The first months of the Trump administration have pushed legal issues into the spotlight, thanks to the president’s Twitter tirades against “so-called judges,” the appointment of controversial Sen. Jeff Sessions to run the Justice Department, the nomination of Neal Gorsuch to the Supreme Court, and more.
In this Slate Extra podcast—which is exclusive to Slate Plus members—Chau Tu talks with lawyer and staff writer Mark Joseph Stern, who’s been covering legal and LGBTQ issues for Slate. Stern talks about how his reporting has changed since Trump came into office, what sets this administration’s legal moves apart from previous presidencies, and about big cases on the Voting Rights Act and same-sex spousal rights currently going through the courts in Texas.
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This transcript has been edited and condensed for clarity.
Chau Tu: Mark, can you explain a little bit more about what your beat is, what you cover, and how you go about covering it?
Mark Joseph Stern: Wow, that is a terrific and difficult question. I guess I would say my beat is what I see on the news when I wake up in the morning that gets me really angry, although I try not to fall into the trap of only writing about things that infuriate me and that I think will infuriate my readers. My beat is legal news. I specifically cover legal LGBTQ news, that will always be near and dear to my heart, and so I focus on trans issues, since those are often in the headlines today, and of course I still focus on things like nondiscrimination and marriage equality, but I also cover the courts and the law. More broadly, I always keep an eye on the Supreme Court. I try to focus on state courts and circuit courts and federal courts as well—just to keep an eye on what’s happening in our justice system and what atrocities and injustices I have the joy of bringing to my readers’ attention today.
Tu: Yeah, so a lot across the board, then.
Stern: Yeah, that’s right. A lot, across every board imaginable, really.
Tu: But how has your beat changed since the new administration started? I’m sure it has been a lot different, right?
Stern: Yeah, absolutely, because this administration breaks the law so much more often than the previous one did, and really, more than that, seems to have a fundamental disrespect for the law. There’s just not a strong desire to comply with the Constitution or federal statutes or any of that stuff with this administration; whereas the Obama administration, they may have done some controversial things, but they were very careful to run everything by the Office of Legal Counsel, to get the lawyers involved from stage one, to craft a persuasive legal argument for whatever position they took.
The Trump administration doesn’t do that, or at least they don’t do it yet, and so when something like the travel ban rolls out, you realize, as you’re reading it, that you are one of the first lawyers to be reading this document which is now law. I had that very uncanny feeling when the first travel ban came out, in January. It was so obviously unvetted by any legal professional. It seemed so amateurish and so wild to me, and so in one sense, my beat has just become sort of crazier. Dahlia Lithwick—another legal writer, our chief Supreme Court correspondent—and I are dealing with all of these big swings from the administration that don’t even purport to function within the confines of the law.
Tu: So a lot of like reactionary sort of reporting then?
Stern: Yeah, that’s right. Unfortunately, there’s not as much time for the fun, take a step back, write a sort of trend piece about a few cases that seemed to be pushing the law in one direction or the other, write about a funky dissent written by a judge on the 10th Circuit I have a crush on—an intellectual crush, I should say. I mean, it feels like you always have to keep an eye on the administration. There’s always something kind of wild coming down the pipeline; and so there just, there isn’t time for the sort of step back, consider, analyze pieces. It’s just bam, bam, bam, constantly new stuff to talk about.
Tu: And you recently visited Texas to report on a few major cases down there that involve the Voting Rights Act and the rights of same-sex couples. Can you tell us a little bit more about what you found out down there?
Stern: Yeah, so I went down to Texas, and I covered a hearing on voting rights in Corpus Christi, nice town, I hope to never go back, but it was an interesting experience; and same-sex marriage hearings in Austin, which is a great town, and I would go back anytime. The first case in Corpus was about Texas’ voter ID law, which is the most stringent in the country, more or less; and a federal judge had struck it down as discriminatory in both its effect, so the judge said this has the effect of making it more difficult for black and brown people to vote, but also, this judge ruled, discriminatory in intent. So, she said, not only does it negatively affect black and brown people disproportionately, but it was actually passed in order to do just that. It has a discriminatory purpose.
And this case went up to the 5th Circuit Court of Appeals, which affirmed this judge’s ruling on effect, said, “Yeah, this is clearly disproportionately burdening minorities,” but wasn’t so sure about the discriminatory purpose question and sent the case back down to this judge, Judge Ramos, in Corpus Christi to reconsider; and this was the hearing at which she re-evaluated and reconsidered the evidence, or lack thereof, that this bill was passed for the purpose of discriminating against minorities and it was especially noteworthy because it was the hearing at which the Justice Department, now under Jeff Sessions, reversed its old position. The Obama administration had said, through its Justice Department, “Yes, this bill has a discriminatory purpose.” The Trump administration and Jeff Sessions reversed that and said, “No, actually, we aren’t sure anymore whether this has a discriminatory purpose. You should just go ahead and kick this case out and let the Texas Legislature re-evaluate the situation.” The reason being that if this judge does find, once again, that the law has a discriminatory purpose, Texas will be placed back under the preclearance provision of the Voting Rights Act, which the Supreme Court notoriously gutted in 2013.
It still exists, it’s still there, only for states that have been found to enact a racist voting law for the purpose of discrimination, and so there’s a lot at stake in this hearing, and in this issue, because again, if Texas is found to have had a discriminatory intent, then it’ll be back under preclearance, and the federal government will have an opportunity to swat down any future racist voting restrictions that the state tries to pass.
Tu: Wow. Yeah, that’s a huge case, then.
Stern: Yeah. It’s pretty exciting, and the judge looked duly skeptical of the Justice Department’s new position. She didn’t ask a ton of questions, but the big issue here is, can Texas pass a new, better voter ID law this year, which it’s thinking about doing, that alleviates some of the problems with the old one, and actually change the purpose of the law passed in 2013 that these hearings are all about? And now, I would really just sort of guess that it’s impossible to reach back in time and change the purpose of a law that was passed in 2013. Legislators had an intent when they passed that law. That intent would seem to be frozen in time, but the Justice Department now argues that if Texas goes back and revisits this law and fixes some of the problems with it, that it can essentially go back in time and revise the purpose of passing the original law and make that law no longer discriminatory.
Tu: So it seems that Jeff Sessions’ Department of Justice is already kind of having its impact, then?
Stern: Oh, yeah. I mean, there’s no question, because, like I said, this was a case where the Obama has said very clearly, “We think this law is discriminatory.” And now Jeff Sessions comes in as attorney general and says, “Ignore what that last guy said. We’re not really sure about this and we think that Texas has the capacity to go back in time and change the intent of this law.”
Tu: And then what was the case in Austin that you covered?
Stern: That one’s a simpler one; I don’t have to gab as much about that. Basically, Texas is trying to roll back marriage equality; and it’s doing this by saying, more or less, that under the Supreme Court’s decision in Obergefell v. Hodges, which required states to recognize same-sex marriages, all a state has to do is allow a same-sex couple to be married, to get a marriage license, but according to Texas, the state does not have to provide all of the benefits of marriage, and this is a case about spousal benefits for government employees. The state is arguing that even though marriage equality is the law of the land, that the state can still deprive same-sex couples of spousal benefits, things like medical insurance, because they are gay, and that doing that will not violate the Supreme Court’s marriage equality decision.
Tu: And so where did that go?
Stern: Well, it was up at the State Supreme Court, which is in Austin, I sat in on hearings. These justices on the Texas State Supreme Court, they’re elected. They’re smart people, but they have to consider politics in everything they do, and this case is not really properly before them. By which I mean, it was brought by two taxpayers in Houston who argue that by having their tax dollars support spousal benefits for same-sex couples, their religious beliefs are being violated, and they argue that that’s why they have standing, the ability to sue in the first place, and that’s a really weak theory of standing. Our courts in the United States are pretty strict about who gets to challenge a certain law or policy. It’s not just anybody, any old taxpayer. You usually have to have some kind of particularized injury. The government has to have actually harmed you for you to be able to turn around and sue it in court, and that’s just not the case here.
These guys really have not been harmed. They just paid some taxes; and so I suspect that, rather than address this issue head on, the justices are just going to toss this case out on a closely divided vote. I think it might be 5–4, maybe 6–3, but in the end, the justices are going to toss the case out and say, “We’re elected. We don’t want to deal with this crap. This is not a real case. This is a political issue. Take it away from us.” That’s my guess, and it’s my fervent desire because anything else would be really bad for marriage equality.
Tu: Both of these cases were in Texas, and in your piece about this, you wrote a line that said like, “This isn’t an ideal world. This is Texas.” How much of an influence do you think Texas has on the rest of the country in terms of like legal cases like these?
Stern: Well, it has a huge influence and will continue to, because Texas attorney general and solicitor general, now and for several years, have figured out how to basically block any federal law using courts in Texas. So as you may know, our judiciary is actually in a crisis right now, there are not enough federal district judges, who are sort of the gatekeepers: They’re the first people you go to when you have a grievance. At the same time, conservative federal district judges created this policy that was rarely used in the previous century, suddenly now it’s everywhere, of issuing a nationwide injunction against a federal law. Usually when a judge issues an injunction, when a judge blocks a law, she or he will block it with respect to the plaintiffs, maybe in the state, or in a few states, or in whatever jurisdiction the judge holds.
But now federal judges feel empowered to block laws nationwide, and that was really the invention of conservative district judges in Texas, who are the only judges in their particular districts. You can go to Wichita Falls and walk into the courtroom there, and you know that you will get the one judge there who is an extreme conservative. This is what Texas did, and it’s how Texas blocked the Obama administration’s trans-friendly bathroom guidelines for school children. It’s how Texas blocked DAPA, the deferred deportation program for the parents of citizens and lawful permanent residents. It’s how Texas ended up blocking President Obama’s expanded overtime rules, although that was actually a somewhat more progressive judge, but it’s how Texas has figured out how to block any federal law that it dislikes. It can just go to a federal judge there, ask for a nationwide injunction, and the policy is pretty much, “Ask, and ye shall receive.”
Tu: Wow, so you just have to go to the right court, the right place?
Stern: That’s right, and they know which courts those are because there’s such a shortage of judges right now.
Tu: Yeah. Are there other similar hotspots in the country that might be influential either way, conservatively or maybe liberally?
Stern: Well, I think that Judge Robart’s ruling in Trump’s first travel ban was very inspiring to a lot of liberals who watched this practice play out in Texas and thought, “Hey, maybe we should try that.” Judge Robart was a George W. Bush appointee, but he’s sort of a moderate conservative, and the state of Washington went into his court and said, “We think that this is unconstitutional,” and the judge said, “Yeah, I agree,” and blocked it nationwide citing one of those decisions in Texas that had blocked one of President Obama’s policies nationwide; so I think liberals are starting to learn the game, and I think they’re focusing on Washington right now because it’s a very progressive area and there are a lot of progressive federal judges there, but all of this could stop at any time if the Supreme Court finally issues some guidelines to explain to these judges that you aren’t supposed to just block laws nationwide whenever you don’t like them.
Tu: That’s fascinating. There’s another story that you reported recently on trans rights, is that right?
Stern: Yeah, I think you’re referring to the Supreme Court Gavin Grimm issue that I discovered and actually got some results on. I was pretty pleased with myself about that one.
In every big Supreme Court case, usually a handful, to dozens, to sometimes scores of outside groups will file friend-of-the-court briefs. They’re called “amicus briefs,” and they’re just an explanation from that group’s perspective as to why the court should rule one way or the other. Sometimes they’re really great, sometimes they’re really boring. It depends on the case, usually, and in the case of Gavin Grimm, who is a transgender student who wants the right to use the bathroom at school, the amicus briefs were great.
They were fascinating. Even the really bad ones, the ones that were arguing the wrong side, were kind of crazy and fun to read, and one thing: They almost universally misgendered Gavin Grimm, who is recognized by the state of Virginia as a boy, but all of these briefs called him a girl, and I noticed that a few of the briefs called him a girl in the case caption name. They referred to him as a “her” in the formal name of the case, and that is against the rules. The rules governing these amicus briefs are extremely stringent. They regulate font size, font style, page size, like everything. And one of the things that they regulate is, you have to use the proper, appropriate caption, which is the caption that the court gave this case, and because Grimm is a minor, the case name is something like, “GG represented by his mother, Deirdre Grimm.” And these briefs had said, “Represented by her mother.”
So I just sent an email to the Supreme Court Public Information Office, and I said, “I was reading these briefs, and I noticed that these particular ones, which argue against Gavin Grimm’s rights, do not comply with the rule that requires these captions to be proper and formal and appropriate. Do you have any comment on that?” I wasn’t like necessarily blowing the whistle, I was just asking like, “Are they really allowed to do this?” And the next day, or I think two days later, I got an email that contained letters from the Clerk of the Court’s Office formally reprimanding those groups for misgendering Grimm and requiring them to use the correct pronoun “him” and “his” in the future, which was a very small victory in the grand scheme of things, but it felt good to me.
Tu: Right, and it made those amici kind of seen differently by the courts, right, if they knew that they were already kind of breaking the rules?
Stern: Yeah, I mean, that’s my hope. Unfortunately, the case wound up getting sent back down to the 4th Circuit, so it won’t be at the Supreme Court for probably another year, but there’s still a good chance that the court will consider it at some point, and I think it’s really important that the Justices recognize that this anti-trans discrimination that Grimm is facing is really about animus toward transgender people. It’s not about bathroom predators, fictional predators, whatever reasons have been cooked up. It’s about people not liking transgender people and not wanting them to have rights. And so my hope is that if there were any Justices inclined to take those briefs seriously before, which I kind of doubt, they will have their minds changed, because they’ll recognize, “Hey, look, these are really just briefs motivated by hatred and bigotry. They’re rooted in animus. They are not going to make any valid points, so let’s just toss them aside.” That’s my hope. I will never know if it comes true, but it’s certainly what I wish for.
Tu: You also recently wrote about Paul Smith, who is a litigator who is trying to get rid of gerrymandering. It’s a big deal in the U.S., and you say that he might actually succeed, is that right?
Stern: Yeah, that’s right, and it’s important when we talk about gerrymandering to talk about the two different kinds. There’s racial gerrymandering, which means drawing legislative districts along racial lines, doing something like Georgia is doing right now, and redrawing lines to put more white people in Republican districts and to cram all the black people into Democratic districts and separate out black communities so that their votes are effectively diluted.
And then there’s partisan gerrymandering, which means using the very sophisticated software that has been developed today to draw lines around basically Republican safe harbors, create districts that Republicans will always win, create a very few, overwhelmingly Democratic districts, pack all of the Democrats into a few districts, and then dilute the remainder of the Democrats in safe Republican districts so that Democrats will never actually be able to vote for a Democratic representative. And I should say this works both ways. In Maryland, which is a Democratic state, the legislature has carved up the state into a grotesque gerrymander that locks out Republicans, that basically dilutes Republicans’ votes by distributing them through a bunch of different districts so that they can never actually elect a Republican.
And the Supreme Court has basically said, a majority of justices have basically said, “This is unconstitutional,” and the reason why is pretty simple. The First Amendment protects freedom of association and freedom of expression, and it prohibits any government action that discriminates on the basis of viewpoint, specifically political viewpoint. And what gerrymandering is if you take away all of the lingo, and all of the complexity, and just boil it down to its basics, is an effort by the ruling party to dilute the voting power of the minority party, and doing so by basically punishing voters who affiliate with a party that the majority doesn’t like.
If you’re a Democrat, you express your support of the Democratic Party, you affiliate with the Democratic Party, and you live in the state of North Carolina, the Republican legislature will punish you for that by drawing lines that dilute your vote and attempt to prevent you from electing a Democratic representative. And that is punishment on the basis of political affiliation and expression, and that’s unconstitutional, but the court has not found a really good way to fix the problem. That’s the holdup here.
Gerrymandering is a time-honored tradition. Only in the last few decades has it gotten so specific that one party can really lock the other party out of power indefinitely, and what Paul Smith has done is gotten some really brilliant academics and mathematicians to come up with a formula—I won’t attempt to describe it in detail today, but it’s a pretty simple formula that determines, based on historical data, how far a partisan gerrymander has to go until it basically locks out the minority party from power, just how gerrymandered a state has to be. And you can come up with a number, it’s called the efficiency gap.
And he’s taken this case to district court and won. He won a big victory in Wisconsin against the Wisconsin gerrymander; and now he’s going up to the Supreme Court, and the Supreme Court actually has mandatory jurisdiction, so the justices have to take this case, and he is going to argue in front of the justices, “This is the case you’ve been waiting for. You know it’s unconstitutional to punish voters based on their political affiliation and expression. Here is a formula you can use to draw the line and say, ‘This is the point at which a partisan gerrymander becomes too extreme to comply with the Constitution.’ ”
And I think he stands a really good chance of winning. He’s a great attorney. He’s argued many winning cases before. The justices trust him, and I think that this is the case that could do it. This is the one that could protect citizens from partisan gerrymandering well into the future.
Tu: This is the last question, but overall, do you think the courts are going to be able to stop the Trump administration’s excesses?
Stern: Such a difficult question. I think they’ve acquitted themselves admirably thus far. I think that their job will become harder as Trump begins to appoint replacements in all of those vacancies that congressional Republicans refused to let Obama fill. So Trump has inherited at least 100 vacancies in lower courts, as well as, obviously, a Supreme Court seat, which he’s filling with an arch-conservative, and so the law will be changing. The law is never stagnant for a long time, and it’s already in the process of changing, and Trump’s judges will help to mold it in a new direction; and I suspect that most of them will be inclined to mold it in a pro-Trump direction. And so perhaps one of my greatest fears is not just that Trump gets away with his excesses in this four-year period, but that the courts accommodate his excesses in a way that affects the law for decades to come. That’s one of my really deep fears right now; and so I think that I have some hope that the courts will continue to be strong defenders of individual rights and liberties.
I think that we will make it through this, but it’s not a sure thing. It’s not a guarantee, and it’s still so critically important for the people who oppose Trump’s agenda to be out there providing cover to these judges to do the right thing, marching in the streets, showing them that Americans still support civil rights, showing them that Trump does not speak for the majority of the country. It’s a lot easier for judges to go out on a limb when they know that the public is behind them.