Title: Legal News Roundup: SCOTUS on Gender Affirming Care for Minors and More

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Brian Lehrer: It's The Brian Lehrer Show on WNYC. Good morning again, everyone. It is crunch time for the Supreme Court of the United States. June marks the end of their term, and roughly a third of the major cases before the justices remain to be decided. That's usually the case around this time of year, and as we do every year, we're keeping a close eye on the cases that usually drop at 10 o'clock in the morning as the show begins. We are doing that this year as well. We will bring you major decision analysis on the very day that they drop.

Usually, they come on Thursdays, but because this Thursday is Juneteenth, decisions were released to the public this morning, and the Court has added an additional day on Friday. This morning, the Court issued its ruling on the case regarding whether a Tennessee law that prohibits certain gender transition medical care for minors violates the Equal Protection Clause of the Fourteenth Amendment to the Constitution. It was a 6-3 decision. The Court decided it does not violate the Equal Protection Clause of the Fourteenth Amendment to bar that care. The decision clears the way for the Tennessee law and 23 other states with similar laws by implication to prohibit gender transition care for minors.

With us now to talk about that and more is Kate Shaw, professor at the University of Pennsylvania Carey Law School, co-host of the Supreme Court-oriented podcast Strict Scrutiny, and a contributing opinion writer with the New York Times. Professor Shaw, welcome back to WNYC. Thank you for speed-reading this decision and coming right on with us.

Kate Shaw: Happy to do it, Brian. Thank you.

Brian Lehrer: This is based on the Equal Protection Clause of the Fourteenth Amendment. Maybe it's worth reminding people what that is and why that was the turf on which this was fought.

Kate Shaw: Sure. It's a provision of the Fourteenth Amendment that just bars any state from denying to any person the equal protection of the laws. That sounds pretty straightforward, but it's given rise to a whole body of doctrine that courts have devised that seeks to give content to this broad language guaranteeing equal protection.

I think the important thing to know here is that the Equal Protection Clause has been construed by courts to basically say that when states or localities are going to draw distinctions between individuals or groups, some kinds of distinctions have to essentially be justified under particularly demanding judicial review. Let me try to translate that. Laws draw lines all the time. When garbage needs to be put out on the sidewalk. What time you can sell alcohol until. Legislatures are passing laws that draw lines all the time.

Most of the time, courts will just give a thumbs up to anything a legislature does because courts aren't going to be second guessing the wisdom of all of those decisions, but when laws draw distinctions on particular bases and in particular on the basis of characteristics like race or sex, then courts take a very close look to make sure that nothing untoward is motivating the legislature in drawing those lines. Here, what the challengers to this Tennessee law were arguing was this law draws a distinction on the basis of sex.

It says that certain medical procedures are unavailable to children based on their sex assigned at birth, and because this is a sex classification, heightened judicial scrutiny is required, meaning courts should take a very close look to make sure there's a good reason for drawing this sex based distinction. That's the argument that the challengers were making, and the Supreme Court said basically, "No, this is not a sex classification that warrants heightened judicial scrutiny. It's just a regular law drawn on the basis of age and about certain kinds of medical care. What's called rational basis review applies. We're going to take a very deferential posture. Here, the legislature had some reasons to worry about this care, and so we're going to uphold the law."

Brian Lehrer: We'll get more into what the justices said about that, but on what you just said about it being argued on the basis that it was sex discrimination, I guess sex discrimination is usually discrimination against one sex as opposed to the other. In this case, the argument was that it was discriminating against people on the basis of sexual who could have been identified as either sex at birth because they wanted to change their sex. Fair?

Kate Shaw: That's what Tennessee said, essentially, "We're not singling out one sex for adverse treatment. This law applies equally. It just requires every child essentially to only be eligible for medical care that's consistent with their sex assigned at birth," but what the challengers argue is essentially that logic is not so different from the logic that was used to justify all kinds of invidious discriminations in the past. One case they cite is Loving v. Virginia, the case in which the Supreme Court struck down laws banning interracial marriage. In that case, actually, Virginia basically said the same thing. It prohibits anyone from marrying anyone of a different race.

It doesn't single out particular racial groups. It applies to everyone. That's what the challengers were arguing here. The law does draw distinctions on the basis of sex. Let me explain a little bit. It actually doesn't apply-- It doesn't prohibit, rather all hormonal therapy, say, for all children. It says if you're a child assigned female at birth, you can get puberty blockers for what's called precocious puberty if puberty comes on too early and you want to delay it, so long as all that treatment is consistent with your sex assigned at birth. It's just if there's treatment that's requested or required that's not consistent with sex assigned at birth, that the law kicks in and prohibits that care.

What the challenges are saying is, it is a sex classification. That doesn't necessarily mean it's not permissible. Some kinds of sex classifications might satisfy this heightened scrutiny if there's a good enough reason to draw the classification. The Supreme Court has never said, "You can't draw any lines on the basis of sex," just that you have to justify them and make sure they're not grounded in stereotypes or operating to disadvantage individuals or groups, but the Court here said, "We're not even going to require the legislature to do that extra work. We're just going to ask, is there any conceivable rational reason that the legislature might have wanted to bar an entire category of medical care?"

They said, "Well, the legislature is concerned there's not good enough data on the long-term effects. Some kids might experience regret or change their minds." That's good enough to satisfy this very deferential review.

Brian Lehrer: It came down to the usual, if I can say usual, six-to-three conservative-liberal split on the bench. In his majority opinion, Chief Justice Roberts writes that this case "carries with it the weight of fierce scientific and policy debates about the safety, efficacy, and propriety of medical treatments in an evolving field. The voices in these debates raise sincere concerns. The implications for all are profound." Then he says the Court's role is "only to ensure that the law does not violate the Equal Protection Clause." Talk a little bit more about that language, as the Chief Justice put it.

Kate Shaw: Sure. Maybe I'll add one more sentence because you were reading, Brian, from the end of the opinion and the sentence after the one that you read basically says, "Having concluded that it does not," meaning the law does not violate the Equal Protection Clause, "We leave questions regarding its policy to the people, their elected representatives, and the democratic process." That's what I was saying before, that the Court is generally pretty hands-off if it decides that a law doesn't trigger heightened scrutiny under the Equal Protection Clause, and it says this law doesn't.

Justice Sotomayor, in a just blistering dissent, really takes issue with this core premise. She says, essentially, this law, which plainly discriminates on the basis of sex, the majority subjects to this mere rational basis review, but our job has always been to provide some additional close review when laws trigger some kind of heightened scrutiny. If a law burdens a fundamental right, or again, if it draws a classification on the basis of a characteristic like sex or race, then our job is to look more closely and to make sure that the law is not being permitted to essentially entrenched biases or prejudices and to disadvantage particular groups.

A lot of what the majority says is, "Well, this isn't a sex based classification. This is about particular medical care. Sometimes medicine does draw distinctions on the basis of sex." She basically says this law is predicated on views that the majority holds about how particular people should live or look, or act. The Court once saw itself as occupying this really important role of guaranteeing certain fundamental rights and equality guarantees in the Constitution were not just subject to the whims of the majority. When legislatures targeted particular groups or burdened fundamental rights, the Court intervened.

She cites that Loving case, the case invalidating bans on interracial marriage, as essentially arising out of the Court correctly discharging its role to protect against the will of the majority. The Virginia legislature in that case had enacted a law banning interracial marriage, and the Court didn't say, "We're going to just let the democratic process run the show. We have a special role here." Essentially, she says, the Court is abdicating that role in this case regarding the gender affirming care for minors.

Brian Lehrer: The three dissenters were Justice Sotomayor, Justice Jackson, and Justice Kagan. Some of the language from the Sotomayor dissent that you were just citing, "The majority subjects a law that plainly discriminates on the basis of sex to mere rational basis review by retreating from meaningful judicial review exactly where it matters most. The Court abandons transgender children and their families to political whims. In sadness, I dissent," quoting Justice Sotomayor.

I mentioned in the intro that though this was a case involving one state's law, Tennessee, it by implication could be a ban for transgender care for minors in 23 other states that have similar laws. Does it go that far in your opinion as an interpretation?

Kate Shaw: At least insofar as these laws look like Tennessee's and they ban the same or similar care for minors, yes, I think it's hard to see how this decision does not also bless the laws in effect in those 20-plus other states. I will say there are places where the majority seems to try to somewhat cabin the impact of its decision. It's very clear that this is just about minors, and so it should not authorize legislatures to seek to ban, as many have already sought to ban, care for adults as well, but of course, advocates are really worried that this lays the groundwork for those kinds of efforts and those kinds of efforts succeeding, but the Court, again, by its terms, this opinion is just about minors.

Because we are saying the law isn't a sex classification and it doesn't single out transgender individuals as transgender individuals, it basically says, "We're not deciding whether a law that does target transgender individuals would trigger heightened constitutional scrutiny, because this law doesn't." That is certainly better than the Court saying, "This law targets individuals on the basis of transgender status and rational basis review is all that applies." It brackets that question.

That's, I think, important because Justice Barrett writes a separate concurrence, basically saying, "I would answer the question of whether trans individuals or laws that draw distinctions on the basis of gender identity or transgender status trigger heightened scrutiny. The answer is no, they don't. Just rational basis review applies." She would have gone further in essentially giving permission for legislators to legislate in all kinds of ways vis-à-vis gender identity. The majority basically says, "We're not answering that question." That, at least, is a degree of restraint, I think that the majority opinion demonstrates, which again suggests the opinion is very significant for trans kids and their families in particular in states like Tennessee, but it doesn't, by its terms, necessarily go further than that.

Brian Lehrer: Just to put this ruling in some historical context on the general category, we could say June, which is, of course, Pride Month, has historically had some good news coming out of the Supreme Court in their end-of-term decisions for the LGBTQ community. There was the 2003 decision in Lawrence v. Texas, where the Court declared all sodomy laws, anti-sodomy laws, unconstitutional. 2013's decision in United States v. Windsor, where the Court ruled that Section 3 of the Defense of Marriage Act, so-called, was unconstitutional. Of course, 2015's Obergefell vs Hodges where it ruled that the fundamental right to marry is guaranteed to same sex couples by the Fourteenth Amendment.

That one, I guess, very similar to the Loving-Virginia law on racial intermarriage that you were describing before, but recently, over a period of years now, June is looking like it's bearing worse news for LGBTQ Americans. There was the 2018 decision on Masterpiece Cake Shop v. Colorado Civil Rights, the ruling that favored the bakery owner who had refused to bake a wedding cake for a same sex couple. Then in 2023, the Court ruled in favor of a graphic designer who refused to make a wedding website for a same sex couple. Now this. We see an arc of history bending one way and then bending another way over a 20-year period. Would you put it that way?

Kate Shaw: I think that is right. I think that the Court gives and it takes away. I think that you're right to identify the earlier cases. I would throw in Bostock v. Clayton County from 2019, another June decision, pro-gay rights, and actually gender identity as well. It found that discrimination on the basis of gender identity or sexual orientation violates the prohibition on sex discrimination in Title 7, the Federal Anti-discrimination in Employment law, but the three that you mentioned, the big constitutional cases, Lawrence and Windsor and Obergefell, those are all authored by Justice Anthony Kennedy.

Those are big important constitutional cases invalidating laws that draw distinctions on the basis of, I think, both sex and sexual orientation, and act to injure LGBT individuals. The Court very strongly comes down, although it's closely divided in all those cases, but very strongly comes down on the side of an expansive conception both of the equality and the liberty guarantees of the Constitution. Then you're right, we see this very sharp turn. It's a different course in the last five years. You really see that on display in some of these cases. I will say the more recent cases are about the intersection of equality principles and religion or religious liberty.

Even if they're not explicitly litigated that way, that really is what's at issue in both of the cases about denial of service that you referenced. That's 303 Creative and Masterpiece Cakeshop. I think there's a way to understand the Court as still standing by these core constitutional protections against discrimination on the basis of characteristics like sexual orientation, but also saying that private vendors who have religion convictions that involve disapproval of either homosexuality in general or gay marriage in particular may be protected in their expression of those views, but that doesn't necessarily undermine the core constitutional protections the Court announced in the earlier cases.

You're right, there certainly is an erosion of core equality norms, in particular, in the public sphere, if you have constitutional rights, but private vendors can deny you service on the basis of their disapproval and claim the protection of the law when they do that.

Brian Lehrer: Listeners, if you're just joining us, my guest is Kate Shaw, professor at the University of Pennsylvania Carey Law School, co-host of the Supreme Court podcast Strict Scrutiny, and a contributing opinion writer with the New York Times. We've been talking so far about the Court's ruling this morning upholding Tennessee's law and, by implication, probably 23 other states' laws that ban certain gender affirming medical care for minors seeking transition. We're going to get into some other things now as we continue with Kate Shaw.

We can also take your calls on the Tennessee case or other things. 212-433-WNYC, calls or texts 212-433-9692. We're going to talk about at least two other things, the constitutionality of the deployment of the National Guard and the Marines to Los Angeles over the objection of the governor and the mayor there. Then we're also going to talk about the arrest of New York City Comptroller and mayoral hopeful Brad Lander yesterday, as well as the detention of the immigrant who he was trying to protect and failed to protect from detention after a court proceeding.

There are real legal questions around that pertaining both to the immigrant and to ICE, and to Brad Lander and federal agents detaining him. We're going to do that with Kate Shaw as well. California first. Legally, it began last week when a district court ordered Trump to return control of the National Guard to Democratic Governor Gavin Newsom. For listeners who haven't been following the legal battle, let's assume they know about the workplace raids. They know about the detentions outside courtrooms. They know about the protests. What happened initially in court?

Kate Shaw: Maybe, can I take one step back before the court proceedings, the executive order that followed the raids and the protests? The President signs this executive order that, generally, referenced incidents of violence and disorder, was clearly responsive to Los Angeles, but the order itself actually didn't reference LA. There's nothing limiting the President's action in California to California, but essentially the executive order relies on a federal statute that allows the President to call members of the National Guard into federal service, essentially to federalize these state National Guards to temporarily protect federal officials and federal property.

The implementation of that directive by the Secretary of Defense involved the federalization of several thousand members of the California National Guard and also the Marines, as you referenced. California immediately filed a challenge to the lawfulness of the President's invocation of this statutory authority and deployment of the National Guard, and a district judge ruled that the President's use of the statute was unlawful, that, essentially, it required a rebellion, and there was no rebellion. The legal test wasn't satisfied. Also that this order hadn't been issued through the governor, which is a statutory requirement.

Finally, that the order violated the Tenth Amendment, which is the big states' rights protection provision of the Constitution. That was a district court judge in California. A panel of the appeals court almost immediately stayed that ruling, and then yesterday we heard arguments before the Ninth Circuit, and we're likely to have a ruling pretty soon. I would expect that is on a fast track to SCOTUS.

There's the specific question of the lawfulness of the President's deployment to the National Guard in LA, what whatever happens here might mean for the President's use of that authority in other American cities in support of this really aggressive immigration enforcement agend, but there's also, I think, this deep legal question that is going to come up in many of the cases involving challenges to Trump administration initiatives, which is how closely are the courts going to scrutinize the President's determinations and assertions that there is some kind of emergency.

Typically, the courts are quite deferential to the President when the President is operating in a national security sphere and invokes necessity or emergency, but this administration is claiming an awful lot of emergencies that don't seem to be supported by real evidence. I think there's a real question about whether courts are going to do their typical deferential review or whether they are going to look a little more skeptically because it can't be that everything is an emergency from trade imbalances, justifying tariffs to foreign students in American universities to some protests that actually seem pretty routine in the streets of LA.

Brian Lehrer: Wendy in the Bronx has a very interesting question about the Tennessee case on sex transitions for minors. Wendy, you're on WNYC with Professor Kate Shaw. Hello.

Wendy: Hi. Thank you for taking my call. I love your show. Professor, my question is about the legal theory of it, as I'm understanding you explaining it. The Fourteenth Amendment arguments seem to be specific to the kids involved in the cases. My question is why wouldn't lawyers also present challenges to these laws based on the parents' rights in terms of their rights to privacy or Ninth Amendment rights?

I think it would be the Ninth Amendment. I obviously might be wrong on that, but to get the care that they want for their kids, that they feel is necessary for their kids, where parents are given the primary guardianship role and they can consent or not consent to lots of things, I don't understand why that would not also be a legitimate legal theory upon which to fight these laws banning care. Parents, I think, for religious reasons, like Jehovah's Witnesses, can reject medical care.

In the same vein, why can't parents insist on medical care, and also just even situations of a child's safety, the state can only intervene in a negligence case or if there's specific abuse. Parents are given the right to consent to things like their kid getting a tattoo under age or their kid getting a cosmetic nose job. Why can't the parents' rights as the primary caretaker be the thing that, maybe, anchors some of these challenges?

Also, just even an abortion rights where if an underage minor wants to access an abortion, the parents can reject that, and then there's some sort of appeals process where the kid can go and say, "This is really what I need." Which I think, also, the argument that a child that gets this gender affirming care might change their mind later on, but the same thing can be true for not accessing the care. I'm just curious why these other legal ways of thinking about it are not being used.

Brian Lehrer: What a great question. Wendy, thank you for that. Professor Shaw.

Kate Shaw: Agreed. That is a terrific question. Actually, this case was originally litigated as both an equal protection case and a parental rights case. The lower court, the Sixth Circuit decision on appeal here, rejected both of those claims, and for litigation strategic reasons that I wasn't privy to, but I understand that there was some real thought given to this. The case was taken up to the Supreme Court as just an equal protection case, but I think it's important the Court doesn't say anything to foreclose a future challenge that is more grounded in parental rights.

Wendy's absolutely right. There are lots of places that our law recognizes constitutionally protected interests that parents have in the care of their children, including the medical care of their children. I actually think, in particular, if there were parental rights, and if there were a religious overlay, which Wendy also references, I do think this is a court that I could see being more receptive to a challenge to one of these laws framed in parental rights and autonomy terms. Again, there are a number of other laws like Tennessee's, and there's nothing to prevent another challenge that is more grounded in those parental rights from making its way back up to the Court.

Brian Lehrer: I don't know if political hypocrisy can be argued in the Supreme Court, but Republicans uphold themselves as the party of parental rights, for example, to opt their kids out of lessons in school that have anything to do with LGBTQ people. They're the party of parental rights, except when it comes to anything transgender, where they want to just about accuse the parents of child abuse if they do agree with a child and with a doctor that this transition care is called for. Is that a legal argument or just a political one?

Kate Shaw: It's always hard to separate the two. I will say that your reference, Brian, to parental objections to content in schools, there is another big case we are waiting for this term, Mahmoud v. Taylor, that involves parents who objected to their kids being essentially in the classroom to read about or hear stories selected by this Montgomery County school board, some of which have gay characters or LGBT themes or content, but very age appropriate stuff. These parents, I think, are almost certain to prevail in front of the Supreme Court.

I think that that as commentators, it's hard not to see a degree of hypocrisy, even if you can't explicitly make that argument in briefs before the Court.

Brian Lehrer: Here's a question via text message from a listener who wonders if there's a category of exception to this ruling. Says, "Sex determination at birth is often arbitrary. Indeed, babies are born with 'indeterminate or ambiguous genitalia.'" Then the listener continues, "From one in 5,000 to one in 1,000 births, and there are babies born appearing as female, but are genetically XY, which would be male. I'll add, this is the I in LGBTQIA intersex, where it takes longer to figure out the ambiguous nature of the individual."

Then the listener sarcastically says, "But what do I know? I only have a PhD in molecular genetics. I find these facts are underreported. Is there an exception in this ruling for people in those circumstances who maybe want to get, and have their kids get, some kind of surgery to land them in one sex or another?"

Kate Shaw: It's a great question. It's a 120-page opinion that I read quickly. I actually didn't see any reference to. The listener is exactly right. Intersex births are actually quite common. One in 2000 is a figure you hear frequently, but maybe I'll defer to the molecular biologist if it can even be as frequent as one in 1,000. There are many different presentations.

The opinion does seem to be steeped in a binary logic that I don't think takes account of that very frequent occurrence of births that don't align with that kind of binary. I think that that's actually just further support for the challenger's position that there are a number of normative and value-laden judgments about sex at birth is always going to be clean and male or female and that if conduct and identity don't align with those, then there there's something wrong and the state can resist any sort of medical intervention that will support anything but compliance with sex assigned at birth.

For what it's worth, I do think that the opinion would not preclude. Physicians and parents make decisions all the time about how to respond to and treat a child born intersex. I don't think that this opinion would prevent that very routine care, if that's part of the listener's question.

Brian Lehrer: We have to take a break. Then we'll continue to the end of the hour, the end of the show, with legal analyst Kate Shaw from University of Pennsylvania and the podcast Strict Scrutiny. She's a New York Times opinion contributor because there's so much news of the day to talk about with her. When we come back, we're going to go back to the Brad Lander arrest. There are multiple legal questions having to do with his arrest. This did also take place at a court where an immigrant was being detained for deportation, and Lander was there to raise legal questions about that.

We're going to get Kate Shaw's take on those things, and if we have time, we'll take more of your phone calls on the Tennessee case. Stay with us.

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Brian Lehrer: Brian Lehrer on WNYC with UPenn law professor Kate Shaw. To refresh on the Brad Lander story, New York City Comptroller and mayoral candidate Brad Lander was arrested by Immigration and Customs Enforcement agents at Immigration Court in Manhattan. He has since been released. In a video that circulated online, Lander is seen trying to escort a migrant who officers were attempting to arrest. Lander is holding on to the man, asking officers to see a judicial warrant when they started to handcuff Lander. Here's a clip of Lander as ICE is taking him in, 12 seconds.

Brad Lander: I'm not obstructing. I'm standing right here in the hallway. I asked to see the judicial warrant. [crosstalk] By asking for a judicial? [crosstalk] You don't have the authority to arrest US citizens asking for a judicial warrant.

Brian Lehrer: The original video taken by AM New York. "You don't have the authority to arrest US citizens asking for a judicial warrant," said Brad Lander in that clip. Do they?

Kate Shaw: I think Lander's right. If there's no crime there, and there's no-- The reason I'm hesitating is because it's a little complicated. If they say they have some other basis to arrest, then they can arrest, but asking to see a warrant is absolutely not an offense under any statute or regulation. Of course, this initial claim was that there had been some physical contact between Lander and ICE agents, and that was the justification for the arrest.

Brian Lehrer: If he was linking arms with a migrant, was that obstructing an official proceeding?

Kate Shaw: I don't think so. My understanding is that Lander had been coming to this courthouse for at least a few weeks, essentially to help ensure that ICE was not grabbing the wrong people coming out of meetings or hearings, because there have been reports of the wrong individuals being taken. I think the effort to link arms was just an effort to be sure that there was some paper provided that identified the individual that ICE was targeting as the correct individual.

I did not read that sequence of events as involving Lander suggesting there was categorically no authority to affect arrests at the immigration courthouse. It was just an attempt to ensure that the right people were being taken. I think it was an administrative warrant that Lander's actually asking for as opposed to a judicial warrant, but regardless, it is true that unless there's some immediate danger or flight risk that ICE can point to, it needs to have an administrative warrant before targeting an individual like this. In the main, I think Lander is exactly right on the law.

I think there's some ambiguity around the linking of arms, but it was an effort, both, I think, to demonstrate solidarity and to try to actually convince the ICE agents to provide some paper before taking individuals into custody.

Brian Lehrer: There seems to be a pattern now of taking migrants into custody after they go to court for their asylum hearings, after their cases are dismissed. People may be confused by hearing that word dismissed in the news reports a lot. That makes it sound like it's on the side of the immigrant. The case against the person was dismissed, but my understanding, Kate, is that it's really the opposite. If the case is dismissed, it means that the person's asylum claim was dismissed, and therefore, at that point, they don't have legal status in the country. ICE has been waiting to pounce on people like that. Is that accurate?

Kate Shaw: I think that's right. I'm not even sure that these efforts to target individuals at immigration courthouses are limited to individuals who are coming out of having an asylum claim dismissed, and thus, essentially, the claim of legal status is gone and so the individual becomes immediately removable, but I think there are other individuals in other kinds of liminal statuses where historically the immigration authorities have exercised forbearance. If someone's case is not totally done, but if they think there is a basis to remove, even with ongoing cases, at least according to some reporting, they're coming in and grabbing individuals.

Of course, it's clearly part of an effort to identify target-rich environments. Individuals will be at immigration courthouses. If this is an executive branch that is issuing directives to increase numbers of individuals apprehended and then deported, this is a place where ICE may be able to find individuals who are eligible for deportation. That is clearly why we're seeing these stepped-up efforts at these sites in particular.

Brian Lehrer: Are you clear on what the status of the individual was in this case and the legal basis on which he was detained for deportation?

Kate Shaw: I'm not. All that Lander seemed to be asking was, is there a legitimate basis, and is this the right individual? I, at least as I sit here now, don't know that we yet have a satisfactory answer to that question.

Brian Lehrer: By the way, back to the Tennessee case, a listener texts, "Regarding intersex infants, the Tennessee law specifically carves out an exception so that surgery on intersex infants is not banned. Also true of other states' similar laws."

Kate Shaw: That's a great clarification. I don't think it's in the opinion, but that the law has a specific carve-out, I think, is additional assurance that nothing in this opinion would impact that practice.

Brian Lehrer: Another listener about the Supreme Court ruling asks, "Is this case about surgical interventions only, or also puberty blocking drugs?"

Kate Shaw: It's both. The law, by its terms, covers both, and the law in its entirety is upheld.

Brian Lehrer: On the Lander case, a listener texts, "Are the hallways of the Courthouse considered a public space where they do not need a warrant to arrest someone like a sidewalk?"

Kate Shaw: I think that they are required to have-- Again, this is an administrative warrant rather than a judicial warrant, but I don't think that they are exempt from that requirement in these hallways.

Brian Lehrer: We have this one major case so far from the Supreme Court among the ones that are considered the major cases that will be coming down this term. What's the next one or two you're looking for?

Kate Shaw: Birthright citizenship is an enormously important case that the Court scheduled a separate argument after the conclusion of the term on, and we're expecting a decision before the end of the term, whether that's the end of June or the beginning of July. That's a case in which the administration has lost in every lower court in its efforts to defend this executive order purporting to end the long-settled practice of birthright citizenship, the automatic citizenship of any individual born in the United States, regardless of the citizenship status of their parents.

The administration has lost in every lower court. I think revealingly, it actually didn't ask the Supreme Court to take up that substantive question of the lawfulness of its order. Instead, it asked the Court to review whether lower courts have the authority to issue nationwide injunctions. The administration says they don't have that authority. If they win, then this executive order could go into effect in some parts of the country, and birthright citizenship, at least temporarily, could end in some, but not other places in the country, which would be a recipe for complete chaos.

Brian Lehrer: University of Pennsylvania law professor Kate Shaw. She is also co-host of the Supreme Court-oriented podcast Strict Scrutiny and a contributing opinion writer with the New York Times. Thank you so much for all this analysis.

Kate Shaw: Thank you so much, Brian.

 

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