Transcription
The Supreme Court is open for business. I mean, they never really closed with the emergency docket all summer and the and the two dozen emergency hearings that they held or emergency uh um orders that they issued. But they're officially open for the 2025-2026 season, and we've already got two oral arguments under the belt. How did they go? Well, I got dressed up for it. Uh, I guess that's the best I can say.
One had to do with conversion therapy bans, stopping people from trying to convert other people and pray they're gay away or something like that. Um, that that went down a First Amendment rabbit hole that I think you're going to want to know about. And then there was an oral argument about who can attack democratic policies in states about voting. In other words, who has standing to challenge mail-in ballot regulations states pass, usually blue, or absentee ballot, or how the how voting happens on election day. And the MAGA 6 was hard at work at the Supreme Court. You're going to want to know about it. And here is a clip from the Legal AF podcast.
So, the Supreme Court opened for business and two oral arguments already in the books. One involving uh conversion therapy. Why is it always, it's always Christians that are trying to not not bake a cake or not build a a wedding website for gays or wanting to um do therapy that it's documented by the medical and psychological professions is harmful to people to try to change them back. Stop, have them stop being gay or whatever it is, or transgender. And uh, the fight was over First Amendment speech, that the patient has the right to hear the conversion therapy and the Christian therapist has the right to um, offer their opinions and open up the hood of the person's mind and monkey around in there and make it worse. Um, and the question is, is that true or not? Is that right or not? What was your takeaway from the majority MAGA oral argument?
Yeah. So, look, this this came about as a um, a therapist in Colorado who, this hadn't happened to her yet, but theoretically, if she wanted to do this conversion therapy or this pray away the gay therapy, as as I like to call it, um, that there's a law in Colorado, like in 20 other states, that says you're not allowed to do this conversion therapy, that it's actually harmful. And the MAGA majority justices basically are reviewing this from a First Amendment standpoint. They're saying, "No, that law banning this conversion therapy is infringing on the First Amendment freedom of religion rights of and speech rights of this therapist and and the patients who she claims." And by the way, this law only applies to minors. So it's really the parents who would have to consent to this on behalf of their kids. And you know, the what and so is so if it's a First Amendment, if this is a First Amendment right, and that's the analysis they were trying to to adopt here, then it's a then any law that infringes upon a First Amendment right has to go through the highest level of strict scrutiny. Strict scrutiny. It's the it's it's a very high standard and and that's where they, I think if they adopt that standard, they're going to say, um, potentially, I think they're going to rule that the law is unconstitutional.
And but what really bothered me about this is, is how is this First Amendment right? This isn't, I I just don't see this as a First Amendment issue. This is medical treatment, right? This is not speech. This is no one's saying she can't go out and speak openly about her religion and her beliefs and that she's anti-gay. It's a matter of her administering a medical procedure. And mental health therapy is medical. It is a medical procedure that you are giving to somebody. And and it made me think to myself, it's interesting how they want to give her a First Amendment right or or therapist a First Amendment right to be able to try and do this what has been proven to be a harmful medical procedure on somebody. But yet they won't then for for transgender care, when a doctor and a patient make a decision that they want to take drugs or have surgery to change their body, right? Children who who want to do that who make that very difficult decision to to undergo that, but it is a decision that is not protected, right? That no, we're going to regulate that. That's a harmful medical procedure. To me, this is no different and should be treated the same. And the fact that they're going to say, oh, no, no, you can do this harmful thing, like you can't have it both ways. But so it's clear to me what's happening is, look, this is the separation of church and state no longer exists. And the Supreme Court, the the MAGA right is you bringing their their religious views into and their their conservative uh MAGA religious views into the court, and they are going to make legal arguments to fit what their ideological viewpoint is because it is inconsistent in my view to apply one standard for one and one for another. I mean, therapy isn't speech. It's treatment. It's a medical treatment. And so, but I I think, I mean, I don't have a crystal ball, but I I I think that there's a chance that that um, you know, that that she wins and that the the rights of LGBTQ people are really, really put back. And it's really harmful. You know, it's it's there's been there's been studies that talk about how this conversion therapy has can be very harmful and create um can can actually be worse, right, for people who then could want to consider suicide or or you know, other other really harmful acts because you're being told that who you are, there's something wrong with you. And um, it's really sad. This this case makes me sad.
Yeah. And there's a MAGA majority to find on First Amendment grounds that conversion therapy bans in 22 states, including Colorado, violate the First Amendment under strict scrutiny. And I think that's what the ruling is going to be. Just managing expectations here as we roll into the second case. Uh, which was a case on its face. The merits of the case is about whether states like Illinois and and other places can extend the time for a postmarked ballot, postmarked on the day of the election, but received up to 12 or 14 days later because the mail sucks, especially overseas mail, um, is unconstitutional or not. Does it violate, does it fundamentally have a state through its rules change the essence of the election and the day of the election, which is set by constitution? I mean, Donald Trump wants an election day. He doesn't want early voting. He doesn't want mail-in voting. He doesn't, except when he was using it himself back in the day. Absentee voting. Um, all the things that are he sees as an advantage to the Democrats. He wants good old-fashioned stand in line like, you know, back in the day.
Um, yeah, because like when I first started voting, and you too, Karen, there wasn't early voting. There was mail-in, there was absentee, and there was mail-in. It was strict, but you you had to like go down to the firehouse and stand in line. You got to a giant, okay, kids, gather around. You, it's going to be a history lesson. You went to this giant gray metal cabinet from like the 1960s or 50s that it was mechanical, not electronic. You went in, you they they closed the curtain. You pushed, you switched the switch. They closed the curtain and you went down with levers on a on a paper ballot that was thread through the back of the machine and you hit your switches. And there was one big giant switch. You sure you're ready to vote at the top? Yes. And then that ballot got dumped into the bottom of this giant machine and locked away until they collected all the ballots. That's that was voting. And Donald Trump wants to go back to a version of that. Uh, because Democrats always have an advantage of getting souls to the polls and getting ballots and all that. So that's the merits. But that's not what was on full display in the oral argument because there, this was a procedural question as to whether a candidate who didn't lose by a little, but lost by a lot, could still have standing, the legal right to challenge, who has the right, I guess, is a better way to put it, and bring, who can bring a lawsuit to challenge things like a state's election laws, which they're allowed to do by federal constitution, about whether it conflicts with another aspect of the constitution or not. Who is the injured party? And you had a couple of people who challenged, you know, MAGA Trumpers, but they didn't suffer any harm on the mail-in ballot problem because they didn't lose by the difference of the mail-in ballots. And Paul Clement, who's kind of come out and helped a lot of targets of de of Donald Trump as a former solicitor general for George Bush, he was on the side of these people. He tried to frame it as the campaign continuing for an additional 12 days. The postmark has to be the day of the election. It has to be in the bag. You're not campaigning to to change the hearts and minds of people waiting for their votes to come in. They should have already voted. Uh, but what was your impression of how that's going to go down with the MAGA 6?
I think that's, first of all, I think that's a weird argument, you know, cuz as as the circuit below said, look, that was your choice to keep campaigning two weeks afterward. You know, no, no one said you had to do that. As you said, it had to be postmarked by the day. I mean, look, there's some interesting questions because on the one hand, you know, you don't want to make the rules harder for bringing election law challenges, but on the other hand, if it make it too easy, you'll flood the courts with a gazillion lawsuits and you'll never have an you'll never have results of any election. So, you know, it's it's a tricky case. I I the whole the whole thing about mail and ballots, I mean, that's just going to impact so many um people who are in the military who are overseas. It's going to impact so many people, but this is just the fight continues on, you know, the this is all about Donald Trump's crazy uh assertion that the election was stolen and he's so anti-mail and ballots. So, we'll see. We'll see whether the um whether the you know, whether MAGA is going to try to whether the MAGA right Supreme Court majority, which is really what they are at this point, what they're going to do and whether they're going to continue to do Trump's bidding or not. But I could see them, I could see them here. I I think the argument that having too many lawsuits and never having elections be finalized, I could I could see that carrying the day ultimately because, you know, well, I don't know. We'll see. I'm not as stressed. I'm not as stressed as you are. I think they're going to um they're going to allow, they're going to widen the net of who can who has standing to bring these types of lawsuits. And they're going to they're going to loosen up the reigns of injury and not require that a person show that their the election outcome for their election would have been different based on the mail-in ballot or whatever election rule that we're talking about. I I think there's no doubt in my mind that they're going to instruct federal courts below them to be to loosen up the loosen up the ropes about standing, even though standing is the most fundamental thing. You, you see, we've talked about this before, right, Karen? With our audience, when the administration, it's all reverse engineering. When when they don't want to reach something that would be helpful to like the liberal side or the Democratic side, they say, "Well, we'd love to help you, but this case we have to dismiss because there's no standing for the people that have brought it. Sorry, it's a nice case. Probably would have helped a lot of people in America, but you don't have standing." And then you got to go scramble to go find somebody who does have standing. But here, they're like, "Yeah, go ahead."
No, I was going to say that that could be that's what they should say to the therapist in Colorado. Yes. Right. There's no case in controversy there. She wasn't she wasn't it wasn't like she was disciplined for providing this therapy. I mean, how about the website designer? She didn't even have a company. It was a fictitious company that she didn't even have up and running. She never designed a website in her life. Yeah. So, they they bend the rules when Yes. They make them up and when they can't find one in the toolbox, you know, like when you're in your garage or whatever, you know, and you're looking for something, they're like, "God damn it, I wish I had that." They just make it up. They're like, "Oh, wish there was a rule that we could who could create that." Right? We can that like when you're too close to an election, you can't. Okay. The Purcell doctrine. People are like, "That must have come from sprung from the head of our framers at the constitutional convention." Like, no. Originalism, textualism, right? Oh, we must divine the the meaning of what our framers said. Oh, that must have been part of the Constitution, right? No, it's made up. That didn't even take root until the 1980s with people like Robert Bork, carried forward by Alito until they got enough MAGA six to get a majority. It's all made up. That's why that's why people have no confidence in the United States Supreme Court. And then they and then, as we've talked about in the shadow docket, they don't even bother explaining themselves anymore. They've reached the point where they're just like, just take our word for it. This is the this is the ruling. Oh, what is it based on? We're not going to tell you. Where's the logic? Well, that's for another day. Where's the uh the analysis? Where's the precedent being used? Well, you know that that's just getting in the way. As the Sam Alito once said during an oral argument, let's not get bogged down in the facts of this case. I was like, what are you even are you just admitting out loud that you don't even care to be in appellate court anymore? You're just issuing advisory opinions that that try to bind us. I mean, the the legitimacy of the Supreme Court, all kidding aside, is a serious serious matter, which is why the next administration, hopefully with a big D next to its name, uh, needs to address it. We need Supreme Court reform. There is no and and federal court reform. There is no doubt in my mind now that in order to avoid a future Trump or series of Trumps, we have to when whenever we grab the reins of power, we're going to have to pack the court. To quote, you know, Franklin Delano Roosevelt, we need 15 seats. We need to add six more to balance this out and get a nine-to-six majority of freethinking people. And and then, you know what? Give me and you a shot. We've had de generations, three generations of complete Republican control of the United States Supreme Court. You know, the presidency, sometimes we get it, sometimes we don't. The full House, the Senate. We haven't had the Supreme Court led by Democrats in like 75 years. Give us a shot, folks. Let's pack the court. Let's get 15 or more on there and let's return civility to American life. What do you say?
I mean, it would be nice to just have also judges who just actually interpret the law. Like, you know, it's just you you cockeyed optimist, Karen. Not happening in this world. We just got to play by the new rules and and and and beat them at their own at their own game. I mean, you know, to you to use a sports metaphor, you know, Florida teams are winning the the uh the Stanley Cup. You know, who would have thought ice hockey in Florida? All right, we've been given the rules. We got to beat them at their own game. Yes, keep our ethics, keep our morality, but stop with the niceties, and stop with the I'd like to even see sharper questioning in the in the uh in the Supreme Court. I'd like to see a better job being done by the legal counsel that supply a lot of the cross-examination questions to the senators and the Congress people. I mean, some of them are former prosecutors, so they know what they're doing, but I could have seen a stronger cross-examination. And the problem with even the senators, Karen, is that they're so like sort of sussed in in the in the traditions of the Senate and all that that even when they get a lying sack of you know what, like Pam Bondi in front of them, they can't switch gears quick enough. Look, you and I in court, you you and I'll come in with our rough outline of how we'd like to do a witness or handle a certain legal issue. And then in the fog of war, you know, it all gets lost and you've got to quickly you've got to quickly pivot. You've got to throw away your outline, take your legal pad. I once had a case, Karen, where I in the middle of my opening in front of a jury, the judge stopped me, called us all up to the podium and said, "You can't make the the the defense that you're making." I said, "Excuse me?" They said, "No, I I'm going to make a ruling now. I'm gonna grant this other motion that have been floating around for years and you now have to redo your entire opening statement. I'll give you two hours at a lunch break." So, I'm there on a yellow pad in a diner in Fort Lauderdale, Florida. Like pages were like flying in the air. It was like a Tasmanian devil. But I pulled it together and I gave an effing opening and we won the case. And and I want to see a little bit more of that when the Senate and the House get their get their myths and their grips into um cabinet members like RFK Jr. and Pete Hegseth and Pam Bondi, we better be learning from what's going on in these rooms just as they are.
Yeah. I mean, I hope you're right, but what we've seen so far is all the administration, all they do is obstruct. They do not answer questions. So no matter how good the questions are, no matter how strong and sharp they are, the administration just doesn't just refuses to comply and refuses to participate and just deflect. And I think we hold it against them, you know, and I if I was one of the senators, I would say, so I would basically say, so if you had evidence that this did not happen, I assume you would bring it here, right? And you know, like she's have to answer that, right? I assume if there if there's no evidence of Donald Trump in the Epstein files, you you would tell us, right? I mean, she you know, she you have to bait her into into answering some questions. And I agree with you. They have to get better at it, but they have to figure out a way to get the questions answered. They just do. And I think hope you know a lot of them are fans of Legal AF. Sheldon Whitehouse is going to be on Legal AF tomorrow being interviewed by Adam Klasfeld of All Rise News with us here on Legal AF. And you know, we've had a number of these people on and and uh Jamie Raskin's been on with us on Legal AF and um and that is uh I hope Adam doesn't say Popac thinks you should ask better questions. No, but I did write a note to Adam that said that I was disappointed. I want him to tell Senator Whitehouse that I was disappointed when he asked the questions about the photographs that um that have been that were in Epstein's house of Donald Trump with girls on his lap that they didn't also use the Legal AF video that they that Jamie Raskin and Ted Lieu used two weeks earlier in the House like oh here's our moment Legal AF's going to be back in the hearing room. No. So no, that was no Adam will do a great job and and Sheldon's a friend of Legal AF. He's very close. People may not know this, but one of the great contributors on Legal AF is um Court Accountability Action led by Alex Aronson and Lisa Graves. Lisa Graves has a brand a beautiful new book out. She's been sounding the alarm about John Roberts for like 30 years and finally wrote a book called Without Precedent about John Roberts being a Trojan horse um and what he's doing to destroy America. It's a beautiful book. It's required reading for Legal AF. Efforts that she's with Court Accountability Action. But Alex Aronson was Sheldon Whitehouse's chief legal counsel on Capitol Hill and they have a very close relationship and he's often with us over on Legal AF Newsmakers and the lawyers that are in the courtroom all together in one place in one ecosystem.
Karen, we're at the end. What do you got? What do you got for the audience?
You know, tonight's episode makes me want to go have a glass of Willamette Valley Pinot Noir because just thinking back to my times in Oregon and there's just no better wine than from the Willamette Valley. So, uh uh I saw your I was going to say earlier I'm wearing blue, you're wearing red, but it's more like wine. So maybe it's more red where you are, but uh if you're around next uh a week from Saturday, I'm gonna be in San Diego doing a live Legal AF hottake uh interview of Rob Bonta, the attorney general on the stage at a thing called La Higra, which is a bunch of lawyers getting together and he's one of the keynotes and I'm going to be doing an interview of him. But the next day, there's a podcast called Bourbon of Proof. Do you drink bourbon? I do not. Okay. Bourbon of Proof. It's run by a lawyer named Robert Simon. And there's going to We're going to do a crossover episode. Bourbon of Proof meets Legal AF on a on a like a music stage where they're going to have DJs, house music DJs later in the day. I think it may end up being like a like, you know, drunk Shakespeare. It could be like drunk Legal AF. I think it'd be fun. I think it sounds fun. Right. So, look for that. Look for that starting next week. We're actually going to do the Rob Bonta interview and we'll put it up soon as a live. I got all dressed up because you helped us get the podcast to number 25, our highest ranking on the YouTube weekly rankings. That's of all podcasts. We're number one in law and politics. That's because of you. Help continue to grow our audience. Slide over to the um audio versions on Apple and Spotify. Leave a five-star review and uh and watch us and listen to us there. That all helps. Same thing on YouTube. And then come over to Legal AF Substack, become a paid member. That's the best way to support Legal AF and Legal AF YouTube. Hit the subscribe button there. It's all for free. No paywall, no outside investors. I appreciate everything about your participation in our audience. And I got dressed up as I said. So until my next report, I'm Michael Poplak. Can't get your fill of Legal AF? Me neither. That's why we formed a Legal AF Substack. Every time we mention something in a hot take, whether it's a court filing or an oral argument, come over to the Substack. You'll find the court filing and the oral argument there, including a daily roundup that I do called, wait for it, Morning AF. What else? All the other contributors from Legal AF are there as well. We got some new reporting. We got interviews. We got ad-free versions of the podcast and hot takes where Legal AF on Substack. Come over now to free subscribe. [Music]