How The Supreme Court Became Weaponized
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Rise and shine, fever dreamers. Look alive, my friends. I'm Fee Spear. And I'm Sammy Sage. And this is American Fever Dream presented by Betches News, where we explore the absurdities and oddities of our uniquely American experience. Today, we are very grateful to be joined by the host of the podcast, Strict Scrutiny, a podcast about the Supreme Court and the culture surrounding it. We are thrilled to welcome Leah Lippman, Kate Shaw, and Melissa Murray. Welcome. Thanks for having us. Thanks so much for having us.

We are so excited to have you. Today, we want to talk about some of the biggest cases that are before the Supreme Court this term, quite a few important themes that they're deciding, as well as some bigger trends going on with SCOTUS itself and the ethics and sort of the bigger principles that they're making their decisions based upon. The elephant in the room is obviously the Mifepristone case. What signals are you getting about where the court might come out on that?

So I think that coming out of the oral argument, we felt cautiously optimistic about the prospect that at least in the short term, the court is not going to blow up access to mefapristone. But that is for a technical legal reason, which is that the doctors, the anti-abortion doctors who brought the challenge to these regulations that, you know, loosened some of the restrictions that attached initially to mefapristone.

Dr. J.

And there's a basic legal requirement in the federal courts that you're supposed to be able to show you were personally injured by government action in order to be rightfully in federal court asking for something to be done about whatever government action you're complaining about. And the doctor seemed unable to satisfy those core requirements of what's known as standing. And if that's the case, then at least, again, in the short term, if a Pristone is going to remain available as it is right now on the conditions that the FDA has decided are safe and effective.

but that might just be a temporary reprieve because there are states seeking to bring similar challenges. There's the possibility of, depending on what happens in November, a revival of this Victorian era law called the Comstock Act. There's lots of ways MIFA press zone access is very vulnerable in the medium and long term, but at least in the short term, and my co-host should jump in if you guys want to add things at all, but I think we thought

likely coming out of the argument, the case gets thrown on standing grounds. We should also say that Kate is the most optimistic of the three of us about those things. So she's being very generous to the court. One of the things that did stand out at oral argument, although Kate is exactly right, it seems like the court will punt this question on the ground that the doctors don't have what's known as standing, like this injury that Kate mentioned. But they were also inviting the

plaintiffs in the future who would have standing. So, you know, there was a lot of discussion of who would be the right plaintiff here. And it was almost as though some of the conservative justices were helping to lawyer this for the pro-life movement. So this is not long for this world, the settlement that the court will likely reach on standing. I think there will be in the future another case. And as Kate says, there are in the short term, many other ways that a Republican can

administration can halt the access to mid-first own that has made this post-op landscape more tolerable for many people. Melissa, you bring up an excellent point that they have not yet proven that they had standing, that they had incurred some sort of like harm, but that didn't stop the court from deciding in the 303 creative case that in fact,

She did not have to make wedding websites for gay couples when she had never been asked to make a wedding website for a gay couple. But it hurt her to think about it. It hurt her to think about it, yes. It hurt her to think about it. Well, you know, it causes a visual injury when doctors have to see abortion photos also. So with a court that says these insane things like this, how can we really trust, you know, to Kate's optimism that they are going to

beholding things like standing as they go forward when they've proven that they don't care about standing in the 303 creative case. So, you know, you joked that it's an injury to have to see pictures of abortion, but that's actually not too far off from the theory of standing that at least one court of appeals judge embraced in the myth of

case, the idea that doctors have some kind of aesthetic injury when they can't commandeer pregnant people's uteruses and force them to give birth. But to your question, I think it's not just the fact that this legal theory lacks any basis in the facts and is legally outlandish. It's the fact that this is happening in the lead up to the 2024 presidential election. And the

that is, I think, leading the court to be a little bit more cowed than they would be if this was happening, let's say, at the beginning of 2025, because they saw what happened in 2022, the midterms after they overruled Roe versus Wade. And there was immediately kind of a nonstop wave where Democrats were consistently performing better in elections, whereas

when they were running on the issue of abortion and reproductive justice. And I think the fear is that people are aware of the medication abortion case, and that has in a lot of ways sucked up the oxygen and detracted the focus from another equally important case about abortion access concerning

whether hospitals can provide abortions that are necessary to stabilize patients. And so the court is going to get away with essentially not saying anything in the medication abortion case, get a ton of credit for that, even though they are not going to be ruling out the possibility that down the road in a future Republican administration, they would allow some Republican president and attorney general to try criminalizing

criminally prosecuting abortion providers and distributors of medication abortion under this Victorian-era law, the Comstock Act that both Kate and Melissa have kind of alluded to.

Not just us. The court during the Mithra-Priston argument also alluded to the Comstock Act. So this is very much top of mind and they definitely know what this means. And Leah is right. They are very politically conscious. And I think they make decisions certainly about how they will decide things with, I think,

political landscape in mind. And I think the fact of the election does weigh very heavily on them. Can I have standing for an aesthetic injury at the thought of these men controlling what my health care is? No, because you're a woman and a progressive. And so by definition, you are maybe not allowed to have standing at all, but certainly not an aesthetic injury. You're just hysterical, Sammy. You're just hysterical. And I'm just mentally ill as a queer woman. So they're never going to listen to us. Yeah.

You mentioned that the court was doing a bit of lawyering on the behalf of the people who want to ban Miffer-Pristone. Can you tell us what kind of people or individuals or groups would have

a legitimate standing in a future case. Well, I think Solicitor General Elizabeth Prelogar was pressed by some of the justices on this very question, like, basically help us lawyer this case better, help, you know, send signals out into the atmosphere about, like, who could come back and invoke the jurisdiction of the federal courts. And she, I think to her great credit, sort of resisted doing this and said, look, this is a challenge to the way the FDA has decided to make Mifepristone available, like a private

a physician who disapproves of abortion, like no one situated like this is ever going to have standing. You know, the one possibility that she didn't offer up, but that I think is in the ether is states, right, that are basically going to make the argument that the ready availability of Mifepristone that the most recent round of FDA regulations has put into place, including allowing the dispensation of Mifepristone by mail and without an in-person visit.

That has made it much easier for individuals in those states to circumvent abortion bans by getting access to mefapristone. And the state is therefore injured by its inability to enforce its own laws. So that, I think, is one very real possibility. And indeed, Judge Matthew Kazmarek, the district court judge who initially issued the nationwide injunction, you know, purporting to basically make mefapristone an unauthorized drug writ large, that actually never went into effect. But that was obviously the most aggressive of the rulings that we've seen so far in this case.

he, after the Supreme Court granted review in this case, he allowed several states to intervene below. So that's like there. They are poised to pick this back up and run with it. And it's not a terrible argument. I mean, I think there is actually some truth in that. One of the reasons why the anti-abortion movement has gone after Mipha Pristone with such vehemence is because it does provide evidence

a means of privately terminating a pregnancy without a lot of intervention from the medical community. Like you can order the pills and they can be sent to you and you don't have to have a doctor visit. They basically allow private individuals to circumvent these laws and they know that. It's the loophole in the Dobbs decision. And so...

It's not a bad argument on standing. I think the question is, like, you know, is that an injury to the state? Perhaps, yes, if it prevents the state from actually enforcing its very restrictive, totally bonkers ban on any kind of reproductive freedom.

And if I could just add, you know, in a world in which the FDA's approval of Mifepristone and the terms and conditions under which it has made Mifepristone available actually was harming people and was actually resulting in complications, then people who were harmed by Mifepristone could file tort lawsuits seeking...

damages for injuries they incurred from the drug manufacturers and distributors. But the reality is this is an extremely safe drug. And so those lawsuits just are not a vehicle to get the kind of challenges that these anti-abortion judges and litigants want to have in the courts. And so it's not just a matter, I think, of finding the right plaintiff. It's that this theory is completely unmoored

from the facts and there's just no evidence to support it.

Leah's right, though. I mean, the fact that we've focused almost exclusively on Mifepristone, everyone is focused almost exclusively on the Mifepristone case, when in fact, the court's going to hear this other challenge, the Moyle case, which is about EMTALA, this law that basically requires hospitals that receive federal funds to provide emergency stabilizing care, including abortions, to those individuals who need it. And the question is whether that law preempts

these state-level, very restrictive bans on abortion. And that's actually the whole kit and caboodle for a lot of pregnant people around the country. I mean, if something goes wrong and you need to go to your hospital and you live in one of these states, that has a very restrictive law. And it's up to some doctor who's really worried about being sued, whether or not this is an emergency. And maybe they're more reluctant to determine that it is an emergency. That's your fertility. That could be your life. And so EMTALA really does provide

provide a backstop and serves as a deterrent to states that are really pushing these restrictive laws and

physicians in those states that are providing care because they're worried. And no one's really talking about this case. And it's really important. Kate and I wrote an op-ed in the New York Times about, you know, some of the lead up to this case has been very much laced with rhetoric that is fetal personhood forward. Fetal personhood is this idea that the fetus

is itself a person vested with constitutional and statutory rights. And so rather than focusing exclusively on the rights of the pregnant person, we also have to attend to the rights of the fetus. And that question

could upend everything in abortion law. And I'm not saying the court's going to address that question here, but there are already hints that courts and state legislatures in these very restrictive states are laying breadcrumbs for fetal personhood. And the question is whether this court is going to pick them up and sew them into something that becomes a constitutional theory.

Yeah.

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It seems to me, and tell me if this is the correct parallel, that this isn't the only case where the court is addressing such a question. You also have the Texas immigration case, where basically the state of Texas is arguing that their border law should preempt federal policy.

From the DOJ. So can you talk a little bit about the broader risk of the court somewhat undermining federalism as a constitutional principle and what the ripple effects of that could be long term?

I would say federal supremacy is really the kind of principle that's at stake here. Yeah. And I mean, it is that there's a federal statute that requires any hospital that receives federal funds, basically every hospital to provide stabilizing care when patients present at that hospital, including pregnant patients. And sometimes the necessary stabilizing care is the termination of a pregnancy. If there is otherwise going to be a serious risk to the health, not just the life of the pregnant person. Um,

And so federal law requires doctors and hospitals with ERs to provide that kind of care. And so that should be the end of the story. Right. We have a constitution in which we do have these independent sovereigns, these states, and then we have the federal government. But the Constitution says that federal law is supreme. And if there is a conflict between a state law and a federal law, like there is a clear conflict here between the federal law and the Idaho law, federal law is supposed to control all.

Idaho says you can only terminate a pregnancy if you need to because the person, the pregnant person is otherwise at risk of death. And the federal law says if somebody comes up and their, you know, waters have broken prematurely and they're like in danger of sepsis and maybe organ failure and maybe threats to future fertility and things like really terrible things, pain, suffering, right? Like all of it.

Federal law says there's no difficult question. You need to provide the abortion if that's the standard of care that the attending physician thinks is appropriate. That's what's critical, right? This really does protect doctors and require states to let doctors exercise medical judgment in providing care to patients. And Idaho doesn't allow that. Idaho says, no, again, you can only provide that abortion if the person is otherwise going to die. There is a rape exception in Idaho, but it's really like first trimester and the police report, and it's a very narrow exception.

And so that should be the end of the story. Federal law should control. And yet I, you know, Lee,

Leah sort of and Melissa both alluded to this earlier. I don't know what the court is going to do here. I'm very nervous about the court allowing Idaho to enforce its far more restrictive law. And that I think is an enormous problem for pregnant people in distress in Idaho and other states with restrictive abortion laws. And it's an enormous problem in a system in which federal supremacy has been a core constitutional principle that is actually under threat in a lot of places, including Texas, which seems to suggest even, you know, stepping outside of the kind of abortion realm that state law is

on immigration can control if there's a conflict with federal law, which is, you know, runs directly contrary to sort of core constitutional principles. And yet we see sort of that threat

arise in a number of different contexts. So I think this is a hugely important case on abortion and more broadly on this principle of federal supremacy. Is this a failure somehow of the Senate also? Because I mean, if we're here to talk about the Supreme Court in many ways, but is it not? I mean, I got to go back to like sixth grade civics here, but is it not the Senate's job to square the state laws with the federal laws and make sure that there's not conflicts in the first place to kind of like work together-ish? It feels to me like Congress and the Senate are

trying to have it both ways, more politicizing their culture wars than they are squaring the levers of government together. And now we've got everything going to the Supreme Court, which are unelected officials that serve for life and will face no consequence if they make a decision that's not popular with the public in many ways. Is there some failure that came before all of the Supreme Court's pressure or is it just kind of like

this is where it landed now. So are you asking whether Tommy Tuberville is a failure? Yes.

I'm thinking of Ted Cruz specifically, Josh Hawley. Also a good example.

Is there something that folks should have been looking out for when it came to voting for their senators that have got us to this place where the Supreme Court has so much power and is hearing these cases like this?

Well, so there are lots of things that are problematic about the structure and design of the Senate. You know, it is a majoritarian institution, almost a super majoritarian institution in certain respects. The rules of the Senate also, I think, are worthy of reconsideration to some degree. And you're right.

I think for most Americans, the domestic policy agenda of the conservative party is unpalatable to the majority of Americans, and they're not likely to be able to successfully achieve that domestic agenda through majoritarian politics. So, you know, instead what they do is they file cases in various districts because they know they have the courts. And that, I think,

a different problem entirely. The Republican Party, the conservatives have understood at least since the 1980s that the courts can be an effective weapon. They saw the success of the Warren court, how the Warren court really sort of instantiated a lot of proclamations

progressive reforms that might not have happened through majoritarian politics like integration, for example. And, you know, not only were they intent on rolling back what the Warren court did, I think they were also intent on harnessing the court by design and minoritarian institution to

to do what they could not accomplish through majoritarian politics. You know, we saw this with the Obamacare case. When Donald Trump ran on the platform of repealing Obamacare, John McCain very famously voted thumbs down on the floor of the Senate and it failed.

They didn't stop. They went to some district court in Texas and they filed a lawsuit there challenging the Affordable Care Act in the courts. And then it went all the way up to the Supreme Court. So, I mean, that's a great example. And they've really been successful in running on the courts. They've really been successful in packing the courts with movement conservatives. Donald Trump

wasn't very successful in getting much of his domestic agenda through Congress, if any of it, but he was really successful at outsourcing the federal judiciary to the Federalist Society and Leonard Leo and getting a whole raft of really conservative judges on the bench in lower federal courts. And of course, packing the Supreme Court with three additional conservatives. But

but Donald Trump knew enough to outsource it. And those guys were all working in concert. Like the fact that Mitch McConnell Stonewall on the Merrick Garland nomination, that wasn't happenstance. That was coordinated. They all knew what the game was. And that was part of the plan. You know,

Ruth Bader Ginsburg was a lucky break, you know, an unforced error in some regard. And but they had a movement conservative waiting in the wings who could be appointed at literally with the alacrity of like a fast moving tornado. I mean, they just got her on the bench. So, yeah, like they've made the court a major part of their politics. Progressives have not.

If I could just say a little bit more on the question about like the Senate and Congress, I mean, could Democrats have done more when they are holding the Senate? Absolutely. Right. Like they didn't have to abide by the filibuster as a reason not to enact legislation codifying Roe. Thanks, Joe and Kristen. You know, could they have done more? Could they be doing more with judicial nominees? Absolutely. Right. They are not actually doing.

moving with the kind of pace that they should be. They are not sticking by all of the nominees. Several Democratic senators have abandoned a law firm partner, Adil Manji, who is an extreme centrist but would be the first Article III Court of Appeals Muslim judge. And three Democratic senators have abandoned him because of a bad faith, dark money campaign that is just smearing him.

And, you know, the Democrats have not stuck together and been willing to be proactive on the courts or advancing an agenda that enjoys majoritarian popular support. Now, that being said, I want to distinguish all the things they could have done in a lot of respects from what I think is happening on the EMTALA case, the emergency medical abortion case, because that is an instance where the political process actually successfully yielded a law, you know, the emergency medical process.

Treatment and Active Labor Act that required hospitals to be able to provide abortions that are necessary for stabilizing care. And what Idaho and the anti-abortion movement are asking the court to do is essentially nullify that law. So even if, right, Democrats in the Senate got together and passed all the best laws in the world in order to synthesize and reconcile state law and adopt fulsome protections for rights, this court could still

Right. So even if they had codified Roe, they would have overturned Roe and then the federal law would have been irrelevant anyway, I suppose. Speaking more to the vibe of SCOTUS right now and the way that they come to be comprised of the people that they are and the way that they are being held accountable for their actions, what do you think is the most important thing about SCOTUS?

And the interests that those people hold, you know, there's been a lot of incredible journalism from ProPublica around Justice Thomas. There's been additional reporting around Justice Roberts. So can you talk about is there any sort of meaningful path to ethical reform when the court is supposed to regulate itself?

That's like asking a burglar to return all the stuff they burgled. Think about the immunity case. I mean, whether Donald Trump is immune from criminal liability, you know, the court

is going to hear that, and 100% Clarence Thomas is going to be there, which should raise some eyebrows given that we know from the January 6th special committee that Ginny Thomas, his wife, with whom he shares a household, was apparently sending all of these text messages to Mark Meadows as the protest slash insurrection slash attempted coup was happening. And, you know, not a shred of...

remorse of awareness. I mean, he's just going to be sitting on the shame. What is shame? Kate, what is shame? I mean, he's just going to hear this case and render a decision. I just want to note that

He is the second African-American to sit on the court. The first was Thurgood Marshall. Thurgood Marshall would have been run out on a rail with bipartisan support for doing any of the things that ProPublica and other outlets have proven that Justice Thomas has done. Does he just... I want

I want to have his kind of confidence, though. I mean, the man has delusional confidence that I've never seen in my life. I watched an interview of him and they're talking about like would he because we know that he wants to see gay marriage overturned. We know that he wants to see abortion overturned. So you say, what about loving be Virginia? What would you do if these cases that are predicated on the 14th Amendment come back on you and you're in an interracial marriage and they say you can't be anymore? And he said, I'm not in an interracial marriage. I'm in a loving marriage.

I don't see my wife as white as she doesn't see me as black. I don't know if he thinks that he'll be somehow like anyone who's already in will get to stay in and, but it'll be any future, but he doesn't seem to be afraid of that at all. He doesn't seem to think that any consequence will befall him ever.

Well, to be fair to him, I think one of the arguments that he would make, a legal argument, is that the cases that he objects to, like Obergefell, the gay marriage case, or Roe, the abortion case, are predicated on a reading of the due process clause of the 14th Amendment, whereas Loving v. Virginia is principally predicated on a reading of the equal protection clause. So I think he would say there's something different there. But the idea that he's not in an interracial marriage, my dude, my guy, like,

Like, let me roll that back for you. Yeah, that's Delulu and wild. These people have proven that they're untrustworthy, that they have engaged in corruption and they come from, you know, backed by things like extremist religion or billionaires. How do we get accountability for any of these judges? There is

Is it just something like with the seemingly Trump pending immunity that some people only fail up? It's really frustrating and difficult. And I want really smart people to tell me that there's something out there that I don't know yet that is going to save us. There's no silver bullet for sure. I do think that sustained public attention does sometimes move the needle with the justices. And so I think the ProPublica and the New York Times and other outlets have to continue reporting and reporting.

you know, everyone else needs to continue amplifying that reporting. I mean, I do think that shame is an important tool and weapon. And I do think that when a politician is, or, you know, a political figure is impervious to shame, in some ways, that's one of Donald Trump's superpowers. That means that a lot of the, you know, traditional constraints that have been effective are no longer effective. And so I do think that, you know, it's not just the immunity case. It's also the case involving another January 6th defendant, Fisher, that was recently argued and

Justice Thomas took the bench and asked the first question and had no seem to have no compunction about doing that. And I just don't know that there were enough

you know, op-eds and talking heads and people in Congress screaming about the impropriety, at least the appearance. I mean, I do think that there are hard questions about lines to be drawn around a spouse's activities. I don't think that everything a spouse does should be imputed to a public official or to anyone else in kind of public or private life. But I do think that there is enough

evidence that the January 6th committee amassed about the extensiveness of Ginny Thomas's involvement with, you know, the activities maybe before, but certainly between the election and January 6th, her repeated text messaging with Mark Meadows, the then White House chief of staff,

indications in the text messages that at least are suggestive of conversations with Clarence Thomas, although nothing, again, totally dispositive on that. There's just enough out there that it obviously creates the appearance of impropriety. And that should be the standard. And in eras past, anytime there was

a serious question about a justice's ability to be unbiased on a case, they would err on the side of recusing. And we have just, we're beyond that. But I do think that enough public outcry at least might start to move the needle internally. You could have John Roberts start to try to bring some pressure to bear. Ultimately, they're the judges of their own court.

you know, bias or impartiality. And like, that's a recipe for disaster. Nobody should be a judge in their own case. And so there's a fundamental kind of institutional design problem with them getting to be the decision makers that Congress could try to fix. But in the short term, I do think that sustained public attention is the best we have.

I don't think enough of the current justices are capable of being shamed to a sufficient degree. And I think that the court has amassed so much power that it's no longer possible to do that by focusing on particular cases. So if you just think about the final oral argument session that the court is hearing, it's not just the Trump immunity case or the other January 6th case that Kate mentioned, Fisher, it's also the emergency hearing.

abortion case, the EMTALA case. It is also a major case about criminalizing homelessness. It is also a major case about the future of labor law and the ability to protect workers who are trying to unionize. It is also a case about the future of one of the remaining political corruption laws. And so I don't know that it's possible to ask people to get

get everyone enraged about all of those cases as kind of an isolated matter. Instead, I think the focus has to be pushing Democratic political officials to do something structurally about the court and bullying that group who

is capable of being shamed at both the state and local, but also the federal level and asking them to use their imaginations and their creativity and their political power to do something about this problem that, again, is just staring at us in the face and isn't going away. If you were asking them to do something, what are some actions you would ask them to take?

One is I do think that there is something to be said about clearing the decks for the next generation of future political leaders. I am slightly concerned about the persistence of a gerontocracy, you know, among our political officials and them kind of losing touch with what the issues facing, you know, different generations are. I think related to that is what we were talking about earlier, being willing to be on the forefront of

pushing to confirm progressive young nominees who will be inspiring to future generations of lawyers and law students and able to protect and defend the law as it is and make the law better than it has ever been. Add to that, right, being willing to revision or like revise the rules governing the Supreme Court. So actual external law.

with enforcement ethics rules would be a nice start, limiting the authority of the Supreme Court to strike down federal laws that say protect voting rights, protect reproductive rights. I think adding and expanding the Supreme Court, that needs to be on the table as well, because again, this current court could blow up any laws that a Democratic

Congress actually passed. And those are just some of the things that I would put on the table. But again, I think Democrats have to be willing to use political power and be entrepreneurs in the same way that the conservative legal movement and the Republican Party have been. I want to echo Leah's point about the gerontocracy. You know,

We've talked about this on our show, but a lot of the state legislatures, and this is a gerontocracy at all levels of government, state and federal, but in many of the state legislatures that are making these really restrictive laws, there aren't

a lot of women who are of reproductive age. They're not the ones making these laws. And that's worthwhile to think about. Who is this representative government for making laws that affect all of these people? And they're not even actually at the table when you're deciding this. So again, making way for a younger bench of people. When I was in law school,

Like the Republicans came to my law school to kind of recruit and identify people that they wanted for their bench. Like, I don't think I ever saw anyone from the progressive wing do that. You know, instead we think about like, you know, does this old famous politician have a younger daughter that we could run? I mean, like we're really dynastic, which is weird given the,

our progressivism, it would be great if we sort of thought about leadership in a more expansive way and thought about cultivating a bench more purposefully. And I think using the power we have in more productive ways, not being afraid to wield power. We've been dancing around the abortion question for 10 years, but it turns out it actually is a winning issue, that more people support

access to reproductive freedom than want this, you know, Gilead-like vision of America where everyone wears a red robe. Why haven't we been pushing that for forever? Why haven't we met those needs, like really catered to those interests in our political diet? Can I

Can I just say one more thing also about the kind of the representation issue that Melissa just mentioned? I mean, in a lot of state legislatures, like the Mississippi legislature that enacted the 15-week ban that was an issue in Dobbs, the case that overturned Roe, was less than 15% women. And I haven't crunched the numbers of like childbearing age, but a tiny subset of that, I think a couple if...

So these are in a lot of states that have passed these incredibly restrictive abortion laws in the wake of Dobbs. There is vanishingly small, like shockingly small, you know, kind of diversity of representation, particularly along the lines of sex, but also race. And just running for state and local office is enormous in terms of one piece of this kind of larger battle plan that we have been talking about. Continuing on this track of women of childbearing age being in legislative roles, I

We even saw Nikki Haley, who benefited from, you know, help when it comes to getting pregnant, support the idea that maybe IVF isn't such a great thing all the time. And

Do you think that we'll see this court take up things like IVF and potentially ban even more ways of giving birth? Because it's not just that they want to ban or control ending birth. They want to ban and control even the start of how some people are allowed to experience birth. Do you think we'll see an IVF case hit the Supreme Court? I think it's possible. I mean, I do think that it's right. You sort of

I think there are internal debates, as far as I can tell, within the anti-abortion movement about both kind of politically and substantively how to think about IVF. I think there is the, you know, anti-abortion but kind of pro-natalist faction, which says IVF is good and abortion is bad. And so it's possible to hold those two convictions in your mind at the same time. But then there's also a maximalist wing that basically says that, you know, heterosexual marriage and abortion

intercourse and procreation and childbirth, that's like kind of the only recognized family formation and creation that, you know, we want to support ever. And so anything inconsistent with that, terminating a pregnancy, IVF, contraception, right? Like all of these things interfere with the sort of natural order. And that is, you know,

wildly politically unpopular. But I do think there is a faction, a small faction, but a real one that holds all of these convictions. And I don't know that I have a great sense of where the justices on the Supreme Court might fall. Now, obviously, those are a set of political convictions, not purely legal ones, but sort of underlying, I think, both anti-abortion, but also potentially an anti-IVF set of views is this idea of fetal personhood that Melissa alluded to. Not that fetal personhood

necessarily would, I don't think, invalidate the practice of IVF, but they would make it impossible to actually conduct because if you're a clinic and anytime you assist a couple or an individual in getting pregnant via IVF, you are incurring the risk of civil or even criminal liability if something goes wrong with an embryo if the embryo is a legal person. And thus, I think that, you know, a

an expansive enough conception of fetal and maybe even embryonic personhood renders IVF impossible as a functional matter, as we saw happen in Alabama in the immediate wake of that Alabama Supreme Court opinion. So I think there are a lot of kind of internal fissures in the anti-abortion world. And I don't yet know, and I don't know that there is an answer which of them is going to come to the fore, but the consequences are obviously enormous for everyone.

Do you think it's maybe kind of just a political, circumstantial matter which one ultimately ends up coming to the fore? Like, is there a way

If Donald Trump were to, let's say, win, that obviously enables the most extreme wings to take the most extreme stances or to kind of work their way there. And I know you mentioned earlier that the court has shown itself to be image conscious. In what way do you think we can utilize its image consciousness to sort of box it away from that?

I think the best way is kind of what Kate was alluding to, which is sustained public criticism and commentary and focus on the court. If they think people have averted their eyes, then that is an opportunity for them to do kind of what their people are asking them to do and what their underlying instinct may be to do. As far as the contingencies and what the next case might be, I think that after abortion—and

in some ways before abortion, like we are already seeing attacks on contraception. And I think that that is extremely likely to be happening and in some ways has already been happening again as some anti-abortion advocates, some justices, a majority of justices have allowed people to wrongfully classify certain forms of contraception as abortifacients. So that is going to be part of this fight as well.

Maybe because I'm a gay person and I'm so used to trying to like appease people who cause me harm and danger and try to not seem like a threat to them. I get the idea of like holding the court accountable, but is there any world in which like getting more flies with honey than vinegar works where like,

Like, I worry the way that we see with even allyship in the queer community sometimes that like, if we don't accept and love and coddle our allies, sometimes they just turn on us and they're like, well, I tried to help you, but now you're being mean to me. So now I'm going to be even meaner to you. Do we worry at all about SCOTUS being like, ah, get fucked. I don't care. Like, you guys are being awful to us. And now we're going to like double down and go even further into our echo chambers.

Okay. That resonated with me as a Black woman because I feel like a big part of our lives is sort of trying to appear non-threatening. And so...

I do think that, um, there are certain elements of the court who do take it personally when you come after them. So I'm thinking specifically of my favorite thin skinned justice, Samuel Alito, who clearly does not like to be criticized at all. And, you know, even though he is a public persona in a public position, he doesn't like it. Um,

I don't know how that shakes out necessarily in his jurisprudence. I think it makes him incredibly ornery, and that can't be good for jurisprudence. But I also think there's something kind of debilitating and soul-crushing about...

having to kowtow to your oppressor in some way. I mean, so I'm thinking about Justice Sotomayor going on this good girl tour with Justice Barrett to sort of show that they're all really good friends and they're really collegial, even though they're ideologically different and diverse in their views. Um,

I don't know if I mean, I maybe they're really great friends, but I think it actually would bother me at some level if I was just palling around with someone whose views actively harmed my me and those I loved. And so, you know, I don't know. I think you just have to. Yeah, I think.

It's probably not going to be the case that being super nice with them is going to get you what they want. I mean, they have a six to three conservative super majority. They can do what they want. When you have a six to three conservative super majority, they let you do what you want to them in the words of the immortal Donald J. Trump. So, yeah. And I think it's kind of self-harm to try and sort of kowtow to it or to make yourself smaller to more.

be more palatable to them. But what you said really spoke to me. It just scares me because I'm like, you know, we're losing things so quickly that at some point I'm like, can we just like have a quick sidebar and be like, hey, look, let us keep IVF and we promise you we'll still tell you that you're pretty, fellas. Like,

It doesn't mean that the lesbians are going to run away from men entirely the way you think we're going to and have like these surrogacy farms and all this whack stuff that the religious people dream up. I'm like, that's something that came from your guys's imagination, not my community's imagination. So stop trying to pin that kind of stuff on us and legislate against these hypothetical doomsday situations. And so it just makes me so nervous as a person. How about

this is a different view. I mean, as a straight woman, I think I would say, yeah, like now that there's more IVF, maybe I don't need a man to do this. So maybe you should get your ass together and start washing some dishes and putting away some laundry. That's why they're mad. Yeah. I think that is why they're mad. Like their sperm is not as valuable as our uteruses. And I think that that bothers them on an innate

They've been told it should bother them, certainly. Now the incels on the internet are telling them that like, without our seed, you'll be nothing, like these disgusting takes that we hear. But this is, I live on the internet, which is the scariest place in America, okay? It is far scarier than anywhere else. And these are the things that I really worry about when I see these high profile cases come forward, even cases that benefit my community, like things that are

Hopefully trying to bring more parity and equity to trans people. We've never been more visible and we've never been in a more dangerous situation because of the things that we're trying to do to get equal access. But up against this conservative court and up against a conservative wing of lawyers that's willing to just absolutely destroy every single factor of our being, it does feel scary sometimes to be that kind of brave.

Well, I just in terms of the kind of honey and vinegar question that you're posing via, I think that the liberal justices on the court right now are actually probably wrestling with that same question, which is they, you know, it's three Democratic appointees, three women, two women of color, like,

They have strategic choices to make all the time, I think, about how hard to go after and how, like, loudly to call out some of the harm being done by their colleagues or the option to hold fire and try to build bridges and craft compromise solutions, which will do less damage short term, maybe, but...

that happens at the expense of really giving the public like a kind of, you know, warning flare about what is happening. And I don't, I think that's a really hard position to be in because you do want to limit the damage and like stem the bleeding, but also not to paper over what's happening. And, and I don't know what the best path for them even is. I,

On the honey vinegar point, though, you know, something we've talked about on the show is the failure of the appeasement strategy, which is what I take your question, you know, to be getting at. And that's part of why I think the long-term solution is not trying to shame these justices and cater to their whims, but instead trying to organize and motivate a group of people who are in a position to do something about the court and change the court such as it is. Like, that has to be the long-term solution. And I think...

It's right that there are difficult questions about what the right strategy for that is for the Democratic appointees on the court. But to my mind, it is not that hard a question for people outside the court. You know, for people outside the court who are not these people's lifetime colleagues and trying to get their votes, like in particular cases, day in, day out, the calculus to my mind is clear. Get people to understand all the

all that is wrong with the court so that more people are behind a movement to do something about it. Why doesn't Joe Biden just add justices? Is there like a simple answer to why he doesn't add justices? He needs Congress. He needs Congress.

But if you get let's say gets Congress this round, I'm trying to get people to vote on the Internet and the kids are less motivated now than they've ever been. If we were to get Congress in the Senate and have Joe Biden as the president, could he pack the court? Could he add a justice in Woody? Could he? Yes. Would he? Unclear. Right. This is part of why I feel like it's hard to demand it. So you need to get the kids to demand it. That's what I meant.

I'm asking you all. I'm saying, hey, I need a new line of things for us to be asking for because we asked for student loans and that didn't happen. We asked for abortion that didn't happen. No, people asked for student debt relief. Joe Biden gave, gave,

gave the Supreme Court took it away. And this is why like something has to be done about the court because they are interfering with any effort by Democratic administrations to actually deliver on popular promises and things that Democrats want. And so, you know, student debt relief that is not on Joe Biden. That is on the Supreme Court and the Fifth Circuit.

Because student debt relief, the idea was nowhere. And then all of a sudden it was everywhere. And then he did it. And he's still doing it. I want to be clear. Yes. And the Fifth Circuit the other day just took it away again. I mean, it's the courts. He is doing everything he can. Every few weeks, he comes out with like a new swath of loans that were forgiven from plans that he...

crafted himself and his Department of Education crafted. But do you think that maybe there's a chance if we were to really like push this campaign to pack the courts that that would could become a promise that he has to deliver on?

I think the student debt relief example is an encouraging one, right? Because that was not something he was willing to campaign on and do at the outset. But this goes to our point about focusing on the group of people that is actually persuadable and that is capable of shame. So do I think it would take a lot of

broad-based support and consistent organizing to get a Biden administration and a Democratic Congress to meaningfully alter the court? Of course. But I think that is way more meaningful and likely than screaming at Clarence Thomas and Sam Alito to sometimes do the right thing. Again, getting younger voters activated about the court, whether it's packing the court or just even being mad about the court, I think is really important. You know,

Clarence Thomas and Samuel Alito are in their 70s, and they desperately want to step down under a Trump presidency. I think they both want to retire. They don't need the smoke. They've done what they came to do. They'd love to retire. They're not going to retire under Joe Biden. They want to retire under Donald Trump. And if Donald Trump wins and they have the opportunity to retire, they will be replaced by movement conservatives who will be

literally 35 years old, maybe even fetuses. And this will last for another generation and a half. And there will be no end in sight. John De La Vope writes a lot about the youth vote. And I think he's right. The youth vote could completely swing this election. But right now, there are a lot of younger voters who are totally disaffected and disenchanted with politics. And

You know, in part because they see the things they want not happening. And I think if they could understand a lot of the things that you want, climate change, regulations that enforce climate consciousness.

Those things are being killed at the court. It's not the administration. It's the court that's doing it. Student loan relief, that happened, and it's the court that killed it. Reproductive rights, the court did that. So many of the existential crises that this generation faces that prompts all of this anxiety, those things are happening in the courts.

Why do you think that they are dragging their feet on answering the Trump immunity question? Because they want to step down under Donald Trump. And if this isn't, I mean, we talk about this all the time. There is no world in which they're going to write an opinion that says the president is completely immune from criminal liability. So the fact that they haven't just said that

suggests that there is interested in delaying the January 6th interference case as Donald Trump is. And to be clear, Donald Trump as a defendant should want an expeditious resolution of the question of whether or not he is criminally immune. The fact that he doesn't or seems happy to have this go on and on and on is everything. He's really interested in delay. And by delaying this, by scheduling that argument for the very last day of the term and

likely a decision even further out from that, the court has effectively immunized Donald Trump. They've made it impossible for the January 6th case to go to trial, which means that the voting public is not going to know the outcome of that trial by Election Day. And we're

We're not going to have those answers. And Donald Trump is never going to be accountable or held accountable for what happened on January 6th. And, you know, I think that's by design. Is there anything that you guys want our listeners to be looking at when they think about the court right now that maybe isn't as, you know, forward in the conversation? Picture Sam Alito's face when you are going to the doctor and wondering,

Am I going to be able to get health care? And then talk to all your friends about that and get them to vote accordingly from here to forever.

When you put your feet up in the stirrups, is it Sam Alito's face that you want to see? You just inflicted an aesthetic injury on me. I have standing. I can see. Well, you can find out what we're thinking about the court every Monday morning because new episodes of Strict Scrutiny drop every Monday. And we stay on this hustle. We stay keeping this court honest. We're going to have lots of

new content going into the summer because that's when the court really decides it's time to make some bad decisions. And, you know, they just tie one on and just let it rip. And we're there to catch all the fallout. From their billionaire's lofts, the June doom.

Well, thank you all so much for being here with us today. I've learned a ton and I just feel really excited to get people to vote so that I never have to think about that Justice Alito in the stirrups moment for as long as I live. I mean, we have to find unique ways to re-engage people constantly. And I'm so grateful that folks like you are out there to help guide us through this incredibly difficult time. Until next time, I'm V Spear. I'm Sammy Sage. And this has been American Fever Dream.

American Fever Dream is hosted by Vitus Spear and Sammy Sage. The show is produced by Rebecca Sous-McCatt, Jorge Morales-Picot, and Rebecca Steinberg. Editing by Rebecca Sous-McCatt. Social media by Bridget Schwartz. And be sure to follow Betches News on Instagram, Twitter, and TikTok. Betches.