WEBVTT - Same-Sex Marriage & 'War' on Judges 0:00:02.880 --> 0:00:08.000 This is Bloomberg Law with June Grossel from Bloomberg Radio. 0:00:09.160 --> 0:00:12.640 The nearly eight hundred thousand same sex couples in this 0:00:12.840 --> 0:00:17.600 country can breathe a sigh of relief, at least for now. Today, 0:00:17.640 --> 0:00:21.960 the Supreme Court rejected an effort to overturn its landmark 0:00:22.040 --> 0:00:27.520 twenty fifteen decision that legalized same sex marriage. Without any comment. 0:00:27.760 --> 0:00:32.159 The Justice is left intact a jury verdict against Kim Davis, 0:00:32.640 --> 0:00:37.080 the former Kentucky court clerk who drew national attention by 0:00:37.120 --> 0:00:41.960 refusing to issue marriage licenses to same sex couples. Today's 0:00:42.080 --> 0:00:46.560 order indicates that Davis couldn't get the four votes necessary 0:00:46.920 --> 0:00:49.920 for the Court to take her case. Although the appeal 0:00:50.040 --> 0:00:52.800 was a long shot, it due attention because the Supreme 0:00:52.840 --> 0:00:56.040 Court has shifted to the right since the five to 0:00:56.160 --> 0:01:01.760 four decision in obergerfelvi hodges Well. My guest is Suzanne Goldberg, 0:01:01.880 --> 0:01:04.880 a professor at Columbia Law School and director of the 0:01:04.920 --> 0:01:09.319 school Septuality and Gender Law Clinic. Suzan, this case brings 0:01:09.400 --> 0:01:11.760 up a name that was in the news ten years ago. 0:01:12.200 --> 0:01:15.679 Tell us more about Kim Davis's appeal of a three 0:01:15.760 --> 0:01:20.560 hundred and sixty thousand dollars, damages and attorney's fee award 0:01:20.600 --> 0:01:26.080 to the couple she refused to give a license to within. 0:01:26.080 --> 0:01:30.200 Days of the Supreme Court granting same sex couples the 0:01:30.319 --> 0:01:33.800 right to marry in a case called Obergofell versus Hodges. 0:01:33.840 --> 0:01:39.119 In twenty fifteen, a couple presented themselves to Kim Davis's 0:01:39.200 --> 0:01:41.720 office and said, you know, we'd like to get our 0:01:41.760 --> 0:01:47.119 marriage license. She said no, And in fact, not only 0:01:47.120 --> 0:01:50.200 did she say no. She's a clerk for Rowan County, 0:01:50.400 --> 0:01:53.760 Kentucky and her job was to issue marriage licenses. She 0:01:53.880 --> 0:01:56.800 said she was acting under God's authority to deny this 0:01:56.920 --> 0:01:59.320 gay couple of marriage licenses. And one of the men 0:01:59.480 --> 0:02:02.360 actually say to her that she had probably given marriage 0:02:02.400 --> 0:02:04.760 licenses murderers and rapists and people who had done all 0:02:04.800 --> 0:02:07.960 sorts of horrible things, and Davis responded by saying it 0:02:08.080 --> 0:02:14.000 was fine because they're straight. So she was ultimately overridden 0:02:14.160 --> 0:02:17.440 and required to present the couple with their marriage license. 0:02:17.880 --> 0:02:20.320 But she's been up and down the change. She's been 0:02:20.320 --> 0:02:24.440 litigating for many years now, almost a decade, saying that she, 0:02:24.960 --> 0:02:28.720 as a government employee, had a right to implement her 0:02:28.760 --> 0:02:33.320 religious views against marriage for same sex couples and based 0:02:33.360 --> 0:02:37.480 on those views, deny a marriage license in her capacity 0:02:37.560 --> 0:02:41.720 as a government official. So quite complicated. It goes beyond 0:02:41.760 --> 0:02:44.240 a basic challenge to the idea of same sex couples 0:02:44.240 --> 0:02:47.560 marrying and says essentially that somebody working as a government 0:02:47.560 --> 0:02:51.400 official should have the right to refuse services to a 0:02:51.440 --> 0:02:55.399 resident or a citizen of that location of that jurisdiction 0:02:55.919 --> 0:02:59.560 based on their faith. So when she first got up 0:02:59.600 --> 0:03:03.480 to this court in twenty twenty, Justice Thomas actually when 0:03:03.480 --> 0:03:06.560 the Court rejected her case, specifically said that her case 0:03:06.600 --> 0:03:11.960 did not cleanly present questions about Obergefell, the Court's marriage 0:03:11.960 --> 0:03:16.680 equality ruling to the court. And so this time around, 0:03:17.400 --> 0:03:20.640 when Kim Davis went up to the court, she brought 0:03:20.680 --> 0:03:24.400 the same complicated set of facts related to her personal position, 0:03:24.919 --> 0:03:29.040 but she also argued that the Court should reverse its 0:03:29.120 --> 0:03:33.280 Obergefell marriage equality ruling based on the same reasoning that 0:03:33.320 --> 0:03:36.160 the Court had used in Dabbs, the case in which 0:03:36.760 --> 0:03:40.680 the Court overturned Reversus weighed and said there's not constitutional 0:03:40.720 --> 0:03:44.800 protection related to abortion. So the question in this case 0:03:45.240 --> 0:03:49.200 was would the Court take up Kim Davis's challenge to 0:03:49.960 --> 0:03:54.800 the Obergafell marriage equality ruling the Court denied cert meaning 0:03:54.840 --> 0:03:59.400 it will not take up her challenge. Most commentators expected 0:03:59.440 --> 0:04:04.560 this because case is so particular to her situation. I 0:04:04.600 --> 0:04:07.960 think that her cert petition, her request for Supreme Court review, 0:04:08.000 --> 0:04:12.680 is best understood not as a realistic shot at getting 0:04:13.160 --> 0:04:18.080 Supreme Court review of a Burgerfell, but instead as additional 0:04:18.120 --> 0:04:22.760 publicity for the idea that the Court someday should overturn 0:04:22.880 --> 0:04:25.960 its marriage equality ruling. And in that sense, even if 0:04:25.960 --> 0:04:30.080 this cert petition itself wasn't very troubling, the broader effort 0:04:30.120 --> 0:04:32.799 to call into question marriage equality is concerning. 0:04:33.880 --> 0:04:37.239 So are you saying that same sex couples shouldn't breathe 0:04:37.240 --> 0:04:39.560 a sigh of relief that the Supreme Court turned this 0:04:39.680 --> 0:04:40.279 case down. 0:04:40.720 --> 0:04:43.200 People can certainly breathe it five of relief that the 0:04:43.279 --> 0:04:47.760 Supreme Court turned down can Davis's certain petition? That said, 0:04:47.880 --> 0:04:50.159 I think it would be a mistake to think this 0:04:50.360 --> 0:04:53.560 is the end of these kinds of cert petitions or 0:04:53.600 --> 0:04:56.880 the end of these battles. There is an ongoing effort 0:04:56.960 --> 0:05:02.480 to try to destabilize the idea of marriage equality and 0:05:02.560 --> 0:05:06.320 ultimately the Supreme Court's ruling on marriage equality. You know 0:05:06.360 --> 0:05:08.760 whether that will succeed. It doesn't seem to me it 0:05:08.800 --> 0:05:11.599 will succeed in the near future. But it is also 0:05:11.720 --> 0:05:14.400 important to keep an eye on this because I think 0:05:14.520 --> 0:05:17.200 many people would have said Roe versus Weight would not 0:05:17.520 --> 0:05:20.560 ultimately be overturned, And of course it was many decades 0:05:20.600 --> 0:05:24.799 after the Court first issued that ruling that was overturned 0:05:24.800 --> 0:05:28.640 in jobs. But we are in a time when well 0:05:28.760 --> 0:05:33.120 established precedents are coming into questions. So it's also a 0:05:33.160 --> 0:05:36.520 time for vigilance for those who care about the right 0:05:36.600 --> 0:05:39.600 to marry as protected by the Constitution, and. 0:05:39.560 --> 0:05:44.320 The Supreme Court has shifted significantly to the right since 0:05:44.360 --> 0:05:47.680 that five to four oh Bergerfeld decision. You have three 0:05:47.760 --> 0:05:50.479 members of that majority are no longer on the Court 0:05:50.520 --> 0:05:55.240 and two have been replaced by Trump appointees, so it's 0:05:55.279 --> 0:05:56.360 a different court. 0:05:56.640 --> 0:05:58.760 It is a very different court from the court that 0:05:58.920 --> 0:06:03.960 decided the Obergafell case granting safe sex couples the freedom 0:06:04.000 --> 0:06:08.000 to marry, and Chief Justice Roberts as well as other 0:06:08.040 --> 0:06:11.760 members of the Court specifically dissented from that ruling, So 0:06:11.960 --> 0:06:16.120 we'll have to see. I think the key takeaway is 0:06:16.680 --> 0:06:20.600 in the marriage equality right is safe at this moment, 0:06:20.760 --> 0:06:23.080 and certainly it is a good thing in my view. 0:06:23.080 --> 0:06:26.120 That the Supreme Court denied Kim Davis's petition for lots 0:06:26.160 --> 0:06:30.240 of reasons, and at the same time, it is important 0:06:30.320 --> 0:06:35.520 to pay attention to what is going on both societally 0:06:35.839 --> 0:06:39.520 and in legal challenges to see where this will land. 0:06:39.640 --> 0:06:43.040 There are a number of state legislators who have introduced 0:06:43.360 --> 0:06:46.400 various bills to try to cut back on marriage equality. 0:06:46.839 --> 0:06:49.920 We haven't seen those get a lot of traction at 0:06:49.920 --> 0:06:52.680 this point, but again, it's something else to pay attention to. 0:06:53.240 --> 0:06:55.080 It always seems to me that it would be very 0:06:55.080 --> 0:06:59.320 difficult to take away same sex marriage because you have 0:06:59.480 --> 0:07:03.760 these new eight hundred thousand couples who've acted in reliance 0:07:03.880 --> 0:07:08.279 on the right to same sex marriage, getting married, having children, 0:07:08.440 --> 0:07:12.560 sharing finances, etc. What would happen to all that if 0:07:12.560 --> 0:07:19.600 the Supreme Court took back the right to same sex marriage. 0:07:17.960 --> 0:07:22.520 To take away marriage equality would be an administrative disaster 0:07:23.240 --> 0:07:26.800 in states and at the federal level. So it would 0:07:26.840 --> 0:07:33.520 be complicated and unfair in addition to in my view, unconstitutional. 0:07:33.960 --> 0:07:36.800 At the same time, we know there are people who 0:07:36.840 --> 0:07:40.920 are committed to taking that away. Precisely. Would also say 0:07:40.960 --> 0:07:46.280 that even though access to abortion presents different issues, access 0:07:46.400 --> 0:07:51.640 to abortion as a part of reproductive healthcare has certainly 0:07:51.640 --> 0:07:55.240 been something that women have relied on for decades where 0:07:55.280 --> 0:07:58.920 they live or in states nearby, and people have ordered 0:07:58.920 --> 0:08:01.280 their lives around this. Not in the same way as marriage, 0:08:01.280 --> 0:08:05.480 but it has certainly been an important form of reproductive 0:08:05.480 --> 0:08:08.680 health care that is now being denied in a number state. 0:08:08.880 --> 0:08:13.880 So there's a set of challenges to access to healthcare, 0:08:14.400 --> 0:08:20.560 to access to relationship recognition that are continuing to be 0:08:20.680 --> 0:08:24.760 debated and have important implications for people who live throughout 0:08:24.760 --> 0:08:25.360 this country. 0:08:25.880 --> 0:08:29.559 Something that repeatedly comes up in discussions about same sex 0:08:29.640 --> 0:08:34.320 marriage is that Conservative Justice Clarence Thomas, in a concurring 0:08:34.400 --> 0:08:39.360 opinion in the DBS abortion case, so the justices should 0:08:39.400 --> 0:08:45.280 reconsider all the courts substantive due process precedents, specifically mentioning 0:08:45.320 --> 0:08:50.360 the cases involving same sex marriage and contraception. Will you 0:08:50.360 --> 0:08:51.559 explain his position? 0:08:52.240 --> 0:08:57.200 The idea of substantive due process is that the US 0:08:57.240 --> 0:09:01.400 Constitution protects Americans in our day to day lives from 0:09:01.720 --> 0:09:08.120 government interference with certain fundamental rights, including rights that are 0:09:08.440 --> 0:09:14.000 deeply recognized as part of individual autonomy. Access to contraception, 0:09:14.559 --> 0:09:20.160 certain parental rights, certain other rights to sexual relationships between 0:09:20.160 --> 0:09:24.480 consenting adults in private for non commercial purposes, and so 0:09:25.400 --> 0:09:29.080 Justice Thomas has long taken the position that the Constitution 0:09:29.200 --> 0:09:32.599 does not protect these rights that have long been considered fundamental. 0:09:32.679 --> 0:09:37.160 Does not protect marriage equality, does not protect access to contraception, 0:09:37.280 --> 0:09:41.640 does not protect access to abortion. If there were more 0:09:41.880 --> 0:09:45.480 justices to take his position that is not only with 0:09:45.520 --> 0:09:50.120 respect to abortion and marriage, but more generally sweeping off 0:09:50.120 --> 0:09:54.560 the table any constitutional protections understood in these ways, we 0:09:54.600 --> 0:09:57.360 would be living in a very different country. And again, 0:09:57.400 --> 0:10:00.000 it's not to say that everything would change at once, 0:10:00.400 --> 0:10:05.040 because the absence of a substantive due process protection doesn't 0:10:05.080 --> 0:10:09.000 mean that states could not grant marriage equality or provide 0:10:09.080 --> 0:10:12.800 access to abortion. This is why, even in a world 0:10:12.960 --> 0:10:17.600 where Dobbs exists, we have many states that protect the 0:10:17.679 --> 0:10:20.360 right of a woman's seek an abortion as part of 0:10:20.360 --> 0:10:23.400 a reproductive health care. But what it means is that 0:10:23.440 --> 0:10:27.800 if a state chooses to criminalize abortion or chooses to 0:10:28.440 --> 0:10:33.440 refuse to recognizing six couples marriages, if Obergerfella were to 0:10:33.480 --> 0:10:37.439 be overturned, then states could refuse to provide those protections. 0:10:37.760 --> 0:10:41.160 It's been noted that Thomas didn't mention the case of 0:10:41.240 --> 0:10:46.319 loving versus Virginia, which struck down interracial marriage. Is there 0:10:46.400 --> 0:10:50.680 a difference in the legal analysis or a distinction there possibly? 0:10:50.840 --> 0:10:55.720 You know, when the Supreme Court druck down Virginia's while 0:10:55.840 --> 0:11:00.000 criminalizing into racial marriages, the court recognized a part of 0:11:00.080 --> 0:11:04.120 the problem with that law was that it gave effect 0:11:04.480 --> 0:11:07.960 to white supremacy, gave effect to the view that white 0:11:07.960 --> 0:11:11.800 people were superior to people of color. So the court 0:11:11.840 --> 0:11:15.080 did two things. It recognized that the government should not 0:11:15.360 --> 0:11:20.960 interfere with people's fundamental right to marry by restricting the 0:11:21.080 --> 0:11:24.040 race of the person who they could marry. But also 0:11:24.280 --> 0:11:28.040 the language of that ruling was in part tied deeply 0:11:28.200 --> 0:11:32.240 to the prohibition on race discrimination and a justification for 0:11:32.320 --> 0:11:38.040 that restriction. So interracial marriage would be analyzed differently somewhat 0:11:38.240 --> 0:11:41.240 from the right to same sex couples marrying, but the 0:11:41.480 --> 0:11:45.800 underlying idea is the same in the sense of should 0:11:45.800 --> 0:11:49.120 the government be able to restrict who you can marry 0:11:49.200 --> 0:11:52.000 so long as that other person is a consenting adult 0:11:52.080 --> 0:11:54.920 who is not immediately related to stay. 0:11:54.640 --> 0:11:58.600 With me, Suzanne. Coming up next, another setback for transgender 0:11:58.679 --> 0:12:00.400 rights Blomberg. 0:12:03.520 --> 0:12:07.720 This is Bloomberg Law with June GROSSEO from Bloomberg Radio. 0:12:09.360 --> 0:12:12.760 It's the twenty fourth win for the Trump administration on 0:12:12.840 --> 0:12:16.960 the Supreme Court's emergency docket and the second blow to 0:12:17.080 --> 0:12:21.760 transgender rights from the conservative justices on the so called 0:12:21.840 --> 0:12:26.400 shadow docket. In a vote down ideological lines, the Court 0:12:26.480 --> 0:12:30.480 is allowing the Trump administration to go forward with requiring 0:12:30.640 --> 0:12:34.200 passports to be marked with the sex assigned at birth. 0:12:34.440 --> 0:12:38.360 This reverses the policy in place since nineteen ninety two, 0:12:38.840 --> 0:12:43.120 which had allowed passports to reflect a person's gender identity. 0:12:43.440 --> 0:12:48.360 I've been talking to Professor Suzanne Goldberg of Columbia Law School. Suzanne, 0:12:48.360 --> 0:12:52.520 will you explain the change in policy by the Trump administration? 0:12:53.320 --> 0:12:58.000 For nearly thirty years, actually thirty three, and as Justice 0:12:58.040 --> 0:13:02.880 Jackson points out, across six presidential administrations, transgender Americans have 0:13:02.920 --> 0:13:07.400 been able to get US passports with their gender marker 0:13:07.760 --> 0:13:11.679 that accurately matches their gender identity. So transgender man can 0:13:11.679 --> 0:13:14.960 get M on his passport and a transgender woman can 0:13:15.000 --> 0:13:18.680 get an F on her passport, which is important for 0:13:19.120 --> 0:13:22.240 many reasons, including so that the person looks like they 0:13:22.280 --> 0:13:26.080 match their passport. But from basically nineteen ninety two to 0:13:26.120 --> 0:13:31.120 twenty ten, there was an eligibility requirement related to a 0:13:31.160 --> 0:13:36.160 surgical transition that has changed over time, but the point 0:13:36.200 --> 0:13:38.679 is for thirty three years this has been the same. 0:13:39.200 --> 0:13:43.160 On the first day of his administration, Donald Trump issued 0:13:43.160 --> 0:13:48.040 an executive order saying that transgender people are corrosive to 0:13:48.120 --> 0:13:50.360 the United States. In so many words, he used the 0:13:50.360 --> 0:13:54.600 word corrosive and directing the State Department to no longer 0:13:54.720 --> 0:13:57.679 issue passport to people that would be consistent with their 0:13:57.720 --> 0:14:02.680 gender identity if they're transgender and so, the Trump executive 0:14:02.760 --> 0:14:06.400 order led the State Department to take two steps, first 0:14:06.840 --> 0:14:11.720 to stop issuing passports to transgender people consistent with their 0:14:11.760 --> 0:14:15.640 gender identity, and second to remove the ex gender marker, 0:14:16.000 --> 0:14:19.880 which was an option for anyone who does not fit 0:14:19.960 --> 0:14:22.360 the M or the F or someone who doesn't want 0:14:22.400 --> 0:14:26.640 to share their gender identity with the US government. So, 0:14:27.360 --> 0:14:32.440 put into simple terms, the Trump administration changed policy on 0:14:32.480 --> 0:14:35.440 the first day of the administration, and the State Department 0:14:35.480 --> 0:14:40.920 followed two days later to prevent transgender Americans from obtaining 0:14:40.960 --> 0:14:43.360 passports consistent with their gender identity. 0:14:43.800 --> 0:14:47.760 This was an unsigned order, and the Conservative Justice's very 0:14:47.960 --> 0:14:51.720 short explanation seems to me like it's ignoring the facts 0:14:51.800 --> 0:14:55.360 that were presented in the case, the Justice has said 0:14:56.040 --> 0:14:59.760 displaying passport holders sex at births no more offense equal 0:14:59.800 --> 0:15:03.960 for detection principles than displaying their country of birth. In 0:15:04.000 --> 0:15:07.600 both cases, the government is merely attesting to historical fact 0:15:08.080 --> 0:15:11.080 without subjecting anyone to differential treatment. 0:15:11.960 --> 0:15:17.520 It is stunning because the plaintiffs in the case explained 0:15:17.520 --> 0:15:20.480 to the district court, which agreed as did the Court 0:15:20.480 --> 0:15:25.040 of Appeals, that if you are a transgender man and 0:15:25.120 --> 0:15:28.240 you have a passport that says f on it, it 0:15:28.440 --> 0:15:33.360 does have real world harmful consequences every time you have 0:15:33.400 --> 0:15:36.800 to show that passport to someone, because the person receiving 0:15:36.840 --> 0:15:40.400 the passport may say, as has happened to some of 0:15:40.440 --> 0:15:45.040 the plaintiffs, you're using fraudulent documents because you don't appear 0:15:45.120 --> 0:15:48.880 to match your passport gender marker. So this has led 0:15:48.880 --> 0:15:52.480 to some of the plaintiffs being accused of fraud, one 0:15:52.520 --> 0:15:55.960 of the plaintiffs being strip searched, other plaintiffs facing all 0:15:56.000 --> 0:15:59.320 sorts of problems as they've tried to cross borders. So 0:15:59.520 --> 0:16:02.720 for one and the Supreme Court kind of casual remark 0:16:02.880 --> 0:16:06.960 that this is as insignificant as somebody's sort of national 0:16:07.000 --> 0:16:11.960 origin or place of citizenship is just untrue. In addition, 0:16:12.760 --> 0:16:16.960 the country of birth is not anything that affects somebody 0:16:17.000 --> 0:16:20.040 when they're using your passport and passing through security, but 0:16:20.120 --> 0:16:23.520 the gender marker is used to check accuracy, and so 0:16:23.800 --> 0:16:27.760 even on its face, the Supreme Court's analysis is wrong. 0:16:28.320 --> 0:16:31.280 The Supreme Court description, I can't really call it analysis. 0:16:31.440 --> 0:16:34.400 The Supreme Court statement is wrong, and a dissent from 0:16:34.480 --> 0:16:36.200 Justice Jackson points that out as well. 0:16:36.640 --> 0:16:40.040 The Court also found that the administration is likely to 0:16:40.080 --> 0:16:44.320 win on the merits, and the administration faced irreparable injury. 0:16:45.080 --> 0:16:48.320 I'm not sure where the irreparable injury is, since this 0:16:48.520 --> 0:16:53.000 policy is a new one that's changing what's been in place, 0:16:53.600 --> 0:16:58.960 but the conservative justices have found irreparable injury in almost 0:16:59.040 --> 0:17:03.400 all of present in Trump's emergency requests. 0:17:04.160 --> 0:17:08.439 There is no irreparable injury in the traditional way that 0:17:08.560 --> 0:17:11.960 courts look at a reparable harm. To let me explain, 0:17:12.960 --> 0:17:17.280 when a statute comes over from Congress and is challenged 0:17:17.359 --> 0:17:21.879 in the court, it is given a presumption of constitutionality, right, 0:17:21.920 --> 0:17:25.800 so the court assumes it's constitutional. But sometimes plaintiffs can 0:17:25.880 --> 0:17:29.000 show actually it's on constitutional, and the court will strike 0:17:29.080 --> 0:17:32.440 it down. And there's understood to be some arguable harm 0:17:32.520 --> 0:17:35.720 to government when a statute is put on hold, But 0:17:35.840 --> 0:17:39.400 when a government policy is put on hold, like an 0:17:39.440 --> 0:17:43.639 executive order or a preference of the president, that's a 0:17:43.680 --> 0:17:47.200 different situation that is not entitled to the same presumption 0:17:47.240 --> 0:17:52.720 of constitutionality as a statute that has been passed by Congress. 0:17:52.760 --> 0:17:56.399 And the upshot is just saying, well, the government is 0:17:56.440 --> 0:17:59.399 irreparably harmed by not being able to put in place 0:17:59.520 --> 0:18:04.320 its desire passport policy is akin to saying the government 0:18:04.440 --> 0:18:08.680 is irreparably harmed whenever it is stopped from doing something 0:18:08.720 --> 0:18:11.240 that it would like to do, And that is akin 0:18:11.359 --> 0:18:15.480 to having no judicial review over government actions at all, 0:18:15.600 --> 0:18:19.320 at least not at this preliminary stage. So that's a 0:18:19.440 --> 0:18:24.159 very serious problem from a sort of basic approach to 0:18:24.240 --> 0:18:26.959 constitutional analysis of executive actions. 0:18:27.480 --> 0:18:31.479 Justice Jackson wrote that the Court has once again paved 0:18:31.520 --> 0:18:35.160 the way for the immediate infliction of injury without adequate 0:18:35.680 --> 0:18:40.040 or really any justification. This is also a pattern of 0:18:40.080 --> 0:18:44.200 the Court at this point basically allowing the Trump administration 0:18:44.320 --> 0:18:47.720 anything it asked for on the emergency docket and saying, well, 0:18:47.760 --> 0:18:49.600 this is while litigation is pending. 0:18:50.160 --> 0:18:54.240 Yes, this is the twenty fourth consecutive grant of emergency 0:18:54.280 --> 0:19:00.000 relief to the government, and this process of the Supreme 0:19:00.119 --> 0:19:05.119 Court staining rulings of lower courts finding problems constitutional or 0:19:05.160 --> 0:19:10.080 other problems with government policies. This phenomenon of the Supreme 0:19:10.080 --> 0:19:12.639 Court repeatedly saying, oh, we're going to put those lower 0:19:12.640 --> 0:19:17.600 court rulings on hold has had the effect of basically 0:19:17.640 --> 0:19:23.080 giving the Trump administration a free pass to continue enforcing 0:19:23.520 --> 0:19:28.480 policies that and taking actions that lower courts have held 0:19:28.520 --> 0:19:33.560 to be not only likely unconstitutional, but also causing irreparable 0:19:33.560 --> 0:19:35.360 harm to the people who have been affected. 0:19:35.760 --> 0:19:36.600 So this is. 0:19:37.000 --> 0:19:40.160 Certainly part of a larger trend. The striking thing about 0:19:40.160 --> 0:19:43.320 this case is that the harm to the individuals who 0:19:43.400 --> 0:19:47.840 are denied passports that accurately reflect their gender identity is 0:19:48.119 --> 0:19:52.199 stunningly clear. Another problem here is that the government is 0:19:52.240 --> 0:19:57.080 obligated anytime it changes a policy that collect information from 0:19:57.200 --> 0:20:01.760 the American people. The government is obligated under the Paperwork 0:20:01.800 --> 0:20:05.800 Reduction Act, which was passed by Congress, to spend sixty 0:20:05.880 --> 0:20:10.120 days collecting information and public comment on whether it can 0:20:10.160 --> 0:20:12.760 make this sort of a change, and of course, changing 0:20:12.760 --> 0:20:17.000 its passport rule two days after the president was inaugurated 0:20:17.040 --> 0:20:20.879 and issued. His executive order is fully out of compliance 0:20:21.000 --> 0:20:23.399 with this law that is supposed to apply to all 0:20:23.400 --> 0:20:24.760 of the government's actions. 0:20:25.040 --> 0:20:28.760 As I mentioned, this order stays in place as a 0:20:28.800 --> 0:20:32.240 litigation below continues. So how much of a blow is 0:20:32.280 --> 0:20:35.440 it to the rights of transgender people? 0:20:36.160 --> 0:20:40.760 This is a tremendous blow in terms of the human cost. 0:20:41.400 --> 0:20:45.560 One only has to think about the named plaintiff, Ashton Orr, 0:20:45.840 --> 0:20:49.840 who needed to travel out of the country needed a 0:20:49.880 --> 0:20:53.359 new passport. Ashton Orders a man. He's a transgender man. 0:20:53.600 --> 0:20:56.359 The only passport he is able to get to cross 0:20:56.400 --> 0:21:01.040 borders has an s gender marker on it that reveals 0:21:01.680 --> 0:21:04.440 Asketon to be transgender, not only as he crosses the 0:21:04.480 --> 0:21:07.160 border out of the United States, but as he crosses 0:21:07.200 --> 0:21:11.800 into other countries, possibly putting him in danger of harm 0:21:11.920 --> 0:21:15.160 from other governments and now as well as our own. 0:21:15.520 --> 0:21:21.560 The harms are very serious, very painful to individuals, and 0:21:21.760 --> 0:21:25.239 also are reflective of a broader harm to people who 0:21:25.280 --> 0:21:29.040 are not transgender, which is that the government can, for 0:21:29.400 --> 0:21:33.760 irrational reasons, possibly hostile reasons, towards this group of people, 0:21:34.200 --> 0:21:37.639 or any group of people more generally, choose to withdraw 0:21:37.720 --> 0:21:41.040 passports right choose to do any number of things that 0:21:41.119 --> 0:21:45.200 cause harm, and the Supreme Court is unwilling to say 0:21:45.240 --> 0:21:47.639 hold on government. The lower court has found a problem 0:21:47.680 --> 0:21:50.840 with this law or this new policy, and we need 0:21:50.880 --> 0:21:54.000 to hold while this case is being litigated. So there 0:21:54.000 --> 0:21:57.120 are real world problems, there are constitutional problems, there are 0:21:57.560 --> 0:22:00.160 traditional separation of power problems that we're seeing. 0:22:01.080 --> 0:22:05.200 In May, the Supreme Court allowed him to start discharging 0:22:05.280 --> 0:22:09.400 transgender members of the military at oral arguments. This term, 0:22:09.440 --> 0:22:13.440 it appears that the Conservatives will allow state laws that 0:22:13.600 --> 0:22:17.919 ban licensed counselors from using talk therapy to try to 0:22:18.040 --> 0:22:22.240 change a child sexual orientation or gender identity. And there's 0:22:22.280 --> 0:22:26.320 another case coming up about whether states can ban transgender 0:22:26.560 --> 0:22:30.400 girls and women from competing for their schools on female 0:22:30.400 --> 0:22:33.880 athletic teams. It's hard to ignore that the Court has 0:22:33.960 --> 0:22:38.040 been consistently ruling against transgender rights. 0:22:38.520 --> 0:22:44.560 Yeah, I mean, there has been a current of policies, 0:22:44.840 --> 0:22:48.639 you know, from the Trump administration and laws at the 0:22:48.680 --> 0:22:52.360 state level that restrict the lives or try to restrict 0:22:52.359 --> 0:22:56.480 the lives of transgender people in every imaginable way, from 0:22:56.600 --> 0:23:01.480 getting identity documents to using the bathroom, to participating fully 0:23:01.520 --> 0:23:05.840 at school, to serving the country in the military, and 0:23:06.000 --> 0:23:09.280 so far the court when these issues have been presented, 0:23:09.320 --> 0:23:14.200 the Court has said it's okay to create this legal barrier, 0:23:14.280 --> 0:23:19.159 really like a legal burden that harms transgender people. In 0:23:19.240 --> 0:23:23.240 twenty twenty, the court took a different tack. This involved 0:23:23.240 --> 0:23:26.600 in an employment discrimination case, a transgender woman was fired 0:23:27.040 --> 0:23:28.959 from a role at a funeral home where she had 0:23:29.000 --> 0:23:32.760 served for many years, and she sued the employer, saying 0:23:32.760 --> 0:23:37.640 it was sex discrimination that she was treated differently because 0:23:37.640 --> 0:23:40.880 of her sex, being fired based on her sex, right 0:23:40.920 --> 0:23:45.280 based on that she is transgender. And in that case 0:23:45.640 --> 0:23:49.840 Bosta versus Clayton County, which also involved two other cases 0:23:50.000 --> 0:23:53.840 with sexual orientation discrimination at issue. In that case, the 0:23:53.880 --> 0:23:59.400 court said it is sex discrimination to fire a transgender 0:23:59.440 --> 0:24:02.240 person because if there's no way to understand this other 0:24:02.359 --> 0:24:05.679 than they're being fired because of their sex. One of 0:24:05.720 --> 0:24:08.680 the big questions before the court is that case came 0:24:08.800 --> 0:24:11.640 under Title seven, which is a federal law that prohibits 0:24:11.640 --> 0:24:15.760 sex discrimination as well as other forms of discrimination and employment, 0:24:16.480 --> 0:24:19.520 and a question is whether it's a logic of understanding 0:24:19.560 --> 0:24:23.199 sex discrimination in that boss Stock ruling from twenty twenty 0:24:23.680 --> 0:24:26.480 is going to carry over into these other areas, or 0:24:26.760 --> 0:24:29.679 will the Court say as it may appear to be 0:24:29.680 --> 0:24:32.920 inclined to do. Oh no, that might be sex discrimination, 0:24:33.040 --> 0:24:33.800 but this isn't. 0:24:34.320 --> 0:24:37.800 Well, We'll have two cases at least this term that 0:24:37.880 --> 0:24:42.119 will further illustrate how the Court's dealing with transgender rights. 0:24:42.359 --> 0:24:46.159 Thanks so much for joining me, Suzanne. That's Professor Suzanne 0:24:46.160 --> 0:24:50.639 Goldberg of Columbia Law School coming up next. The second 0:24:50.680 --> 0:24:54.160 in command at the Justice Department talks about its war 0:24:54.280 --> 0:24:56.399 on judges. This is Bloomberg. 0:24:57.720 --> 0:25:00.800 What a travesty it is when you have an individual 0:25:00.960 --> 0:25:04.400 judge be able to stop an entire operation or an 0:25:04.560 --> 0:25:10.919 entire administrative policy that's constitutional and allowed, just because he 0:25:11.040 --> 0:25:14.480 or she chooses to do so. So it's a war. 0:25:14.840 --> 0:25:18.000 That was the second in command at the Justice Department, 0:25:18.320 --> 0:25:23.920 Todd Blanch, describing the Trump administration's war against federal judges 0:25:24.680 --> 0:25:28.600 and calling on young conservative lawyers in the audience to 0:25:28.720 --> 0:25:29.560 join the battle. 0:25:30.080 --> 0:25:34.760 There has got to be a couple dozen young lawyers 0:25:35.080 --> 0:25:38.679 who are thirsty and hungry and ready to work because 0:25:38.840 --> 0:25:41.359 because we need you, Because because it is a war, 0:25:41.480 --> 0:25:45.560 and it is something that we will not win unless 0:25:45.600 --> 0:25:48.480 we keep on fighting. And it's a Joining me is. 0:25:48.400 --> 0:25:54.360 Bloomberg Law reporter Suzanne Monnac. Suzanne, where did Blanche give 0:25:54.400 --> 0:25:55.320 these remarks? 0:25:55.960 --> 0:25:58.920 Todd Blanch's the Deputy Attorney General at the Justice Department. 0:25:59.000 --> 0:26:02.480 I was delivering remarks last week at the Federalist Society convention. 0:26:02.920 --> 0:26:05.760 That's a legal conservative legal group, and they hold an 0:26:05.760 --> 0:26:08.560 annual convention over a course of I was three days 0:26:08.560 --> 0:26:09.640 this year in Washington. 0:26:10.359 --> 0:26:14.760 It's stunning to hear a Justice Department official describe a 0:26:14.960 --> 0:26:16.440 war against judges. 0:26:17.119 --> 0:26:20.120 Yes, it was fairly striking, in fiery language. He referred 0:26:20.119 --> 0:26:23.000 to it as a war against what he described as 0:26:23.080 --> 0:26:27.679 activist judges who've been ruling against the administration and in 0:26:27.680 --> 0:26:30.240 his view, in some of these cases getting reversed by 0:26:30.359 --> 0:26:32.840 the conservative Supreme Court. And I should say when I 0:26:32.840 --> 0:26:34.639