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5. Well, good afternoon, friends. Good afternoon and welcome to this week's edition of the Lawyer's Guild Show.
6. I'm Jim Lafferty along with my co-host Maria Hall and we've got a good show for you today. Maria, how are you doing?
7. I'm doing great, Jim. How are you?
8. I'm just fine. I'm just fine despite the news of the day.
9. That's right.
10. You asked me about how they're doing it. You have to separate how they're doing from how the world is doing and how they feel about it.
11. Well, we've got a full show today, so let's get right to it.
12. Because, of course, June 30th, just yesterday, marked the close of the U.S. Supreme Court's official 2026 term.
13. and there were a number of highly significant rulings, such as the decision on birthright
14. citizenship, transgender athletes, temporary protected status for immigrants from Hawaii and
15. Syria, and of course decisions as well on the grant of power to the president to fire federal
16. independent agency commissioners at will, the decision on Hawaii's gun law, the decision on
17. asylum seekers, and a highly important decision on mail-in ballots. So discussing these and other
18. cases is going to occupy us for the full hour. And of course, our guest to inform us about these
19. decisions is our go-to guest when we're dealing with the courts in the United States and their
20. decisions, and that is Stephen Rohde. Mr. Rohde is the author of two books and numerous articles and
21. book reviews on constitutional law and history. He is the former president of the ACLU Foundation
22. of Southern California, a special advisor on free speech and the First Amendment for the Muslim
23. Public Affairs Council. Steve Rohde is also the host of a new podcast called Speaking Freely,
24. produced by Ms. Studios and is available on Spotify and iHeartRadio and other streaming
25. platforms. I should mention that Steve Rohde is also, along with Maria Hall and myself,
26. co-host of the National Public Affairs Show entitled Law and Disorder. Now we're in close
27. to 200 radio stations in the United States. Well, Steve Rohde, a warm, warm welcome to this
28. week's edition of the Lawyers Guild Show. Jim and Maria, thank you so much for devoting time
29. to these important cases. I couldn't be in a better place. Well, good. We look forward to
30. whenever we have you on, which is often now there's just so much going on in the courts.
31. One of the most widely discussed cases, of course, this year was the birthright citizenship case.
32. Trump tried to get rid of it with exactly what the Constitution says about it by executive order,
33. I think on his first day in office or something. How did the Supreme Court rule
34. on the matter of birthright citizenship and why?
35. Well, in a bottom line sense,
36. Trump's executive order was struck down by the court,
37. but you really have to dig deeper into this case
38. to understand what a risk this poses going forward The mainstream media has largely covered this case applauding John Roberts for his independence from Donald Trump
39. Some commentators called it good news.
40. One said the Supreme Court isn't Trump's lackey.
41. Well, I beg to differ.
42. In fact, some of the reporting has misunderstood exactly what the court did.
43. So here's the breakdown.
44. In a 5-4 decision, the U.S. Supreme Court said that Donald Trump's executive order in which he purported to ban birthright citizenship among babies born in the United States to parents of undocumented persons, that they were not citizens.
45. Four U.S. Supreme Court justices adopted Trump's position.
46. I'm emphasizing this at the very top of our show to tell your listeners how close we came and may come to a constitutional crisis.
47. This birthright citizenship issue has been clearly decided virtually over the entire history of the United States since the 14th Amendment was adopted.
48. cases have upheld the interpretation because the 14th amendment says all persons
49. born in the united states and subject to the jurisdiction thereof are citizens of the united
50. states no one questioned this doctrine until trump had a fever dream originally questioning
51. Barack Obama's citizenship and then expanding this.
52. And finally, when he took office the second time, elevating his fiction to an executive
53. order.
54. But what I'm emphasizing today is that four U.S. Supreme Court justices agreed with him.
55. We were one vote away from losing this fundamental protection for every person that is born in the United States.
56. Now, Roberts dressed up his opinion.
57. He wrote for the majority.
58. There was a six to three majority that struck down Trump's executive order because it violated a federal statute regarding citizenship.
59. And in that case, Justice Brett Kavanaugh joined, making that a six to three decision.
60. But that's a statute and there are already moves to go to Congress to reverse what the Supreme Court has done.
61. Robert said that children born of parents lawfully or temporarily present in the United States satisfy both elements of the citizenship clause.
62. Under the Constitution, he concluded, they are citizens at birth.
63. But what's most revealing is the dissenting opinions, including Justice Samuel Alito.
64. He called the ruling one of the most important decisions in the history of the court Well that true but he called it a serious mistake He said careful analysis of the text of the 14th Amendment and the process that led to its adoption
65. shows that it did not degrade the concept of U.S. citizenship in this way.
66. Instead, the 14th Amendment confers citizenship on only those children who at birth
67. owe allegiance solely to this country. I mean, this is virtually a loyalty oath on American
68. citizens. And it's shameful, but he gathered four votes for that position.
69. The lower courts have been very clear about this. Back on July 10, a federal judge in New Hampshire
70. issued a preliminary injunction that blocked the government from enforcing Trump's executive order.
71. And that judge said that the executive order, it was a preliminary injunction, so he said likely
72. contradicts the text of the 14th Amendment and the century-old untouched precedent that
73. interprets it. There's a very important concurrence in this case by Justice Katanji Brown Jackson,
74. because she's answering a separate dissent by Clarence Thomas. That wonderful,
75. eminent historian, Clarence Thomas, tried to limit the 14th Amendment only to newly freed slaves.
76. Now, that was ironic for him to say that the 14th Amendment is race conscious, because in other opinions, they have said the 14th Amendment cannot take race into consideration and laws that approve diversity, equity, inclusion and affirmative action are unconstitutional.
77. Now, all of a sudden, when he wants to favor this position, he considers the 14th Amendment race conscious.
78. Well, Katanji Brown Jackson nails this historically.
79. And I just urge listeners, you can find these opinions online.
80. The dissents in everything we're going to be talking about today are so important.
81. because Jackson develops the solid analysis that the 14th Amendment was both race conscious and universal.
82. It's an example that's emerging in this 250th anniversary that many of the rights that the rest of us take for granted
83. have only been won by the struggles of those who were denied protection under the original Declaration of Independence and the original Constitution.
84. Women, enslaved people, minorities, American Indians and the poor.
85. So I'm grateful in that sense that the birthright citizenship executive order was struck down.
86. But Republicans have already run to the docket and said they're going to try to pass laws which limit the 14th Amendment.
87. The 14th Amendment is in the Constitution.
88. It's a constitutional amendment.
89. can only be amended by a constitutional amendment.
90. And what the court was facing is the consistent interpretation Going back to 1898 in a case called Wong Kim Ark where citizenship was granted to the son of Chinese immigrants
91. And the whole thing was enacted in 1868 to reverse Dred Scott,
92. one of the most abominable decisions in our history.
93. But now the conservative dissenters are resurrecting that analysis. So let's take what we can in terms of a victory. But let's not be fooled that this is somehow a sign of an independent Roberts court. The Roberts court, as we'll see in other decisions, is doing Trump's bidding.
94. Well, Steve, let's change gears for a moment. The Supreme Court also made a ruling about
95. transgender athletes yesterday. Tell us about this decision.
96. Yes, this came up from two laws in Idaho and West Virginia. And this is a case of doing
97. Trump's bidding, doing MAGA bidding, doing Republican bidding, because the court held
98. that individual states can exclude transgender athletes from women's and girls' sports teams.
99. The court said that these laws do not violate the federal civil rights laws, but they were divided
100. on whether the laws violate the Equal Protection Clause of the 14th Amendment.
101. In a 29-page opinion, Justice Brett Kavanaugh,
102. who would never deign in his entire opinion to use the phrase transgender athletes.
103. He wrote in his view for the majority consistent with Title IX
104. and the Equal Protection Clause, we hold that the states may maintain women's and girls sports
105. for biological females. They may determine eligibility for women and girls sports based
106. on biological sex. The Constitution and Title IX do not require an overhaul of women's and
107. girls sports throughout America. Once again, this time, Sonia Sotomayor, in an opinion joined by
108. Justices Elena Kagan and Ketanji Brown Jackson contended that the majority extends great
109. sympathy to those it favors, the young cisgender girls and women who play sports. I share that
110. sympathy. Playing sports can lead to benefits that are immeasurable and many are understandably
111. invested in ensuring that competition stays fair and safe. Because the majority, however,
112. inflicts a hardship on those it disfavors, without giving them the full and fair opportunity the
113. Constitution requires to litigate their contentions, I respectfully dissent. One of the cases came from
114. West Virginia. The other came from Idaho. 25 other states have enacted similar bans. One
115. challenger was Lindsay Hecox, who filed this lawsuit because she wanted to try out for women's
116. track and cross-country teams at Boise State University in Idaho. The other challenger, Becky
117. Pepper Jackson, identified by her initials as a 15-year-old high school student who had publicly
118. identified as female since the third grade. Both of those individuals went to court. The
119. U.S. Court of Appeals for the Ninth Circuit agreed with Hecox that the Idaho law violates the 14th
120. Amendment guarantee of equal treatment and prohibited Idaho from enforcing the ban. The
121. court reasoned that the Idaho law was intended to categorically, the law that was challenged,
122. to ban transgender women and girls from public school sports teams that corresponded to their
123. gender identity. The law discriminates on the basis of sex, the lower court ruled,
124. because athletes on girls' and women's team are subject to invasive sex verification procedures
125. to implement the policy, while athletes on boys' and men's teams are not.
126. And likewise, a federal district court in Richmond, Virginia,
127. struck down the West Virginia law for much of the same reasons.
128. Yet, with all of that judicial support and analysis, when it got up to the Supreme Court, those laws were upheld. They're going to wreak havoc within the transgender community. They set other precedents that may go beyond students' sports teams.
129. and that case is an example of the arch-conservative six-member majority doing Trump's bidding.
130. Well, there are thousands and thousands of Haitian and Syrian immigrants in America, of course, Steve,
131. and the Supreme Court, this last term, has ruled on the matter of the temporary protective status that they've enjoyed.
132. How did they rule and what was their reasoning behind their ruling?
133. Yes, this was troubling because of the sweeping impact it's going to have on those communities,
134. Haitian and Syrian immigrants in the United States.
135. And by definition, it could spread to others who have reached the United States and been
136. protected.
137. The Supreme Court, again in a 6-3 ruling, cleared the way for the federal government
138. to remove protections for citizens from Haiti and Syria under a federal program that allows
139. foreign citizens to stay in the United States when the U.S. government believes it is not safe for
140. them to return to their homes. This was the case of Mullen v. Doe. The justices had paused
141. rulings of lower federal courts, which had upheld temporary protected status, that's the TPS,
142. for both Haitians and Syrians. The court ruled that these programs bar the courts from even
143. reviewing the determination by then Secretary of Homeland Security, Christy Noem, to end
144. TPS designations for Haiti and Syria.
145. The court held they are likely to lose their claim
146. despite the fact that serious racial discrimination
147. case instances are also raised in this case Well this time and I can only imagine how the three liberal women judges are dividing up their work because in this case Helena Kagan wrote an opinion joined by Sotomayor and Jackson
148. She wrote that at this stage in the litigation, the Haitian and Syrian TPS beneficiaries ask only one thing,
149. that they may stay in the country while they continue to litigate their claims.
150. They are entitled to that relief and should not instead be consigned to devastating and indeed life-threatening injury.
151. Congress enacted this TPS program back in 1990.
152. It did give the Department of Homeland Security the power to designate citizens as eligible to remain in the United States
153. in order to be safe where their home country has suffered a natural disaster, armed conflict,
154. or other extraordinary and temporary conditions. Haiti and Syria were designated
155. for those purposes, and the head of Homeland Security continuously renewed their TPS status.
156. As a result, a tremendous reliance was created within those communities in the United States as these legally present people were able to build lives and work and do all the rest.
157. But that changed in the case of Trump and now with the blessing of the court.
158. One of the most remarkable things is there was an allegation that this was racially motivated in the case of Haiti based on evidence that was presented.
159. Well, Kagan had to point out that it's plain to see that race played a role in the decision to terminate the DTPS designation for Haiti.
160. The evidence, she said, that's been offered has statements by the president so repellent and racially inflected that the majority declines to put them in print.
161. Well, she had no trepidation of putting them in print.
162. And most of us who are paying attention have heard these statements.
163. Donald Trump accused Haitians in Ohio of eating dogs and cats, described Haiti as a shithole country, and contended that Haitians living in the U.S. probably have AIDS.
164. These were overtly racial comments.
165. They clearly raised the question of equal protection of the law, and the case should have been fully reviewed rather than the decision last week, which now allows the government to expel these Haitian refugees, even while the underlying issues go forward.
166. It could affect 350,000 Haitians, 6,100 Syrians, and other minorities.
167. I'm deeply concerned.
168. This is a case that reveals the cruelty not only of the Trump administration, but the majority on the Supreme Court.
169. Well if you just tuning in this is Pacifica KPFK 90 FM Los Angeles I Maria Hall here with my co Jim Lafferty We speaking right now with constitutional law scholar Stephen Rohde and we talking about the wave of Supreme
170. Court decisions that came out in the last week. Steve, along similar lines, the Supreme Court
171. also decided a case last week concerning the rights of people seeking asylum in the United
172. States. How did they rule and what will be the impact? Yeah, it's important to couple this case
173. with the last one. The Supreme Court, again, six to three, held that the federal government policy
174. of systematically turning back asylum seekers before they reach U.S. soil is lawful and can
175. continue to be enforced. Some of this opinion was a technical etymological debate over the word
176. arrive. When do you arrive in the United States? Samuel Alito wrote for the majority that that was
177. straightforward. You have to step on U.S. soil to have arrived here. But Sonia Sotomayor,
178. who took the unprecedented, unusual step of reading large portions of her dissent from
179. live on the day of decision. She wrote that the consequences of today's decision are predictable.
180. More people will die. More people will attempt to cross the border illegally,
181. and some will make it while others will not.
182. This is a program called metering at the border.
183. Border patrol agents regularly block asylum seekers
184. from setting foot in the United States,
185. literally preventing them now under this Supreme Court ruling
186. from being able to commence and pursue their asylum claim.
187. These are asylum seekers seeking refuge in the United States because of the conditions in their home countries, which are not safe. Today, there's a serious question whether individuals will be sent back to the home countries. And that's why Sotomayor spoke of it being deadly.
188. The Court of Appeals agreed on the Ninth Circuit, agreed with the challengers that having been turned away by the officials, they had arrived sufficiently to invoke the protections of the law.
189. Now, the Congress used the phrase physically present in the United States in a separate statute.
190. And if that's what they meant, they could have said physically present in the United States in this statute.
191. Clarence Thomas filed a concurring opinion.
192. But Sotomayor's 35-page dissent was extraordinary.
193. She said Congress passed the Refugee Act of 1980 because it did not want this country to repeat the mistakes of its past.
194. yet if refugees on the MS St. Louis a ship carrying more than 900 Jewish
195. refugees seeking escape from Nazi Germany had been turned away from the
196. United States and eventually returned to Western Europe to die that was their fate if they were to walk up to a port of entry in our southern border today the majority
197. interpretation would allow immigration officers to refuse even to consider
198. their asylum application by physically blocking them from stepping foot into
199. and onto US soil. This is what we're up against. The area of immigration may now
200. return to Congress. And I put it on one of the agendas for the newly elected Democratic House
201. and Senate in the midterms to address this and make it very clear that these asylum seekers are
202. protected as soon as they arrive at the border. Absolutely should be. Well, another five to four
203. decision. This one has the Supreme Court ruling that states may, and Trump, of course, was furious
204. about the decision, because the Supreme Court ruled in this case that states may, in fact,
205. count ballots mailed by election day but received days later. And apparently also a lower court
206. decision has been rendered in this case as well, in this kind of case as well. So talk to us about
207. both of these cases, if you would. Well, this is one more example that we've got to take crumbs
208. when they're offered, this is a five to four decision, meaning that four justices
209. would have struck down this Mississippi law. So by upholding the law, the Mississippi law
210. allows mail-in ballots to be counted as long as they are postmarked by and received
211. within five days of election day. So there are many states with similar laws. That means that
212. the mail-in ballot must be postmarked on or before election day, but may be counted,
213. in this case, during the next five days. It was somewhat refreshing to see Justice Amy Coney
214. Barrett, right for the five-member majority, which was made up of her, Chief Justice John
215. Roberts, Sotomayor, Kagan, and Jackson.
216. Barrett took a realistic approach that one must vote by election day, but the count of
217. the vote may be conducted for a reasonable period thereafter.
218. Election Day statutes require the electorate's choice to be made before or on Election Day.
219. But so long as they meet that deadline, Election Day statutes allow the counting of those ballots, in this case, within five days later.
220. But once again, four justices of the Supreme Court, led by a dissenting opinion from Justice Alito, tried to read the relevant statutes tightly and suggesting that all the ballots had to be in and counted on election day.
221. 14 states plus the District of Columbia allow for postmarking by election day and counting thereafter.
222. And 29 states and the District of Columbia allow military and overseas
223. these ballots to also be postmarked on or before, but counted later.
224. What's done here is to carve out one more platform of the Republican Party
225. that this court is pursuing, Project 2025, the Republican Party.
226. They see how they lose elections when there is free, open, and ample opportunities for people to vote.
227. Mail-in voting has become popular throughout the United States.
228. Donald Trump used mail-in voting in a recent election of his own.
229. And we are hopeful that this kind of law will be upheld consistently as other states use this method of mail-in ballots.
230. Certainly, a one-vote margin is too slim, but thank goodness it went in favor of open and accessible voting.
231. and we're hopeful that will be the sign of the day
232. as other challenges to voting rights continue.
233. All right, well, let's take a brief station identification now.
234. Don't go anywhere. We'll be right back with you.
235. People dancing, people laughing, a man selling ice cream.
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252. Hi, this is Willie Nelson.
253. You're listening to Radical Free Speech Radio,
254. KPFK in Los Angeles.
255. And we are back with you.
256. You're still listening to The Lawyer's Guilt Show.
257. I'm Jim Lafferty.
258. Well, my guest today is Stephen Rohde.
259. We're devoting the entire hour
260. to consideration of those Supreme Court decisions
261. that came down last week and some of the cases as well. Maria, take it away on your next question.
262. All right. Thanks, Jim. Well, on Monday, the Supreme Court decided the president may fire
263. federal independent agency commissioners at will. Steve, tell us more about this ruling and what it
264. signals for us all going forward. This is a very dangerous decision. I may keep saying that,
265. But this one affects such a broad area of American government and what it does and has done for centuries that this decision dislodges and upsets in a in my view unconstitutional way
266. So specifically, the court yesterday gave Trump, on Monday, gave Trump sweeping new authority
267. over approximately two dozen multi-member agencies that Congress intended to be independent.
268. By a vote of six to three, the justices struck down a federal law that bars the president
269. from firing members of the Federal Trade Commission, except in cases of inefficiency,
270. neglect of duty or malfeasance in office.
271. Now, that was a law passed by Congress at the time it created the Federal Trade Commission.
272. It allowed the president to appoint commissioners, but only to remove them on those specific grounds for cause.
273. Now, that law now, according to this majority, violates the constitutional separation of powers between the three branches of government.
274. And to get to that result, the conservative majority had to overrule a 91-year-old decision in a case called Humphreys Executor v. the United States, which has consistently been applied and upheld by Congress presidents and the courts ever since.
275. John Roberts, in this case, showing his true colors, wrote the majority opinion.
276. He said the president must have the assistance of officers he can trust, although it's up to the Senate to decide whether to confirm them with whom he prefers to work.
277. Neither Congress nor the courts may, quote, saddle him with those with whom he cannot work.
278. work. Well, as I hinted at at the beginning of this program, this is now the elevation of the
279. highly conservative theory, the unitary executive theory. This emerged in the 1980s under Ronald
280. Reagan with conservative professors like Robert Bork and Ed Meese and others, putting a single
281. person the president in charge of the entire executive branch and that his powers could not
282. be impinged upon even by congress sotomayor wrote a 49-page opinion she said today the court
283. discards the democratic regime created by the constitution in favor of one that distorts
284. the structure of government to fit the majority's theory of unitary total executive control the
285. result she concluded is a president who emerges with far more power than ever before this case
286. can't be viewed in in isolation two years ago in the correctly named case donald trump versus the
287. the United States, gave the president immunity from criminal prosecution for crimes committed
288. as president. Now they are marching through the law as it affects all of these independent
289. agencies. Trump had nominated Rebecca Slaughter to fill a Democratic seat on the FTC.
290. Biden re her in 2023 But right off the bat Trump fired Slaughter not for cause but because her service would be inconsistent with my political agenda
291. This is going to introduce the spoil system where loyalty to the president takes precedent over expertise, knowledge and experience.
292. The court continued to pursue this notion, despite the fact that the courts have consistently and under the doctrine of stare decisis.
293. Courts are not supposed to overturn longstanding precedents like the Humphreys case without real legal foundation, not just the whims of six members on the court.
294. In dissent, Sotomayor stressed that Congress established these agencies to address complex problems while enjoying some independence from presidential removal and thus absolute partisan control.
295. This decision gives the president of power unknown even to the English crown against which the founders resulted.
296. She concluded that the decision reshapes our government.
297. Dozens of independent commissions are now likely to become purely executive agencies,
298. shifting tremendous power over broad swaths of the American life, including the Federal Energy Regulatory Commission,
299. the Consumer Product Safety Commission, the Nuclear Regulatory Commission, and the Merit Systems Protection Board.
300. This was a huge win for Trump and the unitary executive theory and a big loss for the American people.
301. Well, I would argue another loss for the American people.
302. But you tell me, Steve, the Supreme Court this week overturned a Hawaiian gun law.
303. So what did that law say and what was the basis for the high court overturning it?
304. Yes, I realized we were turning to that case and I forgot to include there was one glimmer with regard to these commissioners.
305. Lisa Cook, who is a Federal Reserve Board governor, she was allowed to stay in office.
306. And in a five to four decision in which Roberts flipped along with Kavanaugh, Lisa Cook can remain as a Federal Reserve board governor.
307. What's ironic about this is you read this opinion and Roberts gives all the reasons why this agency needs independence from the president of the United States when he just got done destroying those principles in the slaughter case.
308. So we're going to have to continue to follow this case as well.
309. And hopefully there will be some independence, at least for the Federal Reserve.
310. In terms of your specific question, here is originalism on steroids.
311. Another six to three decision.
312. The court struck down a Hawaii law that made it a crime for gun owners to bring their guns onto private property that is open to the public, such as restaurants and hotels,
313. unless they have the property owner specific consent Six to three the justices agreed with some gun owners that the law violates the Second Amendment guarantee of the right to bear arms This is a law in Hawaii but for other
314. states, including California, Maryland, New York, and New Jersey, are affected. This was written
315. by the fan of gun rights, Samuel Alito.
316. He said it hobbles the Second Amendment.
317. What's ironic is Katanji Brown Jackson said, wait a minute, we're talking about property
318. rights.
319. You could almost hear her say, we thought you conservatives supported property rights.
320. And how can we object that the bringing of a gun onto private property without the permission
321. of the owner of that property is somehow unconstitutional.
322. Both sides battled on the history of gun ownership
323. and restrictions on that ownership
324. because the majority is so taken with their originalism theory
325. that looks back to the 18th century.
326. This is a serious setback for reasonable, sensible gun laws
327. And it's just an indication of what this majority will do with the power they have on the court.
328. Well, Steve, you've talked to us in prior shows about a concept called the unified executive theory, and you've warned about its potential to undermine our constitutional democracy.
329. Can you remind us what this is, unified executive theory, and how the Supreme Court's rulings over the past week tie into it?
330. Yes. As I use it, it's also referred to as the unitary executive theory.
331. I may have misled you in the notes, but this is what I've been talking about for the first part of the show.
332. And it gives me a moment to reflect on what you'd think the conservatives would actually look at the text of the U.S. Constitution.
333. They're so fond of that.
334. But we have separation of powers in the U.S. Constitution.
335. And Congress passes laws.
336. And what does the Constitution say about a president's powers?
337. Well, in Article 2, Section 3, it says two things.
338. The first is often overlooked, even by commentators.
339. The president may recommend such measures as he shall judge necessary and expedient.
340. Look at what role the president's relegated to.
341. He can recommend laws to Congress, not enact them by himself through sweeping executive orders.
342. I'd like to see that provision of Article 2 use more in these court cases.
343. But secondly, it says the duty of the president is to, quote, take care that the laws be faithfully
344. executed.
345. What's his job or her job someday?
346. To take care that laws, and those are the laws passed by Congress and signed by presidents
347. unless there's an override, be faithfully executed.
348. He's an executive.
349. It's the executive branch.
350. You execute laws.
351. You don't write laws.
352. You don't invent laws and you don't make up laws.
353. The unitary executive theory.
354. casts all of that aside. It ignores the actual text of the Constitution.
355. It was considered a minority view. In one case years ago, only Justice Antonin Scalia
356. adopted the theory, but now it is the prevailing analysis of constitutional law.
357. it cabins us, it limits us to the 18th century.
358. We are frozen in amber in what the founders claimed or said.
359. And that's why I wanted to devote a few minutes to it.
360. Well, another blow, perhaps, Clarence Thomas.
361. Clarence Thomas, in any case, just gave us, or gave Border Patrol agents, I should say,
362. a terrifying new power, as far as I think we would be concerned.
363. What is that new power that he gave him and what basis did the court rule as it did?
364. Yes. Well, now it'll come as no surprise in a six to three decision called Blanche versus Lau.
365. Federal immigration officers do not need clear and convincing evidence that a green card holder has committed a disqualifying crime before preventing them from reentering the country.
366. for an indefinite stay. This was a case of Mr. Mok Chau Lau, who in June 2012, he was a green card holder. That means he had permanent legal status. He left the country, he returned, and when he returned, he was stopped at the border, stripped of his green card status.
367. because he had been indicted but not convicted of committing a crime.
368. The dissenters in this case, Justice Brown,
369. said the court has handed the government a massive blank check
370. to put lawful permanent residents in immigration limbo.
371. So now if they have stepped out of the country
372. or reasonably under the expectation, which is true for decades, that they could return having a legal green card.
373. Now, on a suspicion of a crime without clear and convincing evidence, they can be stopped.
374. Justice Brown said Congress could not have meant for the grantees afforded to lawful permanent residents
375. to be so cavalierly swept aside.
376. One more case, Trump has pushed the law as far as he could or farther,
377. and the conservative majority is doing his bidding in upholding that policy.
378. So when it comes to green card holders, you're not innocent until proven guilty.
379. Yeah, you're actually guilty until you're proven innocent.
380. Yeah, exactly.
381. Wow.
382. Well, Steve, the Supreme Court allowed a lower court ruling that curtails the protection of minority voters in seven states.
383. What rule did they allow to go into effect?
384. Well, this was a case where they wouldn't even allow the case to go forward.
385. So they denied cert.
386. No opinions were issued.
387. It takes four votes to get a case onto the docket it And apparently there were not four votes because there are only three liberal justices This was an eighth circuit decision when a circuit court is upheld It is
388. simply a precedent for that circuit, but this covers Arkansas, Iowa, Minnesota, Missouri,
389. Nebraska, North Dakota, and South Dakota. So now individuals do not have the right to sue
390. to enforce Section 208 of the Voting Rights Act. Well, what is that? That was a very important
391. section in the Voting Rights Act, which allows voters with a disability to read or write to get
392. help with voting from a person of their choice.
393. This is state laws now allow, I'm sorry, the Supreme Court by denying
394. cert, the lower court said only the U.S.
395. Attorney General could sue Arkansas law barred persons who are not a poll
396. watcher to help voters um even though they wanted to have a person with them of as english speaking
397. and translating for these spanish-speaking voters the district judge found that the arkansas law
398. violated section 208 which did allow you to have someone accompany you but the eighth circuit
399. ruled that they did not even have a right to sue. But this is a conflict with cases allowing
400. private rights of action. And usually when there's a conflict between circuits,
401. the Supreme Court grants review. Well, this Supreme Court is certainly not indulgent
402. to the right of people to sue to protect their voting rights, and as a result, would not even
403. hear this case. A new Congress, as we hope and pray, could clarify and make it clear that the
404. law allows a private right of action, that individuals can use the civil rights laws
405. to enforce a provision like this one. They don't have to wait for an attorney general to do so.
406. I'm putting it on the checklist of new laws we need when we take back Congress.
407. Well, another gun case law. This is the case I'm speaking of, U.S. v. Habani, where the Supreme Court limited federal authority to disarm marijuana users. Tell us about this case.
408. Now, this was interesting because it's a unanimous decision and it was unanimous drawing on different theories and different attitudes toward these laws and toward the use of marijuana.
409. Daniel Hemani was convicted in 2023 under the Gun Control Act.
410. That act prohibits gun ownership by an unlawful user of or addicted to any controlled substance.
411. The court found common ground here but for different policy reasons in an opinion written for the anonymous court by Neil Gorsuch What the justices could agree upon is to say that categorically a marijuana user is violent and dangerous without any other evidence of such is not a proposition that should be adopted
412. given the widespread use that nearly half of Americans have used marijuana in their lifetimes and some persistently.
413. This actually was a small but good example of the court finding common ground so that you are not automatically treated as a violent criminal if you have a marijuana violation.
414. only if we could see the court find common ground and be reasonable on these other cases.
415. Yes, indeed.
416. Well, Steve, there's a question about religious freedom.
417. So a prison guard over the religious objection of the inmate shaved off his dreadlocks.
418. The inmate sued and the case reached the Supreme Court.
419. How did the court rule on this one and why?
420. Yeah, now we're back to these six to three decisions again. Damon Landor is a Rastafarian who practices that religion and in this case had very long dreadlocks.
421. The majority opinion was written by Neil Gorsuch.
422. When Mr. Landor was taken into custody, the police guards forcibly shaved his head and removed all of his curls.
423. What this court said is despite that clear violation of his rights under the Constitution and a statute, Mr. Landor cannot sue for damages given what was inflicted on him.
424. We have the Religious Land Use and Institutionalized Persons Act. It requires states to accommodate religious rights as a condition of accepting federal funds. And it provides that prisoners can sue for appropriate relief.
425. But now the court decided that individual prison guards are not liable for money damages, that the only kind of relief is against the state itself that has the overseer of those individuals who actually committed the civil rights violation.
426. Again, in a forceful and clear-minded dissent, Justice Jackson said that Congress intended both the government and government officials to be sued.
427. Inmates are left remedy lists for religious violations and prison officials have little incentive to abide by federal law if they know they can't be sued for damages.
428. This is a troubling decision This is a court that in many other areas bends over backwards to use religious rights to strike down other laws and it revealing to see how facile they are when in this case a disfavored religion is
429. at the heart of the case. Most of the religious cases the conservatives uphold are Christian
430. religious cases. Congress could amend the law to make a private right of action for damages against
431. individual guards and officials available. And again, I'm putting that on the to-do list
432. once we take back Congress. Right. Well, finally, in our last, we're running out of time here,
433. but the Supreme Court rejected Trump's appeal, did it not, of the $5 million verdict against him in
434. the E. Jean Carroll case, the sexual harassment case.
435. Tell us about this.
436. Well, this is such a happy note to end our conversation.
437. E. Jean Carroll, I understand there's a new documentary out on her life.
438. She's been a courageous woman throughout her life and her career.
439. In 2023, she sued Donald Trump civilly for sexual abuse and defamation for accusing her of lying and making those charges.
440. She won a $5 million verdict.
441. That has worked its way through all of the courts.
442. and fortunately the U.S. Supreme Court denied Trump's appeal.
443. They didn't give reasons.
444. There were no dissents.
445. They simply have left that judgment in place.
446. Let's remember that in January of 2024,
447. there was a separate case that Carol brought against Trump
448. And in that case, she won an $83.3 million verdict for defamation.
449. That case has moved up through the courts.
450. There's no doubt Trump will exhaust himself and the courts in appealing that case.
451. I'm hopeful the Supreme Court does exactly what it does.
452. and maybe given public reporting of how many billions of dollars Trump is worth,
453. he can spend some of it by paying E. Jean Carroll.
454. Yes, indeed. He owes her a good deal of money.
455. Well, Steve Rohde, thank you again. You did it.
456. You managed to get in all those cases within the hour.
457. We applaud you for doing so and thank you for doing so.
458. Our music tells us that is indeed the end of our show for this week.
459. we are grateful for all those who listened to the lawyers guild show this week we hope you'll listen
460. again next week when we'll have different topics until then this is jim lafferty and maria hall
461. thanking you for listening today urging you to stay healthy my friends and as the music is about
462. to tell you to stay active and stand up for your rights
463. Hi, I'm Ash Wee Judd.
464. And I believe that when we listen collectively, change happens.
465. And I believe we should listen to girls and women.
466. believe that girls and women should speak
467. for themselves, with