Oh, You’re Having A Bad Day? Don’t Worry—the Supreme Court is Here to Make it Worse
What a time to be alive (derogatory)
In these trying times, it’s comforting to know there are still things you can rely on with absolute certainty: the sun will rise each morning in the East and set in the West, every Trisha Paytas pregnancy will coincide with the death of a major public figure, and Skylar Corby and I will discuss the Supreme Court on this newsletter.
That’s right: everything is on fire, and me and my bestie diva girl are unpacking one singular part of it! Again!
This week, E4P’s almost-barred legal counsel returns in a big way to unpack three major cases SCOTUS decided this year, how they are each likely to impact us in the long run, and why we really need to start reading more.
Skylar Corby is a double-Virgo J.D. living in Brooklyn, which makes her about as annoying as that sounds. With her newfound free time post-law school, she can be found watching old indie movies, stalking Resy, doing entirely too much SoulCycle, and trying to finish her screenplay that she started two years ago.
A “hey girlie” Text, But It’s Actually About the Rights the Supreme Court Just Took From You
Before we properly dive into today’s piece, I had a quick housekeeping question for Skylar:
Emily: Do you have any life updates that you'd like to share with your fans?
Skylar: I GRADUATED LAW SCHOOL AND TOOK THE BAR!!!! I hope all three of you who have been following along since the first time I was on E4P are pleased to hear that. I, for one, am thrilled.
I, for two, am also thrilled!!! I can now say with confidence that if you’ve ever wronged me, you will be hearing from my lawyer.
Unfortunately, we have to cut the celebration off here and get to the more pressing matter at hand: is Taylor Swift releasing a new album???? the Supreme Court.
Every June, when SCOTUS starts handing down decisions in a number of cases they had heard throughout the term so that Justice Clarence Thomas can make his summer vacation with his billionaire friends who absolutely don’t pay for his vote friendship, I ask Skylar to explain everything to me. We’ve invited you into the group chat before, of course, but it’s a new year! Everything is different now! Democracy has a question mark next to it, Washington, DC might be under martial law because someone named Big Balls got carjacked, Sex and the City is over for good.
What better time than to gather around and talk about some of the worst people you’ve never met, making some of the dumbest decisions you’ve ever heard of?
I wanted to kick things off by asking Skylar:
Emily: What impact do you see the major cases the Court decided this term having?
Skylar: The best way to navigate this question is to briefly (not historically my strong suit, but I’ll try for you) outline the issues in the major cases from this past term and where the decisions from them ultimately leave us legally and politically.
There were two fairly consequential cases involving LGBTQ+ rights at SCOTUS last term: U.S. v. Skrmetti and Mahmoud v. Taylor. Both cases, unfortunately, had negative outcomes, and both were decided 6-3 firmly along political lines. In U.S. v. Skrmetti, GLAAD represented a group of plaintiffs seeking to invalidate state laws in 23 states that entirely ban or materially limit gender affirming care for minors—specifically, prohibiting the prescription of puberty blockers or hormone therapy for children and teenagers diagnosed with gender dysphoria.
The case was argued by GLAAD and the federal government—who joined the case under President Biden and were represented by former Solicitor General Elizabeth Prelogar—on equal protection grounds under the 14th Amendment of the Constitution. The argument rested upon considering transgender status as a sex classification so that any laws impacting transgender individuals must be analyzed with heightened scrutiny. This essentially means states have to have exceptionally good reasoning to keep the discriminatory laws in place.
In the end, this argument failed, with the Court stating that these laws have nothing to do with sex or gender, but are actually an age classification issue,1 which means states can pass pretty much any law they want about it—including total bans. As is often the case these days, the reasoning provided is incredibly fraught to achieve the outcome the Court wanted to find, regardless of whether the legal logic is sound. Fork found in kitchen with this Court, I’m afraid.
I wanted to pause here to introduce us all to Bostock v. Clayton County, a Supreme Court case that I was unfamiliar with before this piece. At its core, Bostock was tasked with having the Court decide whether the “past precedent that Title VII did not cover employment discrimination based on sexual orientation” was constitutional. Arguments for Bostock were heard at the same time as two other cases—Altitude Express, Inc. v. Zarda and R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission—which meant the decision in Bostock stood as the decision for all three cases.
In 2020,
the Court ruled in a 6–3 decision covering all three cases that discrimination on the basis of sexual orientation or gender identity is necessarily also discrimination "because of sex" as prohibited by Title VII. According to Justice Neil Gorsuch's majority opinion, that is so because employers discriminating against gay or transgender employees accept a certain conduct (e.g., attraction to women) in employees of one sex but not in employees of the other sex (X).
Look, I’m no legal scholar, but I don’t think you need to have completed three years of law school and also the bar (brag) to see how weird it is that SCOTUS not only found a loophole to their own argument, but decided in favor of the loophole.
Or, as Skylar more intelligently explained:
Skylar (cont.): Skrmetti is unfortunate because it not only allows states to continue their ridiculous crusade against transgender individuals, and especially minors, but also opens the door for states to pass bans on all gender affirming care entirely, regardless of age. The Supreme Court fundamentally weakened its own reasoning in Bostock, leaving a clear path for both states and the federal government to further openly discriminate against trans people who simply seek an ability to exist comfortably in their body—a dignity every single person should be unquestionably afforded.
It’s shameful, and it’s a ridiculous thing for any government or court to focus on when the community makes up less than 2% of the population of the U.S., all while the infrastructure of this country is crumbling faster than the makeup on President Trump’s hands.
Mahmoud v. Taylor was a case that the Court announced right at the end of the term, so while it didn’t make much noise in the news, the potential implications of it feel far-reaching. Essentially, a group of parents in Maryland brought suit alleging that their First Amendment rights were being violated because their children were reading books with LGBTQ+ characters during instructional time. They were seeking an ability to remove their children from the classroom while these books were being read. Of course, in line with 303 Creative v. Elenis from the 2023 term, the Court sided with the parents.
It feels pertinent to mention that there were five books involving LGBTQ+ themes or characters, out of the more than fifty that were part of the curriculum—this is essentially a complete non-issue, but as bigots are wont to do, they made a whole Supreme Court case about it. Yawn. The long and short of the Court’s holding in this case is this: Parents can remove their children from instructional time that “burdens their free exercise of religion.”
This is an enormously broad way to make their point, which raises the question of what else parents are going to try to remove their children from the classroom about. Evolution? Issues relating to race? Gender equality? It feels very easy for parents to use this case to prevent their children from learning about any issue that engages meaningfully with the world and its history, especially here in the United States. It’s alarming.
Skylar (cont.): Arguably, the most discussed Supreme Court case from this past term was Trump v. CASA, which Emily already dutifully covered on E4P around the time the decision came down in June. Still, for a quick wrap-up, the Supreme Court essentially said that nationwide injunctions are not considered appropriate remedies in cases related to issues of citizenship. Nationwide injunctions, or “universal injunctions” as they are referred to in the case, are, in effect, big stop signs put into place by federal courts to prevent other courts in the U.S. from enforcing executive orders while their constitutionality is determined.
Such had been the case with Trump’s executive order (Executive Order 14160) attempting to limit (or even demolish) birthright citizenship in the U.S.—a flagrant constitutional error, but one that President Trump campaigned on and has been featured prominently in the Project 2025 playbook. Plaintiffs and organizations had brought cases in different federal districts against the enforcement of this executive order, leading to three different federal courts issuing these stopgap nationwide injunctions to disallow legal measures from taking place in the name of the executive order.
In Trump v. CASA, the Court declined to answer any of the substantive questions related to the constitutionality of limiting birthright citizenship (don’t worry—I’m sure it’s coming and will be bad!), but instead ruled that the use of “universal injunctions” was too broad of a remedy for what the plaintiffs sought, and that the ability to use these types of injunctions was a clear over-reach by federal courts.
This leaves the plaintiffs and organizations forced to enter into class actions to bring these types of cases. However, this process is much longer than seeking an injunction and ultimately will lead to worse outcomes with fewer people protected. And ultimately, that’s where this case, and many of the others of this term and this administration, leave us: worse off and less protected.
I’m sorry—that literally wasn’t brief at all. But the moral of the story is that, as always, the real impact of the cases doesn’t often become apparent until many months and years after they come down. However, these decisions are unlikely to be good for almost anyone, even those who remain blissfully untouched by the issues above. Attacks on the right to citizenship, free speech, and adequate medical care will not long remain exclusive to this country’s most vulnerable minorities—they will come for everyone soon enough.
As it so often goes, when it rains, it pours.
From a non-legal perspective (mine), it seems that the three decisions Skylar covered above share an unsettling commonality: they each serve to give the second Trump Administration something it wants. We’ve been talking about Project 2025 here for nearly two years now, so real E4P-heads know that targeting LGBTQIA+ individuals, the Department of Education (and the American education system in general), and immigrant communities was quite literally always the plan.
The problem at hand is how easily this Court is finding it to work really hard to prove Trump’s points.
Headfirst Slide Into Authoritarianism On a Bad Bet
The last time Skylar and I did a SCOTUS recap, we touched on the role politics currently plays and has historically played on the Supreme Court and on its decisions. Skylar explained then that although it might seem like SCOTUS has recently become increasingly political, it has always been impacted by the partisanship of its justices.
And yet, things still feel different and more political now. For the first few months of Trump’s second presidency, there were think pieces about how the American legal system was the strongest check or balance against a complete slide into authoritarianism. Even now, there is some hopecore content about courts ruling against the administration, preventing them from doing things that they clearly planned on getting away with. But at the same time, the tone has shifted to the point where I just read an article by Michael Cohen (of going to prison for lying on Trump’s behalf fame) discussing how Trump “is already using his courts to punish those who stood against him” (X).
I can’t tell exactly when this shift happened, but I’m starting to think that the CASA, Inc. decision had something to do with it. More so than last year’s decision in Trump v. United States, which could have all been a great and terrifying hypothetical had he not won the election, the CASA, Inc. decision reads like something from a Court actively in the service of one person at the expense of the American people.
But is that right? Can the legal system in general and the Supreme Court specifically be both our greatest defense against Trump and his greatest defense against us? I wanted to know Skylar’s thoughts:
Emily: How do you reconcile the two competing narratives of the Court being a check or balance on Presidential power, while also seeming to be one of President Trump’s prominent enablers?
Skylar: I would probably say there really isn’t a way to reconcile it.
Fundamentally, to be a check or balance, the institution of the Court would need to be willing to be swayed by persuasive legal arguments and different interpretations of the Constitutional text. When issues come before the Court that are highly politicized, or are at the very least related to Presidential power, it no longer feels like the Court is interested in meaningfully engaging with what the consequences of their interpretation of the law is—it only matters that whatever the outcome is, it aligns with the deeply rooted Conservative, state-law-centric politics that now dominate a super-majority of the Court’s makeup.
This is not to say the Court never serves as the check or balance, because there are plenty of cases, even from this past term, where the Court actually provides meaningful guidance on its jurisprudence. See Bondi v. VanDerStok, where the Court held 7-2 that “ghost guns” could be regulated however states saw fit without violating the Second Amendment.
The issue truthfully lies in the way the Court chooses when it will actually analyze the Constitutionality of certain laws or orders, and when it decides to cherry-pick around it and thus hand a dangerous, erratic Presidential administration a blank check to upend the government and people’s lives.
If the Court truly did what it was supposed to do as a meaningful checkpoint, outcomes would not be foretold months in advance.
Emily: What purpose does the Court currently serve? Has it always functioned this way, reflecting the times we live in, or is this something new in its history?
Skylar: The Supreme Court, in its inception, was designed to serve as a check on the federal government and to hear cases that involved federal law. Still now, the Court hears dozens of cases every year that no one really bats an eye at—some of them are even decided unanimously, often those that are procedural in nature.
I say that because, despite the increased newsworthiness of many cases these days, the Court is still largely functioning as it was designed to, though I wouldn’t necessarily consider that a virtue.
The issue with our current Court is not actually that it’s politically divided—the Court has literally always been that way. The issue is that almost every single case feels like a foregone conclusion before it even reaches oral argument, which has led to a Court that feels so deeply politically biased that what the Constitution says doesn’t actually matter at all.
If they want to decide a case a certain way, they will find a way. Even if it contradicts something they said themselves in a previous case. Inconsistency plagues this Court more than maybe any other in U.S. history.
SCOTUS recently ruled in an emergency docket case, McMahon v. New York, and
allowed the federal government to lay off 1,400 Department of Education employees in one fell swoop. This had been announced months prior via Executive Order by President Trump, but was ultimately blocked by lower federal courts…The effects of SCOTUS allowing this go beyond allowing people to get fired—this will ultimately lead to the entire dismantling of the Department of Education at the federal level.
Without any federal oversight, states can do away with whatever curriculum they want, like the LGBTQ+ children’s books in Maryland, or critical race theory in Texas.2
I’ve been thinking about this a lot throughout this conversation, this want of the Trump Administration and its supporters to restrict education and the ability it now has to do so. In researching this piece, I found an article published in the Education and Culture journal from 1995 in which its author, Bruce Romanish, argues that
while there are other socializing forces which account for a population's levels of authoritarianism (e.g. family influences, nature of an economic order, impact of religious control, etc.), the public school is in the unique social position of gathering almost all the nation's young together for an extended common experience…The rise of fascism earlier in the century did not result from single cataclysmic events. Instead it took the form of a slow accumulating avalanche that eventually overwhelmed any resistance or opposition…
If schools exhibit democratic characteristics, that may reflect democratic features of the larger social order or the schools are making a contribution to society's movement in that direction.Conversely, an authoritarian experience in school life suggests either a broader cultural authoritarianism or reveals an institution contributing to the future advance of authoritarianism…
A basic assumption in what follows is that if public schools are to be in some sense a life line for political democracy they should in turn exhibit characteristics and behaviors which point in that direction. Schools must go beyond platitudes about literacy and democracy by giving evidence they are conscious of the political implications of the way they are organized, the way power is exercised within schools, ways in which the young are classified, categorized, and controlled, etc. The Axis powers in WWII spent enormous sums of money and vast energies developing the minds of their young…
Freedom in a democracy does not accompany the birth process. It is an acquired status not easily achieved. If the schools do not give evidence that they are consciously and actively engaged on behalf of the kind of education required for active democratic citizenship, then by definition they are contributing to its demise.
I shared what looks like a large chunk of a 10-page essay because I’m trying to highlight some of the clearest and least contextually burdened ways Romanish argues that education is critical to maintaining a functioning democracy. But education as a means of resistance also has to take place in places the Department of Education (or what remains of it) can’t oversee.
When we talked about the Constitution back in June, I quoted David Gans, a director at the Constitutional Accountability Center, who implored people to educate themselves on “the government and systems that define U.S. democracy.” I feel like you can all assume where I’m going next with this, so let’s all say it together: the American legal system, with the Supreme Court at its head, defines U.S. democracy and, therefore, is essential to understand.
Somewhere, a David Gans got his wings.
Anyway, I didn’t want to end on the most existentially dreadful note as I’ve been wont to do lately. No—I wanted to harken back to the days of yore, those Biden-era E4P endings, where there was a kind of open-ended, girl-who-is-going-to-be-okay hopefulness or, at least, one last actionable step.
To close out today’s piece, I wanted to ask Skylar:
Emily: What do you wish more people knew about the American legal system right now?
Skylar: If there’s one thing I can ask for, it’s just to pay attention.
You can decide that you’re not “interested” in politics or the law, but politics and the law will happen to you anyway. And it is far better to understand the ways that things affect you, your loved ones, and your fellow human beings as they’re happening, instead of finding understanding when it’s a little bit too late.
An informed, engaged society is one that thrives!
I fear because I did not die a hero, I’ve lived long enough to see myself become the villain…a white woman on the Internet telling you to do your own research.
One day, I promise, Skylar will come on to talk about something unambiguously good and fun. Today was not that day, to be sure, but hey—you can’t win ‘em all!
A million thank yous to Skylar, as per usual, for being so smart and also funny with a heart of gold. Now that she’s done with law school, our threats to start a podcast have gotten oh so much louder.
Skylar: “Which, by the way, Justice Gorsuch literally said himself was the case in Bostock v. Clayton County.”
This is an explanation from Skylar in a response that didn’t make it into this piece in its entirety.