Litigation Update: International Partners for Ethical Care v. Ferguson

WEBVTT
1
00:00:01.560 --> 00:00:06.200
Welcome to fedsoc Forums, a Federalist Society podcast. I'm Elizabeth Lattery,
2
00:00:06.360 --> 00:00:09.880
vice president of Practice Groups. Be sure to subscribe wherever
3
00:00:09.919 --> 00:00:13.439
you get your podcasts so you won't miss an episode. Now,
4
00:00:13.439 --> 00:00:15.279
please enjoy today's conversation.
5
00:00:17.440 --> 00:00:20.679
Good afternoon, everyone, and welcome to fedsock Forums. My name
6
00:00:20.800 --> 00:00:24.000
is Riley Ravilla, and I am a student at Georgetown University.
7
00:00:24.440 --> 00:00:27.000
I also serve as the student liaison to the Federalist
8
00:00:27.000 --> 00:00:31.160
Society's Religious Liberties Practice Group. As a reminder, all opinions
9
00:00:31.160 --> 00:00:33.359
expressed are those of our speakers and not of the
10
00:00:33.359 --> 00:00:37.840
Federalist Society, as the Federalist Society takes no positions. Today's
11
00:00:37.840 --> 00:00:41.240
program is titled the LID Occasion Update International Partners for
12
00:00:41.280 --> 00:00:44.840
Ethical Care Versus Ferguson. We're very pleased to welcome an
13
00:00:44.840 --> 00:00:48.399
excellent group of panelists. Sean Gunnerson is a shareholder with
14
00:00:48.439 --> 00:00:51.439
Curtain McConkie in Salt Lake City. He's a member of
15
00:00:51.520 --> 00:00:56.000
the firm's Appellate, International and First Amendment and Religious Organizations sections.
16
00:00:56.560 --> 00:00:59.799
Before joining Curtain McConkie, he served as senior counsel to
17
00:00:59.840 --> 00:01:03.399
the US Senator Robert F. Bennett worked as an associate
18
00:01:03.439 --> 00:01:06.159
for the Washington d c. Office of Whiteon case and
19
00:01:06.200 --> 00:01:10.239
litigated for the Washington Legal Foundation. Derek Muller is a
20
00:01:10.280 --> 00:01:12.799
professor of law at Notre Dame Law School. He is
21
00:01:12.840 --> 00:01:15.560
a nationally recognized scholar in the field of election law.
22
00:01:15.920 --> 00:01:18.120
His research focuses on the role of states in the
23
00:01:18.120 --> 00:01:22.280
administration of federal elections, the constitutional contours of voting rights
24
00:01:22.280 --> 00:01:25.439
and election administration, the limits of judicial power in the
25
00:01:25.439 --> 00:01:29.319
domain of elections, and the electoral college. Professor Muller has
26
00:01:29.359 --> 00:01:32.079
published more than two dozen academic works, and his op
27
00:01:32.159 --> 00:01:34.519
eds have appeared in The New York Times, the Los
28
00:01:34.560 --> 00:01:37.719
Angeles Times, and The Wall Street Journal. Our moderator is
29
00:01:37.840 --> 00:01:40.359
Teresa Collette, who is a professor at the University of
30
00:01:40.359 --> 00:01:43.159
Saint Thomas School of Law, where she serves as director
31
00:01:43.159 --> 00:01:46.480
of the school's Pro Life Center. Professor Collette has published
32
00:01:46.519 --> 00:01:48.879
numerous legal articles and is the co author of a
33
00:01:49.239 --> 00:01:52.480
law case book on professional responsibility and co editor of
34
00:01:52.519 --> 00:01:55.680
a collection of essays exploring Catholic perspectives on American law.
35
00:01:56.359 --> 00:01:58.840
She's an elected member of the American Law Institute and
36
00:01:58.840 --> 00:02:01.319
has testified before commit of the US Senate and House
37
00:02:01.359 --> 00:02:05.000
of Representatives, as well as before legislative committees in several states.
38
00:02:05.560 --> 00:02:08.680
In two thousand and nine, Pope Benedict the sixteenth appointed
39
00:02:08.680 --> 00:02:10.919
her to a five year term on the Pontifical Council
40
00:02:10.960 --> 00:02:14.000
for the Family. One note for our audience before we begin.
41
00:02:14.439 --> 00:02:16.919
If you have any questions throughout the webinar that pertain
42
00:02:17.039 --> 00:02:19.599
to the topic at hand, please submit them through Zoom's
43
00:02:19.639 --> 00:02:22.240
Q and a feature located at the bottom of your screen,
44
00:02:22.439 --> 00:02:24.560
not the chat, so that we'll be able to access
45
00:02:24.560 --> 00:02:26.879
them later in the program. With that note, I will
46
00:02:26.919 --> 00:02:29.319
turn things over to our speakers to start the conversation.
47
00:02:29.800 --> 00:02:31.919
Professor Kalett, thank you so much for joining us and
48
00:02:31.919 --> 00:02:33.319
for moderating today's discussion.
49
00:02:34.120 --> 00:02:39.560
Thank you Riley. This is a very interesting case and
50
00:02:39.599 --> 00:02:44.680
it will be conferenced yet again later this week, and
51
00:02:44.719 --> 00:02:48.560
so I'd like to invite Sean to sort of set
52
00:02:48.639 --> 00:02:52.199
us up with the petitioner's perspective of the case. What
53
00:02:52.360 --> 00:02:56.039
is the cert petition seeking and how do you assess
54
00:02:56.080 --> 00:02:57.360
the arguments that they're making.
55
00:02:58.919 --> 00:03:03.560
Well, thank you, CHRIESA very little bit of background here,
56
00:03:03.639 --> 00:03:05.639
just to make sure we set the table for everyone.
57
00:03:05.919 --> 00:03:09.840
This case involves a couple of Washington statutes that essentially
58
00:03:10.599 --> 00:03:15.159
rewrite the terms on which state sponsored or state licensed
59
00:03:15.520 --> 00:03:18.680
runaway shelters operate, and it does it in a couple
60
00:03:18.680 --> 00:03:23.120
of ways. The first off, it will essentially instruct these
61
00:03:23.280 --> 00:03:26.759
shelters to provide what the statute calls gender affirming care,
62
00:03:26.800 --> 00:03:31.639
which can essentially undefined. It can range from mental health
63
00:03:31.680 --> 00:03:37.560
interventions and perhaps even medical interventions is unclear. The second
64
00:03:37.560 --> 00:03:39.800
thing that it does is lay out a kind of
65
00:03:39.919 --> 00:03:45.520
timeline by which these shelters will inform parents that their
66
00:03:45.599 --> 00:03:50.400
runaway child has arrived at a shelter that will be
67
00:03:50.479 --> 00:03:55.919
providing such care. The petitioners raised a variety of claims,
68
00:03:56.039 --> 00:04:00.400
ranging from free exercise to do process claims, and I
69
00:04:00.439 --> 00:04:02.479
want to focus on what the Ninth Circuit set about
70
00:04:02.479 --> 00:04:05.520
those claims because that sets us up for the Supreme Court.
71
00:04:07.840 --> 00:04:13.439
Interestingly enough, the Ninth Circuit panel unanimously concluded that there
72
00:04:13.680 --> 00:04:16.120
was no standing in the case. That is, that the
73
00:04:16.879 --> 00:04:21.800
petitioners in particular lacked injury in fact, which you'll recall
74
00:04:21.839 --> 00:04:24.360
as one of the three essential elements of showing Article
75
00:04:24.360 --> 00:04:29.000
three standing. There were a variety of reasons that the
76
00:04:29.079 --> 00:04:31.360
Ninth Circuit cited, but I want to focus on a
77
00:04:31.360 --> 00:04:34.120
couple of them. First off, is that the Ninth Circuit
78
00:04:34.240 --> 00:04:38.920
rejected the idea that the parents could show a current injury.
79
00:04:38.920 --> 00:04:41.959
In fact, that is that the parents argued a couple
80
00:04:41.959 --> 00:04:45.480
of things. First off, they said that their current parenting
81
00:04:45.519 --> 00:04:51.040
styles were directly impacted by these laws. Essentially, the laws
82
00:04:51.279 --> 00:04:58.560
disincentivize parents who oppose their children's gender transitioning, So conversations
83
00:04:58.680 --> 00:05:02.519
ranging from the use of personal pronouns to cross dressing
84
00:05:02.839 --> 00:05:06.120
and all the rest of it were in their minds
85
00:05:06.160 --> 00:05:10.519
heavily influenced by the prospect of encouraging their children to
86
00:05:10.600 --> 00:05:13.759
run away and get the gender transition care the children
87
00:05:13.839 --> 00:05:17.560
are looking for. The second thing, of course, is closely related,
88
00:05:17.560 --> 00:05:20.720
which is a free speech claim that parents are essentially
89
00:05:20.759 --> 00:05:25.040
having to self censor in their conversations with their children
90
00:05:25.160 --> 00:05:31.839
because of these laws, and the Court on those present
91
00:05:31.879 --> 00:05:36.120
oriented clans essentially said there cannot be an injury from
92
00:05:36.519 --> 00:05:40.639
essentially a self injury. And on this point the Court
93
00:05:41.600 --> 00:05:45.120
cited a Supreme Court president called Clapper, which I'll come
94
00:05:45.160 --> 00:05:48.759
back to or hear in a little bit. On the
95
00:05:48.800 --> 00:05:54.720
other future looking injury, that is the prospect of losing
96
00:05:54.759 --> 00:05:58.240
physical custody of their children because of the incentive that
97
00:05:58.319 --> 00:06:02.040
the state law puts up, and also the notion that
98
00:06:02.240 --> 00:06:07.000
any kind of information about their children's whereabouts would be
99
00:06:07.040 --> 00:06:10.519
interfered with by mistake. On those grounds as well, the
100
00:06:10.600 --> 00:06:14.600
United Circuits simply held that the parents had failed to
101
00:06:14.600 --> 00:06:18.519
show an injury in fact, because, in the court's view,
102
00:06:18.759 --> 00:06:23.040
the parents had nowhere claimed that there was a particular
103
00:06:23.199 --> 00:06:28.639
child who had either asserted a desire for gender transitioning
104
00:06:28.720 --> 00:06:31.439
care or who threatened to run away in order to
105
00:06:31.439 --> 00:06:39.800
take advantage of the state's laws. From this, the petitioners
106
00:06:39.839 --> 00:06:43.319
then filed a cert petition earlier in the year, which
107
00:06:43.360 --> 00:06:46.199
by the way, attracted some twenty amigas bris. Now, I
108
00:06:46.199 --> 00:06:49.399
have to tell you, after decades of practice in the
109
00:06:49.439 --> 00:06:53.319
Supreme Court, that is an unusually high number. I litigate
110
00:06:53.399 --> 00:06:58.319
quite frequently in First Amendment and related areas, and we're
111
00:06:58.319 --> 00:07:01.480
doing pretty well on a if we see four or
112
00:07:01.560 --> 00:07:06.160
five supporting Amika's brief. This had a monumental number for
113
00:07:06.240 --> 00:07:10.000
the petition's dage. The question presented, which I'm actually going
114
00:07:10.040 --> 00:07:13.279
to just read out here because I think it's important
115
00:07:13.319 --> 00:07:17.199
for us to keep focused on what the petitioners are asking,
116
00:07:17.680 --> 00:07:20.319
is quote, whether parents have standing to challenge a law
117
00:07:20.399 --> 00:07:25.600
or policy that deliberately displaces their decision making role as
118
00:07:25.600 --> 00:07:28.959
to gender transitions of their children, and in so doing
119
00:07:29.120 --> 00:07:33.279
creates president and likely future impediments to their ability to
120
00:07:33.319 --> 00:07:36.800
parent their children as they deem best with them now
121
00:07:36.839 --> 00:07:39.639
in the petitions, in a petitioners view, there are a
122
00:07:39.639 --> 00:07:43.959
couple or three important considerations here, and number one that
123
00:07:44.759 --> 00:07:47.600
article free standing is not supposed to be a barrier
124
00:07:48.199 --> 00:07:55.079
to vindicating constitutional rights, that the Court in fact tends
125
00:07:55.120 --> 00:07:59.680
to relax standing requirements when rites into the First Amendment
126
00:07:59.800 --> 00:08:03.639
and other provisions aren't involved in the Court and the
127
00:08:03.920 --> 00:08:08.360
petitioners side number of decisions to that extent. But I
128
00:08:08.399 --> 00:08:12.120
think probably the most important line of argument that the
129
00:08:12.160 --> 00:08:15.160
petitioners identified, which connects up with a couple of things
130
00:08:15.160 --> 00:08:17.759
at the Court itself, is that comes out in the reply,
131
00:08:17.879 --> 00:08:21.120
and the reason for that timing is very simply. This
132
00:08:21.800 --> 00:08:26.199
Spring Court a couple of months ago issued a case
133
00:08:26.240 --> 00:08:30.120
called Mirabelli versus m Bonta, and in that case, in
134
00:08:30.160 --> 00:08:35.399
a closely related issue area, the Court issued an emergency
135
00:08:36.840 --> 00:08:40.240
stay lifted rather lifting a state and in George, lifting
136
00:08:40.240 --> 00:08:42.919
the state that had been imposed by the Ninth Circuit
137
00:08:43.600 --> 00:08:48.559
in a case involving a statewide school district policy in
138
00:08:48.600 --> 00:08:55.519
California that requires school districts to conceal from parents the
139
00:08:55.679 --> 00:09:00.639
gender transitioning activities of their children in public school. And
140
00:09:00.679 --> 00:09:04.080
the court said several things in the course of mirability,
141
00:09:04.120 --> 00:09:06.480
but I want to focus on a couple. The first
142
00:09:06.480 --> 00:09:09.960
thing is said, quite emphatically, was that these parents had
143
00:09:10.000 --> 00:09:13.840
suffered an irreparable harm, and that the reparable harm would
144
00:09:13.919 --> 00:09:19.240
in fact be furthered if required to litigate before they
145
00:09:19.240 --> 00:09:22.279
could get protection from this particular law. And then that
146
00:09:22.360 --> 00:09:25.840
was particularly as to the free exercise claimants, although also
147
00:09:26.000 --> 00:09:29.799
with respect to simply due process claims with the general
148
00:09:29.879 --> 00:09:33.799
right of parents. The second thing, which I found quite interesting,
149
00:09:34.639 --> 00:09:41.480
is that that right that injury that they identify is
150
00:09:42.080 --> 00:09:49.080
not tied to any particular claim that the individual parents
151
00:09:49.320 --> 00:09:52.240
had children at this moment, that they had proof of
152
00:09:52.320 --> 00:09:56.840
gender transitioning in school, or that the parents could point
153
00:09:56.879 --> 00:10:00.399
to a particular interaction with the school where they later
154
00:10:00.480 --> 00:10:03.879
found out that the school had concealed such information from
155
00:10:03.919 --> 00:10:07.440
the parents. That is, the very fact that the law would,
156
00:10:08.480 --> 00:10:11.399
in a common sense we lead to those results was
157
00:10:11.519 --> 00:10:14.639
enough for the court to say that the California law
158
00:10:14.759 --> 00:10:20.600
irreparably injured the parents and therefore, an injunction lifting the
159
00:10:20.679 --> 00:10:26.639
United Circuit stay was justified in light of that, and
160
00:10:26.720 --> 00:10:29.559
maybe coming to the end of my table setting here
161
00:10:30.159 --> 00:10:32.879
in light of that Mirabeli decision and its reasoning, and
162
00:10:33.360 --> 00:10:38.320
in particular the concurrence by the Chief Justice Barretton and
163
00:10:38.399 --> 00:10:43.960
Kavanaugh underscoring the continuing importance of the due process rights
164
00:10:43.960 --> 00:10:46.919
some cases like Meyer and Pierce and others that were
165
00:10:46.919 --> 00:10:53.159
all familiar with. I think that the Supreme Court's most
166
00:10:53.320 --> 00:10:58.440
recent statement on standing and parental rights is quite jarring
167
00:10:58.559 --> 00:11:01.600
in comparison with where the Ninth Circuit came out on
168
00:11:01.679 --> 00:11:04.120
the question of standing in this case. And so from
169
00:11:04.159 --> 00:11:08.639
my mind, I do hope that the Court grants review
170
00:11:08.879 --> 00:11:11.720
to visit the issue of standing in this area.
171
00:11:13.080 --> 00:11:18.200
Now, Derek, my recollection is that the Marabelly was a
172
00:11:18.639 --> 00:11:21.320
case involved a pecureum order, and in fact there was
173
00:11:21.440 --> 00:11:26.600
quite a perhaps heated is too strong, but exchange between
174
00:11:27.720 --> 00:11:33.200
Justice Barrett and one of the other justices about whether
175
00:11:33.320 --> 00:11:35.759
or not this was an appropriate way to dispose of
176
00:11:35.799 --> 00:11:41.000
the case. And so how does that affect the State
177
00:11:41.039 --> 00:11:44.200
of Washington's claims that search should not be granted in
178
00:11:44.200 --> 00:11:46.799
this case? Is Marabelli that strong a precedent for.
179
00:11:46.799 --> 00:11:54.480
It all, right, Oh no, no, I appreciate it. Yeah,
180
00:11:54.480 --> 00:11:57.600
there's a lot of standing decisions that keep churning around
181
00:11:57.639 --> 00:12:02.480
the Supreme Court with bracingly find distinctions at times between
182
00:12:03.000 --> 00:12:06.799
the cases and the facts and the record below. And
183
00:12:06.799 --> 00:12:10.519
I think it really indicates the importance of the factual
184
00:12:10.559 --> 00:12:12.600
development of the record and trying to make sure that
185
00:12:12.679 --> 00:12:16.639
you have the strongest plaintiffs or petitioners on the claim
186
00:12:17.080 --> 00:12:19.519
with the strongest kind of record possible in a case
187
00:12:19.559 --> 00:12:23.039
like Marabelli, I think, especially in Justice Barrett writing separately
188
00:12:23.080 --> 00:12:26.240
that the record shows that there was this non disclosure
189
00:12:26.279 --> 00:12:30.679
policy in the school. It clearly applies even if parents
190
00:12:30.720 --> 00:12:35.039
expressly ask for the information, some of them learned only
191
00:12:35.080 --> 00:12:37.600
after a suicide attempt of one of the children. Right,
192
00:12:37.639 --> 00:12:41.080
I mean, you had a pretty robust record there of
193
00:12:41.200 --> 00:12:46.639
how this policy would affect parental rights in that particular school.
194
00:12:46.639 --> 00:12:48.279
And there's still a dispute. There's a just be on
195
00:12:48.279 --> 00:12:50.639
the merits in addition to dispute, maybe on the standing issue,
196
00:12:50.639 --> 00:12:53.360
but a lot of the Mirabelli decision seem to be
197
00:12:53.399 --> 00:12:56.440
fighting a lot more about the merits, about how naturally
198
00:12:56.519 --> 00:13:01.159
cases like mcmood extend to cases like Mirabella and what
199
00:13:01.279 --> 00:13:03.919
might be there. But yeah, but this is one of
200
00:13:03.919 --> 00:13:06.279
these cases. Again, while I do a lot of election law,
201
00:13:06.279 --> 00:13:08.639
I also have a federal courts case book, and increasingly
202
00:13:08.960 --> 00:13:11.080
a lot of election law is just federal courts litigation,
203
00:13:11.159 --> 00:13:15.960
and increasingly a lot of these, you know, gender identity
204
00:13:16.000 --> 00:13:19.039
cases seem to be wrapped up in standing much maybe
205
00:13:19.039 --> 00:13:21.240
as a generation to go, a lot of civil liberties
206
00:13:21.320 --> 00:13:24.360
or environmental cases were really just a lot a lot
207
00:13:24.399 --> 00:13:28.279
of standing, a lot of federal courts disputes. And this
208
00:13:28.360 --> 00:13:34.279
case is hard for the petitioners. I mean that they
209
00:13:34.399 --> 00:13:37.279
lost the Ninth Circuit, and they got a few justices
210
00:13:37.639 --> 00:13:40.440
or judges dissenting on Bank at the Ninth Circuit. But
211
00:13:40.919 --> 00:13:43.799
I think that there's a strong notion that in these
212
00:13:43.879 --> 00:13:47.279
cases there are just a lot of contingencies that have
213
00:13:47.360 --> 00:13:51.440
to arise. So as I read this petition, and again
214
00:13:51.519 --> 00:13:53.720
I'm very sympathetic to the parents in this case. On
215
00:13:53.759 --> 00:13:57.639
the merits, there's a separate question about the standing. As
216
00:13:57.639 --> 00:13:59.960
I read the introduction of the petition, it includes the
217
00:14:00.080 --> 00:14:02.960
caveats parents can be kept into the dark as the
218
00:14:03.039 --> 00:14:07.720
child's location and condition, reunification can be significantly delayed and
219
00:14:07.799 --> 00:14:10.720
even in that opening paragraph of your introduction of why
220
00:14:10.759 --> 00:14:14.559
search should be granted, this can language keeps cropping up
221
00:14:14.600 --> 00:14:17.480
to suggest that there's going to be some hesitation and
222
00:14:17.600 --> 00:14:21.559
some contingencies that are going to arise in these cases. Now.
223
00:14:21.879 --> 00:14:24.639
A couple of years ago, in a case called the
224
00:14:24.679 --> 00:14:28.200
Titles Wrong, not the Core my Parents protecting our Children,
225
00:14:29.440 --> 00:14:32.840
Justice Alito dissented from the denial of search. In a
226
00:14:32.879 --> 00:14:37.320
similarly situated case joined by Justice Thomas and Justice Alito
227
00:14:37.360 --> 00:14:40.320
wrote separately to say, look, I think some of our
228
00:14:40.360 --> 00:14:45.639
precedents are being misinterpreted by the lower courts, called a
229
00:14:45.759 --> 00:14:49.159
questionable understanding, and said, you know, I think the lower
230
00:14:49.200 --> 00:14:52.639
courts have gotten our decision in Clapper versus Amnesty International
231
00:14:52.679 --> 00:14:55.360
wrong on standing issues, and we need to revisit this.
232
00:14:56.320 --> 00:14:58.759
And I feel a little bit like Justice Alito is
233
00:14:58.759 --> 00:15:00.679
the guy and the hot dog costs doom, sort of
234
00:15:00.679 --> 00:15:02.919
the meme that happens online. We're all looking for the
235
00:15:02.919 --> 00:15:05.279
guy who did this. I mean, Justice Alito wrote Clapper
236
00:15:05.360 --> 00:15:08.799
Versus Amnesty International in twenty thirteen, and he had a
237
00:15:08.840 --> 00:15:12.039
pretty strong view on standing and how difficult it ought
238
00:15:12.039 --> 00:15:15.120
to be in some cases about those contingencies that would
239
00:15:15.159 --> 00:15:18.519
arise in a case like this, and to highlight I
240
00:15:18.519 --> 00:15:22.080
think why the Ninth Circuit dispatched of this case. Right,
241
00:15:22.080 --> 00:15:24.720
it's in the abstract we can say it's a parental
242
00:15:24.759 --> 00:15:27.039
rights case. But when you look at what has to
243
00:15:27.120 --> 00:15:29.919
happen in a case like this, there has to be
244
00:15:29.960 --> 00:15:33.600
a child who runs away, and the child has to
245
00:15:33.679 --> 00:15:37.960
run away, at least in part because of some concerns
246
00:15:38.000 --> 00:15:41.000
about gender dysphoria. And the child has to then run
247
00:15:41.039 --> 00:15:45.519
away to a licensed shelter in the state of Washington
248
00:15:45.919 --> 00:15:49.159
because that's what's regulated by this activity. And then the
249
00:15:49.200 --> 00:15:53.039
state has to evaluate that child and conclude that the
250
00:15:53.120 --> 00:15:57.399
child is suffering gender dysphoria, that medical treatment is necessary
251
00:15:57.480 --> 00:16:00.559
for this child. And then not only that medical treatment
252
00:16:00.639 --> 00:16:03.759
is necessary, that then there's a compelling interest in failing
253
00:16:03.799 --> 00:16:08.519
to communicate that or delay that communication to parents. That
254
00:16:08.639 --> 00:16:11.320
is a long series of things that have to happen.
255
00:16:11.360 --> 00:16:14.679
And when you read the court's precedence on standing and
256
00:16:14.840 --> 00:16:17.559
using that language of imminent that there has to be
257
00:16:17.600 --> 00:16:20.559
some kind of imminent injury. It's something that has to
258
00:16:20.600 --> 00:16:24.919
happen that is certainly impending in the language of Clapper versus.
259
00:16:24.960 --> 00:16:28.720
And this the international building up all of those sort
260
00:16:28.720 --> 00:16:32.320
of future contingencies just is unlikely in a case like this,
261
00:16:32.480 --> 00:16:36.120
and especially when the State of Washington is going to say, look,
262
00:16:36.200 --> 00:16:38.440
I mean, there are some situations where we're going to
263
00:16:38.440 --> 00:16:40.480
notify the parents and others where we aren't, and we
264
00:16:40.519 --> 00:16:43.600
have to identify that this is a context specific, fact
265
00:16:43.639 --> 00:16:48.039
dependent set of circumstances. I kind of close on this,
266
00:16:48.120 --> 00:16:50.679
you know, I think the parents, you know again understandably
267
00:16:51.120 --> 00:16:53.360
are going to say, listen, because of these laws, maybe
268
00:16:53.399 --> 00:16:55.519
I'm going to change my behavior. I'm going to react
269
00:16:55.559 --> 00:16:58.320
in certain ways. What's the same kind of claims that
270
00:16:58.360 --> 00:17:00.840
we're made in Clapper versus and this da international. Look,
271
00:17:00.879 --> 00:17:04.920
the chance is that I might have my phones tapped
272
00:17:05.000 --> 00:17:08.440
by the federal government, so I'm taking precautions or I'm
273
00:17:08.480 --> 00:17:11.279
changing my behavior in certain ways. And the court's approach
274
00:17:11.480 --> 00:17:14.039
in Clapper is to say, if that's not a future harm,
275
00:17:14.079 --> 00:17:16.039
you can't sort of say then that there is this
276
00:17:16.240 --> 00:17:20.119
change in your conduct that creates the present harm. There
277
00:17:20.119 --> 00:17:22.839
has to be some sort of linkage between those two things.
278
00:17:23.240 --> 00:17:26.680
And so just because you're overly fearful of what might happen,
279
00:17:27.160 --> 00:17:31.279
that over fearfulness is on a bunch of contingencies that
280
00:17:31.319 --> 00:17:33.759
we don't think are sufficiently imminent, and therefore that sort
281
00:17:33.759 --> 00:17:37.279
of present harm it's just something you've manufactured in this
282
00:17:37.359 --> 00:17:39.400
current case. There's got a lot of sympathy for the
283
00:17:39.440 --> 00:17:42.160
parents and their concerns here about those future cases that
284
00:17:42.240 --> 00:17:44.960
might arise. But I think there's a reason why the
285
00:17:45.000 --> 00:17:47.319
court has been reluctant to grant some of these cases
286
00:17:47.359 --> 00:17:49.640
in the past, and maybe why there might be difficulty
287
00:17:49.720 --> 00:17:51.279
or reluctance in granting it in this case.
288
00:17:52.240 --> 00:17:59.400
Well, given the Derek's explanation of Clapper. The petition also
289
00:18:00.200 --> 00:18:04.000
notes that Washington State has a minor consent law that
290
00:18:04.079 --> 00:18:07.799
allows any minor over thirteen to consent to mental health
291
00:18:08.400 --> 00:18:14.079
care without and exclude the parents from knowledge of that.
292
00:18:14.079 --> 00:18:20.680
That seems a much more direct law that will affect
293
00:18:20.839 --> 00:18:26.480
every parent in the state of Washington who child seeks
294
00:18:26.720 --> 00:18:29.559
or who is encouraged to seek through schools, et cetera.
295
00:18:30.359 --> 00:18:34.960
This sort of mental health is that the stronger claim
296
00:18:35.039 --> 00:18:39.400
in the complaint, it's preserved. I think it's preserved because
297
00:18:39.440 --> 00:18:42.160
it's raised at the intermediate at the Ninth Circuit. It's
298
00:18:42.200 --> 00:18:45.759
also raised in the certain petition. Is that a stronger
299
00:18:45.799 --> 00:18:50.880
case for direct standing in this case well, it's certainly.
300
00:18:50.400 --> 00:18:53.400
An additional one. I wouldn't say that it's stronger. So
301
00:18:53.480 --> 00:18:58.759
I'm going to maybe respond to Derek's point on it
302
00:18:58.799 --> 00:19:01.400
with a couple of things. First off, I think that
303
00:19:02.160 --> 00:19:04.680
it's important to note is he rightly points out that
304
00:19:04.880 --> 00:19:07.640
Justice Leo was the author of Clapper. It was one
305
00:19:07.680 --> 00:19:11.799
of the central decisions relied on by the Knight Circup panel.
306
00:19:12.799 --> 00:19:16.839
But Justice Leedo, in these two separate opinions on a
307
00:19:17.119 --> 00:19:20.519
denial of Sercerari, points out that in his view, and
308
00:19:20.759 --> 00:19:24.680
is you shared by two other justices in those settings,
309
00:19:25.200 --> 00:19:29.359
that standing doctrine has been misapplied in these gender related cases.
310
00:19:29.559 --> 00:19:34.119
Now exactly what the calculus of that is, but for
311
00:19:34.279 --> 00:19:36.519
all of those who follow the court, you know that
312
00:19:36.559 --> 00:19:39.559
the rule of forces, they were one justice away from
313
00:19:39.599 --> 00:19:42.720
getting a granted that case, So it's maybe good to
314
00:19:43.119 --> 00:19:45.480
pay attention to that. The other thing is is there
315
00:19:45.559 --> 00:19:48.920
is a case that was decided just last year that
316
00:19:49.680 --> 00:19:53.000
it does not involve these very controversial areas, but rather
317
00:19:53.039 --> 00:19:55.480
it's sort of a just straight out standing decision called
318
00:19:55.480 --> 00:19:59.559
a Diamond Alternative energy case. And in that case, the
319
00:20:00.000 --> 00:20:06.000
the Court dealt with the California policy that basically discouraged
320
00:20:07.480 --> 00:20:10.480
oil and gas production, told the car producers you go
321
00:20:10.559 --> 00:20:14.599
to start putting out more UBI vehicles, and oil producers
322
00:20:14.640 --> 00:20:18.079
who were not directly named in the statue drawn lawsuit
323
00:20:18.240 --> 00:20:22.680
challenging the legality of that, and the only question before
324
00:20:22.680 --> 00:20:25.480
the court was standing, and the court really did not
325
00:20:25.599 --> 00:20:28.519
have a difficult time concluding, and again just sort of
326
00:20:28.559 --> 00:20:32.200
limiting ourselves to injury in fact, that these gas producers
327
00:20:32.319 --> 00:20:35.759
were not named in the statue nonetheless suffer an injury
328
00:20:35.799 --> 00:20:39.440
in fact when the state enact a regulation that hits
329
00:20:39.480 --> 00:20:42.400
their bottom line. Now, in this case, if you start
330
00:20:42.480 --> 00:20:44.599
from the premise which I start from, which is sort
331
00:20:44.640 --> 00:20:48.480
of the Parum case, probably the clearest case for parental
332
00:20:48.559 --> 00:20:52.079
rights in this area, where the Court has repeatedly stressed
333
00:20:52.079 --> 00:20:55.200
that parents hold a constitutional right to make medical decisions
334
00:20:55.240 --> 00:21:02.079
for their children. When Washington essentially overrides that decision making process,
335
00:21:03.359 --> 00:21:07.319
it isn't any longer sort of an administration of state
336
00:21:07.400 --> 00:21:10.240
facilities kind of a law. And if you read the
337
00:21:10.279 --> 00:21:14.440
record in sort of the legislative statements by various lawmakers,
338
00:21:14.480 --> 00:21:19.359
it was specifically and directly intended to override the wishes
339
00:21:19.400 --> 00:21:23.880
of parents who object to their children's gender transitioning. So
340
00:21:24.319 --> 00:21:27.599
in my mind, it's not a theoretical somewhere in the
341
00:21:27.680 --> 00:21:31.559
distance possible, you know, the house that Jack built kind
342
00:21:31.599 --> 00:21:36.039
of contingency. This will happen for any family whose child
343
00:21:36.160 --> 00:21:39.480
decides to run away. If they're running away for the
344
00:21:39.519 --> 00:21:43.000
reason of getting gender transitioned care, this law comes into
345
00:21:43.039 --> 00:21:45.759
an effect. And at least, as I understand Diamond and
346
00:21:45.880 --> 00:21:48.680
some of the other court standing decisions, that should be
347
00:21:48.799 --> 00:21:50.920
enough for an Article three court to hear the.
348
00:21:50.839 --> 00:21:56.400
Moments, but didn't involve a situation That was the case
349
00:21:56.440 --> 00:22:00.400
where the court confronted a parent committing a child with
350
00:22:00.960 --> 00:22:05.480
the doctor's consultation for institutionalization for mental health treatment, and
351
00:22:05.519 --> 00:22:09.519
there you had agreement between the medical community and the
352
00:22:09.599 --> 00:22:12.279
parents as to the proper treatment for the child, and
353
00:22:12.319 --> 00:22:15.920
the court stress as I recall in the majority opinion
354
00:22:16.359 --> 00:22:21.079
that that medical evaluation would be reviewed, if not on
355
00:22:21.119 --> 00:22:25.519
a monthly basis, it would be reviewed frequently, and that
356
00:22:25.960 --> 00:22:28.359
there might be a case where the parents and medical
357
00:22:28.359 --> 00:22:33.519
authorities disagreed. Is that is it really that applicable to
358
00:22:33.599 --> 00:22:37.359
this case where at least the State of Washington presumes
359
00:22:37.400 --> 00:22:43.160
a transgender child would both be seeking transitioning in that
360
00:22:43.240 --> 00:22:46.839
medical professionals would agree and provide that treatment.
361
00:22:49.119 --> 00:22:52.000
Well, I mean to slightly disagree with you on one point.
362
00:22:52.119 --> 00:22:55.240
Reason that is, I don't read Parum for the proposition
363
00:22:55.559 --> 00:23:01.039
that medical expertise overrides a parent's decision making. I think
364
00:23:01.119 --> 00:23:06.000
that the court stressed that the constitutional baseline was parental
365
00:23:06.039 --> 00:23:11.839
decision making and simply pointed to that cooperation with collaboration
366
00:23:12.079 --> 00:23:16.880
with medical advice as an additional reason to defer to
367
00:23:17.160 --> 00:23:20.880
the parent's decision making in that case. But I see
368
00:23:21.039 --> 00:23:23.559
PARM and I guess I see the way that it
369
00:23:23.640 --> 00:23:26.599
was cited in the Mirabelli decision as well, particularly in
370
00:23:26.599 --> 00:23:29.599
the Barrick concurrence, as sort of one of our foundation
371
00:23:29.799 --> 00:23:33.920
stones in the area of parental rides. And for that reason,
372
00:23:33.960 --> 00:23:37.319
I don't see it really qualified by the proposition that
373
00:23:37.359 --> 00:23:42.200
wealth medical community community can simply override parents' wishes. Obviously
374
00:23:42.279 --> 00:23:45.519
they can an extreme circumstances the parents pose a physical
375
00:23:45.559 --> 00:23:47.880
threat of safety or anything like that to the child.
376
00:23:48.480 --> 00:23:50.799
I'm not talking about the extreme cases like you know,
377
00:23:50.839 --> 00:23:54.359
the blood transfusion cases saying so on, But in these
378
00:23:54.440 --> 00:23:58.880
cases that are controversial even within the medical community, it's
379
00:23:58.920 --> 00:24:01.640
hard to say that the state has chosen the right
380
00:24:01.680 --> 00:24:06.119
course by simply overriding the wishes of parents anytime that
381
00:24:06.160 --> 00:24:08.240
they oppose a child gender transition.
382
00:24:09.559 --> 00:24:14.599
Eric, how do you evaluate the fact that the plaintiffs
383
00:24:14.720 --> 00:24:20.119
argue accurately that at least three justices have specifically said
384
00:24:20.119 --> 00:24:25.000
this is an urgent question, This treatment of transgenderism without
385
00:24:25.119 --> 00:24:30.000
parental authority is an urgent question to be decided as
386
00:24:30.039 --> 00:24:33.319
well as a fourth justice would have granted cert As
387
00:24:33.359 --> 00:24:36.799
the petitioners put it, you've got your four Why is
388
00:24:38.480 --> 00:24:41.799
this a good vehicle for a resolution of this conflict
389
00:24:41.880 --> 00:24:47.640
between either the medical community or the state community legislature
390
00:24:48.079 --> 00:24:50.960
and parents right to direct the care and well being
391
00:24:51.000 --> 00:24:51.599
of their children.
392
00:24:52.960 --> 00:24:55.480
Yeah, I mean, there's a couple of things to think
393
00:24:55.519 --> 00:24:58.400
about here. One is sort of a meta question about,
394
00:24:59.039 --> 00:25:01.960
you know, the cert word worthiness of some of these cases.
395
00:25:02.000 --> 00:25:04.880
But that's also, I mean, in my mind, somewhat separate
396
00:25:04.960 --> 00:25:07.640
from that Article three question. And if it's an Article
397
00:25:07.640 --> 00:25:12.240
three issue, regardless of whether it's big or small, it's
398
00:25:12.240 --> 00:25:15.559
supposed to be is their jurisdiction? Is there not jurisdiction,
399
00:25:16.079 --> 00:25:17.880
And it doesn't really matter the size of the case
400
00:25:18.000 --> 00:25:20.640
or the impact that it might have on the economy
401
00:25:20.720 --> 00:25:23.240
or population or whatever it might be. So I get
402
00:25:23.240 --> 00:25:27.759
a little uncomfortable, especially when Justice Alito and the Parent's
403
00:25:27.799 --> 00:25:30.559
decision sort of suggests that courts are kind of ducking
404
00:25:30.599 --> 00:25:34.319
this issue, or a ducking transgender issues. I mean, we
405
00:25:34.319 --> 00:25:38.119
can think about again Mirabelli's one Mahmoud is another sort
406
00:25:38.160 --> 00:25:40.960
of the other side of West Virginia versus BPG and Scrematti.
407
00:25:41.039 --> 00:25:44.079
I mean, these transitter issues are being litigated in the courts,
408
00:25:44.119 --> 00:25:46.880
and they're coming up to the Supreme Court, So we
409
00:25:46.920 --> 00:25:49.079
can ask ourselves about whether or not the timing is
410
00:25:49.160 --> 00:25:52.119
sort of adequate or appropriate, or how much there's cert
411
00:25:52.200 --> 00:25:54.480
worthiness under Rule ten for the Supreme Court to granth
412
00:25:54.519 --> 00:25:59.119
these issues. But again, I think thinking about the standing
413
00:25:59.160 --> 00:26:02.400
issue should be in my judgment, a separate kind of
414
00:26:02.480 --> 00:26:04.799
question about whether or not there's an injury in fact
415
00:26:04.880 --> 00:26:08.000
fairly traceable the conduct of the defendant and redressable by
416
00:26:08.079 --> 00:26:11.519
the court. Again, in these cases, there are just so
417
00:26:11.559 --> 00:26:14.640
many contingencies. Is not just again at one level of abstraction,
418
00:26:14.720 --> 00:26:17.880
we can say it's about parents' interests in supervising the
419
00:26:17.880 --> 00:26:20.480
medical care and decisions of their children. But again, in
420
00:26:20.519 --> 00:26:23.839
this case, there's a lot of narrowness and a lot
421
00:26:23.839 --> 00:26:26.759
of contingencies that have to arise when I read the
422
00:26:26.759 --> 00:26:31.240
text of the statute. It's finding that there's reasonable grounds
423
00:26:31.279 --> 00:26:35.640
to believe that removal is necessary to prevent imminent physical
424
00:26:35.680 --> 00:26:40.240
harm due to abuse or neglect, and the release of
425
00:26:40.279 --> 00:26:44.759
information will cause severe psychological or physical harm to the juvenile.
426
00:26:45.400 --> 00:26:49.519
So there's a lot of contingencies baked in that statute,
427
00:26:49.680 --> 00:26:54.839
adverbs and adjectives in context specific inquiries. To sort of
428
00:26:54.839 --> 00:26:57.160
take a step back and ask, you know, is this
429
00:26:57.279 --> 00:26:59.799
the kind of case to speak as a blanket policy
430
00:27:00.079 --> 00:27:03.000
would be appropriate, especially given Charla has to run away
431
00:27:03.119 --> 00:27:05.440
to the licensed shelter to be evaluated by the state
432
00:27:05.480 --> 00:27:09.519
and such contingencies and to meet these sort of qualifications
433
00:27:09.559 --> 00:27:13.880
in the statute. The Court at various times seems comfortable
434
00:27:13.920 --> 00:27:16.680
with what might label facial challenges to statutes as opposed
435
00:27:16.680 --> 00:27:19.400
to as applied at a high level of abstraction versus
436
00:27:19.480 --> 00:27:22.079
a very narrow one. But I think there's going to
437
00:27:22.119 --> 00:27:24.279
be a reason why the justice is or the justices
438
00:27:24.319 --> 00:27:27.000
have in the past been reluctant to hear these cases.
439
00:27:27.400 --> 00:27:29.880
It's because they don't have these specific parents who are
440
00:27:29.920 --> 00:27:32.680
showing up with these sort of specific concerns like some
441
00:27:32.720 --> 00:27:34.960
of the other ones, in cases like mcmood, where the
442
00:27:35.119 --> 00:27:37.960
parents know that this is the curriculum that their children
443
00:27:38.000 --> 00:27:41.240
are experiencing in this classroom, that there are some of
444
00:27:41.240 --> 00:27:44.160
that much more specific linkage, while it's a blank of
445
00:27:44.240 --> 00:27:48.359
policy clearly happening in this particular school district with these
446
00:27:48.440 --> 00:27:51.720
children under this curriculum that's prescribed by the school. And
447
00:27:51.759 --> 00:27:53.519
I'm just wondering how much of that gap is going
448
00:27:53.599 --> 00:27:54.920
to matter when it comes up in front of the
449
00:27:54.960 --> 00:27:56.000
Supreme Court this week.
450
00:27:57.039 --> 00:27:58.680
And I see you nodding your head.
451
00:28:00.319 --> 00:28:03.799
Well, I'm just following along. And I'm sure Derek already
452
00:28:03.839 --> 00:28:06.839
knows this, but I'm smiling a little because, of course,
453
00:28:06.839 --> 00:28:10.160
the Fourth Circuit disagreed and found no standing for the
454
00:28:10.240 --> 00:28:13.359
folks in mock Mood, despite the fact that they pointed
455
00:28:13.400 --> 00:28:17.759
to all of these details on a fairly hefty record.
456
00:28:19.519 --> 00:28:22.599
This is not at all exact, and I absolutely agree
457
00:28:22.640 --> 00:28:26.599
with Derek that the merits and the Article three question
458
00:28:26.720 --> 00:28:30.559
have to be teased apart. But there is sort of
459
00:28:30.599 --> 00:28:33.599
from a meta perspective, a sense in which the Court
460
00:28:34.440 --> 00:28:39.240
is both careful to apply Article three requirements in a
461
00:28:39.279 --> 00:28:41.799
way that it wouldn't have done, you know, say, thirty
462
00:28:41.880 --> 00:28:47.519
years ago. But it's also I think increasingly mindful that
463
00:28:47.599 --> 00:28:50.799
the stakes in a case matter, that you know, p
464
00:28:50.799 --> 00:28:54.400
reinforcement challenges like three or three creative from Colorado a
465
00:28:54.400 --> 00:28:59.119
couple of years ago, matter because the stakes are that high.
466
00:29:00.119 --> 00:29:03.880
So even though I think theoretically and logically we can
467
00:29:03.920 --> 00:29:09.039
tease these apart, I think the scale of perceived threat
468
00:29:09.079 --> 00:29:11.359
and risk to parental rights is great enough in this
469
00:29:11.440 --> 00:29:13.359
case to certainly get the justice's attention.
470
00:29:15.000 --> 00:29:19.200
One of the points made in my mood was that
471
00:29:19.359 --> 00:29:23.079
in that particular case, the school district had allowed an
472
00:29:23.079 --> 00:29:26.160
opt out for a few years at least, once they
473
00:29:26.200 --> 00:29:32.559
instituted this policy of requiring this curriculum, and then with
474
00:29:32.799 --> 00:29:36.920
very little notice and with very little explanation, they suddenly
475
00:29:36.960 --> 00:29:40.079
reversed course and said, Nope, you can't knocked out anymore.
476
00:29:40.160 --> 00:29:43.799
We're done. It doesn't matter, it's too hard to administer,
477
00:29:44.000 --> 00:29:47.720
et cetera, et cetera. In this case, we see a
478
00:29:47.839 --> 00:29:52.359
similar sort of significant legislative shift, it seems to me
479
00:29:52.640 --> 00:29:58.279
in the record in that they State of Washington. Initially,
480
00:29:58.319 --> 00:30:02.079
as I understand the record, required that when a runaway
481
00:30:02.119 --> 00:30:06.079
came to a shelter or even a family member initially
482
00:30:06.480 --> 00:30:09.920
they had to report to the parents that this child
483
00:30:10.000 --> 00:30:12.720
had come and they were safe, and here's where they were,
484
00:30:13.200 --> 00:30:16.799
and then sort out whether or not the child should
485
00:30:16.799 --> 00:30:21.960
be returned, etc. And with the transgender issue, the plaintiffs
486
00:30:22.000 --> 00:30:24.960
to make much of the fact that they are equating
487
00:30:25.119 --> 00:30:27.799
parents who believed that the child should be raised in
488
00:30:27.839 --> 00:30:33.119
accordance with their biological sex and that any transitory feelings
489
00:30:33.240 --> 00:30:37.480
of being in the wrong body will fade during adolescence.
490
00:30:37.680 --> 00:30:41.960
Finding of the cast study over in England, they suddenly
491
00:30:42.000 --> 00:30:47.440
decide no, parents who object to transitioning transgender children are
492
00:30:47.440 --> 00:30:52.319
the equivalent of abusive parents. Is that sort of legislative
493
00:30:52.359 --> 00:30:56.759
shift in the notice requirement significant as it was in
494
00:30:56.799 --> 00:30:59.720
my mood? Or did you see that being significant in
495
00:30:59.759 --> 00:30:59.960
my mind?
496
00:31:02.319 --> 00:31:07.200
It certainly was significant in my mood. It was it
497
00:31:07.319 --> 00:31:12.079
was some indirect evidence that something unusual was happening from
498
00:31:12.079 --> 00:31:17.079
Montgomery County, that it wasn't simply applying pre existing rules
499
00:31:17.160 --> 00:31:21.079
to parents who objected on these grounds, that they had
500
00:31:21.079 --> 00:31:25.440
sort of singled out some procedural barrier for this particular
501
00:31:25.519 --> 00:31:28.720
curriculum program that they didn't really interpose for anything else
502
00:31:30.759 --> 00:31:35.599
in Washington. And sorry, this comes from a parent who
503
00:31:35.640 --> 00:31:37.799
once lost track of a child in a bookstore for
504
00:31:37.880 --> 00:31:43.839
all of forty five minutes. The notion of being unaware
505
00:31:43.920 --> 00:31:46.000
of where your child is for up to ten days,
506
00:31:46.039 --> 00:31:47.839
I had to say it's a single fact in this
507
00:31:47.960 --> 00:31:51.640
case that that did sort of briveted my attention. You know,
508
00:31:51.680 --> 00:31:54.960
you could have disputes with experts, you can have conversations
509
00:31:55.039 --> 00:31:58.480
with with folks at a state licensing center, But to
510
00:31:58.519 --> 00:32:01.319
not know where your child those up to ten days
511
00:32:01.319 --> 00:32:04.480
because the child doesn't want you to know that, that's
512
00:32:04.559 --> 00:32:05.079
kind of tough.
513
00:32:07.119 --> 00:32:09.240
Derek, do you think it's significant that there was a
514
00:32:09.759 --> 00:32:14.519
that there appear to be fairly substantial amendments to the
515
00:32:14.640 --> 00:32:18.480
original statue regarding run white children and notification parents.
516
00:32:18.759 --> 00:32:22.359
Yeah. I mean again, I think, as Sean mentioned, part
517
00:32:22.359 --> 00:32:25.200
of this is there's some contingencies built in here, right,
518
00:32:25.240 --> 00:32:27.279
And I'm not nearly as steeped in the record as
519
00:32:27.279 --> 00:32:29.960
maybe both of you are, but as I see it, right,
520
00:32:30.119 --> 00:32:34.319
there are some of these things do require some efforts
521
00:32:34.319 --> 00:32:36.640
to contact the parents, and then there are these questions
522
00:32:36.640 --> 00:32:40.519
about if or if known, or what kinds of thing,
523
00:32:40.559 --> 00:32:43.960
what happens if the minor withholds the information from the parents,
524
00:32:44.240 --> 00:32:49.160
what kinds of independent efforts does the Department for Children
525
00:32:49.279 --> 00:32:52.440
have to engage in to go find these things. So again,
526
00:32:52.480 --> 00:32:55.400
those are all sort of these additional baked in layers
527
00:32:55.400 --> 00:32:58.160
that I think, you know, add some of that complexity
528
00:32:58.160 --> 00:33:01.039
if we're thinking about the imminent in to parents in
529
00:33:01.079 --> 00:33:04.240
these cases not just running away, it's also sort of
530
00:33:04.240 --> 00:33:06.960
failing to meet some of these additional things that at
531
00:33:07.039 --> 00:33:11.680
least they're on the surface to some cursory level, requires
532
00:33:11.799 --> 00:33:14.680
some degree of effort to be made to notify the parents,
533
00:33:14.960 --> 00:33:18.799
along with on the flip side, some adjectives and averbs
534
00:33:18.799 --> 00:33:21.519
about contingencies in which notice would not be given or
535
00:33:21.559 --> 00:33:24.319
would be inappropriate, and trying to figure out what are
536
00:33:24.319 --> 00:33:28.359
those circumstances where maybe they've made a judgment is that
537
00:33:28.440 --> 00:33:33.160
inappropriately burdens parental rights in these cases? Because Stron admits
538
00:33:33.400 --> 00:33:35.920
certain in certain extreme cases, we would say, of course,
539
00:33:35.960 --> 00:33:37.839
the states should be able to protect the children in
540
00:33:37.880 --> 00:33:41.880
those situations of obvious abuse. But it's in those cases
541
00:33:41.880 --> 00:33:43.559
where we're sort of in this middle ground of just
542
00:33:43.680 --> 00:33:47.839
mere disagreement with the method of supervising children who are
543
00:33:47.920 --> 00:33:51.880
undergoing gender dysphoria. You know, if the parents are overly
544
00:33:51.920 --> 00:33:54.480
assuming that that's what the conduct of the state is
545
00:33:54.480 --> 00:33:58.599
going to regulate their behavior. If they're thinking that there's
546
00:33:58.640 --> 00:34:02.160
too much of this fearful behavior and reaction to things
547
00:34:02.160 --> 00:34:04.960
that may never come to fruition, that's the question about
548
00:34:04.960 --> 00:34:06.440
whether or not the Court is going to be interested
549
00:34:06.480 --> 00:34:08.880
in thinking about that sort of speculative harm. Again, for
550
00:34:08.960 --> 00:34:12.440
some like Justice Alito, and understandably in some circumstances Transferred,
551
00:34:12.679 --> 00:34:15.199
the magnitude of the rights that are at stake have
552
00:34:15.320 --> 00:34:17.000
led the Court to sort of relax some of these
553
00:34:17.039 --> 00:34:19.840
principles and say, at a general level, we're concerned enough,
554
00:34:19.880 --> 00:34:22.360
we're going to dig in again. The more of these
555
00:34:22.400 --> 00:34:25.960
contingencies you bake into a statutory scheme, or the more
556
00:34:26.039 --> 00:34:29.360
questions that arise about the likelihood that it would ever
557
00:34:29.440 --> 00:34:31.480
come to pass in a way that would actually burden
558
00:34:31.519 --> 00:34:34.480
the underlying constitutional right, the more questions I think there
559
00:34:34.480 --> 00:34:36.400
are going to be about whether or not the petitioners
560
00:34:36.440 --> 00:34:37.960
are going to be able to establish standing in a
561
00:34:38.000 --> 00:34:38.480
case like this.
562
00:34:39.320 --> 00:34:41.320
So, Derek, this may be an unfair question.
563
00:34:43.880 --> 00:34:47.480
What are these webinars for? If not the occasional unfair question,
564
00:34:49.239 --> 00:34:49.760
give me.
565
00:34:49.679 --> 00:34:56.559
A fact pattern that would satisfy your concept of imminent
566
00:34:57.679 --> 00:35:02.360
danger or imminent harm to the PLA that doesn't involve
567
00:35:02.360 --> 00:35:05.079
a child that is already in the process of being
568
00:35:05.119 --> 00:35:07.360
transitioned without the parents' knowledge.
569
00:35:07.679 --> 00:35:11.000
Yeah, I mean, I think it becomes very hard to
570
00:35:11.039 --> 00:35:13.920
think about imminent as opposed to actual in this case.
571
00:35:14.159 --> 00:35:17.000
And I think that's because you have to start with
572
00:35:17.039 --> 00:35:18.840
a child who's going to run away. Now, one of
573
00:35:18.840 --> 00:35:20.960
these children in these cases, one of the children of
574
00:35:20.960 --> 00:35:23.039
one of the parents did run away before, and so
575
00:35:23.159 --> 00:35:27.880
there's probably some increased likelihood there that we could think, Okay,
576
00:35:27.880 --> 00:35:30.559
maybe there's more of a likelihood that would happen again.
577
00:35:32.000 --> 00:35:36.119
But again, whether or not it's finding emails or text
578
00:35:36.119 --> 00:35:38.840
messages saying I know what I'm going to do next.
579
00:35:39.159 --> 00:35:41.199
I'm going to run away, and here's the shelter where
580
00:35:41.199 --> 00:35:42.719
I'm going to go to so I can get away
581
00:35:42.760 --> 00:35:45.800
from my parents. Again, that's maybe not a record you're
582
00:35:45.840 --> 00:35:47.960
going to find very often. But if we're thinking about
583
00:35:48.000 --> 00:35:51.280
imminent as opposed to actual, I mean, in some cases,
584
00:35:51.320 --> 00:35:53.760
those are the kinds of records that we're talking about again,
585
00:35:53.840 --> 00:35:56.199
imminent or if you want to come back to Clapper,
586
00:35:56.840 --> 00:36:00.639
certainly impending, right, it'd be very hard in Clapper for
587
00:36:00.719 --> 00:36:03.920
these US citizens to be able to demonstrate that there's
588
00:36:04.039 --> 00:36:07.199
someone who's going to affis a court to get a
589
00:36:07.239 --> 00:36:09.760
warrant to come listen and tap into their phones if
590
00:36:09.760 --> 00:36:14.239
we're thinking about what's that certainly impending harm that's going
591
00:36:14.280 --> 00:36:17.280
to arise to them. But again, sometimes in these standing cases,
592
00:36:17.360 --> 00:36:20.320
just because the imminent harm is hard, and sometimes it
593
00:36:20.320 --> 00:36:23.119
does require waiting for the actual harm to arise in
594
00:36:23.159 --> 00:36:26.079
these cases, and again, not an ideal situation to be
595
00:36:26.360 --> 00:36:28.719
those parents who are in that situation right where the
596
00:36:28.760 --> 00:36:31.639
harm has actually arisen, where a child is run away,
597
00:36:31.639 --> 00:36:34.880
and they've been denied access in those cases, and maybe
598
00:36:34.880 --> 00:36:37.480
it's a reason why in certain cases the standing requirements
599
00:36:37.480 --> 00:36:40.440
have been relaxed in a number of other contexts. And
600
00:36:41.679 --> 00:36:43.800
so I think, but I think if we're looking for
601
00:36:43.840 --> 00:36:47.480
imminent we would want that kind of text record of
602
00:36:47.519 --> 00:36:50.840
the kinds of activity for the child, plus maybe some
603
00:36:50.920 --> 00:36:53.920
more of the guidance from the state about well, I mean,
604
00:36:53.920 --> 00:36:56.800
if this person or this child is running away from
605
00:36:56.840 --> 00:36:59.800
the parents, that's a pretty strong demonstration that they suggest
606
00:36:59.800 --> 00:37:01.920
they are evading the parents and they want to be
607
00:37:01.960 --> 00:37:05.119
able to escape rental oversight, which would then suggest that
608
00:37:05.159 --> 00:37:06.880
the state is going to find it much more likely
609
00:37:06.960 --> 00:37:10.159
that they're going to detain that more to hold on
610
00:37:10.239 --> 00:37:13.719
to them without releasing the information to the parents. But
611
00:37:13.760 --> 00:37:16.119
I admit it to It's not an unfair question. It
612
00:37:16.239 --> 00:37:17.800
just results and maybe a hard answer.
613
00:37:19.360 --> 00:37:22.360
Well in Sean, my question for you is, of course,
614
00:37:22.400 --> 00:37:27.679
we have three Dobs, this significant body of jurisprudence from
615
00:37:27.719 --> 00:37:31.320
the Supreme Court in the abortion context, and Postdobs we
616
00:37:31.360 --> 00:37:35.000
have the Alliance for Hippocratic Medicine case, which Washington relies
617
00:37:35.039 --> 00:37:41.960
extensively on. But the pre Dobs regime set up the
618
00:37:42.000 --> 00:37:46.119
Acron case, the city of Acron cases, a process by
619
00:37:46.199 --> 00:37:49.719
which not only could a minor as young as twelve
620
00:37:49.840 --> 00:37:52.800
or thirteen who is pregnant go into a court and
621
00:37:52.840 --> 00:37:56.719
have a secret proceeding where their parents weren't notified, weren't
622
00:37:56.760 --> 00:37:58.880
given the opportunity to be heard, etc.
623
00:37:59.239 --> 00:37:59.440
Etc.
624
00:38:00.239 --> 00:38:04.159
And that the court would then give the minor the
625
00:38:04.239 --> 00:38:07.480
capacity or endow the minor with the capacity to consent
626
00:38:07.559 --> 00:38:09.760
to the abortion, and then the girls sent home to
627
00:38:09.760 --> 00:38:12.360
the parents who have no knowledge of what's happening. Now,
628
00:38:12.400 --> 00:38:18.000
the Texas Supreme Court was asked to Postdobs eliminate those
629
00:38:18.000 --> 00:38:21.199
sorts of proceedings because of the violation of procedural due
630
00:38:21.199 --> 00:38:25.079
process of parents' rights. They declined to do so, but
631
00:38:25.119 --> 00:38:27.880
a Florida Intermediate Appellate court just a couple of months
632
00:38:27.880 --> 00:38:31.639
ago said that those sorts of secret proceedings did violate
633
00:38:31.679 --> 00:38:35.079
procedural do process. It was dicta because there were other
634
00:38:35.119 --> 00:38:38.920
basis that the opinion relied on. But what do you
635
00:38:39.039 --> 00:38:42.440
make of that sort of precedent it's not cited. Well,
636
00:38:42.480 --> 00:38:45.800
the Alliance for Hipocratic Medicine case is cited by the parties,
637
00:38:46.480 --> 00:38:48.400
but the court it won't be the first time the
638
00:38:48.440 --> 00:38:52.360
courts allowed secret procedures to be performed on minors.
639
00:38:54.199 --> 00:38:59.280
Well, I think there's a prime distinction to draw in
640
00:38:59.400 --> 00:39:03.679
the Akron cases and later you were talking about courts
641
00:39:04.239 --> 00:39:09.760
who were operating under the directive of Row and later
642
00:39:09.880 --> 00:39:15.360
cases that held that obtaining an abortion is a constitutional right.
643
00:39:16.159 --> 00:39:19.280
Here you're talking about a state legislature which, from the
644
00:39:19.320 --> 00:39:24.239
petitioner's view, has enacted a law that undermines a constitutional right.
645
00:39:24.840 --> 00:39:27.719
And so it would seem to me that any justification
646
00:39:28.119 --> 00:39:34.280
for the Akron style secret tribunals for underage girls has
647
00:39:34.360 --> 00:39:38.519
no place when you're talking about a legislature's attempt not
648
00:39:38.599 --> 00:39:41.280
to further a constitutional right. But to underline it.
649
00:39:42.840 --> 00:39:45.760
If so, one of the cases that the State of
650
00:39:45.880 --> 00:39:49.639
Washington relies on is the Fifth Circuit case of DeAnda
651
00:39:49.800 --> 00:39:55.079
versus Barsera, and there the Fifth Circuit held that because
652
00:39:55.079 --> 00:39:58.440
there was a statutory right of parents to direct the
653
00:39:58.480 --> 00:40:01.519
medical care of their children are to be informed when
654
00:40:01.559 --> 00:40:06.280
a young girl obtained contraception, that the conflict with federal
655
00:40:06.400 --> 00:40:13.480
law that the state statutory right prevailed is that the
656
00:40:13.519 --> 00:40:16.440
only remedy, if SIRT is and granted in this case,
657
00:40:16.519 --> 00:40:21.679
is for Washington parents to get a state statutory right
658
00:40:21.719 --> 00:40:24.519
of parental rights. Legislation passed.
659
00:40:26.199 --> 00:40:29.599
Really difficult to think about because of the political setting here.
660
00:40:30.159 --> 00:40:33.679
Let's just consider that for a moment, the Washington legislature
661
00:40:35.400 --> 00:40:39.199
enacted a law which is in my view, quite inconsistent
662
00:40:39.280 --> 00:40:41.880
with recent case law from the Supreme Court for a
663
00:40:41.920 --> 00:40:46.840
reason because its political will is pointing in the opposite direction,
664
00:40:47.519 --> 00:40:54.440
and so even even moderate local reliefs a municipal ordinance
665
00:40:54.599 --> 00:40:57.760
and so on seems pretty much out of reach when
666
00:40:57.920 --> 00:41:01.920
parents who objected their child's trends are in a distinct
667
00:41:02.039 --> 00:41:03.239
minority in that stay.
668
00:41:07.400 --> 00:41:12.480
Given that, if I can ask you both handicapped. The
669
00:41:12.599 --> 00:41:17.000
conference is coming up later this week for me, wherever
670
00:41:17.119 --> 00:41:21.960
wants to go first, I'll let Derek take first this time.
671
00:41:23.679 --> 00:41:25.800
Well again, I mean first offor have already been three
672
00:41:25.840 --> 00:41:27.880
votes to grant, So I think the question is if
673
00:41:27.880 --> 00:41:32.639
there's a fourth. And you know, I do think Sean
674
00:41:32.760 --> 00:41:36.280
is right to suggest that a case like Mirabelli would
675
00:41:36.480 --> 00:41:41.800
seem to enhance the likelihood that the Court is interested
676
00:41:41.840 --> 00:41:45.039
in taking these kind of a case. At the same time,
677
00:41:45.119 --> 00:41:48.960
Mirabelli seems to rely much more on this sort of
678
00:41:49.519 --> 00:41:53.039
classroom context and thinking about what's happening when there are
679
00:41:53.079 --> 00:41:57.079
regulations of how children are being educated in the public
680
00:41:57.119 --> 00:42:00.199
schools and the children are all subject to this policy, see,
681
00:42:00.239 --> 00:42:04.039
which is sort of known and defined and fixed in
682
00:42:04.079 --> 00:42:07.159
a way that maybe the contingencies here aren't. And again
683
00:42:07.199 --> 00:42:10.639
you add to the complexity. And I have great sympathy
684
00:42:10.679 --> 00:42:12.440
for thinking about how states deal with this, dealing with
685
00:42:12.519 --> 00:42:14.880
runaway children, are dealing a way with a foster system,
686
00:42:14.960 --> 00:42:17.599
or dealing with those children who are suffering abuse and neglect,
687
00:42:18.000 --> 00:42:20.360
and how do we handle that sort of additional layer
688
00:42:20.599 --> 00:42:23.519
of state involvement in a very sensitive domain. Now, maybe
689
00:42:23.519 --> 00:42:26.159
that it's the merits. I totally understand that, But when
690
00:42:26.199 --> 00:42:29.199
you're talking about these kinds of injuries that you're articulating,
691
00:42:29.280 --> 00:42:32.079
sometimes the merits questions and the messiness of the merits
692
00:42:32.079 --> 00:42:36.280
do leak into those questions on the standing side of things.
693
00:42:37.079 --> 00:42:39.480
So my instinct is to suggest, you know, if there's
694
00:42:39.599 --> 00:42:41.760
only been three votes in the past, that there's going
695
00:42:41.840 --> 00:42:44.960
to continue to be three votes indefinitely. That I don't
696
00:42:44.960 --> 00:42:47.679
know that there's going to be a great appetite until
697
00:42:47.840 --> 00:42:52.039
the facts arise in a significantly different way. So if
698
00:42:52.039 --> 00:42:55.159
that's the case, my guess is maybe we'll see those
699
00:42:55.199 --> 00:42:58.840
three votes, three dissenting and no more.
700
00:43:00.320 --> 00:43:04.559
Sean Well, I am going to do the thing that
701
00:43:04.639 --> 00:43:07.280
I advise my own associates not to do, and that
702
00:43:07.440 --> 00:43:13.000
is to count heads based on multiple decisions. If you
703
00:43:13.159 --> 00:43:16.840
look at both the eu Claire case that Derek has
704
00:43:16.920 --> 00:43:19.920
mentioned and then a later case, both of them involving
705
00:43:20.000 --> 00:43:24.760
alito separate decisions. The eu Claire Wisconsin case involved a
706
00:43:24.840 --> 00:43:27.239
discent he thought that the court should have granted sir.
707
00:43:28.039 --> 00:43:30.840
In the other case, it was a concurrent agreeing that
708
00:43:30.920 --> 00:43:34.599
serchari was inappropriate. But if you added the votes in
709
00:43:34.639 --> 00:43:40.960
those two cases, what you have are the votes from Aledo, Kavanaugh, Thomas,
710
00:43:41.000 --> 00:43:43.920
and Gorsage and in my mind, if this case gets
711
00:43:43.920 --> 00:43:46.480
a grant, those are the four that will vote for
712
00:43:46.519 --> 00:43:49.840
the grant. I think just as Barrett in her concurrence
713
00:43:49.960 --> 00:43:52.639
noted in passing that one of the reasons why the
714
00:43:52.679 --> 00:43:58.519
emergency application relief was appropriate was because the District Court
715
00:43:58.599 --> 00:44:02.440
had already held set angel proceedings on a summary judgment,
716
00:44:02.960 --> 00:44:05.960
and so therefore she was comfortable that this wasn't just
717
00:44:06.000 --> 00:44:08.079
sort of on a bear record, the way that she
718
00:44:08.159 --> 00:44:12.639
will often object to, especially on the shadow docket. As
719
00:44:12.679 --> 00:44:15.639
for Chief Justice Roberts, we all know he's a minimalist.
720
00:44:15.679 --> 00:44:18.159
He'd love to avoid any of these big issues if
721
00:44:18.199 --> 00:44:21.480
he possibly can. Standing is an easy way to avoid
722
00:44:21.599 --> 00:44:25.159
this issue. But I think if those same four justices
723
00:44:25.280 --> 00:44:27.440
cast to vote in favor of a grant here, that's
724
00:44:27.480 --> 00:44:28.440
where the grant will come.
725
00:44:29.800 --> 00:44:31.800
Can I follow up and ask you if you think
726
00:44:31.840 --> 00:44:34.199
he'll vote to find standing then.
727
00:44:35.760 --> 00:44:40.559
On the marriage justin Roberts, Yes, he has not tended
728
00:44:40.639 --> 00:44:43.960
on most occasions. I come up with a couple of counterexamples,
729
00:44:43.960 --> 00:44:48.119
but he's not tended to be a death a standing hawk.
730
00:44:48.480 --> 00:44:51.719
Once the court actually here's the case, I think he
731
00:44:51.840 --> 00:44:56.920
would probably go along with the General tenor of Alito's remarks.
732
00:44:57.000 --> 00:44:59.719
I think it is just so hugely controversial that he'd
733
00:44:59.800 --> 00:45:01.719
liked keep the court out of the path of fire
734
00:45:01.800 --> 00:45:02.239
if he can.
735
00:45:03.880 --> 00:45:07.280
Okay, we've got a question from a viewer right now,
736
00:45:07.440 --> 00:45:12.719
and so one of our viewers asked the question, Tim Davis.
737
00:45:12.880 --> 00:45:16.760
Could legislative intent ever be relevant to the standing inquiry?
738
00:45:17.280 --> 00:45:22.039
Does it make harm more imminent or likely? Certainly, the
739
00:45:22.679 --> 00:45:25.559
briefing in the case talks a lot about legislative intent,
740
00:45:25.679 --> 00:45:30.159
but we have to remember Justice Kalia's faith observation about
741
00:45:30.280 --> 00:45:33.239
legislative intent. What do you think there?
742
00:45:35.880 --> 00:45:38.159
Yeah, I mean this is a little bit messy, and
743
00:45:38.239 --> 00:45:40.079
the briefing here that is.
744
00:45:42.480 --> 00:45:42.559
So.
745
00:45:42.880 --> 00:45:44.880
And again I think this is why when we're thinking
746
00:45:44.880 --> 00:45:48.400
about facial versus has applied challenges, especially of state laws.
747
00:45:49.519 --> 00:45:51.880
You know, there's a whole separate wing of federal courts
748
00:45:51.920 --> 00:45:56.480
jurisprudence in abstention doctrines. And the reason why, whether it's
749
00:45:56.480 --> 00:45:58.519
Pullman abstention or the notion that we're going to step
750
00:45:58.559 --> 00:46:00.639
back and let the state sort out its own affairs
751
00:46:00.679 --> 00:46:04.079
before we step in, you can have a pretty shall
752
00:46:04.119 --> 00:46:08.840
we say, negative or hostile legislative environments. But at the
753
00:46:08.880 --> 00:46:12.679
same time, what comes out of that legislature is the
754
00:46:12.760 --> 00:46:15.400
legislation that has to be implemented in a particular way.
755
00:46:15.920 --> 00:46:18.400
And maybe when the executive and we saw this, and
756
00:46:18.440 --> 00:46:22.639
I think of one of those Colorado cases three or
757
00:46:22.639 --> 00:46:25.159
three creative or one of the others where the executive
758
00:46:25.320 --> 00:46:27.599
or the executive actors do make those sort of overtly
759
00:46:27.679 --> 00:46:30.440
hostile statements in the course of enforcing the law. We
760
00:46:30.519 --> 00:46:32.320
tend to use those kinds of statements. But that's a
761
00:46:32.320 --> 00:46:35.000
little different than the legislative history side of things. And
762
00:46:35.039 --> 00:46:36.639
there's some suggestion, well, maybe we should look at the
763
00:46:36.679 --> 00:46:39.880
legislative history differently when it's a state rule as opposed
764
00:46:39.880 --> 00:46:43.039
to a federal rule. And that's one of the things
765
00:46:43.039 --> 00:46:46.480
that's appropriate for interpreting state rules in the state of Washington.
766
00:46:46.519 --> 00:46:49.880
And I think the petitioners make that claim in a footnote.
767
00:46:50.639 --> 00:46:53.119
But all that is to say, I think a lot
768
00:46:53.159 --> 00:46:56.320
more should matter on the text of the statute and
769
00:46:56.360 --> 00:47:00.159
then how the executive intends to enforce that statue and
770
00:47:00.199 --> 00:47:04.239
the sort of policy statements that go toward the implementation.
771
00:47:04.800 --> 00:47:07.719
And I do think the petitioners make points as to
772
00:47:08.000 --> 00:47:12.519
some of the executive interpretations and how Department Trial Welfare
773
00:47:12.599 --> 00:47:15.519
is supposed to be enforcing these rules to suggests that
774
00:47:15.559 --> 00:47:17.440
it's on their side. They say, if Washington comes back
775
00:47:17.480 --> 00:47:19.000
to suggest that it's on their side, I think that
776
00:47:19.039 --> 00:47:21.360
would be the more appropriate place. I think a little
777
00:47:21.360 --> 00:47:23.880
bit less on the legislative side. But there's certainly no
778
00:47:24.000 --> 00:47:28.719
question that Sean has some good legislative history have run,
779
00:47:28.840 --> 00:47:32.320
especially to point at how the parents are being targeted
780
00:47:32.360 --> 00:47:34.800
in some respects. And if the Court wants to take
781
00:47:34.840 --> 00:47:37.280
the Diamond case and really say, well, we're going to
782
00:47:37.559 --> 00:47:40.480
really run with it and say that the legislature intended
783
00:47:40.519 --> 00:47:43.519
this kind of targeting of parents, then maybe we'll have
784
00:47:43.559 --> 00:47:45.800
a new development of standing doctrine that will require the
785
00:47:45.840 --> 00:47:48.320
legislators to be a little bit more careful. But I'm
786
00:47:48.320 --> 00:47:50.719
a little bit I'm a little bit more skeptical of
787
00:47:50.800 --> 00:47:51.960
the court will go in that direction.
788
00:47:53.079 --> 00:47:54.199
Sean, Do you agree.
789
00:47:55.760 --> 00:47:58.679
I'll actually is sort of like coming at the opposite
790
00:47:58.679 --> 00:48:02.280
point on the very new arrow issue of whether legislative
791
00:48:02.400 --> 00:48:06.599
history matters for the issue of whether these parents were
792
00:48:06.719 --> 00:48:10.639
objects of the law. Just that I'm I'm talking about
793
00:48:10.679 --> 00:48:14.079
reading the statute as a whole, disregarding any of the
794
00:48:14.119 --> 00:48:18.239
text anyway, just the standing question of whether or notwithstanding
795
00:48:18.239 --> 00:48:23.000
they're never mentioned. Is the class of all parents opposing
796
00:48:23.039 --> 00:48:27.239
their children gender transitioning the objects of this law? And
797
00:48:27.320 --> 00:48:30.760
I think the evidence from the legislative history is relevant
798
00:48:30.760 --> 00:48:31.360
to that question.
799
00:48:32.000 --> 00:48:37.440
Okay, you both said that there's clearly a possibility of
800
00:48:37.480 --> 00:48:41.800
fore votes to grant cert but neither of you mentioned
801
00:48:42.000 --> 00:48:48.400
Justice Kagan's call and her concurring opinion in Marrabelli that
802
00:48:48.480 --> 00:48:51.119
the Court needs to take up this issue in some
803
00:48:51.239 --> 00:48:54.519
way and instead of doing this pecuium nonsense, let's take
804
00:48:54.559 --> 00:48:56.679
a case on the merits like the bookcase, which they
805
00:48:56.760 --> 00:49:01.840
ultimately rejected. Could Kagan be the fourth vot instead of Roberts?
806
00:49:02.199 --> 00:49:03.159
What do you think.
807
00:49:05.559 --> 00:49:09.239
I'm going to say no on that one. I think
808
00:49:10.440 --> 00:49:14.039
Justice Kegan, who's extremely bright, is looking for a merits
809
00:49:14.079 --> 00:49:16.960
case along the line of Foot. I think Foot had
810
00:49:17.480 --> 00:49:21.159
a vehicle problem that prevented it being that kind of case.
811
00:49:22.280 --> 00:49:25.880
But if you say, saw a Mirabelli in full dress
812
00:49:25.960 --> 00:49:28.480
on the merits coming out of the Ninth Circuit two
813
00:49:28.519 --> 00:49:31.519
years from now, she might well vote for review on
814
00:49:31.519 --> 00:49:33.559
that certainly would be consistent with what she said.
815
00:49:36.159 --> 00:49:40.119
I I think if in a case like this and
816
00:49:40.519 --> 00:49:42.480
presuming and maybe I shouldn't presume, but I think I
817
00:49:42.519 --> 00:49:44.719
will that just this keg it would be inclined to
818
00:49:44.840 --> 00:49:47.679
agree or affirm the Ninth Circuit. I think it would
819
00:49:47.679 --> 00:49:50.079
be a pretty big risk to grant cert only to
820
00:49:50.119 --> 00:49:52.239
have it reversed, right, So I think you would want
821
00:49:52.239 --> 00:49:55.880
to find a case where you could at least you
822
00:49:55.920 --> 00:49:59.519
would hope for reversal if you're inclined to agree with
823
00:49:59.559 --> 00:50:03.719
the state and realize there's really no harm if you
824
00:50:03.840 --> 00:50:06.519
end up affirming, because it's going to preserve the status quo,
825
00:50:06.559 --> 00:50:08.880
although obviously there will be precedent that would extend throughout
826
00:50:08.880 --> 00:50:13.360
the country. So my instinct is to say that no,
827
00:50:13.559 --> 00:50:15.480
she would not do it, which is not to say
828
00:50:15.480 --> 00:50:18.079
that it's inconsistent with her views. In Mirabellious say we
829
00:50:18.119 --> 00:50:21.079
need to grant these things on searches that suddenly different
830
00:50:21.119 --> 00:50:24.039
factors come into play when actually presented with whether or
831
00:50:24.039 --> 00:50:26.519
not to grantsert fair enough.
832
00:50:26.880 --> 00:50:30.039
Our final question comes from John Sheller, who asks, what
833
00:50:30.119 --> 00:50:33.159
do you two make of the fact that they've conferenced
834
00:50:33.159 --> 00:50:37.000
and then reset for conference and then reset for conference. Now,
835
00:50:37.079 --> 00:50:39.920
of course, at one point the State of Washington said,
836
00:50:39.920 --> 00:50:42.199
we don't even need to answer this. They lost at
837
00:50:42.199 --> 00:50:44.800
the trial court. They lost at the intermediate court. We're
838
00:50:44.840 --> 00:50:46.880
not going to bother and then the court back came
839
00:50:46.920 --> 00:50:49.280
back and said, oh, yes you are. What do you
840
00:50:49.360 --> 00:50:53.199
make of that delay.
841
00:50:52.000 --> 00:50:58.400
Sean, As a matter of sort of standard practice, resetting
842
00:50:58.400 --> 00:51:02.719
a case for conference generally indicate someone on the court
843
00:51:02.800 --> 00:51:06.760
is interested. And the more times that it's reset up
844
00:51:06.800 --> 00:51:09.480
to a point, there's sort of a continuum here. But
845
00:51:10.639 --> 00:51:13.840
I'm looking at you know, like the footcase, which seriously,
846
00:51:13.880 --> 00:51:15.920
I think it was like in double digits by the
847
00:51:15.960 --> 00:51:20.519
time the court finally issued it in denial. But within
848
00:51:20.559 --> 00:51:22.880
a range, you know, if you have like three, four
849
00:51:22.960 --> 00:51:27.159
or five, you know, reschedulings of that of that conference,
850
00:51:27.760 --> 00:51:30.639
it does tend to indicate that someone on the court
851
00:51:30.760 --> 00:51:33.840
is taking the case seriously. They perhaps are asking for
852
00:51:33.880 --> 00:51:38.440
more details from the cert memo, you know, what have you,
853
00:51:38.519 --> 00:51:40.440
in order to decide whether or not they're going to
854
00:51:40.480 --> 00:51:44.760
get stuck with a dig But absent that the court's
855
00:51:45.400 --> 00:51:50.119
order for Washington to respond to the petition and the
856
00:51:50.159 --> 00:51:52.519
fact that it's gone through a couple of these rescheduled
857
00:51:52.559 --> 00:51:55.239
conferences for the petitioner's probably good news.
858
00:51:56.000 --> 00:51:59.920
Derek, Yeah, I mean, I'll only add I tend it Gruseean.
859
00:52:00.119 --> 00:52:03.639
I you know, there is this complexity again the West
860
00:52:03.679 --> 00:52:06.280
Virginia case that the Court is considering whether and again
861
00:52:06.320 --> 00:52:08.519
I know it's a different issue, but the notion of
862
00:52:09.159 --> 00:52:11.920
children are parents and transgender issues. There is the sort
863
00:52:11.920 --> 00:52:15.119
of umbrella universe of these cases. And while they are
864
00:52:15.119 --> 00:52:18.599
going to be doctrinal differences, there's also some interest perhaps
865
00:52:18.599 --> 00:52:22.079
in the court waiting and then deciding, as it sometimes does,
866
00:52:22.119 --> 00:52:25.000
of just grant, vacate reman and try to decide on
867
00:52:25.079 --> 00:52:27.360
these kinds of issues later on punt on the issue.
868
00:52:27.440 --> 00:52:29.559
Maybe it doesn't really work in the standing context here.
869
00:52:29.639 --> 00:52:31.599
The Court doesn't have any more big standing cases on
870
00:52:31.639 --> 00:52:34.480
its dock at the rest of this term, but that
871
00:52:34.480 --> 00:52:38.599
would be the small issue, probably an unlikely uh you know,
872
00:52:38.639 --> 00:52:41.199
contingency that it's waiting for. But I think Sean has
873
00:52:41.199 --> 00:52:41.519
it right.
874
00:52:43.599 --> 00:52:45.880
Well, thank you gentlemen, Riley.
875
00:52:47.079 --> 00:52:49.280
I want to thank all of our panelists for sharing
876
00:52:49.280 --> 00:52:52.760
your expertise and opinions on this important issue, and thank
877
00:52:52.800 --> 00:52:56.360
you Professor Klutt for moderating. If our audience is interested
878
00:52:56.400 --> 00:52:59.199
in learning more about all of the Federalist Society's programming,
879
00:52:59.239 --> 00:53:02.559
please visit their website at fedsoc dot org and With that,
880
00:53:02.679 --> 00:53:03.400
we are a journey.
881
00:53:04.039 --> 00:53:07.840
Thanks for listening to fedsoc Forums, a Federalist society podcast.
882
00:53:08.159 --> 00:53:10.760
Be sure to subscribe wherever you get your podcasts so
883
00:53:10.800 --> 00:53:13.719
you won't miss an episode. To learn more, visit our
884
00:53:13.760 --> 00:53:15.599
website fedsoc dot org.