What A Day - Supreme Court To Take Up Trans Rights, Ghost Guns in New Term

Episode Date: October 8, 2024

The Supreme Court kicked off its new term Monday by opting not take up two cases that could have major implications for reproductive rights. In one decision, the court rejected an appeal from an Alabama fertility clinic seeking to avoid a wrongful death lawsuit over the destruction of a couple’s embryos. The other case it rejected was an appeal from the Biden administration over emergency abortions in Texas. With issues like trans rights, ghost guns and the potential for more election cases on the docket this term, Melissa Murray, co-host of Crooked's ‘Strict Scrutiny,’ breaks down what we can expect from the justices in the coming months.And in headlines: Forecasters upgraded Hurricane Milton to a Category 5 storm as it barrels toward Florida’s Gulf Coast, Vice President Kamala Harris reflected on the one-year anniversary of Hamas’ attack on Israel, and Georgia’s top court revived the state’s six-week abortion ban.Show Notes:Subscribe to the What A Day Newsletter – https://tinyurl.com/3kk4nyz8What A Day – YouTube – https://www.youtube.com/@whatadaypodcastFollow us on Instagram – https://www.instagram.com/crookedmedia/For a transcript of this episode, please visit crooked.com/whataday

It's Tuesday, October 8th. I'm Jane Koston and this is What A Day, the show that is personally not that surprised that Joker, folie a Dieu, is not doing great at the box office. See, if I've learned anything about my fellow Americans, it's that they don't enjoy surprise musicals or French words. On today's show, another massive hurricane is set to hit Florida's Gulf Coast. Plus, Georgia's top court revives the state's abortion ban. But first, on Monday, the Supreme Court kicked off its latest term, which is bad news for all of us and great news for anyone who loves feeling anxious

about the life-altering decisions made by nine people none of us have met. And just as significant as the cases the court will be hearing this term are the ones it declined to add to its docket. Two of the cases the court punted on Monday have major implications for reproductive rights. In one decision, the court rejected an appeal from an Alabama fertility clinic. The clinic was looking to avoid a wrongful death lawsuit over the destruction of a couple's embryos. Alabama Supreme Court ruled earlier this year that frozen embryos should be considered children under the state's constitution. The other case the Supreme Court rejected was an appeal from the Biden administration over emergency abortions in Texas.

A lower court determined that Texas hospitals do not have to perform emergency abortions if they violate state laws. That ruling will now stay in place. We heard from Raven Freeborn, executive director of Avow Texas, an organization fighting for abortion access. They told us about what the court's decision means for people in the state. As a result, medical providers lack a clear legal framework for determining when abortion care, specifically in abortion, is permissible. And without recourse, pregnant Texans are left in jeopardy. Health care providers are forced to delay or deny life-saving care, and ultimately this leaves all Texans at risk. For more on some of the most consequential cases the court will be hearing this term, and the role the Supreme Court could play in the presidential election,

I spoke with Melissa Murray, co-host of Crooked's legal podcast, Strict Scrutiny. Melissa, welcome back to What A Day. Thank you so much for joining me. Thanks for having me, Jane. So one of the most significant cases before the Supreme Court this term centers around whether states can deny gender-affirming care to trans minors. What is the legal question before the court in that case? It's actually a really interesting question, Jane. The case is called United States v. Scermetti, and it arises out of Tennessee.

But when it was litigated in the lower federal courts, there were a number of different constitutional claims that were made. There was a claim about whether or not this law intruded on the fundamental rights of parents to direct the upbringing of their children in the manner of their choosing. There's also an equal protection claim. And the argument here is that these bans, which operate only if you are, for example, a female who requires testosterone therapy in order to undergo gender change. That's actually sex-based discrimination because it wouldn't apply to you if you were a man seeking to use testosterone. And so although all of those arguments were available in the lower courts and the lower courts discussed them, the court agreed to take cert only

as to the sex-based discrimination question. So I think this is going to be a really important case for the further development of that area of constitutional law. So there's another case that's about whether the federal government can regulate what are known as ghost guns, which are weapons that can be assembled at home and are currently very hard to trace. What should people know about that case? This case is very much like Garland v. Cargill, which is a case that we covered on strict scrutiny in the last term. And it's not a Second Amendment case per se, but it is about whether or not the ATF, which is a federal agency, can regulate certain kinds of guns within the scope of the federal gun control statute,

the Firearms Act of 1968. Under that statute, you can obviously regulate firearms that are already assembled. But because ghost guns have been such a problem, the Biden administration decided in 2022 to pass this regulation under the auspices of the ATF that essentially brings the ghost guns within the scope of the statutory meaning of firearm in the Gun Control Act. And so these ghost gun manufacturers obviously don't like that. They've sued in Texas. This has gone through the Fifth Circuit, our most hated circuit on strict scrutiny. And the question that's going to come before the court is whether this is a permissible exercise of agency authority. So it's

not squarely a Second Amendment case, but that hasn't stopped the NRA from talking about how at the founding, we allowed people to assemble their muskets, and they did so free of any government regulation. Looking further ahead to November, what role could the court play in legal challenges around the election? Don't manifest this, Jane. I'm not. I'm really trying not to. This is a no manifestation podcast. Jane, this court is like Beetlejuice. If you say this three times, like it's going to actually happen. So just be really careful. You only have two times left. Okay. It's really important that What A Day listeners understand that the court continues taking cases throughout the year. So yes, there is plenty of potential for this court to weigh in on the

election. And they've already weighed in to a certain extent on the shadow docket. So that's their emergency docket distinct from their merits docket. On the shadow docket, they can decide things on an emergency basis without the benefit of full briefing or oral argument. They have already rejected Jill Stein's bid to be included on the ballot in Nevada. So that's one example of how they can make a difference in the election. They've already weighed in on an Arizona law that requires proof of citizenship to vote, and they've upheld that. So again, all kinds of things happening already, but there may be some actual merits challenges that come on the docket. And one of those might even be a sort of Bush v. Gore

style election challenge that leaves it to the court to decide who won the election. So on strict scrutiny, we always talk about this. And we make clear that the real goal here for those of you who are invested and engaged in politics is that whoever wins has a litigation-proof victory. So that means overwhelming the system, getting out all the people to vote so that the numbers exceed the kinds of distortion that are caused by suppressive voter laws or gerrymandering and whatnot, and you keep this election out of the court. So something I'm interested in is that Republicans have said they think that Donald Trump would get at least one Supreme Court justice if he were reelected. What kind of calculus do you think he would be following in a second term, given that unlike in 2016 and 2020, he has not posted a list of potential picks and the Federalist Society is

less pleased with him as of right now, though what that actually means, I have no idea. What does it mean to be less pleased with the guy who was all Captain Ahab and helped you spear the great white whale of abortion? I think they're fine with Donald Trump. And I think they know that if Donald Trump were to win the presidency, he wouldn't just get one more bite at the apple. He'd probably get two because Justices Thomas and Alito are both septuagenarians. I think it's very likely under a Republican president, both of these gentlemen step down and run headlong into the arms of their respective emotional support billionaires for comfort and solace in retirement. So I think it's very likely if Donald Trump wins, he's going to get two Supreme Court picks. That doesn't necessarily alter the ideological balance

on the court because two Republican appointees would be replaced by a Republican. I think what does matter, though, is that these two Republicans who are in their 70s would be replaced by literally children, probably teenagers, maybe even fetuses. And that means that this conservative six to three supermajority is literally going to last until the end of time. And so if that's not a reason to get out the vote and get out to the ballot box, I don't know what is. What about Vice President Harris? What have we learned about her potential Supreme Court appointments? I think it's really interesting that Vice President Harris, when she was being sworn in in 2021, asked to be sworn in by Justice Sonia Sotomayor. So the first woman of color to serve

as vice president being sworn in by the first woman of color to serve on the court. So I think it's very likely that she's sort of thinking about the sweep of history. But I also think she's really going to be thinking about someone who can get on this court and really go head to head with these conservatives. So, you know, someone who is a big brain, someone who will get through the Senate Judiciary Committee, and then through the Senate, but also someone who's willing to get there and go to battle with these folks. Melissa, thank you so much for joining me. I do not feel any better, but I do feel more informed. Jane, I have that effect. I'm literally just living for the end of this election and hoping for the best, but I really do think it's

possible. I think we can overwhelm the landscape, as it were, and the court, at least for me, is the number one reason to do so. So thanks for letting me come on What A Day to talk about it. That was my conversation with Melissa Murray, co-host of Crooked's legal podcast, Strict Scrutiny. We'll get to the news in a moment. But if you like the show, make sure to subscribe, leave a five-star review on Apple Podcasts, watch us on YouTube, and share with your friends. More to come after some ads.

And now the news. Headlines. The Florida Division of Emergency Management is actively addressing storm-related resource requests. They're currently in the process of fulfilling 850 missions. They've deployed everything from sandbags to shelf-stable meals to tens of thousands of water bottles to thousands of tarps. That was Florida Governor Ron DeSantis giving a press conference Monday after Hurricane Milton intensified to a Category 5 storm. Milton has sustained winds of 175 miles per hour as it moves across the Gulf of Mexico towards Florida's west coast. Milton is expected to make landfall

Wednesday near Tampa Bay. Authorities have issued evacuation orders, and as many as 15 million people are under a flood watch. The region is also still recovering from Hurricane Helene, which has so far killed at least 230 people across the southeast. Tampa Bay Mayor Jane Castor said in a press conference Sunday that local government contractors are scrambling to remove debris from Helene before Milton hits. We've received a number of calls about the yard debris. I've got a pile in front of my house as well. But right now we have to focus on that household debris, the refrigerators, the ovens. We can't have those things flying around in our community. And with FEMA already stretched thin after Helene, the agency is running

out of staff to help respond to Milton. As of Monday morning, only nine percent of FEMA's personnel was available, according to the New York Times. Governor DeSantis is also encouraging private individuals to aid with debris cleanup if they can. And so if you've got a pickup truck, you get low debris up, we want you to go and do that. If you live in one of the affected areas, please stay safe and please listen to your local officials and not random people on the Internet. And keep an eye out on evacuation orders. In a few moments, Doug and I will plant a tree here on the grounds of the residence of the vice president of the United States, and we dedicate this tree to the 1,200 innocent souls in an act of pure evil on October 7, 2023, who were massacred by Hamas terrorists. Vice President Kamala Harris joined people around the world Monday in commemorating the

one-year anniversary of the Hamas attack on Israel. The militant group killed 1,200 people, including 46 Americans, and took more than 200 people hostage. one-year anniversary of the Hamas attack on Israel. The militant group killed 1,200 people, including 46 Americans, and took more than 200 people hostage. Activists supporting Palestinians and Israelis staged separate demonstrations at Columbia University in New York. The school became the focal point of a mass student protest movement over Israel's response to the attack and the war that has followed. In Tel Aviv, some of the families of those still being held captive in Gaza gathered for an official state ceremony. Meanwhile, Palestinians in Gaza reflected on a year of destroyed homes and lost loved ones. Health officials in Gaza say around 42,000 people have been killed since the war broke out.

The Georgia Supreme Court on Monday revived the state's six-week abortion ban. The decision came one week after a lower court judge struck it down. The high court's decision isn't the final say in the case. It just reinstated the ban, while Georgia's attorney general appeals the lower court's decision. But the state Supreme Court has weighed in on the constitutionality of the state's abortion ban before, and upheld it. Georgia's ban was signed in 2019, but didn't go into effect until 2022, after the Supreme Court overturned Roe v. Wade. It made abortion illegal after a fetal heartbeat is detected, which is usually around six weeks. That's before most people even know they're pregnant.

Vice President Kamala Harris has put reproductive rights front and center in her presidential campaign. And the fight over Georgia's near-total ban on abortions is becoming representative of the stakes of the election in a battleground state. Four years ago, President Joe Biden won Georgia by less than one percentage point. The race could be equally close this year. And that's the news. One more thing before we go. As you've heard, the stakes this fall go beyond the presidency. The future of the Supreme Court is up for grabs, and it could impact your rights for decades. But don't stress. Strict scrutiny is breaking down the chaos every week. With three law degrees in hand, hosts Melissa Murray, Kate Shaw, and Leah Littman are diving into every case, scrutinizing every

decision, and serving up all the legal tea, so you can head to the polls ready to cast your vote and protect your rights. Listen to Strict Scrutiny every Monday, wherever you get your podcasts. Now on YouTube, too. That's all for today. If you like the show, make sure you subscribe, leave a review, watch out for surprise musicals, and tell your friends to listen. And if you're into reading and not just staring off into the distance for a little while like me, Woodeday is also a nightly newsletter. Check it out and subscribe at crooked.com slash subscribe. I'm Jane Koston. Thanks for listening. And stay safe out there, Floridians.

Whataday is a production of Crooked Media. It's recorded by Jarek Centeno and mixed by Bill Lance. Our associate producer is Raven Yamamoto. Our producer is Michelle Aloy. We had production help today from Ethan Oberman, Tyler Hill, Johanna Case, Joseph Dutra, Greg Walters, and Julia Clare. Our senior producer is Erica Morrison, and our executive producer is Adrienne Hill. Our theme music is by Colin Gilliard and Kashaka.