wednesday; how a 2020 case (before the all-out GOP war on transgender people kicked into high gear) in which Republican Justices Neil Gorsuch and John Roberts actually joined the Court’s liberals to protect trans rights may affect this case; and whether TN will be able to get five Justices to uphold their ban — or if the challengers will find five that are willing to at least send the matter back down to the lower court for a proper hearing.
“All that DoJ and the ACLU, representing the private plaintiffs, were saying is that, ‘The 6th Circuit got the wrong standard, and all that you need to do is say that this is a sex-based classification, and send it back for them to do the rest of this work’,” says Geidner. The case, the challengers argued, is a Constitutional Equal Protection matter. But, as Geidner observes, “What we saw from Chief Justice Roberts and Justice [Brett] Kavanaugh was an attempt to come up with a way of resolving the case that would allow these laws to exist that isn’t anti-trans. Which can essentially only happen by turning the Equal Protection clause on its head or rendering it virtually irrelevant.” That would have a sweeping effect on all matter of legislation encroaching on Constitutional rights.
The matter, Geidner assess, now most likely rests upon decisions by Justices Amy Coney Barrett and Gorsuch who, Geidner notes — after having written the majority opinion in 2020’s landmark Bostock case that prevented discrimination against transgender people by their employers — fell curiously silent throughout the entire hearing on Wednesday.
Most media coverage after the hearing on Wednesday suggested things don’t look good for the challengers — and for the children they are hoping to protect. Geidner concedes that may be the case, but he holds out hope and explains why today.
Also on today’s program…
- A few words about the 7.0 magnitude quake in Northern California this afternoon, and the tsunami warning that briefly followed it, affecting some 5.3 million people on the West Coast. (For those who asked after the news broke today: We’re fine! And nowhere near the quake down here in Southern California! But thanks for asking!)
- And, finally, Desi Doyen joins us for our latest Green News Report on a North Carolina town suing Duke Energy for years of deception about climate change; how climate change has become the dominant cause of drought in the U.S. West; South Africa‘s High Court bans new coal plants; and small, imperiled island nations like Vanuatu and Kiribati, whose entire existence is now threatened by rising seas, are leading a courageous landmark fight for global climate action at the U.N.’s International Court of Justice…
JMO, but I count on this SCOTUS to do the wrong thing, whether by 6-3 or 5-4 vote.
Does anybody have the guts to talk to Mark Joseph Stern and ask him what is possible for Trump to do now, with the new POTUS immunity power?
Yeah, I know. The stuff of wake-up-screaming nightmares.
But I’d also ask him —- What could Biden do, if he had the cojones? (I doubt he does). Forgive debt? Give pre-emptive pardons to protect media and legal personnel? Shore-up voting rights?
If MJS is available, I’d love to hear from him (but I’d have a bottle of something strong on hand, for sure).
Would it be too scary to ask him- just how far could these immunity powers go for Trump?
Could he imprison anyone he wants on his order?
Could he order the military into the streets of America?
Could he unilaterally declare war on another country?
Could he shut-down a media outlet by executive order?
Could he order a governor or mayor imprisoned?
Could he, by executive order, make Brad Friedman Voting Integrity Czar?
I fully expect Trump to USE this power, maybe even A LOT.
As soon as congress, or any other person or institution, gets in his way — BOOM! He’ll use those powers to get around it, and do as he pleases.
The man’s mind is gone, and he’s got no patience at all at this point. It’s a cinch he’ll use them, IMO.