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This podcast uses government documents to illuminate the workings of the American government, and offer context around the effects of government agencies in your everyday life.
FEMALE_1: Welcome to civil discourse. This podcast will use government documents to illuminate the workings of the American government and offer context around the effects of government agencies in your everyday life. And now your host, Nia Rogers, Public Affairs Librarian and doctor John Aughenbaugh, political science professor.
N. Rodgers: Hi, Aughie.
J. Aughenbaugh: Good morning Nia. How are you?
N. Rodgers: I'm usually fine, and then you rile me up and then I'm not fine anymore. I'm prepared. I have my zin on, and you are not going to rile me up today.
J. Aughenbaugh: See, listeners, Nia says this. But then we will get into our civil somewhat benign conversation, in this case, of recent Supreme Court rulings, and then I just watch the metamorphose the evolution take place.
N. Rodgers: You got me last episode with that stupid slaughter decision. I'm not letting you control me, you instigator.
J. Aughenbaugh: You're not going to take the bat. Listeners today, in this podcast episode, we're working our way through our summer of Scots series, and we're looking at recent Supreme Court decisions, of course, most of which were dropped in the month of June as the Supremes are heading out of town.
N. Rodgers: Last week of the month of June. I don't know why we're surprised though, because college students do the same thing. When does this paper due? It's due at 11:59 on Sunday. Well, I'm going to start at 6:59 on Sunday, and I'll turn that bad boy in.
J. Aughenbaugh: This particular episode, we're going to look at two election related cases. But then we're also going to be taking a look at two combined cases concerning state laws that prohibit transgendered athletes from participating in female sports, and so our first case, Nia and I love these cases because I love being able to say to students, If you want to become a lawyer, I hope you like to wordsmith.
N. Rodgers: I hope you like arcane word choices because you're going to be reading a lot of them.
J. Aughenbaugh: Yes. The first case is entitled Watson versus the Republican National Committee, and it concerned, does a Mississippi law allowing the counting of votes, postmarked by election day violate federal law regarding the meaning of election?
N. Rodgers: Is election a one day activity in the United States, the first Tuesday after the first Monday of November, often, at least for national elections? Or is it an ongoing slow roly process? Which is implied by the idea of mail in votes and early voting, which a lot of states have. You can go to early voting at the courthouse. You can mail in a vote, all those kinds of things. Does it include those or is it only day of? Because if it is only day of, that is going to limit hugely the number of people who will be able to vote in this country for a variety of reasons.
J. Aughenbaugh: Yes, and Mississippi's law is very similar to 20 plus other states, many of which were enacted during COVID 19, because many states understood that having a whole bunch of people.
N. Rodgers: Who breath on each other might not be a good idea.
J. Aughenbaugh: Who might have COVID. Probably was not really good at stemming the pandemic.
N. Rodgers: Outside note, a lot of Western states have had mail and balloting forever, in part because something we don't understand, we who live on the East Coast, and we're like, Oh, no, the drive to DC is so far from Richmond. It's like 2.5 hours in the car, and people in the state of Washington are like, 2.5 hours that's what I do every day to go to school. Their concept of distance is very different.
J. Aughenbaugh: Think about trying to vote in North Dakota.
N. Rodgers: Let's get in the car at 6:00 A.M. and we want to vote before midnight, so we need to go. Let your carrier handle that for you.
J. Aughenbaugh: The Supreme Court in a vote of 5:00 -4:00, this was Justice Coney Barrett who wrote the majority opinion. Chief Justice Roberts and the The Liberals ruled that political parties and others challenging the law, their challenge was incorrect and that the Mississippi statute did not violate federal law. Writing for the majority, yes. Go ahead Nia.
N. Rodgers: Mississippi law by the way, they can be counted as long as they are postmarked by the day of election and received within five days of the election.
J. Aughenbaugh: That's right.
N. Rodgers: You can't postmark it on the day of the election but send it from Europe, where it takes two weeks to get here. That's too bad. That's not going to matter. There are limits in the law. The law is not just whenever we get your ballot, we're going to count it.
J. Aughenbaugh: The big key here, at least in Coney Barrett's majority opinion, was the postmarked by.
N. Rodgers: Like the IRS deadline. Remember how it used to be that people would line up at the post office at midnight on April 15 or 11:00 o'clock because they needed it to be postmarked before.
J. Aughenbaugh: Coney Barrett concluded that, "the election day statutes require the electorates choice to be made on election day". The big key here was Mississippi law says, as long as your ballot is postmarked by election day. Election day statutes do not set a deadline for ballot receipt. They do not prevent Mississippi from counting ballots postmarked before election day but received afterwards. Mississippi says five days. Other states allow a week to 10 days. But the big key here is, as long as it's postmarked by election day. If a rogue state said, you can postmark it, submit your ballot, the week of election day. Well, that would be illegal.
N. Rodgers: It has to be by the election day, not afterwards. Anything postmarked afterwards is a waste of time for you and the post office because they're not going to count it.
J. Aughenbaugh: Some states, again, could I see a western state, like Montana or Wyoming.
N. Rodgers: Giving 10 days?
J. Aughenbaugh: Of course. Or think about states with heavy overseas military personnel.
N. Rodgers: California, Virginia, Florida, Texas, Michigan.
J. Aughenbaugh: But it was 5:00-4:00. In his dissenting opinion, writing for those in the dissent, Justice Samuel Alito argued that, "from this nation's founding until the last few decades of the 20th century, a period that spans the enactment of all three election day statutes passed by Congress, having an election on a particular day meant completing ballot collection on that day."
N. Rodgers: Now, am I correct that what Alito is saying is, if I mailed in my ballot the week before, as long as you got it on the day of the election it would still be valid?
J. Aughenbaugh: That's right.
N. Rodgers: He's not saying you can't mail a ballot. He's just saying your mailing needs to take place two weeks ahead to make sure that it's there by election day. On election day, they open up all the mail in ballots and they count all the ones that were done in person, and that's how they, so he's not saying male election itself is unacceptable. He's saying male election after counting those ballots after election day is what's unacceptable.
J. Aughenbaugh: Receiving them and counting them receiving them after election day. Because counting, as we discussed in our previous podcast episode, counting ballots takes time. There is a reason why federal law gives states nearly a month.
N. Rodgers: To get themselves together and get their math done.
J. Aughenbaugh: Account and verify and certify, and that's the big, if you will, word. States have to certify ballot results in federal elections. Now, and what he's pointing to here is for our non American listeners and perhaps some of our younger listeners, Nia and I are old enough to remember that mail ballots or states allowing the mailing of voting ballots is a somewhat new phenomenon. Nia and I are old enough to remember whereas in most states, well into the 1980s and 90s, the only people who are allowed to mail in their ballots were those who were military who were serving overseas. For those of us who are living in that state, you had to drag yourself to the poll and actually vote. Now, the other issue.
N. Rodgers: But Aughie and I did not grow up in the West. Because that has also been multiple decades that folks in the West have been able to mail their ballots.
J. Aughenbaugh: But the other thing that came up, there was some language in both of these opinions, but this really got discussed during oral arguments was the issue of the quality of service of today's United States Postal Service, and we're not going to spend too much time on this because this is not an episode looking at the United States Postal Service. But this is an issue. The United States Postal Service of recent vintage has said that postal delivery service, may not be as reliable as it was earlier in our country's history. You couple that with more states, 20 plus states, allowing ballots to be received and counted as long as they're postmarked by election day. This is going to mean that potentially a whole bunch of ballots are going to be received when Nia?
N. Rodgers: Way after. A week, 10 days, two weeks, and there is some question about whether there would be a speed in postmarking the ballot. If you turned it in the day of the election, will it get postmarked that day or will it get postmarked the next day or the day after? In which case, your ballot is irrelevant.
J. Aughenbaugh: Yeah, because the United States Postal Service.
N. Rodgers: Unless you stand there and watch someone postmark your ballot.
J. Aughenbaugh: The United States Postal Service listeners, over the last roughly 10 to a dozen years has implemented a number of logistical reforms.
N. Rodgers: Batch in some instances.
J. Aughenbaugh: They've done it for cost-saving reasons. Because the United States Postal Service gets pressure from the United States Congress to drive down costs to improve the bottom line.
N. Rodgers: And it's the only agency that has to self-fund its retirement all the way out?
J. Aughenbaugh: Yes.
N. Rodgers: It's a whole thing. The post office is always running dangerously close to-
J. Aughenbaugh: Insolvency, at least on paper. In many areas, staffing has been cut dramatically. They do things in large batch jobs. I mean, if you're talking about the receipt of 30 or 50 ballots, and you are short-staffed, that means-
N. Rodgers: We'll do it tomorrow.
J. Aughenbaugh: Yeah, we'll do it tomorrow. That's a problem as it relates to a ballot having to be postmarked by. But that's one decision regarding elections.
N. Rodgers: What's interesting to me that didn't come up and what I feel like should have come up is Aughie will tell you, even if you wake him from a dead sleep. Aughie, what are the three rules about elections that states get to decide? He will mumble to you in his sleep, "Time, place, and manner." Manner seems to be part of this. To me, if the state says, I am willing to accept this thing, as a proper voting mechanism in my state, I don't know how the Feds would get to say it isn't. I can understand where they might say that in a federal election, but they certainly aren't going to be able to say that in a state election.
J. Aughenbaugh: Okay. But remember, this case was about federal elections. Did the Mississippi law comply with the meaning of the word election in federal law?
N. Rodgers: It does, more or less, yes. According to five. According to the Crabby 4, it does not.
J. Aughenbaugh: Again, listeners, this is the thing about law. Nia has got a good friend and longtime listener, Neil. He's a lawyer. Went to law school. I teach a whole bunch of students. They become lawyers, and they will all go ahead and tell you, well, how are you defining the word? Reminds me of President Clinton's deposition, where he is asked whether or not he had sex with one of his interns. One of the most hilarious parts of the Special Counsel report was Bill Clinton, former lawyer, saying, "What's your definition of the word is?" Right?
N. Rodgers: Right. It's crazy. I'm just saying that I was in a restaurant with Neil one time, and somebody dropped something, and he said, "That's a liability issue." That's how lawyers think. It's who they are as people, and it's wonderful, but it's also terrible. But it is something that you have to keep in mind, is they are going to Smithy the snot out of whatever. Part of it is that they want to rule as narrowly as possible. At least the Supremes do. They're not all about making these grandiose, huge rules, although we can't even talk about slaughter.
J. Aughenbaugh: Think about listeners in a previous podcast episode regarding immigration law.
N. Rodgers: What's arriving in?
J. Aughenbaugh: Yeah, arrive in.
N. Rodgers: If you put your toe in the dirt, have you arrived in? If you can see it from where you're standing, if you throw your lunchbox over the wall, have you arrived?
J. Aughenbaugh: Nia, in that episode, you gave the example of have you arrived in a state if you take an air flight and you have a connecting flight, so you arrive, for instance, in the Charlotte, North Carolina airport. Have you arrived in North Carolina?
N. Rodgers: Right. Can you mark it off on a list of places I've been to if you only walked through the Charlotte airport and then got onto another plane and went somewhere else? It's a whole question.
J. Aughenbaugh: Related, in terms of elections, is the next case. This is the National Republican Senatorial Committee versus the Federal Election Commission. Do FEC rules prohibiting political parties from coordinating expenditures with specific candidates violate the First Amendment? And the Supreme Court said, "Yes, those rules violate the First Amendment." Nia just made a noise that any dog owner would recognize. When a dog wants to object but object in a muted manner.
N. Rodgers: I'm trying not to let you drive my blood pressure, but I hate this case. Calm down. Back up.
J. Aughenbaugh: The justices, by a six-to-three vote, the six conservatives versus the three liberals, went ahead and said that the FEC regulation, which is based in the McCain-Feingold campaign reform law, which was passed and signed into law during the Bush 43 administration, was unconstitutional. In particular, the Supreme Court overturned its decision in 2001 in a case, FEC versus the Colorado Republican Federal Campaign Committee. The vote in that case was five-to-four. This is, if you will, yet another follow-up case to what?
N. Rodgers: You are trying to rile me up by making me say Citizens United. I see you pushing my buttons. I see you over there.
J. Aughenbaugh: The majority opinion was written by Justice Kavanaugh. Kavanaugh went ahead and said that since the 2001 ruling in the Colorado case, the Supreme Court has held that money is speech, which is protected by the First Amendment. Nia just rolled her eyes. She's like staring daggers at me right now.
N. Rodgers: I hate that ruling so much because we know that more money sloshing around in the election system is not a good thing. We just know this. Whatever else you may think about John McCain, I actually liked John McCain, I think John McCain was a good man, and Russ Feingold, they were like, "Dude, we have got to get the money out of politics, especially out of elections." You should not be able to buy an election. I can feel myself starting to rant. The Supremes have, on a regular basis, said, "No, it's okay. You can buy an election if you want one. Everything else from the United States is on sale." It's just aggravating to me.
J. Aughenbaugh: In particular, McCain-Feingold attempted to regulate a particular type of money in elections, known as soft money. Now, in Citizens United, that case looked at self-money that was raised and spent by non-political parties. We're talking about political action committees. That ruling made it very clear that political action committees could not have their fundraising and expenditures regulated by the FCC as long as the political action committee did not coordinate their spending with candidates.
N. Rodgers: That's why, during ads, you used to get those little things underneath that would say, paid for by the blah, blah, blah, blah committee, and the person would say, I endorse this ad. They're saying, basically, we did not create this together, but I think it's a good idea. That's how they got around that for a long time.
J. Aughenbaugh: But then a follow-up question was, well, what if political parties, which raise huge sums of money, wanted to coordinate their spending with candidates for their party? Now, according to McCain-Feingold, the answer was no. But in this case, the Supreme Court went ahead and said, well, wait a minute here. These are candidates who represent the party. Why should there be limits? Now, to Nia's point, and this was a point that was actually raised by Justice Kagan in her dissent, when you have more money in campaigns, it's not necessarily that those who are donating the money are expecting or can expect that the candidates will do their bidding; it's the fact that who's being heard because the only people who are being heard are the ones who have the money that the candidates need to win elections. If you are a moderate person or a person of limited means, even if you want to get involved and donate money, your voice is going to be, shall we say, shouted out by, not heard as much by.
N. Rodgers: Your voice will be louder.
J. Aughenbaugh: Okay. Then, political parties who have raised huge sums of money.
N. Rodgers: I'm going to cozy up to a small but very wealthy set of donors. By the bye, I'm angry about this for both parties. I'm not mad at Republicans or Democrats; I'm mad at both parties going out and saying, it's super important that we get a base of people to support us, and when you look at their fundraising, it's the same 10 chuckleheads, giving them hundreds of thousands of dollars. That makes me infuriated. I think that all donations should be capped, and it should be capped at some really low number, like $1,000. You can only give $1,000 to political parties, period, end of story. It would mean that they would have to build big bases of people.
N. Rodgers: They'd have to reach into not just their party but into the independence and into the other parties to try to pick off people who they could get donations from or support from. It would mean you'd have more support, the way this is now. I'm getting mad again. But if I only have to care about the 10 richest people in the world giving me money, then the heck with the American people and what they want; those chuckleheads didn't give me anything. I can't with this.
J. Aughenbaugh: Yeah, and the criticism here is because Kavanaugh attempted to defend the court's ruling as saying, it doesn't benefit one political party or the other, and statistically, that's correct. Some commentators have pointed out, at least in the short term, it might benefit the Republican Party, but in the past, it would have benefited the Democratic Party.
N. Rodgers: The pendulum swings on that.
J. Aughenbaugh: It swings both ways. The larger problem, and Nia, this is what you get to, is American politics is so polarized, that right now, the parties and the candidates are only listening to really wealthy Americans, many of whom have policy positions that are much more extreme than
N. Rodgers: They're average American. Most Americans, as far as I can tell, are more or less moderate. They'll have one or two issues where they are bonkers; they are all the way out, whatever fringe, left or right, that you consider. Everybody's got one or two of those things that they feel very strongly about. But then the rest of it, they're like, whatever. Americans can't be bothered to feel extreme about everything.
J. Aughenbaugh: Everything.
N. Rodgers: They pick a couple of things, and then everything else, they like, I'm willing to compromise a little.
J. Aughenbaugh: But it is rational for candidates and their parties to pay attention to those who are giving them the money, right?
N. Rodgers: Right. Especially the most amount of money.
J. Aughenbaugh: Yeah. And this is where this ruling and this logic, which has permeated the Supreme Court's rulings beginning with Citizens United. The decision of the court was consistent with recent rulings. We just think it's wrong.
N. Rodgers: It's consistent. It's just bad.
J. Aughenbaugh: Yeah, it's consistently bad.
N. Rodgers: One could say that about Lucifer; bad but consistent. I'm not comparing Kavanaugh to Lucifer, by the way, that is not what I intended to do just then.
J. Aughenbaugh: But in terms of the analogy that we were using, yes.
N. Rodgers: My concern here, it comes back to, and this is separate from this case, but I do think we should bring it up, and I'm going to bring it up now, I think that the media focused so much on some of these cases that this one slipped through. It didn't get a lot of press, I feel bad for Slaughter and Cook and the whole deal. But that's two people who have to fight for their jobs. I'm sorry about that, but that's not a huge long-term effect. This is a huge long-term effect. This has one of those, when we're talking about cases years from now, because Aughie will tell you that every year, the court has 70 or 80 cases, and we talk about 20 of them. We don't talk about all of them because a lot of them would put you to sleep; they're boring, they're tax cases, they're corporate cases. Nobody cares about them except the people involved, and, of course, the lawyers. But this is going to be one of those things that's just going to explode as it goes forward.
J. Aughenbaugh: It reminded me, three years ago, the press made a big deal out of the Looper Bright decision, where the Supreme Court overturned Chevron deference. I even said it on this podcast. I was just like, I don't think it will be as much of a big deal as people say it's going to be. So far, the initial scholarship is just like, it's not been that big of a deal. The federal courts, in many instances, are deferring to agency interpretation if the agencies make a cogent argument.
N. Rodgers: Which all you're doing is making them clean up their act.
J. Aughenbaugh: Yeah, clean up their act. Most agencies will go ahead and do it because they're populated by smart people.
N. Rodgers: Who want their stuff to carry forward? They don't want to be caught up in the law.
J. Aughenbaugh: But this is the decision where you're just like oh, it's soft money and it's arcane election law. Whoa. If you think about what or how the money can influence. Kavanaugh's majority opinion kept on coming back to quid pro quo: I give money, and then I expect you to vote a certain way, still can be regulated. Fine. But most of the people who are giving huge sums of money are not engaging in such obvious corruption; they want access.
N. Rodgers: That assumes that the Department of Justice wants to pursue those kinds of cases, which most of the time, it does not. Or the ethics committees in either the House or the Senate want to pursue those. Most of the time, they don't, because if everybody's doing it, it will become one of those things of, how are we supposed to pick out who we should go after and who we shouldn't if every guy has gold bars in his coat pocket like Mendez? I think I have that right, Mendez.
J. Aughenbaugh: Yeah, it was US Senator Robert Menendez from New Jersey.
N. Rodgers: Menendez. Thank you.
J. Aughenbaugh: He just crossed the line. I mean, come on.
N. Rodgers: Yeah, he just took gold bars from Saudi Arabia. Like, really?
J. Aughenbaugh: Because if you think about, for instance, Citizens United, initially, Democrats were opposed. Now, you'll be hard-pressed to find a Democratic elected official who will go ahead and say, Citizens United was a bad thing. Why? Because they benefited from it. They have gone ahead and used it. But in so doing, they are completely ignoring other people's voices who don't have access because they haven't given a huge amount of money to a particular political action committee that is spending gobs of money.
N. Rodgers: I put to you, listeners, that the way you can decide whether this is a good decision or not, and it was not, by the way, but the way you can decide for yourselves is you can ask yourself, when's the last time I heard of a benign billionaire, or a benign trillionaire, I'm casting aspersions on Elon Musk, specifically, but a benign billionaire? When's the last time you heard of one of those guys that you thought, yeah, that's a great guy, he does great stuff? Maybe Warren Buffett comes close-ish.
J. Aughenbaugh: Or you can think about, for instance, Bill Gates.
N. Rodgers: With the foundation. But then you find out he was not faithful to his wife, and he was hanging out with Epstein, he was doing all kinds of creepy, weird crap. Then you're like, oh, my gosh, there is not one of these people that you would want to leave your sweet 12-year-old daughter with. Hello.
J. Aughenbaugh: Even when he created the foundation, the first thought that came to my mind was so what sins is he trying to convince us to forgive him for. I mean, come on now.
N. Rodgers: And Jeff Bezos. I mean, hello. His workers, you have to pee in bottles because they can't stop to go to the bathroom. Hello. When is the last time any one of these people made you warm and fuzzy with their billionaire status?
J. Aughenbaugh: Yeah, he's the publisher of the Washington Post now, in terms of Jeff Bezos. Democracy dies in silence. I'm just like, so we should look at what goes on in a fulfillment center for Amazon. So you bought a newspaper.
N. Rodgers: And Altman, who brings to you AI, a more terrifying thing every day that it exists. None of these things are benign. None of these people are benign. So that's what I don't like about it, is that it empowers the most power-hungry and hubris-having people in our society to have a voice, an outsized voice in democracy, which I find terrifying.
J. Aughenbaugh: Money buys access, which means that when policies are being debated, their voices are going to be heard.
N. Rodgers: And ours not, you and me.
J. Aughenbaugh: Yeah, and we're talking about polarization. I can give examples on both the left and the right. Of course, Trump is going to go ahead and think about certain kinds of policies because the only people he's hearing from are people who have donated huge sums of money to him. He's not going to call me up and say, hey, Aughie, do you think that I should go through the normal administrative process. No, because if you did, I would be like, yeah, you should, because that's greater legitimacy, on the left. Nobody in the Democratic Party is calling me up or calling you up and saying, hey, what do you think we should go ahead and focus on in the next election? We would go ahead and tell them. You probably shouldn't go ahead and focus on X, Y, and Z because most normal people aren't focusing on X, Y, and Z.
N. Rodgers: You should focus on high rent, high grocery prices, high gas prices. You should focus on what every normal, everyday people are dealing with.
J. Aughenbaugh: Yes. Because most normal people will be like, I need to find a way to pay for my prescription drugs. I don't care how you label me or call me, I'm sorry. For many people, that's what they're concerned about. But that's not what they're hearing. Anyways, now that we've talked about that, let's wade into-
N. Rodgers: Our last two.
J. Aughenbaugh: Yeah. These are two cases that were combined by the Supreme Court, and they deal with a policy issue that has been somewhat controversial over the last few years in the United States. The question in West Virginia versus B.P.J, that was the acronym for the individual, and then Little versus Hecox, the question for the court was, may states limit the participation of male transgender athletes on female sports teams? The question is, do these policies violate either Title 9 or the Equal Protection Clause of the 14th Amendment? The Supreme Court, in a six-to-three vote, ruled that states can exclude male transgender athletes from participating in women's and girls' sports teams. Now, what was interesting is the Supreme Court ruled unanimously in regards to the Title 9 issue, but they divided six-to-three on the constitutional question.
N. Rodgers: I'm sorry.
J. Aughenbaugh: All nine justices agreed that neither West Virginia or Idaho violated Title 9 of the Federal Civil Rights Act.
N. Rodgers: Okay. So on that part, they all agreed?
J. Aughenbaugh: They all agreed. However, the three liberal justices, Sotomayor, Kagan, and Brown Jackson, believed that the Equal Protection Clause may have been violated and would have sent the case back to the lower courts for further deliberation on that issue. As I pointed out, this was a combination of two cases, one coming from West Virginia and the other one from Idaho. Idaho passed the Fairness in Women's Sports Act in 2020, which barred transgender women and girls from participating in women and girls sports teams in public schools. Idaho was the first state to pass such a law. Since then, 25 other states have enacted similar laws. The West Virginia legislature passed a state law known as the Save Women's Sports Act in 2022. This law prohibits transgender women and girls from participating on women and girls sports teams in public secondary schools and colleges. The Idaho law was challenged for violating the Equal Protection Clause.
J. Aughenbaugh: The West Virginia law was challenged on violating Title IX of federal civil rights law. The Supreme Court combined the two. And as I mentioned, I think I mentioned, Justice Brett Kavanaugh wrote the majority opinion. This was not a big shock. For those of you who don't know, Justice Kavanaugh for years, has been the head coach of both of his girls' sports teams. He made a couple of overarching points. First, he said, men and women have inherent physical differences, and therefore states should be able to take into account those inherent differences. Then he also went ahead and pointed out that Title IX was designed to protect opportunities for women, and this is where he went ahead and said, having separate sports teams for biological males and females is reasonable in light of the purpose of Title IX.
N. Rodgers: The theory behind Title IX, to give a tiny little backgrounder, it used to be that when you went to college, all the boys got to play sports and girls didn't get to play sports because girls sports didn't bring in any money.
J. Aughenbaugh: That's right.
N. Rodgers: And whatever you think about college athletics, a lot of it is about private donors. It's almost never paid by the school. It's almost always its own financial thing. And so girls sports were just non-existent. Title IX was like, you know what? Girls should be allowed to play sports. It is a good thing to play sports. It builds team. It builds your own personal health and well being. It's good for people to play sports. Girls should be allowed to play sports. In fact, for every team that a university has for a men's team, there should be a women's team of something. It doesn't have to be the same sport because there are no women's football teams, as far as I'm aware at the college level. But there are other sports that women play. There's softball to baseball. There's tennis and tennis. There is gymnastics and football. There's swimming and swimming. That was to give girls that opportunity to partake of those sporting benefits and force the schools to pay for it. Force the schools to allow girls to have those opportunities. That's what Title IX was for and about in terms of sports.
J. Aughenbaugh: Yeah. In Kavanaugh, try to walk a very fine line here, and I know the decision has to be upsetting to transgendered athletes. Now, there was a concurrence by Thomas who went even further than Kavanaugh to go ahead and emphasize that sex is an immutable biological characteristic. It's binary, man and woman, boy and girl. And he said, to date, the Supreme Court has not interpreted either federal law or the Equal Protection Clause to require anything more than a recognition of those two categories.
N. Rodgers: And in part, doesn't he say that because biological sex in the 1970s when the title was enacted had a what they call an ordinary meaning. Again, back to wordsmithing. The ordinary meaning at the time was male and female. There were no other categories into which someone might fall.
J. Aughenbaugh: Which, again, for those who would like to go ahead and change these laws, following what Thomas said, could Congress rewrite Title IX to allow, and the answer is yes. Now, the idiosyncratic concurrent opinion comes from Justice Neil Gorsuch. He argued that when Congress wrote Title IX, per Congress's authority in its spending authority, the spending clause of the constitution, Congress does give a whole bunch of money to colleges, universities, public high schools, and if they wanted states to recognize transgendered athletes, they had to clearly say so. Because Congress did not in Title IX, no state is required to recognize the rights of transgendered athletes.
N. Rodgers: Again, if they statutorily said Title IX applies to or the money involved in Title IX applies to transgendered athletes and female athletes, or however you want to argue those words and you would want to be careful how you wordsmith it, then they could do that, and this point would become moot.
J. Aughenbaugh: Yes.
N. Rodgers: Because then transgendered athletes would be allowed. There would be no bar to them being allowed.
J. Aughenbaugh: Yeah, and listeners, really providing some foreshadowing here. Because in a future podcast episode, we're going to once again look at Justice Gorsuch view of what the spending clause of the US Constitution requires of the United States Congress when they give money to states or when they allow individuals to sue states for violating federal law. That's going to be an issue in the Landor case concerning a prisoner in a Louisiana prison who wanted to sue prison officials for cutting off his hair in violation of his religious beliefs. But nevertheless, what the Supreme Court held here in these two combined cases is that the states did not violate either federal law or the federal constitution. This is a very controversial topic. Yes, go ahead, Nia.
N. Rodgers: I want to point out something Sotomayor said in her dissent. One of these athletes has been taking drugs that has suppressed going through puberty and will be taking drugs that will alter that biological process. And that the court did not take that into account. That is a separate case. So Sotomayor was trying to draw a line between those who have gone through puberty as male and then transgender to female versus those who have never gone through puberty as male.
J. Aughenbaugh: Yeah, because so much of Kavanaugh's [inaudible].
N. Rodgers: And would argue against Kavanaugh's point of there being an advantage or potential physical changes that puberty brings to males that are different than females. She's trying to tell the other side here's a thing that you need to force into an argument, which is does it matter if this person has gone through puberty or not. Because if it does matter, then that's how you should approach that, or you should at least force the court to say whether it matters or not, because Kavanaugh he didn't address that.
J. Aughenbaugh: No, he did not address it at all.
N. Rodgers: The dissent gives also a roadmap. Gorsuch gives a roadmap. I feel certain we will see more on this case. I feel certain that there will be more of these questions that come before the court in questions like this. Does it matter whether this person has gone through puberty or not.
J. Aughenbaugh: The other thing to remember here is the Supreme Court's ruling said that neither Idaho or West Virginia violated federal law or the federal constitution. Now, does that mean that states who protect or give opportunities to transgendered athletes are prohibited? No. Again, this is where the political process might be a more fruitful avenue than the legal process, because a number of states have passed laws that have protected the rights of transgendered athletes. The court's ruling still leaves that as an opportunity.
N. Rodgers: Do you see a challenge to that, you think, at some point?
J. Aughenbaugh: Perhaps, but the states could rely on state constitutional provisions. Again, that's the good thing about federalism. Just because the federal constitution does not require something doesn't mean that you cannot rely upon state constitutions as a justification for asking a state to grant a civil liberty that perhaps the federal government has not seen fit to provide.
N. Rodgers: There's lots of roadmaps here. This is not a question that ends here with this case.
J. Aughenbaugh: No.
N. Rodgers: We will see many more cases where the Supremes will be asked to weigh in on wordsmithing and the meaning of various provisions and what they aren't allowed to do.
J. Aughenbaugh: Yeah. As we will discuss in a future podcast episode, when we look at cases that the Supreme Court has already accepted for its next term, the Supreme Court has already accepted a case where they look specifically, and I want to make sure I get the correct issue. Where is it in my prep notes?
N. Rodgers: Is this the parental authority over decision making?
J. Aughenbaugh: Yes.
N. Rodgers: Yeah. So that's also an interesting question. At what point can your parents make decisions for you? Yeah, well, complex. We I would not be on the court right now for love no money.
J. Aughenbaugh: Yeah, you got that right, Nia. All right, listeners, we will have one more episode where we look at a hodgepodge of other cases that we think you should be aware of that the Supreme Court [inaudible].
N. Rodgers: I like to think of that as smorgasbord cases. They're not technically related to each other in the sense of they're not themes.
J. Aughenbaugh: Yeah. These are cases that Nia and I think perhaps have not been receiving a lot of press attention that you should be aware of. That's going to be our next episode. Then our last episode will be the one where we discuss the statistics and trends and the cases that the court has already accepted for its next term, which begins the first Monday of October of this year. Anyways. A little foreshadowing, a little advertising for our future episodes. Thanks, Nia.
N. Rodgers: Thank you, Aughie.
J. Aughenbaugh: Yeah.
FEMALE_1: You've been listening to Civil Discourse brought to you by VCU Libraries. Opinions expressed are solely the speaker's own and do not reflect the views or opinions of VCU or VCU Libraries. Special thanks to the workshop for technical assistance. Music by Isaac Hobson. Find more information at guides.library.vcu.edu/discourse. As always, no documents were harm to the making of this podcast.