Supreme Court Justices Should Not Be This Good At Playing Dumb

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:00:00 Clip: You must never, ever give up or give in. You must keep the faith and keep your eyes on the prize. That is your calling. That is you mission. That is moral obligation. That is mandate. Get out there and do it. Get in the way. Change happens because people care. The people have the power to make this life free and beautiful. To make this live a wonderful adventure.

0:00:38 Clip: I still believe with all my heart, America can be a place where no child is left hungry, no community is left behind, and no one gets told they don't belong. Country is always worth it.

0:00:57 Thomas: Hello and welcome to Opening Arguments. This is episode 1096. I'm your host, Thomas Smith. That over there is Matt Cameron, a real attorney. How are you doing, Matt?

0:01:05 Matt: Hey, I'm all right, Thomas. We've been having just a lot of post -election anxiety here in the office. I'm just trying not to let it absorb too much. It's been about a month now. Pretty much every one of our clients wants to know what's going on with their cases and how it's going to be affected by Trump, and it's just a little bit of a mess. I don't know if you're a lot, but yeah.

0:01:20 Matt: Happy to be with you here today, though. We got a lot to talk about.

0:01:21 Thomas: Plus, I'm sure those are easy questions to answer.

0:01:23 Matt: Oh, yeah. No, of course.

0:01:25 Thomas: I don't even know what do you tell people? Well, we don't know if we still have laws. I mean, I don' t even know how much I'm exaggerating. What are you even, generically speaking, what are you saying?

0:01:25 Matt: Thought at all. Yeah. For about half the cases, they're in USCIS, which is pretty much the immigration deep state, honestly. So that's not really changing. I mean, Trump can mess around with who's in charge and some of their policies and try to move things along, but that's their basic functions of marriage cases and visa cases and the family stuff. That's all going to be the same for the most part. We'll see some tweaks and they'll recap it in different ways, but the real question marks, of course, are what's going to happen with the undocumented. And with people who are currently in immigration proceedings, we have a lot of good judges already on the bench in immigration court. So he's just going to have to try to move things along the way they did last time. I just try to individually kind of take them through what each one of their issues are. And, you know, unfortunately, if you have a domestic violence -based asylum claim, I can't guarantee that's going to be available because that was taken away last time and that could happen again. You know, there's just, there is so much that the president can control in the immigration system, but we'll be talking about that another

0:02:29 Matt: Time?

0:02:29 Thomas: This was not even the topic of the show, but like, does it matter when that happens? I know that non I -citizens, we do not give them the same like due process. But if apply for something like when apply for asylum, the U .S. does have a domestic violence kind grounds but then you some orange asshole comes in gets rid of it do you get to say well but when I applied it was there or does it just go away wow

0:02:50 Matt: That's it. That's the law at the time when the judge is ruling. So yeah, that was a tough time. Are still other ways to get these kinds of claims through, but yeah, no we're just trying to be realistic. But honestly, there are a lot of people who are very worried who don't need to be, or shouldn't be as worried. We're going to do a whole show pretty soon on kind of triaging everything and looking down how mass deportation or what the thing they're calling mass deportation, I hate even using that expression, progression but how that might actually work out in practice and uh there are reasons to worry for sure but there are also reasons that I think a lot of this is being overhyped and it's giving my clients and their communities a lot more anxiety I think than might be necessary and there's more we'll keep you talking about more of that but

0:03:22 Thomas: Already did some of that the other day there's there's more huh yeah that's not even what we came here to talk about we I mean we have a lot to talk but we got to talk this hunter biden pardon it's a very interesting thing uh I definitely have thoughts um but also we need to talk about what happened in the supreme court the uh other day matt which is that um grown ass adults have decided to play incredibly dumb about how anything in the law works at all while while elizabeth prelogger someone who I I sort of think might be the smartest person in the world like I I listen I I don't I I mean, that's, you know, whatever. Intelligence is a weird thing,

0:03:29 Matt: Is not yeah yeah for pretty of the term. Not getting it. Oh,

0:04:00 Thomas: But like sharpest sharp. And then to say nothing of the fact that, uh, transgender first person to argue before the Supreme Court ever, amazing accomplishment there, is great arguments. And a bunch of grown ass adults have to pretend they're idiots. They insulting. It's rage -inducing, but as you say, it's the most important case probably of the entire What is that term?

0:04:18 Matt: Consequential. The term, yeah, I think so.

0:04:21 Thomas: I forget how often they do this. Are they on a semester system? When do they get their grades back? Because Fs all around.

0:04:29 Matt: Then we'll close out with a quick footnote with a feel good story about democracy working.

0:04:33 Thomas: Well, I'm going to need it because take a break. Please support the show. patreon.com/law and avoid the ads. Don't have to hear him ever again. You get a bunch of other cool stuff. After this break, we'll uh. Keep going.

0:04:47 Thomas: Okay. So we're starting off with the Hunter Biden pardon.

0:04:51 Matt: To talk about it. And I got to tell you, I could never have imagined that I would give the president of the United States a pass for pardoning a blood relative, but this is it.

0:04:57 Thomas: That's pretty crazy. Yeah?

0:04:59 Matt: This is the time that I will do it. Is just such a human story. Talked about this back about six or seven months ago about the Biden trials, Hunter Biden's trials, and specifically looking at the gun charges. And I just want to remind everybody what was actually being alleged and what he was convicted of. He had three gun related charges that he was convicted of on June 11th, relating to flying on a form about being an addict at the time of the purchase of the gun and then being in possession of thegun for a couple of weeks while he was an addict.

0:05:23 Thomas: I believe it was 11 days, if I'm not mistaken.

0:05:25 Matt: Days. That's right.

0:05:26 Thomas: This entire thing that this person is facing real prison time or was facing real prison time for was possessing a firearm for 11 days that was never loaded that he obtained while neglecting to say he was an addict when he applied, right? When

0:05:27 Matt: Good memory. Yeah. And that, that G3 charge is never charged by itself. That's always, I mean, typically this whole suite of charges would have been used to get somebody for, you know, major drug trafficking or somebody who's involved in violent crime.

0:05:53 Thomas: You might tack it on or something kind of thing.

0:05:55 Matt: As leverage, right. But bringing it by itself like this, just you unheard of as we talked about at the time. And then in September 6th, he entered a surprise guilty plea in California to the charges he was facing regarding his his federal taxes, which he failed to file from 2016 to 2019. And he said that he did that on the first day of jury selection. He didn't even have an agreement argument with the government. He said he was just trying to put his family to peace because they'd been through so much in the last trial. It Was a very personal trial in June on the other charges. They brought out all of this information about his addiction and played clips from his audio book. And it was just, it's just a really dreadful, horrible personal situation. And that's the whole thing here is, you know, I feel like as usual, I'm sorry, but Democrats are just so bad at messaging. This is such a beautiful messaging opportunity to be able to say, you 50 % of Americans have some personal connection to addiction, whether themselves or a loved one. To be allowed to come out and say, You know, my son had this problem. And, you know, he's, he'S overcome it. And I've been in touch with him the whole time. And we love emphasizing the addiction part of it, but again, I'm not going to criticize

0:06:53 Matt: How it went down, but at the end of the day, what Joe Biden did was a full 10-year pardon from January 1st, 2014 to December 1st, 2024. And there's an interesting wrinkle here because it was signed on December 1, 2024, the evening of that day, which means that he was pardoning him potentially for three or four hours.

0:07:12 Matt: So he could go rob a bank that night, apparently.

0:07:12 Thomas: Three or four hours. Jeez. What did he do? I hope he made use of that.

0:07:16 Matt: Think he just went to bed early. But yeah, I thought that was a weird timing. Like, why not sign it the next day, you know, and then have it be for until the day before? But yeah.

0:07:24 Thomas: Was a lot of this about this that was kind of weird, to be honest with you. It could have been done better.

0:07:28 Matt: It's unusual. And honestly, doing it by itself. Now, again, he was up against it because Hunter Biden was up for sentencing on December 12th on the gun -related charges in Delaware, and then he's going to be December 16th on tax charges in California. So, you know, best to get it done. And this is actually exactly what Trump did for Joe Arpaio, among other people. He pardoned him just before he was sentenced. We talked about Pardon Fest 2024 and proposing a number of different things that he should do to pardon people. But this isn't the way I thought it would start, I got to tell you.

0:07:57 Thomas: This wasn't on the list yeah

0:07:59 Matt: He actually specifically said on the day of Hunter Biden's conviction that he was not going to pardon him. But that was before the election and that was when he was still running for president. So I think we can give him some of a pass there. We'll talk about that. Day, the attention on this is making me a little nuts because from both sides.

0:08:07 Thomas: Well why matt because the justice department is now under attack from both sides now from both ends of the political spectrum the

0:08:19 Matt: That's right. That's fine.

0:08:19 Thomas: Justice justice is politicized in this country now for the first time wow

0:08:24 Matt: I down the list of Trump's 237 pardons, it is disgusting. I mean I think Donald Trump might have abused the pardon power more than any other president ever in history. I I mean you're talking about first of all multiple members of his inner circle who did crimes for him. Let's start with that. You've got Michael Flynn, Steve Bannon, Roger Roger Stone, people like that, right? You've got a long list. Paul Manafort, right, all these people that definitely were involved in criminal stuff on his behalf. Like I said, his very first pardon was Joe Arpaio, the Arizona sheriff who the Department of Justice had found carried out the worst racial profiling in the history of the United States policing. Was actually a finding they made. People might not remember this, it was a while back, but he was found in contempt of court. That was the crime here. After ignoring a court order to stop further immigration roundups because they were so racially biased. He was doing incredibly illegal immigration things and throwing people into these camps. And DOJ told him to knock it off. The judge told him to knock if off. He wouldn't stop doing it. That's his first one. That's the guy

0:09:19 Matt: That he came out the gate saying, you know, we got to do.

0:09:19 Thomas: And yeah yeah I just realizing as I know vaguely about these pardons but I'm realizing that I think in my memory a lot of how horrible that was that trump trump's pardoms were might have gotten overtaken by january 6th a little bit and I think I kind of just didn't even like I recognize some some of these. Oh yeah. But like, I think if Jan 6 hadn't happened, there'd there would have been a massive focus on this maybe more so.

0:09:33 Matt: It's very true. Think so. Well, even Charles Kushner, that's the one to me. That's the first thing I thought of when I saw the news about Hunter Biden was Jared Kushner's father was convicted not only of white collar crime, but then setting his own brother -in -law up with a sex worker and then sending the tape to his sister. I mean, that's really gross, like really disgusting. That was a witness tampering. He was convicted of witness tamtering for doing that.

0:10:05 Matt: And the justification for the pardon was because he'd done some charity work after, right? I mean it's just, yeah, a couple years of charity work, whatever, donated. Yeah, right.

0:10:12 Thomas: And now isn't he appointed going to be appointed as an ambassador somewhere?

0:10:17 Matt: And you know what Joe Biden would not do was appoint his son ambassador to France after pardoning him. He just would not be able to do that. He just wouldn't do that, I'm pretty sure.

0:10:23 Thomas: Unbelievable. So many more. You barely started to get into the list of horrible pardons. So you started with a category of people who committed crimes actively on Trump's behalf, which already, already, pardoning your son for a bullshit charge, even okay, yeah, no, not great. The minute you pardon someone for committing a crime on your behalf, you're worse than that by he did it multiple times over.

0:10:26 Matt: War criminals, up and down. War criminals up and down, And the message very much that this is what you'll get if you do crimes for me, should right? Be something that should top of mind when you think of Trump, that he did that, right. And again, that's just one of the things when you're flooding the zone with shit that happens. You've got all kinds of Republican corruption, like Duncan Hunter, There were a number of people like that that were just openly engaging in different kinds of corruption, white collar crime, fraud. Kwame Kilpatrick of the Detroit mayor, who was extremely corrupt. I mean, that pardon was justified by the fact that he taught some Bible classes in prison or something. You know, again, like you're sending the message that you are fine with corruption, not only fine, but you're going to reward people. I just don't see how that could possibly compare to the fact that when we've got people like Pam Bondi and Kash Patel coming in, who will absolutely prosecute Hunter Biden for whatever else they can do. And that's why Joe Biden made this a 10 -year pardon. It goes goes back to the alleged Ukrainian stuff with Burisma and anything else I think that maybe during his addiction. Is a little unusual to have this. It's a full and complete 10

0:11:38 Matt: -Year pardon for any federal crimes he might've committed during that time. Obviously, including the two he's convicted of, but there's any number of things that they've said already, like specifically that they want to dredge up. Them. There's so many more. Oh, I'm sorry. Yes, the war criminals. I forgot to mention the war criminals. How could I forget? Four Blackwater contractors who were involved in the Nisour Square massacre in Iraq just opened fire, killed 17 people, quite a few more just were freaked out or whatever.

0:11:59 Thomas: Remember the cat. This is this This was something that made me so mad. It was, it's hard to even talk about, but there's a soldier of was a war criminal that his own men like turned in his own, fellow own soldiers were like, this is

0:12:10 Matt: Was just about to mention that. Eddie Gallagher.

0:12:11 Thomas: Yep. Yep. Like, not like, oh, leftist activist AOC turned in this guy for like misgendering and Iraqi. Rocky. It's like, no, this is a war criminal that his own people turned in. It's fine. Pardoned him. It's It insane. No comparison here.

0:12:29 Matt: Is astonishing actually to think about this because there was no talk of even investigating any of this and it's so corrupt. And I went back and I was looking at the history, I had forgotten. Bill Clinton was investigated by the Bush administration for his use of the pardon power. They called it pardon gate. His brother, but also he set a record for pardons on the way out. About a third of his 450 pardons were on the Way Out of Office on the last day. But Mark Rich was the one that people really got worked up about, rightfully, honestly, because Rich is a major Clinton donor. I mean, that's pretty bad.

0:12:41 Thomas: For his brother. Yeah.

0:12:56 Matt: That just does not look good. Of course, yes, his half -brother famously, not his full brother, but half -Brother Roger Clinton. Ashcroft opened this investigation, and then James Comey actually ended up closing it and saying there wasn't anything worth investigating at that point. Just the fact that at the time, I mean that really tells you how far we've gone here. That there wasn't even a discussion as far as I know about investigating the don't know. I mean, it's just, we've it heard these accounts about how all these different ways that people were trying to get into his ear about pardons. You're supposed to go through the office of the pardon attorney. Like there's a whole DOJ process. It's supposed to be fairly neutral and people, there's always been this other thought that you can go directly through the president and Clinton certainly did it that way as well.

0:12:55 Thomas: Yeah, yeah, Well, and we should note this Hunter Biden pardon did as well, right?

0:13:31 Matt: Yeah.

0:13:32 Thomas: It didn't go through. No, it didn't go through the pardon nature.

0:13:32 Matt: Through the the pardon attorney? It didn't. Yeah, no, right. Of course. Yeah. Of course. And they don't all, but generally speaking. I mean, it is really kind of a two -tier system where if you have the president's ear, you can get a direct pardon versus if You're not really anybody, you just go through the pardon attorney and hope for the best. Not great either. Fundamentally, I agree with what Joe Biden says in his statement explaining the pardon. Explains that without factors like use in a crime, multiple purchases, or buying weapons as a straw purchaser, people are almost never brought to trial on felony charges solely for how they filled out a gun form. Those who are late in paying back their taxes because of serious addictions but paid them subsequently with interest and penalties are typically given non -criminal resolutions. It's clear that Hunter Hunter was treated differently. And that's true. You just can't really argue that. The judge got mad. The Trump appointed judge who ended up terminating the tax case gave Biden a lecture about how he shouldn't be criticizing his own justice department and criticizing the judge by implication. He's right. It's true."

0:14:10 Thomas: That's just true.

0:14:22 Matt: I mean, this whole thing was political and there's no question.

0:14:22 Thomas: Yeah cool to lecture away dude.

0:14:25 Matt: If this were Hunter Smith, Hunter Cameron wouldn't be happening.

0:14:28 Thomas: I mean can talk about There's a million ways. It seems to me this could have been done better as much as you and I kind of argued about the pardoning people like Jack Smith, myth, you know, and I was of the position that don't like, feed the fire with that. I would say if he were if he's going to do the Hunter pardon, he should have done it in a batch of people like that and put it in the category of, hey, Trump has threatened to go after these people. Is it going to solve it? No, it won't solve it. But like give give the media way more to talk about it once, like which seems I don't know how nobody has learned this lesson or at at least maybe Biden hasn't learned his lesson. Maybe he doesn't care. Honestly, that's the other thing is like, I can't, how worked up can you get about a 400 year old man whose legacy is ruined? Who what does it matter? And here's my other tip. If maybe what he should have done, honestly, is just completely divorce it from politics in any way. And just been like, Hey, I'm a dad. This was unfair. I'm doing this as a dad and

0:15:24 Thomas: Just kind kind of take it yeah and like put it in the category of like oh okay this is not a democrats or republicans thing necessarily this is a like hey I get that I said I wasn't going to pardon him but it comes to it and I'm looking at down the bear you know we're looking at prison time for stuff that no one else would ever do prison time this is unfair as a father I cannot go out of my office with the power to save my own son from this ridiculously thing and not do it I would never be able to look myself, just make it personal, you know, just like totally personalize it, take that kind of grenade a little bit. Think that would have helped a lot. I think That would have made it so it's not about like, you know, and if you want to make the argument that, oh, that means that Democrats when they're 100 years old, and they're leaving office, they might, you know, end their entire reputations and tatters and their son is going to go now they're it less easy to turn it into the self that Democrats are always going to do. It becomes more specific and personal to Biden in a way that I think would have been a lot better.

0:15:24 Matt: This was addiction. Yeah. Right. Right? Yeah, right. To say, I have a lot of disagreements that show Biden over the years. But the one thing that I've never questioned is he is a very good father. He really cares about his family and his kids. And it's just like down to the bones, you can see it. And that is absolutely correct just to come out and say, no father, if they had the opportunity, would not take this opportunity. If you could could save your son from federal prison time for something that you really feel was unjust, especially if it was unjust. Yeah, no, I think that's, again, some messaging issues and kinds of other pardons. I mean, I'm really hoping, this is only his 26th pardon so far, and I'm hoping we've got a lot more coming. We'd better have a lot of more coming, it's not very many.

0:16:48 Thomas: That's actually kind of shocking. No,

0:16:51 Matt: The time he was done, Obama had 450 straight pardons and then more than a thousand other clemency actions. And clemency can include commutation of sentences or reductions of fines or whatever. There are lots of other ways you can do it.

0:17:01 Thomas: The other good criticism I saw is he probably should have commuted Hunter's sentences. And of the things that makes this look not great is he did get convicted by a jury on the gun charge so it's hard to could say this is just maga going after your son unfairly but a jury convicted him so like I think that that part is frustrating. And I think he should have just done a commutation. Maybe you pardon the other one, you know, but like the one where you already got a jury verdict, I think there's just a lot of ways that this could have been done better. But I also just, whatever, man, it's just like, who cares?

0:17:32 Matt: Know. I think that the full pardon means he can practice law again too, which is important. That is his profession. It does also open him up to being called into Congress for the rest of his life because now he doesn't have any Fifth Amendment protections. So there is that, and commutation would have maybe solved that. But yeah, no, it's a real dilemma all around.

0:17:48 Thomas: Didn't think about that. Wow. Yeah.

0:17:54 Matt: There's a lot of different moving parts in these kinds of things. Is objectively a problem to have the president pardoning his own son. But like I said, this is the one place, the one circumstance I couldn't have imagined, but I can really see it here. I really understand it, and I have no problem with it.

0:18:05 Thomas: Man. I think my overall thesis is, objectively, this is just not even close. There's no comparison to the corrupt use of the pardon by Trump. Not even in the same league. It's just not close.

0:18:19 Matt: And we've already talked about how he should commute sentences of everybody on death row. But I was just thinking about Ross Ulbricht today. Do you know about Ross Ulbricht? That's the one he should just do right now. The only person in the federal prison system doing life without parole for running a website. Was And the Silk Road founder. Might remember Silk Road as a dark where you could buy drugs basically with crypto. He himself was never involved in selling drugs or doing anything else. Who's just facilitating this market. It was a pretty unique prosecution all around. And Trump pardon Ross Ulbricht. And I really think that Biden should do it on the way out because he's serving multiple life sentences without parole for this. And I've just always thought that's travesty. Might be one of my personal ones. Government made a pretty illegal argument at sentencing, saying, connecting him with some kind of an attempt on a hit or something, but it was never something he was charged with, some kind OF contract killing. It just to try to emphasize the sentence. His conviction was explicitly just for running this site. But that might be another episode for another

0:18:50 Thomas: It's interesting. Interesting.

0:19:09 Matt: Time, especially because it sounds like he will be pardoned, so maybe we can talk about it.

0:19:12 Thomas: Bottom line on that. About you pardon some more effing people, Biden?

0:19:15 Matt: Yes.

0:19:15 Thomas: Like, that's a good way to distract from the fact that like, oh, special treatment. Yeah. If you've only pardoned 20 some odd people, it does look like pretty special treatment How would you get that pen going? Pardon a whole bunch more people who deserve it. And then it doesn't look so, you know, so out of the ordinary.

0:19:31 Matt: Will say when I say 26, he did also have the class pardon of people convicted of marijuana possession at the federal level, but that wasn't very many people. And there was nobody in prison at the time. It was more of a symbolic thing. It was important. It's important to those people, but more of that, because that was a lot of Obama's, you know, the more than a thousand I was telling you about, that was, a lot OF those are drug cases. And that's, that's a good message, especially for Joe Biden, who was responsible for helping to pass the crime bill that put a lot Of those people into that position. So I think that would really be something, but

0:19:37 Thomas: That's fair. Oh, right. Now I remember that. Yeah.

0:19:54 Thomas: Especially when his son is an addict and he's talking about that. Like, wouldn't that be a good thing to do, Joe? Yeah.

0:20:00 Matt: Messaging, messaging.

0:20:01 Thomas: Message.

0:20:01 Matt: Messaging.

0:20:01 Thomas: Hey, here's some other people also who suffer from addiction and perhaps deserve a little more empathy in our society. Pardoning them. Be a great thing to say. It. So yeah, lots of room for improvement. However, this bullshit about it being the same or a major, you in how we're looking at the justice system, it's not a change. This is already what has been done with the pardon power forever. Yeah.

0:20:25 Thomas: All Right. Latest oral arguments in the Supreme Court. You wanted to give us the basic rundown? What's

0:20:29 Matt: Down. So this is U.S. v. Skrmetti, and it's Jonathan Skrmetti, the Attorney General of Tennessee. This is reviewing a Tennessee bill known as a shorthand as SB1, which prohibits all medical treatments which are intended to allow a minor to identify with or live as a purported identity inconsistent with the minor sex or to treat purportive discomfort or distress from a discordance between the minor sex and asserted identity. Essentially, it's intended to block a number of different healthcare options for young people who are trans. That's the purpose of it. And in fact, the actual stated purpose is really worth reading before we get into this.

0:20:59 Thomas: Yeah, I was going to emphasize that. Yeah. Actual stated purpose, as is something that I might refer to as a bad document when you're trying to defend it in front of the Supreme Court as not distinction on the basis of gender.

0:21:09 Matt: Yeah, there's maybe a whole Fox News essay at the end of the book at the very beginning of the essay. This often happens with bills where they explain why they're passing it. And one of the reasons is that they want to prohibit medical procedures that might encourage minors to become disdainful of their sex. So, yeah, now It's full of the kind of stuff you'd expect to hear on Fox about all of this. They just gratuitously mention Dr. John Money. They love talking about him, one of the earliest advocates who was abusive to minors in his care. There is really no reason to mention that. They mentioned that people are making a lot of money doing this. Allegedly, people advertising these services have been posting pictures of naked minors online to advertise such surgeries. I doubt that's true, but shouldn't exist.

0:21:40 Thomas: Well I guess then we shouldn't have any sort of medical procedures that involve bodies or kids oh and also matt you said people are making money on it shit shit, I guess we better not have any part of our medical system that makes money then. We can't do that.

0:21:55 Matt: That's off of mental health or any other services, no, they should not be. I just wanna say before we go on, I mean, this is a hateful bill. This is obviously specifically targeted at trans people and trans kids, especially. And they're of the things they're focusing on is the fact that it's only for kids, but there is no reason that the logic that they're discussing here could not be extended to adults later. And that's very concerning. And I just want to say, before we really get going on this, that, I mean, I know that you agree with me, we haven't talked about this, but we know we have a lot of trans listeners and we have people who care about trans people listening. And this is a lot of stuff here that I don't think should be up for debate at all. It is hard to hear your rights being debated and your to healthcare being debated. And the consequences, I just want to say of this are extreme, could be extreme in terms of denial of healthcare.

0:22:36 Thomas: Yeah. You know, let me add on to that too. Me know if you agree or disagree, Matt, but if going to listen to these oral arguments, and I can give the same warning if and we do something thing that involves more of them I think you need to listen within mind the fact that they're speaking to their audience so like there's a lot of things in like admissions sort and like points conceded that think like they're just doing doing because they know they're talking to six of the worst people in the world and they're trying to see if they can find a way to get them to not ruin a bunch of trans kids lives so they're conceding stuff like if you you hear stuff in any of the arguments where you're like, wow, I can't believe it? The, The not transphobic side of this argument is conceding that point. They're doing it strategically. And I think it's just kind of a heads up that like, you might hear some of that stuff and I guarantee you it's because they are doing that with every effort to try to appeal to the specific group of ghouls

0:23:25 Thomas: They're trying to appeal too, to try try to prevent harm.

0:23:28 Matt: As we'll discuss, they're also somewhat limited by the legal arguments they can actually make and win on here. I want to tell you about the plaintiffs very quickly, because I don't think they've been kind of left out of some of this. All using pseudonyms because they are children. But we have LW as the lead plaintiff. She's a 15 -year -old girl in ninth grade. These kids have quotes in the appendix. This is all in the record. And I just want to make sure that it comes out because they wanted it in the recorded. She talks about how it's hard for her to feel comfortable in her body. The feeling I had was like drowning, similar to feeling trapped in water. I felt like I was trapped in the wrong body and could not do do anything about it. I did not like changing clothes, et cetera, et cetera. About how she could enjoy shopping and going into a public bathroom and not feeling like she's being stared at. You've got John Doe, a 12 -year -old boy who's been socially transitioned since he was in second grade, has always considered himself a boy for as long as he can remember. And he says, I cannot imagine losing control of my life like this for the next six years. And that's quite a thing to hear from a 12 year old, 15-year-old boy named Ryan Roe, who wants to be a lawyer someday. And I hope he does. Didn't I know what being transgender was, but I remember looking up whether women could grow beards. I was hoping at least I could become a woman with a beard. Said he threw up every day when he's going through female puberty because he was so anxious about being trans in a changing body. He was so conscious about his voice. And something you hear a lot when you read these stories about starting to hate your own voice and feeling like you don't want to say anything because it's just not the voice that you have or that you want. Continued treatment, I found my voice again in every way. Before treatment, I hid. Now I like to see myself in the mirror and in photos. I'm raising my hand in class again and participating in all aspects of school. And he also says, I feel like in a sense, I'm losing my childhood because I have to spend so much time worrying and planning. And I don't want to leave these kids out of this conversation because they are why we're here and are what this bill is targeting. Our children who are trying to just be themselves and for the best lives they can. So I just wanted to make sure we center

0:25:10 Matt: That before we get started with anything else.

0:25:11 Thomas: That's weird, Matt, because one thing I didn't hear there was, well, all my friends were transitioning. And so I thought it would be super cool, even though I have no authentic trans feelings of my own. Didn't hear any of that. One thing that's clear, if you spend any time with these cases and just, you just how like obvious it is that these people are trans. They've known their trans for a long time. They have gender dysphoria when they get treatment. And away, it's not 100 % because nothing in life is 100 % with humans. Far and way, their outcomes are way better. Their lives are way besser. They feel way better, it solves a tremendous amount of their pain and suffering to get actual treatment for their gender dysphoria.

0:25:47 Matt: Doubt. And I am not a parent. I know that you are, but just reading the accounts from parents about just their children struggle, Even parents that didn't really know what to think of all of this at first, who lovingly embraced it and are now actively involved in the suit and doing everything they can, including trying to seek out now treatment in other states because this ban is still in effect in Tennessee. See. Just reading the stories from these parents and especially thinking about the way that Republicans are making these arguments around the country about parents being involved in every aspect of children's lives for education, right? And making sure that, or in COVID decisions and all this other stuff, but saying that somehow in this one place, parents can't be involved in medical decisions. So it's really, those are just kind of the background ideas here. But But this bill was immediately taken to a district court in Tennessee, and it was enjoined after a hearing in found that it discriminated on the basis of sex because, of course, by definition, I should get this out very quickly, these treatments are available to everybody. And if you're going through what they call precocious puberty, you can take puberty blockers to put off puberty until a time when it's more appropriate, for example. Some other kind of gender reaffirming treatment for cisgendered people. It's available. The main argument here and the one that Tennessee district court found most convincing is very straightforward, which There's a lot of fancy things that are being said during all of this, but what it comes down to is, is banning certain people from receiving certain kinds of healthcare because of the sex printed on their birth certificate advocate, quote unquote, because of sex or discriminating on the basis of sex, right? And the answer to that, and that there's a reason the attorneys keep coming back to that question, because that is the heart of the case. And that's what's going on. And That's what the district court immediately found was the issue. District court also found that there was a due process issue for parents deciding on healthcare for children, but that didn't make it up to this appeal. Wish that could have been considered. This was reviewed by the Sixth Circuit by Judge Jeffrey Sutton, who was a former Scalia clerk and a conservative justice. And And he found that parents managing the health care of their children is not a deeply rooted right. So you got Dobbs rearing its head there.

0:27:37 Thomas: I guess we can forcibly vaccinate everybody's kids now, sweet. Sweet.

0:27:40 Matt: Because there's never been a right to that, to not having that happen. Other things. But he generally found that he the state's argument, which is essentially that this is a decision about health care that is not predicated on sex, that it's just because they think it's an experimental an experimental risky treatment for that class of people, not for the other people, not for this people, but for the trans people. Gets up to the Supreme Court and the real raised is the one I just mentioned, and I should just break this down about how it works because this is constitutional law 101, but it's very important that we understand it especially because it's the heart of this case.

0:28:10 Thomas: After listening to all this, you might be under the impression that what's being argued here is the medical validity or safety of these treatments. Entire issue is that you need to determine if it's a distinction based on sex because if it is it should trigger a higher level scrutiny than rational basis or whatever and that's all they're there to answer right I

0:28:35 Matt: We're looking at is levels of review that are triggered by different kinds of attempts to discriminate. And so it's very longstanding. I'm sure everybody's heard this expression that if you are discriminating on the basis of race, national origin, or religion, that it triggers scrutiny, strict which is the toughest level of review. That doesn't apply here, but that demands a compelling governmental justification. You can't just go discriminating on those things. Then the court sort of refined this over the years into heightened or intermediate scrutiny. I always heard it called intermediate. It's very disorienting for me to keep hearing heightened. For classifications based on sex, that's got its own special sort of thing. Case, it's not only a compelling governmental justification, but that it has to serve an important governmental objective. And the reason that the conservatives and Tennessee do not want intermediate scrutiny applied here is because they would almost certainly lose if it was applied that way. Because what the Sixth Circuit did was apply rational basis, because they found that it was not a discrimination against a suspect class. They found that It was just a medical issue, as you said. And with rational basis you just have to show a rational relationship between what you're regulating and some kind of legitimate government interest. And that's a very low standard. Thing that I think that people might be wondering on top of what you were just saying about, are we sort of litigating the validity of these treatments because we're not, why we just argue, and Sotomayor does ask this at one point, but

0:29:47 Matt: Why can we just argued that gender identity is a suspect class because it never has been held to be? That is an argument that the US government is making. I should note that the U.S. government has intervened. So they intervene on behalf of the families in this lawsuit. And Elizabeth our hero, gets an hour of that argument. And then Chase Strangio for the ACLU is representing the families in a private capacity, half hour on that. And then the state of Tennessee is represented by J. Matthew Rice, who is a former minor league baseball player, and a Thomas Clark clerk. So we've got a uh Thomas and Scalia clerks involved in the mix here

0:30:18 Thomas: That's exactly what he sounded like. If I had to, if I had a former minor league baseball player Who clerked for Justice Thomas That's perfect That's amazing That's exactly what I would have thought This guy It's okay I won't go into it It's so rage inducing Because again To talk about that central distinction Maybe I do need to say this right now Just because it's driving me nuts So the whole game is For that side For team bad guys This is this is not a distinction On basis of sex This is just Can't get treatments for the same way that people tried to say, look, a ban on gay marriage has nothing to do with gender.

0:30:55 Thomas: It's both men and women equally can't marry men and women, respectively. That was the argument.

0:30:57 Matt: That's right it's exactly like that yeah

0:31:00 Thomas: You could make the same argument with loving Virginia, couldn't you? I mean, hey, equally white The rule is you can't marry outside of your race. And that's an equal rule. It has nothing to do with race, Matt. That's an equal. Is there a problem there? And that is the entire game. And these assholes have to have to for hours, sit there and pretend they don't understand that this is absolutely based on what gender you are. There's one moment that was probably for me the best, podcast which forget who said it, but somebody said, okay, pretend know how sometimes with kids you can't always tell, with anybody you can always tell their gender just by looking at them, but let's pretend you Have a kid who, kind of gender non -binary, you're not sure based on looking at what gender they identify as. They come into a doctor's office and they say, can I get these drugs that delay puberty? To this law, what's the question you would have to ask, Matt?

0:31:51 Matt: Me your birth certificate and

0:31:52 Thomas: Yeah, show us your birth certificates. Are you going to see what sex you were assigned at birth?

0:31:54 Matt: Decide. Right.

0:31:56 Thomas: And that question alone will determine whether or not you can get this treatment, which seems to me, Matt, to be a pretty knockdown argument about the whole, is this a distinction based on sex thing? If the question you have to answer is what sex are you before I can apply this, it seems pretty clear. And yet we had to spend two and a half hours pretending we don't understand that incredibly simple point.

0:32:18 Matt: Me just read you a very important quotation from a very important person. It is impossible to discriminate against a person for being transgender without discriminating against that individual based on sex. That is Neil Gorsuch writing in Bostock in 2020. And that's the other trans case. It's the only other time that trans rights have really been up for debate in front of the Supreme Court. And of course, in that case, he was reviewing Title VII of the Civil Rights Act. But Neil Goresuch was silent throughout this.

0:32:42 Thomas: I was just going to say, it didn't occur to me, he didn't say anything, right?

0:32:44 Matt: Nothing to say. Nothing.

0:32:46 Thomas: Was he there?

0:32:46 Matt: And was present. Apparently, he had a very lively conversation on the side with Coney Barrett at some point. But But he had nothing to say. And I know he's taken some heat for the Bostock decision, which was the right decision, obviously, to

0:32:53 Thomas: That is really weird. Was going to saying, yeah, in my head canon, it's that the other five assholes are really mad at him for Bostock, because like, yes, that was obviously the right decision, and now gives these plaintiffs like more of a ground to stand on. They're all like, all right, Neil, you shut your mouth, because last time you opened your mouth. You ruined this whole thing for us.

0:33:09 Matt: Years ago. And again, just to be very clear, this is a 14th Amendment equal protection argument. That's when we're talking about these suspect classes and everything. It's a constitutional argument. So the textual analysis he was doing, and I'm sure he can maybe try to distinguish this himself. We'll see what he does. But the textural analysis he's doing, the Civil Rights Act is not necessarily binding. But I mean, he did say out loud in writing very clearly that this is discriminating against an individual based on sex. If you're discriminating as trans people, that's what's going to happen. So to answer that question, that sexual orientation and gender identity have never been held to be any kind of suspect class. We just haven't gotten there.

0:33:50 Thomas: On their own. It's always been kind of through that other means of gender. And the problem, you mentioned the kind of the limitations of what our is really able to argue, practically speaking, because of what they've done to the court is the court for a long period of time now just doesn't really want to give anyone else these kinds of rights, right? They don't want to add to the list of suspect classes. Is they don't because that would be a thing that would give more people like civil rights and stuff so like there are plenty of it seems to me that at the very least trans people um -straight people uh those would be people that I would think should be on this list but it seemed clear to me that they're they're never going to do that so they were limited to arguing by this sort of secondary route even though they brought it up a little bit but it seems clear that that's not not going to be what they're going to do.

0:34:36 Matt: The government did argue in their brief, they made the argument that it should be as they should and to preserve it. But I think we all know that... And the based on sex thing is pretty black and white. I mean, it makes it much easier. Just in terms of I have to talk for a second about Chase Strangio.

0:34:50 Matt: And I'm very, very proud, obviously, because he's from Newton, Massachusetts, went to Northeastern Law School. Love to talk to him sometime soon. But one of the first questions he's asked by Alito, this is just going to go down, I think, as one of like, it's going to goes down as a moment in Supreme Court history, first of all, because you have the first openly trans person arguing in the Supreme Court. But then you have the first overly trans person, arguing in Supreme court, almost immediately asked about their own identity. And it wasn't personal. Alito wasn't necessarily trying to make it personal, but of course it has to be personal because Alito asks pretty much off the bat, is being trans an immutable characteristic? That is a very complicated answer potentially. And he says the record suggests that it could be, and he sticks to the idea, which I think makes a lot of sense to me, that we're talking about people who are not consistent with what's on their birth certificate. They're just sort of getting around, trying to get into the nuance because there is a lot of discussion amongst community. Again, I want to be very careful about this because this is not our community, and we want to talk to somebody who can come in and talk a little bit more about this. Something, and I'm sure we'll play the clip at some point when we do all of this, but to have this very personal conversation between Alito and Strangio, and knowing where Alito's coming from, obviously, as a

0:34:50 Thomas: That'd be great. Yeah yeah

0:35:57 Matt: Very strict Catholic, and he's pretty pretty disdainful of the whole thing.

0:36:00 Thomas: And an asshole we should say that he's also an asshole.

0:36:01 Matt: He was doing plenty of that too. Then you've got Kavanaugh who just wants to talk about women's sports because he coaches a basketball team. And that's what's on his mind, which women's sport not only is not in front of the court, but has been decided by multiple courts as Prelogar points out and has been held to rise to intermediate scrutiny because it does require that kind of thing.

0:36:22 Thomas: But that would be the fact of dividing men and women into different categories so that but again that's a different thing there's so many reasons why this made no sense but yeah Kavanaugh just brought up hey what about this this other completely not related, not part of this case, nothing. Would this mean that trans women would have a right to compete in sports? It's, look, definitely these are all valid questions to be asked by non -assholes about how to do all that. It has nothing to do with anything. Just by the letter of the law of what we're doing here, it has nothing TO DO WITH ANYTHING. This law that prevents medicine from being administered to trans kids who need it, Does it have anything to do with sports? Or is the question just, is that based on gender or not? Is that based upon sex or not. Seems like it is to me, Matt. Sorry, this is impossible to talk about without getting mad because it's so frustrating. These people are either the stupidest people in the world or they're very good at pretending they don't understand what's happening. And both of those things make me really mad because they decide everything that they're the rules in this country. They're deciders of all the rules of this country, they're either so dumb they can't understand that or they're really good at pretending to be dumb so that they can ruin our lives further and ruin trans kids lives further god

0:36:53 Matt: Off base. And with you. Think you're a pretty solid anger translator there because, I

0:37:36 Thomas: Oh

0:37:37 Matt: Mean, the patience, we should let that go.

0:37:39 Thomas: Yeah chase oh yeah Chase Strangio comes so professional in dealing with these assholes as as a lawyer which is which I don'T think he should have to do like I would I wish that Chase could just be like hey hey, you're asking a very shitty and cruel question right now. That's you're an asshole. But no, Jay Strangio was incredible, handled himself amazingly, and answered all these bad questions.

0:38:03 Matt: Outstanding advocacy from both of them. Question is though, and to be be very clear about what they're looking for here. Because the Sixth Circuit applied rational basis review, we didn't get to have the benefit of intermediate scrutiny, which is what it should have. And so they did confirm this on the record, but what Prelogar and Chase Strangio have agreed that they want is to send it back to the Sixth Circuit to have it reviewed and then sent back with the proper standard. That's all it needs.

0:38:26 Thomas: Happens all the time, right, Matt?

0:38:27 Matt: Yep, completely normal remand.

0:38:27 Thomas: Because there was even a time where I think it was Kavanaugh was like, well, but then it's just going to be like right back to us, right? Like, yeah, maybe.

0:38:36 Matt: Doesn't have to be.

0:38:37 Thomas: I don't know, man. Isn't that your job? What are you talking about? Out. Can you just do the law differently? Because you're like, well, I don't want to make another trip. You know, like what?

0:38:46 Matt: Well, you could also find after the Sixth Circuit were to do the right thing and to find that intermediate scrutiny was the right thing and then apply it properly, then maybe you don't have to look at it again at all, because that might be the right answer. In fact, it is. But yeah, no, I mean, it might come back. But it turns out this is actually a very important issue to a lot of people. It's, you know, 1% of the population is set on my AirPods sound, but that's a lot of people and they matter.

0:39:09 Thomas: So the idea that like, I Don't want it. That's too much effort to have to decide this again. It's like, that's your job, man. That is your job. And that is what we give you near infinite power and no accountability for. That Is the pay and whatever whatever salary you get, you get those three things, all the power in the world, no accountability and probably a bunch of billionaire jet rides and probably, I don't know, $200 ,000. What does the government pay him? Something, something. It's not nothing. That's why you make all those things, Kavanaugh. And just make it very clear, you could very easily say, okay, they applied the wrong standard, as you said, instead of applying the rational basis test, which is nothing, just saying like, is this a law? Yes. I'm exaggerating, but it's, you know, obviously Obviously, it's a very easy test to pass. Of applying that, send it back to them and say, hey, wrong test. Then the lower court, whose job it is, they're as closer to the facts. They do more of that analysis. And instead, we've got Alito, all of them. And this is why I want to probably do like a where there's woke crossover, because they're so steeped in their anti -woke Fox News, whatever, that they're like citing all these, like the the cast review, all the, oh, Sweden, all of a sudden they care a lot about what other countries do. Does

0:39:13 Matt: I want to look at that. Right. Yeah. International

0:40:21 Thomas: That work when we're talking about guns, Matt? Does that, I'm so sorry. I got to stop. I just, it's impossible.

0:40:21 Matt: Law. Yeah. Anything else.

0:40:26 Thomas: God ever.

0:40:27 Matt: Mean, try to get Alito to care about international law or anything that Europe is doing on any other subject. Yeah. And it's just, no, that really, I stood up in my seat when I heard that. That he cared that much about Europe now.

0:40:38 Thomas: There's so much more. There'S so much more. I can't wait to get to it. Uh, but that, that seems reasonable, right? Doesn't that happen? The question for, for the, for the lawyer in the show here, doesn't that happened all the time where they're just like, yeah, Yeah. Apply the different test and come back to us if you still have a problem.

0:40:51 Matt: Send it back and write. He did it right, then we'll let it go. How appeals work. Often takes more than two or three times to get it right on some of these cases.

0:41:00 Thomas: Serious question. Do supposed to do that or are they supposed to also apply the test for them or do they do both or either or how's that normally work?

0:41:09 Matt: Could. I mean, and somewhere kind of asked if maybe, I think it's strange if they want to do that. It makes more sense to send it back to the people that made the bad decision and say, apply it the right way and then, you know, create binding precedent and do it. Yeah, no, I mean, it doesn't matter at the end of the day. It just has to happen. And I want to note on the other Kavanaugh thing that really annoyed me was the way he kept talking about how the constitution is neutral on this, which is what he said in his concurrence in Dobbs. That was exactly the same logic he was using.

0:41:35 Matt: And he talked about how we don't want to constitutionalize this issue, which is just such a gross and weird thing to say, because we're talking about kinds of of people, right? People who should be protected equally under the law with the rest of us. You don't want to constitutionalize them, which means you don't wanna give them rights. That's what I'm hearing you say. That really upset me, honestly, to hear him put that way, because you're saying that the, I don't think that this really is a matter that the constitution needs to address. That's really, that's how I hear it. I don'T know if that's what he means. It sure sounds like it. I think so.

0:42:03 Thomas: No, it is. It's his way. He's found his pattern for how he wants state's rights to be everything. It's all state's right. Now, obviously they also won't let state's rights happen when it comes to, you know, in certain things they'll decide, but for this, Hey, shouldn't we, uh, Hey, you got good. And they, they do this, this condescending thing. Hey, excellent medical arguments on your side. Um, there's also compelling medical arguments on the transphobic side. So I don't, I think the constitution says we should be neutral about that. It's, it's so transparent. It's so obvious. It's because they can point to it's medical. So therefore complicated is essentially what he's saying. Try to make some special category. Well, if it's complicated, new medicine stuff that we don't understand, then we can't, we have to just let whatever happened. But if there was any treatment that a hypothetical will make white people be the target, there's some really Republican wet dream of a doctor somewhere that was like denying medicine to white people. Like, oh yeah, we can't give white people this treatment because we've done some research on white people and there's something about their their genome. And it just, it reacts badly with this treatment. We can't, we can't do it. And, and would Kavanaugh then say, oh, well, it sounds like there's kind of medical research on both sides. So like,

0:43:16 Matt: Right.

0:43:16 Thomas: I guess we have to say like, yeah, no, you're right. Or would he say, well no, it sounds Like you're saying is the person white? Yes. Then therefore they get treated differently. That sounds like a distinction based on race. That's exactly analogous of this, other than I guess, gender is the intermediate scrutiny, versus, you race tends tends to be strict scrutiny, right?

0:43:35 Thomas: Like that's the one difference. But that one difference aside, that's to my mind, and please correct me if I'm wrong, an exact analogy of what's going on here, right.

0:43:35 Matt: Right, right. But right. Yeah and to yes and that, we also have, what if there's a certain number of white people who realize later they didn't want that treatment, right? And he harped on that forever, even though the rate of what they call regret or detransitioning is incredibly low. And, you know, you think about things like, I don't know, back surgery or childbirth that people might regret later.

0:44:02 Matt: I think the rate of regret is a lot higher on things like that, you knows, especially more experimental kinds of pain treatments, you but the Stranger made the point, obviously, that there are lots of medical procedures that people end up regretting, but that the rate is much lower, but they all kept coming back to that in a way that I thought was really offensive because of course they're doing like the white knighting, like trying to do this on behalf of, you these people that are so confused or whatever um know in the same way that kavanaugh is doing this on behalf of women I guess he's defending their rights somehow by doing what he's doing I mean it's just yeah yeah

0:44:28 Thomas: So frustrating. We could do 10 hours on this and we probably will because I just, I can't, I haven't even, I haven'T even begun. I've tried to hold back as much as possible, everybody. Sorry. It's just so infuriating and it's so, it's a, a concerted effort by no than the New York Times, by the way. I put the New Year's Times in the directly responsible for this abomination that is going to be this decision because of how they've enabled, they've legitimized un unscientific thinking on this issue. This is not a controversial issue. You. Take away Republicans and conservative, everybody, take away everybody demagoguing and hating trans people, which would be nice. Let's take all these people, take way all that and just pretend we live in a world where trans people just existed and we were cool about it and nobody made a big deal about it. This would be a normal medical thing that would like any other normal medical thing, not have a 100 .10 or whatever. There would be like a person a time or or two who would have a procedure go wrong or something like but like every other medical thing but it would be uncontroversial and this network of transphobes that we've covered a lot on where there's work but there's there's so much work to be done including again the new york times to to a large degree to an influential degree has enabled this transphobic distortion of science to carry the day to the point where they cited in the brief oh well I see that their number for regret is 85%. I heard that. I was taken aback. I'm exposed to a lot of this bullshit, Matt. I've never heard anyone claim that there's

0:45:59 Matt: Absurd

0:45:59 Thomas: 85 % regret rate on medicine. What? But they get to just say that. They get to say whatever. It's not scientific. No one calls them on it. And then these justices can just say, well, it looks like in this brief, they said 85%. So bad thing.

0:46:15 Matt: Yeah the the Tennessee brief cites all kinds of junk that we get in amicus from the America's Frontline Doctors who are some of the nuts that were doing some ofthe covid litigation uh and then you know they're they're in there with you know the ama is also you know you have to believe that there's some kind of conspiracy in the medical community that you'd have to actually believe that to promote this because it is so well accepted they really I mean I guess sorry

0:46:34 Thomas: They do believe that, Matt. I hate to break it to you. That is exactly word for word what they believe. They think it's a conspiracy. Yeah, it's insane.

0:46:42 Matt: I I guess I should listen to where those work a little more often.

0:46:46 Thomas: Don't want to shame you on air. No, and actually, I do want to put a call out SIO. So there was a group that did a debunking of the cast review. I think I mentioned it before that a Serious Inquiries Only episode. I interviewed them. And the cast report is, wouldn't you know it, a pile of absolute nonsense. And it gets cited just as like, oh, that's one of the great, great sources in this case.

0:47:07 Matt: Alito got mad at Prelogar because she put it in a footnote. She talked about it in the footnote, right.

0:47:10 Thomas: He was insulted on the cast reviews behalf. He was he was like, I can't I can I can believe you. I'm here. I'm your footnote. Unreal. Unbelievable.

0:47:19 Matt: This thing I like so much. Yeah. No, it's tough. Don't know.

0:47:24 Thomas: Yeah, it's evil and it's horrible. And if think my prediction is that they, think they eventually found the formulation that they're going to latch on to. Let me know if, let me know what you think, but I think they'll latch on the idea that this is about the treatment. They'll say, oh, this isn't about sex. This is about, are you getting this stuff in order to delay puberty or something? Like they'll put it in those. I think that was the wording they eventually, they They workshopped it a bunch, and think that was what they landed on. It'll be, no, no. The treatment is delaying puberty. So, therefore, boys and girls alike can't delay puberty, according to this law. Mean, it's the gay marriage argument all over again. It's the men and women alike can'T gay marry. Essentially, it'S that same stupid argument.

0:48:08 Thomas: I think if I were to predict it, I think That's what they'll land on, personally.

0:48:04 Matt: I yeah yeah hey it's actually worse because you have the parents and the doctors you consultation you've got doctors saying this needs to happen and we've got judges and legislatures saying no 24 different state legislatures have passed some version of this tennessee's is the worst uh you said it's it's such a simple straightforward forward thing. It's fairly black and white. You should be able to answer this legal question in a couple of minutes, but we got two hours and 20 minutes of argument in circles.

0:48:33 Thomas: This would barely be a bar question, Matt.

0:48:36 Matt: Yeah, basically. It's so true.

0:48:37 Thomas: This would barely Be a T3B Oh, hey, does this law? How does this work with the 14th Amendment? Is it based? What level of scrutiny? And then I would get it wrong because I forget all the time. But then you tell me, well, it's a intermediate intermediate scrutiny. And that's how it works. Obviously, it was basic. All right.

0:48:50 Matt: Should be.

0:48:52 Thomas: Hey, Matt, are you going to cheer us up with a quick footnote? Because I'm so sorry. It is just I can't do this without being mad. I can'T separate the personal component from this. You know, we have so many trans listeners, trans friends, and and hard to stomach. So apologies for getting hot under the collar, but Matt, I think, is going to take us out with a bit of a footnote, which I think we could use right about now.

0:49:15 Matt: And just want to close this by just saying, of course, to our trans listeners and everybody listening, we love you and we support you. I know this has to be hard to hear, and we totally understand if you want to skip this episode, obviously.

0:49:24 Thomas: He says at the end of the episode.

0:49:26 Matt: That's true. Sorry. Wanted to bring back, and this was a huge story from this week. I thought this was very important. I don't know how much coverage it actually got, but I just want to mention very quickly that South Korea had the strangest day in the history of any democracy that I've seen in a while. And I just wanted to say that this is hopeful. This is something that it's just good to see a democracy and make it work. I'm not going to talk too much about what might happen if something like this happened here. Let's keep it to good news. But we within the space of six or seven hours, Trump the of Korea, we actually have a South Korean employee here in the office, and he was having quite a rollercoaster of a day. He told us all about kind of the background of some of this. But President Yoon Suk-yeol is the current, well, for now, as of the time of recording, current president of South Korea. But he made this just nutty declaration on Tuesday night. Said, honorable citizens, I appeal to you with a feeling of spitting blood. Went through and talked about how the Democratic Party, that's actually what they're called in South Korea, has been persecuting him and how they're actually operatives of the North Korean communist government and they're all communists and there's nothing we can do. And so all I can do is declare emergency martial law to rebuild and defend the free Republic of Korea. Andso he declared martial which the South Korean constitution does allow him to do in a national emergency because he said that the free Republic of Korea is falling into ruin and people immediately, and this was 1030 at night, people took to the streets. There was protests all night. The South Korean parliament immediately had called an emergency meeting. And even though the, and I should point out martial law in South Korea, as it is most places, I think it means they can take over the media. It means the military is taking everything over. The parliament suspended. This is a big deal. This is not something you expect to happen in a stable democracy like South Korea, which was a dictatorship as recently as the 80s, but has been doing pretty well. And so 190 to 0, the opposition party and several members of the other parties got together and agreed to lift the state of martial law, which the constitution allows them to do. And I don't know how he didn't think of that. It seems like,

0:51:24 Matt: I you should be doing the math.

0:51:25 Thomas: Think ahead on this one. Yeah

0:51:27 Matt: Yeah. And also, you know, you've got a military that is, there's mandatory military service. So the military is you, it is the people, right? It's like in a very real way that we don't really see it the same way. So it's very hard to get the military on your side for a spontaneous coup like this. And there's a lot of sort of heartwarming stuff there. But overall, it looks like as of today, they're pushing to try to impeach him and get him out. But just seeing that all happen in the space of a day, I've never seen anything like it in any democracy. I don't know that there's ever been anything quite like it. Have martial law declared and then overturned immediately and then just kind of back to normal.

0:52:01 Thomas: Usually it's either like that doesn't work or you live in a place where it's gonna work and the ending is a lot less happy but it's I don't yeah I agree I mean this is not my my area but I can't think of another example where someone's like you know what I'm gonna be a dictator here here we go. Marshall. Oh, okay. That didn't work. Like five seconds later.

0:52:19 Matt: But that's right. Everybody hates me. I forgot. But yeah, I mean, you get the great picture of the leaders of the two major parties shaking hands and on camera and declaring that they're going to make sure this never happens. And you'd like to think, and maybe we'll talk another time about how possible it could be for Donald Trump to do something like this, but you'd to think that we would step up and respond the same way as a majority.

0:52:40 Thomas: But we wouldn't.

0:52:41 Matt: Marjorie Taylor Greene still exists. Yeah, that's true. We'd still get a few votes for martial law, no doubt, but right.

0:52:46 Thomas: No, there are, thank you for reminding us that other people can have nice things, Matt. That does make me, unironically

0:52:51 Matt: Other democracies can show us the way.

0:52:53 Thomas: Though, it's not, I mean, that's good. Good for other people that aren't us. We got to figure something out, but you know, good for them.

0:52:59 Matt: Yeah, well done, South Korea.

0:53:00 Thomas: Right. Well, thank you so much for listening, everybody. Matt, for that breakdown. Have Thanks, a good weekend. We'll see you on Monday.

0:53:06 Clip: This podcast is a production of Opening Arguments Media, LLC, All Rights Reserved. It is produced and edited by Thomas Smith, who also provided the fabulous intro and outro music used with permission.