This is Bloomberg Law with June Grossel from Bloomberg Radio.
The nearly eight hundred thousand same sex couples in this country can breathe a sigh of relief, at least for now. Today, the Supreme Court rejected an effort to overturn its landmark twenty fifteen decision that legalized same sex marriage. Without any comment. The Justice is left intact a jury verdict against Kim Davis, the former Kentucky court clerk who drew national attention by
refusing to issue marriage licenses to same sex couples. Today's order indicates that Davis couldn't get the four votes necessary for the Court to take her case. Although the appeal was a long shot, it due attention because the Supreme Court has shifted to the right since the five to four decision in obergerfelvi hodges Well. My guest is Suzanne Goldberg, a professor at Columbia Law School and director of the
school Septuality and Gender Law Clinic. Suzan, this case brings up a name that was in the news ten years ago. Tell us more about Kim Davis's appeal of a three hundred and sixty thousand dollars, damages and attorney's fee award to the couple she refused to give a license to within.
Days of the Supreme Court granting same sex couples the right to marry in a case called Obergofell versus Hodges. In twenty fifteen, a couple presented themselves to Kim Davis's office and said, you know, we'd like to get our marriage license. She said no, And in fact, not only did she say no. She's a clerk for Rowan County, Kentucky and her job was to issue marriage licenses. She said she was acting under God's authority to deny this
gay couple of marriage licenses. And one of the men actually say to her that she had probably given marriage licenses murderers and rapists and people who had done all sorts of horrible things, and Davis responded by saying it was fine because they're straight. So she was ultimately overridden and required to present the couple with their marriage license.
But she's been up and down the change. She's been litigating for many years now, almost a decade, saying that she, as a government employee, had a right to implement her religious views against marriage for same sex couples and based on those views, deny a marriage license in her capacity
as a government official. So quite complicated. It goes beyond a basic challenge to the idea of same sex couples marrying and says essentially that somebody working as a government official should have the right to refuse services to a resident or a citizen of that location of that jurisdiction
based on their faith. So when she first got up to this court in twenty twenty, Justice Thomas actually when the Court rejected her case, specifically said that her case did not cleanly present questions about Obergefell, the Court's marriage
equality ruling to the court. And so this time around, when Kim Davis went up to the court, she brought the same complicated set of facts related to her personal position, but she also argued that the Court should reverse its Obergefell marriage equality ruling based on the same reasoning that the Court had used in Dabbs, the case in which the Court overturned Reversus weighed and said there's not constitutional
protection related to abortion. So the question in this case was would the Court take up Kim Davis's challenge to the Obergafell marriage equality ruling the Court denied cert meaning it will not take up her challenge. Most commentators expected
this because case is so particular to her situation. I think that her cert petition, her request for Supreme Court review, is best understood not as a realistic shot at getting Supreme Court review of a Burgerfell, but instead as additional publicity for the idea that the Court someday should overturn its marriage equality ruling. And in that sense, even if this cert petition itself wasn't very troubling, the broader effort to call into question marriage equality is concerning.
So are you saying that same sex couples shouldn't breathe a sigh of relief that the Supreme Court turned this case down.
People can certainly breathe it five of relief that the Supreme Court turned down can Davis's certain petition? That said, I think it would be a mistake to think this is the end of these kinds of cert petitions or the end of these battles. There is an ongoing effort to try to destabilize the idea of marriage equality and ultimately the Supreme Court's ruling on marriage equality. You know whether that will succeed. It doesn't seem to me it
will succeed in the near future. But it is also important to keep an eye on this because I think many people would have said Roe versus Weight would not ultimately be overturned, And of course it was many decades after the Court first issued that ruling that was overturned in jobs. But we are in a time when well established precedents are coming into questions. So it's also a time for vigilance for those who care about the right to marry as protected by the Constitution, and.
The Supreme Court has shifted significantly to the right since that five to four oh Bergerfeld decision. You have three members of that majority are no longer on the Court and two have been replaced by Trump appointees, so it's a different court.
It is a very different court from the court that decided the Obergafell case granting safe sex couples the freedom to marry, and Chief Justice Roberts as well as other members of the Court specifically dissented from that ruling, So we'll have to see. I think the key takeaway is in the marriage equality right is safe at this moment, and certainly it is a good thing in my view.
That the Supreme Court denied Kim Davis's petition for lots of reasons, and at the same time, it is important to pay attention to what is going on both societally and in legal challenges to see where this will land. There are a number of state legislators who have introduced various bills to try to cut back on marriage equality. We haven't seen those get a lot of traction at this point, but again, it's something else to pay attention to.
It always seems to me that it would be very difficult to take away same sex marriage because you have these new eight hundred thousand couples who've acted in reliance on the right to same sex marriage, getting married, having children, sharing finances, etc. What would happen to all that if the Supreme Court took back the right to same sex marriage.
To take away marriage equality would be an administrative disaster in states and at the federal level. So it would be complicated and unfair in addition to in my view, unconstitutional. At the same time, we know there are people who
are committed to taking that away. Precisely. Would also say that even though access to abortion presents different issues, access to abortion as a part of reproductive healthcare has certainly been something that women have relied on for decades where they live or in states nearby, and people have ordered their lives around this. Not in the same way as marriage, but it has certainly been an important form of reproductive health care that is now being denied in a number state.
So there's a set of challenges to access to healthcare, to access to relationship recognition that are continuing to be debated and have important implications for people who live throughout this country.
Something that repeatedly comes up in discussions about same sex marriage is that Conservative Justice Clarence Thomas, in a concurring opinion in the DBS abortion case, so the justices should reconsider all the courts substantive due process precedents, specifically mentioning the cases involving same sex marriage and contraception. Will you explain his position?
The idea of substantive due process is that the US Constitution protects Americans in our day to day lives from government interference with certain fundamental rights, including rights that are
deeply recognized as part of individual autonomy. Access to contraception, certain parental rights, certain other rights to sexual relationships between consenting adults in private for non commercial purposes, and so Justice Thomas has long taken the position that the Constitution does not protect these rights that have long been considered fundamental. Does not protect marriage equality, does not protect access to contraception,
does not protect access to abortion. If there were more justices to take his position that is not only with respect to abortion and marriage, but more generally sweeping off the table any constitutional protections understood in these ways, we would be living in a very different country. And again, it's not to say that everything would change at once, because the absence of a substantive due process protection doesn't mean that states could not grant marriage equality or provide
access to abortion. This is why, even in a world where Dobbs exists, we have many states that protect the right of a woman's seek an abortion as part of a reproductive health care. But what it means is that if a state chooses to criminalize abortion or chooses to refuse to recognizing six couples marriages, if Obergerfella were to be overturned, then states could refuse to provide those protections.
It's been noted that Thomas didn't mention the case of loving versus Virginia, which struck down interracial marriage. Is there a difference in the legal analysis or a distinction there possibly?
You know, when the Supreme Court druck down Virginia's while criminalizing into racial marriages, the court recognized a part of the problem with that law was that it gave effect to white supremacy, gave effect to the view that white people were superior to people of color. So the court did two things. It recognized that the government should not interfere with people's fundamental right to marry by restricting the
race of the person who they could marry. But also the language of that ruling was in part tied deeply to the prohibition on race discrimination and a justification for that restriction. So interracial marriage would be analyzed differently somewhat from the right to same sex couples marrying, but the underlying idea is the same in the sense of should the government be able to restrict who you can marry so long as that other person is a consenting adult who is not immediately related to stay.
With me, Suzanne. Coming up next, another setback for transgender rights Blomberg.
This is Bloomberg Law with June GROSSEO from Bloomberg Radio.
It's the twenty fourth win for the Trump administration on the Supreme Court's emergency docket and the second blow to transgender rights from the conservative justices on the so called shadow docket. In a vote down ideological lines, the Court is allowing the Trump administration to go forward with requiring passports to be marked with the sex assigned at birth. This reverses the policy in place since nineteen ninety two, which had allowed passports to reflect a person's gender identity.
I've been talking to Professor Suzanne Goldberg of Columbia Law School. Suzanne, will you explain the change in policy by the Trump administration?
For nearly thirty years, actually thirty three, and as Justice Jackson points out, across six presidential administrations, transgender Americans have been able to get US passports with their gender marker that accurately matches their gender identity. So transgender man can get M on his passport and a transgender woman can get an F on her passport, which is important for many reasons, including so that the person looks like they
match their passport. But from basically nineteen ninety two to twenty ten, there was an eligibility requirement related to a surgical transition that has changed over time, but the point is for thirty three years this has been the same. On the first day of his administration, Donald Trump issued an executive order saying that transgender people are corrosive to
the United States. In so many words, he used the word corrosive and directing the State Department to no longer issue passport to people that would be consistent with their gender identity if they're transgender and so, the Trump executive order led the State Department to take two steps, first to stop issuing passports to transgender people consistent with their gender identity, and second to remove the ex gender marker, which was an option for anyone who does not fit
the M or the F or someone who doesn't want to share their gender identity with the US government. So, put into simple terms, the Trump administration changed policy on the first day of the administration, and the State Department followed two days later to prevent transgender Americans from obtaining passports consistent with their gender identity.
This was an unsigned order, and the Conservative Justice's very short explanation seems to me like it's ignoring the facts that were presented in the case, the Justice has said displaying passport holders sex at births no more offense equal for detection principles than displaying their country of birth. In both cases, the government is merely attesting to historical fact without subjecting anyone to differential treatment.
It is stunning because the plaintiffs in the case explained to the district court, which agreed as did the Court of Appeals, that if you are a transgender man and you have a passport that says f on it, it does have real world harmful consequences every time you have to show that passport to someone, because the person receiving the passport may say, as has happened to some of the plaintiffs, you're using fraudulent documents because you don't appear
to match your passport gender marker. So this has led to some of the plaintiffs being accused of fraud, one of the plaintiffs being strip searched, other plaintiffs facing all sorts of problems as they've tried to cross borders. So for one and the Supreme Court kind of casual remark that this is as insignificant as somebody's sort of national
origin or place of citizenship is just untrue. In addition, the country of birth is not anything that affects somebody when they're using your passport and passing through security, but the gender marker is used to check accuracy, and so even on its face, the Supreme Court's analysis is wrong. The Supreme Court description, I can't really call it analysis. The Supreme Court statement is wrong, and a dissent from Justice Jackson points that out as well.
The Court also found that the administration is likely to win on the merits, and the administration faced irreparable injury. I'm not sure where the irreparable injury is, since this policy is a new one that's changing what's been in place, but the conservative justices have found irreparable injury in almost all of present in Trump's emergency requests.
There is no irreparable injury in the traditional way that courts look at a reparable harm. To let me explain, when a statute comes over from Congress and is challenged in the court, it is given a presumption of constitutionality, right, so the court assumes it's constitutional. But sometimes plaintiffs can show actually it's on constitutional, and the court will strike
it down. And there's understood to be some arguable harm to government when a statute is put on hold, But when a government policy is put on hold, like an executive order or a preference of the president, that's a different situation that is not entitled to the same presumption of constitutionality as a statute that has been passed by Congress.
And the upshot is just saying, well, the government is irreparably harmed by not being able to put in place its desire passport policy is akin to saying the government is irreparably harmed whenever it is stopped from doing something that it would like to do, And that is akin to having no judicial review over government actions at all, at least not at this preliminary stage. So that's a very serious problem from a sort of basic approach to constitutional analysis of executive actions.
Justice Jackson wrote that the Court has once again paved the way for the immediate infliction of injury without adequate or really any justification. This is also a pattern of the Court at this point basically allowing the Trump administration anything it asked for on the emergency docket and saying, well, this is while litigation is pending.
Yes, this is the twenty fourth consecutive grant of emergency relief to the government, and this process of the Supreme Court staining rulings of lower courts finding problems constitutional or
other problems with government policies. This phenomenon of the Supreme Court repeatedly saying, oh, we're going to put those lower court rulings on hold has had the effect of basically giving the Trump administration a free pass to continue enforcing policies that and taking actions that lower courts have held to be not only likely unconstitutional, but also causing irreparable harm to the people who have been affected.
So this is.
Certainly part of a larger trend. The striking thing about this case is that the harm to the individuals who are denied passports that accurately reflect their gender identity is stunningly clear. Another problem here is that the government is obligated anytime it changes a policy that collect information from
the American people. The government is obligated under the Paperwork Reduction Act, which was passed by Congress, to spend sixty days collecting information and public comment on whether it can make this sort of a change, and of course, changing its passport rule two days after the president was inaugurated and issued. His executive order is fully out of compliance with this law that is supposed to apply to all of the government's actions.
As I mentioned, this order stays in place as a litigation below continues. So how much of a blow is it to the rights of transgender people?
This is a tremendous blow in terms of the human cost. One only has to think about the named plaintiff, Ashton Orr, who needed to travel out of the country needed a new passport. Ashton Orders a man. He's a transgender man.
The only passport he is able to get to cross borders has an s gender marker on it that reveals Asketon to be transgender, not only as he crosses the border out of the United States, but as he crosses into other countries, possibly putting him in danger of harm from other governments and now as well as our own.
The harms are very serious, very painful to individuals, and also are reflective of a broader harm to people who are not transgender, which is that the government can, for irrational reasons, possibly hostile reasons, towards this group of people, or any group of people more generally, choose to withdraw passports right choose to do any number of things that cause harm, and the Supreme Court is unwilling to say
hold on government. The lower court has found a problem with this law or this new policy, and we need to hold while this case is being litigated. So there are real world problems, there are constitutional problems, there are traditional separation of power problems that we're seeing.
In May, the Supreme Court allowed him to start discharging transgender members of the military at oral arguments. This term, it appears that the Conservatives will allow state laws that ban licensed counselors from using talk therapy to try to change a child sexual orientation or gender identity. And there's another case coming up about whether states can ban transgender girls and women from competing for their schools on female
athletic teams. It's hard to ignore that the Court has been consistently ruling against transgender rights.
Yeah, I mean, there has been a current of policies, you know, from the Trump administration and laws at the state level that restrict the lives or try to restrict the lives of transgender people in every imaginable way, from getting identity documents to using the bathroom, to participating fully at school, to serving the country in the military, and so far the court when these issues have been presented, the Court has said it's okay to create this legal barrier,
really like a legal burden that harms transgender people. In twenty twenty, the court took a different tack. This involved in an employment discrimination case, a transgender woman was fired from a role at a funeral home where she had served for many years, and she sued the employer, saying it was sex discrimination that she was treated differently because of her sex, being fired based on her sex, right
based on that she is transgender. And in that case Bosta versus Clayton County, which also involved two other cases with sexual orientation discrimination at issue. In that case, the court said it is sex discrimination to fire a transgender person because if there's no way to understand this other
than they're being fired because of their sex. One of the big questions before the court is that case came under Title seven, which is a federal law that prohibits sex discrimination as well as other forms of discrimination and employment, and a question is whether it's a logic of understanding sex discrimination in that boss Stock ruling from twenty twenty is going to carry over into these other areas, or will the Court say as it may appear to be
inclined to do. Oh no, that might be sex discrimination, but this isn't.
Well, We'll have two cases at least this term that will further illustrate how the Court's dealing with transgender rights. Thanks so much for joining me, Suzanne. That's Professor Suzanne Goldberg of Columbia Law School coming up next. The second in command at the Justice Department talks about its war on judges. This is Bloomberg.
What a travesty it is when you have an individual judge be able to stop an entire operation or an entire administrative policy that's constitutional and allowed, just because he or she chooses to do so. So it's a war.
That was the second in command at the Justice Department, Todd Blanch, describing the Trump administration's war against federal judges and calling on young conservative lawyers in the audience to join the battle.
There has got to be a couple dozen young lawyers who are thirsty and hungry and ready to work because because we need you, Because because it is a war, and it is something that we will not win unless we keep on fighting. And it's a Joining me is.
Bloomberg Law reporter Suzanne Monnac. Suzanne, where did Blanche give these remarks?
Todd Blanch's the Deputy Attorney General at the Justice Department. I was delivering remarks last week at the Federalist Society convention. That's a legal conservative legal group, and they hold an annual convention over a course of I was three days this year in Washington.
It's stunning to hear a Justice Department official describe a war against judges.
Yes, it was fairly striking, in fiery language. He referred to it as a war against what he described as activist judges who've been ruling against the administration and in his view, in some of these cases getting reversed by the conservative Supreme Court. And I should say when I say reversed, I mean a lot of these cases are coming up at pretty interim stages. But we've seen some instances where the Supreme Court has paused lower court rulings
against the administration while litigation continues. That's on the so called emergency dockets. So I should clarify these are preliminary decisions. But he's pointing to those wins at the Supreme Court and at other appeals courts to say that these are lower court judges that are acting outside their authority and that he just sees it as a battle, as a war, and he put out a call for lawyers even to a joint what he described as a fight.
Was this a Q and A. Did anyone challenge him on the fact that the Supreme Court has a super conservative majority and it's that majority that's reversing these lower court decisions against Trump.
The conversation was moderated by Gene Hamilton, who's a former Trump White House aid as well as the co founder of a conservative legal group. I would describe it as a fairly friendly discussion. It wasn't so much styled as an adversarial debate.
Uh huh, And I mean this is the old refrain of activist judges that conservatives have been making for so many years. He's also talking about activist bar associations.
Yes, we saw the bar associations also or a target of his hire at this conversation. Specifically, there have been some misconduct complaints filed against lawyers within the administration for their conduct in court, and we saw Blant say that he's looking to to do something different. He says he wants to have that process be handled in house, as opposed to within the bar associations. He specifically took aim at the DC BAR as being one of the worst, and he called them activist bar association.
How would he take that power away from the bar associations and put it in the Justice Department.
There was not a ton of detail given, and that that is a person excellent question. He said that they want to have a new system where complaints against trial lawyers and prosecutors are handled in house, within an ethics unit within the Justice Department, and evaded herman that something should be referred to the bar, that they would then do so. But wouldn't, you know, refer all complaints to the bar if they don't think that they have merit.
It was interesting. I hadn't heard that from him before, so I think that was an interesting thing to note in something to watch going forward. How they implement it.
Bar associations handle the disciplinary proceedings for lawyers and the Justice Department has no part in that. So it makes almost no sense to me that the Justice Department would suddenly start doing that, especially with regard to complaints against its own lawyers.
I think we're likely to see concerns like that raise if in when a process like this is rolled out, and I you know, certainly I think it's worth you know, hearing from the bar associations. I'll be curious if they speak out about whether they see this as any kind of use of pation of their authority.
He called for young lawyers who are hungry and thirsty to join the Justice Department and the fight. The Justice Department has lost a lot of attorneys since Trump took office. Tell us about that.
That's true, and we've seen that really throughout the federal government. I mean, of course, there were a couple of offers for lawyers to take a deferred resignation where they were paid but on leave through the end of last fiscal year, which ended at the end of September. And so you know, many many people think it was over over four thousand. I think maybe even more than that. That was a tally from a couple of months ago. Thousands of lawyers
took that deal. And we've also seen people, you know, leaving for other jobs. So we've you know, at the Civil Rights Division, I know, when we've spoken about past that's one where we really saw a major priority shift from away from more traditional civil rights areas toward more conservative priorities like gun rights, for example. So that's a division that saw a huge amount of attrition, both through the different resignation offer but also through people just trying
to get different jobs. And so that's just something we've seen throughout the Justice Department as lawyers maybe don't feel like they want to be doing this work anymore. We've certainly seen the administration has been somewhat hostile to the federal workforce, and that's just true across the government. So yes, that's absolutely the Justice Department has been, you know, very much part of that of that movement, and you know, I think the administration is very much looking to the staff backup.
This attack on judges. Do you see it as part of the Justice Department's approach now because you had and you wrote about a former Justice Apartment official who criticized Democratic appointed federal trial judges who ruled against the Trump administration.
That's right. Chad myself also spoke at the Federalist Society had mentioned and made somewhat similar fiary remarks about his complaints and grievances about federal judges who he also sees as democratic appointees and ruling against the administration and then at times being reversed at higher court. And yes, I do think this is kind of part and parcel of an approach that we're seeing really across the administration that these many of these remarks sort of at a time
of significant tension between the administration and the judiciary. I mean, we've seen Trump and other officials and allies have really made a habit of putting judges and even in some cases their family members on blast when court rulings just don't go the administration's way. We've seen judges gold government lawyers for what they say is making false or misleading statements in court or suggesting that maybe they're not fully
complying with their court orders. So we're really just seeing a lot of distension as the administration is really expanding executive power and kind of pushing the boundaries, and judges are ruling against that effort. That's just created a lot of bad blas I guess I could say, sort of certainly from the administration towards the judiciary, and maybe arguably both ways.
Since the beginning of the Trump administration, threats against judges have skyrocketed, and there seems to be no effort on the part of administration officials to dial down the criticism of judges. In fact, they seem to be amping it up, and it's hard to ignore that as a possible cause of the rising threats against judges.
That's certainly a criticism that you might hear when you hear officials day things like we're at war. Of course, if you reach out to the Justice Department, they will tell you that this is a top priority for them to address threats against judges. But you're correct that they are increasing. We've seen hundreds last fiscal year of threats against judges, higher than the year prior, and so this is I think a cause of significant concern really across
the judiciary that judges are being subjected to this. And I think many people would say that public officials, you know, publicly criticizing rulings, criticizing the judge by name, and really specifically not necessarily criticizing their legal reasoning, but really going after the judge in more personal capacities, as being biased, as having the cards of stacked against the administration. Making claims like that might put more of a target on judges.
Back, going back to the Supreme Court for a moment, some federal judges have been frustrated with having to interpret the Supreme Court decisions on the emergency docket where there is no explanation of why the court reached that conclusion.
That's right. There's kind of even another tension within the judiciary that we're seeing between the lower court and the Supreme Court, where we're seeing the Supreme Court handling these challenges to major comp administration policies at early stages in the litigation, and they're putting out emergency orders pausing lower court rulings that had blocked the policies, thus allowing the
policies to move forward. Obviously, we saw administration officials, as I mentioned earlier, really celebrating those emergencies state orders from the Supreme Court as big wins for them, and I think it's also just been a challenge for lower courts to then maybe sometimes get the case back on remand and have to kind of decide how to approach it when all they've got is this one page emergency order from the Supreme Court that doesn't really explain its reasoning.
And we've seen a couple instances where judges have even expressed some frustration about that and the emergency docket in their written decisions, where they're saying, you know, I had a case that's a little similar to a case the Supreme Court had, but the Supreme Court didn't explain why they made the decision that they did in that case. So I'm not sure how to handle it in this one. Are these the same?
Like?
How do I apply that reasoning? So I think that's certainly a bit of a challenge for the lower courts, and it's causing consternation.
I thought it was very interesting. Now there have been a lot of accusations that the Trump administration has weaponized the Justice Department, and you look at the prosecutions against Trump's perceived enemies, FBI Director James Comy, New York Attorney General Letitia James. How did he defend against that?
He really defended himself in the administration against claims of politicization. He really took the time to rattle off charges that were filed under the Biden administration against Donald Trump himself and really said that he saw those as politicized. And you know the fact that there were multiple charges across the country. He specifically said, you know, we have rolled back investigations that we see as being brought for the wrong reasons, and instead we're prosecuting the right people for
the rightly reasons. And he even said, sort of citing those charges under the past administration, that when he reads weaponization claims, he says, he feels like he's being quote gas lit because he just feels like it was the Trump administration that was the target, or I should say Trump administration officials during the Biden administration who were the target of a politicized DOJ And that's something we've heard from other right wing officials as well, when they say
that they see its politicization as being during the last administration and they're not doing that. So I think that's kind of a common criticism that we have heard before from that side. But yes, I mean, you're corrected to note that a lot of critics have pointed to a lot of the ways that Trump has really directly seems to be communicating with the Justice Department. There's being a bit of a difference that we haven't seen in the past.
When he specifically addressed jo Jay and said, hey, can you please look into these people, typically we've seen a little bit more Drug Department is supposed to historically has acted more independently.
Yeah, the criticism is that in this second administration there's no daylight between the White House and the Justice Department, and perhaps in the Komi and James cases, we'll see what judges think of the president's apparent direction on truth social to the Attorney General to bring cases against his perceived enemies. Thanks so much, Suzanne. That's Bloomberg Law reporter Suzanne Monyac, and that's it for this edition of the Bloomberg Law Show. Remember you can always get the latest
legal news on our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify, and at www dot Bloomberg dot com, slash podcast, Slash Law, and remember to tune into The Bloomberg Law Show every weeknight at ten pm Wall Street Time. I'm June Grosso, and you're listening to Bloomberg