🚨 US Supreme Court signals BOMBSHELL ruling

I'm joined now by the co-host of the. Strict Scrutiny podcast and professor at. the University of Michigan Law School, Leah Litman. Leah, thank you so much for. joining me. >> Thanks for having me. >> So, we have major Supreme Court news on. two different fronts, but let's start. first and foremost with uh same-sex. marriage, Oberfell. Can you explain what. the Supreme Court is looking to do right. now? So, a Burgerfell versus Hajes is the. marriage equality decision that struck. down state laws that refused to license. or recognize marriages between same-sex. couples. And what has happened recently.

is Kim Davis, who is literally obsessed. with gay people, filed her latest. petition for Sir Shirari asking the. Supreme Court to hear her case. And in. asking the Supreme Oh, sorry. >> And and Kim Davis is the county clerk. down in is it Kentucky? Is that correct? who had initially uh refused to uh to to. give uh marriage certificates to a. same-sex couple and she got sued and. spent a few days in jail. >> Exactly. So, she was sued. She refused. to comply with the order. She was put in.

jail and fined. And so, as part of her. continuing to challenge, you know, that. course of conduct, she has asked the. Supreme Court to consider overruling. Oberfell versus Hajes as the marriage. equality decision. So when is the. Supreme Court going to uh to hear. arguments on this case? >> So they won't necessarily hear. arguments. All she has done is ask the. Supreme Court to grant what's called a. petition for Sir Shirari to consider. whether to hear arguments and schedule a. full briefing. So we aren't going to.

know whether they are even going to. grant Sir Shirari, i.e. hear her case. for at least a few months. >> Okay. Is there anything to suggest. whether or not they might uh grant her. request? >> So, I think the odds are extremely low. for a few reasons. One is she's tried. this tack before. She has previously. asked the Supreme Court to review her. case, you know, involving her being. penalized for refusing to issue marriage. licenses. In that case, Davis versus.

Armold, you know, kind of the same case. that she has once again tried to bring. up to the Supreme Court. Even justices. Thomas and Alo said this case is not the. case to revisit Oberfell versus. Hodgeges. So if even those guys have. taken a pass on this case as a way to. overrule Oberfell versus Hodgeges, I. just don't see the court taking up that. issue in this case. But if if Alto and. Thomas are both saying this case is not.

the case to be able to revisit Oberfell, does that suggest that there is openness. for them? They just want to make sure. that the vehicle that's brought is the. correct one so that they have the best. chance, the best uh the best opportunity. to be able to strike it down. >> That's exactly right. I mean, Justice. Clarence Thomas actually wrote. explicitly in his separate writing in. DOBS the decision overruling row that he. affirmatively wanted to overrule. Oberfell versus Hodes as well as other. decisions. So, we already know that both.

Thomas and Alo are interested in. overruling Oberfell. We just also happen. to know that this particular case is not. the case in which they want to do so. >> Isn't this the same the same legal. concept that would also apply to. interracial marriage, for example? And. then what are the implications there? I. mean, you know, Clarence Thomas himself. is in an interracial marriage. And so, isn't there some some inherent conflict. that somebody like him would would stand. to to um to get hurt from by virtue of. moving this thing forward?

>> So, notably, when Clarence Thomas ticked. off all of the decisions he wanted to. overrule, on that list were decisions. protecting access to contraception, decisions protecting marriage equality. But what wasn't on that list? Loving. versus Virginia. the decision that. struck down bans on interracial. marriage. Now, what he would say is. there's a distinction between loving the. case invalidating bans on interracial. marriage and cases like Oberfell or. cases like Griswald which protected. access to contraception. He would. describe Oberfell and Griswald as cases.

involving so-called substantive due. process, basically recognizing rights. that are not specifically or explicitly. mentioned in the Constitution's text. Whereas Loving versus Virginia was. decided not on the basis of just. substantive due process but also on the. basis of equal protection because. distinctions that are drawn on the basis. of race trigger the most heightened most. searching form of judicial scrutiny. Now, of course, marriage bans also. discriminate, right? And I think violate.

the equal protection clause, but the. decision in Oberfell did not. specifically and explicitly say laws. that discriminate on the basis of sexual. orientation trigger meaningful scrutiny. just like laws that discriminate on the. basis of race do. So even if this Kim. Davis case is not the vehicle to be able. to try and overturn Oberfeld, do you. think it's a fair statement to suggest. that this Supreme Court is just waiting. out the correct vehicle and that. Oberfell is is at risk, is in some.

degree of danger. They're just waiting. for the right way to be able to do it. I think the more likely scenario is the. current court such as it is is more. likely to undermine a burger marriage. equality and LGBT rights by recognizing. first amendment exemptions for people. who object to marriage equality. You. know, to not have to comply with laws. that bar discrimination on the basis of. sexual orientation. I am not going to.

rule out the possibility that the. current court might right one day. overrule Oberfell versus Hodgeges. I. mean the Republican party platform did. call for them to appoint justices who. would overrule Oberfell in addition to. overruling Row. I just don't think that. is going to happen right now. But that's. not to say like people shouldn't be. concerned about the future of marriage. equality, LGBT rights, and what is going. to happen at the Supreme Court. Okay, so. let's talk about something that's. happening at the Supreme Court, uh,

certainly more quickly than any impact. on Oberfeld, and that is the potential. for this court to strike down section. two of the Voting Rights Act. We've. already seen this court whittle away at. the Voting Rights Act. Section two. basically allows um allows these these. opportunity districts to exist in states. across the country. We've seen that a. number of states uh in in the South have. been challenging this stuff. Louisiana, Alabama, uh Georgia, Florida, and these. opportunity districts, these black. majority districts have been upheld. What is the Supreme Court looking into.

now, and what are the risks uh facing. us? >> So, what the Supreme Court is looking. into is whether this law, which again. sometimes requires states to create. opportunity districts, actually. discriminates on the basis of race in. violation of the constitution. So. basically they are considering whether. prohibiting white legislators from. discriminating against black voters by. refusing to create districts in which. they have political opportunities is. itself a form of anti-white racial.

discrimination. It's like the argument. on affirmative action but put into. voting rights. >> And so is there anything to suggest how. the Supreme Court might rule? Is there. anything that you could read from the. tea leaves? Um, anything that the. justices have said themselves that might. lend itself to this idea that they are. willing to to gut the Voting Rights Act? >> Signs are very concerning here. So, a. few years ago, the Supreme Court heard. another challenge to race-based. redistricting and the Voting Rights Act.

in a case out of Alabama in Merrill. versus Milligan, Allen versus Milligan. And what ended up happening in that case. is four Republican appointees said they. would have effectively gutted what. remained of the Voting Rights Act and. its protections for redistricting then. and there. But Justice Brett Kavanaaugh. wrote separately to say he wasn't sure. he wanted to do so now based on the. argument that Alabama had presented him. in that case, but that he would be open. to doing so in a future case on a.

slightly different theory. this is that. future case. So, the fact that we know. there are at least four votes and. another justice who's open to it, the. fact that the justices opted to put this. case on their calendar again and to. specifically and explicitly invite the. parties to focus on whether the Voting. Rights Act is unconstitutional racial. discrimination. All of that is very. concerning. Does the fact that they um. that they scheduled these arguments for.

the very beginning of the upcoming. Supreme Court term, they scheduled them. for October 15th, does that suggest that. they might want to um that they might. want this case argued and decided in. time for the 2026 midterms, knowing full. well that we have a Republican party. that is perfectly content to redraw maps. midcycle to try and extract as much. political benefit out of them as they. can. It is a very concerning sign and I. wouldn't rule out that possibility. I. mean, as the chief justice himself. talked about in the birthright.

citizenship case, when the court wants. to go fast, they go fast. And when they. want to go slow, right, they go slow. They dragged out Donald Trump's immunity. appeal, effectively guaranteeing that he. would not face trial before the 2024. presidential elections. Now all of a. sudden they're in a huge hurry, right, to tee up the constitutionality of the. Voting Rights Act, >> which which by the way was was a case. that that they decided unto themselves. to bring up like the there there were no. plaintiffs here that were looking to. relitigate section two, the the. legitimacy um of section two of the. Voting Rights Act. They asked to to hear.

specific arguments on this question that. wasn't initially posed to them by the. plaintiffs. And this is exactly what. happened, what you're describing in. Citizens United, the case that launched. the Supreme Court's war against campaign. finance regulation. The parties in that. case did not initially ask the Supreme. Court to strike down the ban on. corporate independent expenditures in. elections. Instead, the Supreme Court. teed up that question. They issued. another order saying, "We want you right. to brief and argue that this law is.

unconstitutional." And of course, they. ended up deciding the case on that. ground. In terms of the amount of. districts that would be impacted, do you. have any idea of of the number of. districts across the country roughly. that are that are protected by section. two, the Voting Rights Act right now? >> Um, I don't have a complete number about. the number of districts that a decision. striking down section two would. necessarily call into question. You. know, I've heard estimates that it might. be in the 20s or 30s. Um, but I don't. have a firm number.

>> Okay. Aside from the two cases that. we've spoken about today, the prospect. of Oberafell uh being revisited and of. course the the the guarantee of section. two of the Voting Rights Act being. rearged right now. Is there any other. cases that are coming up in this Supreme. Court term that you're keeping an eye. on? >> Uh several big cases. So there is a. challenge to bans on conversion therapy. Um that is people are arguing that. states cannot ban conversion therapy. uh. this would effectively, you know, make. it legal for states to discriminate.

against gay, lesbian, bisexual, transgender individuals. You know, at. the same time that they refused to. strike down bans on gender affirming. care. Last term, they're also going to. be deciding the question about whether. states can exclude trans athletes from. participating in sports. They may even. decide whether states have to exclude. transgender athletes from participating. in sports. So, those are three of the. big cases on the court's docket. And of. course, we have no idea what other big.

Trump related cases might make their way. to the court on the shadow or emergency. docket either, >> like legalized, you know, ass like Trump. can just legal legally kill anybody he. wants, you know, like walk into people's. houses and just uh just uh Well, I I got. to ask too, like, you know, there there. obviously is a lot of of negative. prospects on the horizon. Is there. anything happening at the Supreme Court. uh that might offer any glimmer of hope? Is there any any any rights that may be. protected in this upcoming term? Is.

there anything that you can look at that. you draw some faith from? So, the. glimmer of hope uh that I was going to. identify was not going to be a right. that will be protected, but instead the. fact that the court's public approval. ratings are plummeting to all-time lows. And I say that as a positive because I. truly think that the way out of this is. raising awareness and getting people to. pay more attention to the Supreme Court. and recognizing that the court has to be. part of conversations about how to.

reform our constitutional democracy and. get us out of the mess that we find. ourselves in right now. >> Well, that's that's that's a great point. as well. Um, I would also flag for. anybody who's watching, if you'd like to. support Leah's work, uh, please grab a. copy of her book called Lawless: How the. Supreme Court Runs on Conservative. Grievance, Fringe Theories, and Bad. Vibes. I'm going to put the link right. here on the screen and also in the post. description of this video. Please, if. you can, um, uh, help support the work. of of independent media folks uh, like. Leah Litman. Thank you so much for.

taking the time. I appreciate it. >> as always. Thank you.