Whose Rights Just Changed? Our SCOTUS Debrief  🔗 **Source:** [Whose Rights Just Changed? Our SCOTUS Debrief](https://share.snipd.com/episode/a316713b-174b-4c3a-8076-f19d93839f1f) ## Highlights - **New Bar For Voting Rights Challenges** - Louisiana v. Cailas narrows Section 2 of the Voting Rights Act by requiring proof of racial intent rather than disparate impact. - The 6-3 ruling lets states justify maps as political (e.g., “we did it because they were Democrats”), weakening challenges to maps that dilute Black voters' representation. Transcript: Jess Kung Start with the voting rights case, which the Supreme Court ruled on back in April. B.A. Parker Yeah, Jean spoke with our colleague Hansi Lo Wong about the court's ruling in Louisiana v. Calais. And Hansi laid out the impact of the decision pretty clearly. Jess Kung It's sending shockwaves through voting maps across the country. And not just for Congress, this is for every level of government. And it's going to make it much, much harder to challenge voting maps with claims that they discriminate against voters of color. And it's likely going to lead to a decimation of representation of voters of color at all levels of government, especially in the South. To quickly recap the case, the issue was with a congressional district map drawn in Louisiana meant to comply with the Voting Rights Act. It created a second majority Black district in the state. B.A. Parker In Louisiana, to be clear. Yeah. Jess Kung So the Supreme Court ruled 6-3 that this new map was unconstitutional. B.A. Parker And a pillar of the VRA has been to ensure that maps are representative of a state's racial and political makeup. And that they don't, quote unquote, deny or abridge anyone's right to vote based on race. Jess Kung And now there's this new line of reasoning that undercuts this entire protection. B.A. Parker And that's going to be a concern for a while, because even though this case was about redistricting in the state of Louisiana, there are lots of states like Texas and California that Have been passing new congressional maps that are designed to favor one party or the other around this year's midterms. Hmm. Jess Kung Yeah. Here's Hansi again on what's new here. The major change here is that, you know, the focus of Section 2 of the Voting Rights Act, the section at the heart of this case, the focus of it should be intentional racial discrimination. Intentional being the key word here. Hansi spoke to Gilda Daniels, a law professor at the University of Baltimore with a long resume on voting rights, who broke it down like this. B.A. Parker This court says that all the state has to say is we didn't do it because they were Black. We did it because they were Democrats. And if they say that, they say, well, then that's not race discrimination. You know, it comes up on the show regularly that proving outright intent of racial discrimination in court is really difficult. As long as someone doesn't, like, send a text saying, I'm going to be racist now, the law really doesn't recognize it. Jess Kung It's also come up on the show a lot that voting rights have been under attack for decades. ([Time 0:03:10](https://share.snipd.com/snip/8b4b0d09-5ff7-4bb0-afee-304216b4f556)) - **Mail Ballots Partly Preserved** - The Court upheld a Mississippi rule allowing mail ballots to be counted five days after Election Day if postmarked by then, preserving some access. - That decision sits alongside the redistricting ruling, meaning access expansions like mail voting remain contested but partly intact. Transcript: Jess Kung The court also upheld a Mississippi law that allows mail-in ballots to be counted up to five days after the election, as long as they're postmarked by Election Day. B.A. Parker Which is apt, given that Trump has been going after mail-in ballots really hard. Ximena Bustillo Mail-in ballots are corrupt. Mail-in ballots, you can never have a real democracy with mail-in ballots. Jess Kung Exactly. He's made a point to allege corruption and voter fraud around vote-by and, you know, all the other ways that voting is made more accessible. I'm remembering something Carol Anderson told us back when we talked about this Louisiana v. Calais case back in October. She's a professor at Emory University and the author of One Person, No Vote, How Voter Suppression is Destroying Our Democracy. B.A. Parker Particularly in the 2020 election, you had a massive increase in mail-in ballots from Democrats, from Black folk, from brown folk, because of the pandemic. And the power of those mail-in ballots, those absentee ballots, was essential in the wind of the Democrats in flipping Georgia blue. Jess Kung Jean also spoke with former state lawmaker and voting rights activist Stacey Abrams about why she thinks these attacks on voting rights are ramping up. B.A. Parker In elections, race is the strongest predictor of political leanings. More than gender, more than geography, race is the strongest predictor. And therefore, we have in this country since 1965 been very intentional about saying that politicians cannot use your race against you. They cannot weaponize race as a means of denying you access to democracy. This has become an extraordinary issue because in 17 years, our country becomes majority minority. And every election cycle, every cycle that we face, every map that we draw between now and then is going to shift the balance of power to more and more people who do not hold to a singular Political vision. Jess Kung Abrams pointed towards changes to voter registration, efforts to pass stricter voter ID laws, and this redistricting chaos. B.A. Parker And so what I want us to think about is that these aren't isolated moments. These are connected and they are intending a long-term strategy to deny communities of color, to deny disabled communities, to deny marginalized communities the ability to actually Have a voice in our government. Gerrymandering is just the one we recognize because it's been happening so long. ([Time 0:06:00](https://share.snipd.com/snip/4b143d15-26d8-4526-8247-f47c88a85cb4)) - **Court Allows State Bans On Trans Girls** - SCOTUS allowed state bans on trans feminine athletes in K-12 public school sports, rejecting Title IX claims and siding 6-3 on Equal Protection. - Majority framed trans girls as males who could play boys' teams, erasing gender identity and leaving narrow factual inquiries unrequired. Transcript: B.A. Parker Bring us up to speed on that. Jess Kung Yeah, so top line, SCOTUS ruled that states are allowed to ban trans feminine athletes from participating in women's and girls sports in public schools. There were two combined cases of trans athletes fighting their state bans here, challenging based on anti-discrimination laws. So that's Title IX and the Equal Protection Clause. What was the breakdown? The court was unanimous that this particular Title IX argument failed. And then on the Equal Protection front, that was 6-3. The three liberal justices said that based on the Equal Protection Clause, states should have looked deeper into the specific facts of these girls' participation. Speaker 4 I think what strikes me about this ruling, especially on an emotional level, is the way in which it relies on transphobic tropes in order to make the ruling that it made. Jess Kung Parker, you spoke to Amara Jones, founder of TransLash Media, ahead of the case. She shared her reaction after the ruling. Speaker 4 And it does so by erasing the reality and the experience of gender and gender identity for trans people. You know, it keeps referring to males who identify as females. That is something that is repeated over and over again. Jess Kung This struck me as well. Part of the majority argument here against discrimination against these girls is that these young trans women aren't excluded from participating in sports because they're allowed To join boys teams. B.A. Parker Wasn't that part of the arguments, though? Like the hormonal transition will actually affect how they show up in sports? Yeah. Jess Kung Okay. If it's okay, I'm going to read from a kind of long section from The Opinion authored by Justice Kavanaugh. Please. I think it's revealing. It's about one of the plaintiffs, Becky Pepper Jackson, named BPJ, and her argument that she's being effectively barred from both the girls' and boys' teams because of this ban. BPJ has taken puberty blockers and hormones, meaning that BPJ apparently will no longer be strong or fast enough to compete successfully against boys. Moreover, BPJ not want to compete against boys. Either way, it's an unhappy occasion whenever a student who wants to play school sports cannot do so. We appreciate the desire of every student, including BPJ, who wants to play school sports, and we recognize that student athletes are understandably disappointed and upset when They do not make a team or otherwise cannot participate. But the Title IX regulations guarantee equal athletic opportunity. The regulations cannot and do not guarantee every student a spot on the team's roster. B.A. Parker So he's just saying too bad? Jess Kung Yeah, even the liberal pushback was basically to be in compliance with equal protection, the states should actually be looking into if this category of trans girl who transition without Going through male puberty can compete fairly with cis girls rather than blanketing them as biological males. B.A. Parker And getting access to that care got a lot harder last year when the Supreme Court allowed state bans on minors getting access to gender-affirming care and puberty blockers. Right. Now, you can listen to our full episode with Amara Jones about the case. But to remind you all here, the number of athletes we're talking about is also really small. When the president of the NCAA was questioned by the Senate in 2024, he said out of around half a million college athletes right now, fewer than 10 were out as trans. Jess Kung And then, for what it's worth, the NCAA complied with the Trump executive order in 2025 and banned athletes assigned male at birth from participating in women's sports. But these rulings have all ultimately been pretty narrow, primarily affecting state laws. There's not necessarily sweeping precedent about trans people and equal protection yet. But it's part of the broader assault on trans existence. ([Time 0:08:41](https://share.snipd.com/snip/7fa4cabb-cdae-4544-8424-00ce9b2e4407)) - **Small Numbers, Big Legal Ripple** - The number of trans athletes affected is extremely small, but the ruling may set legal groundwork for broader exclusions. - NCAA reported fewer than 10 out trans college athletes, yet policy cascades (like the 2025 NCAA compliance) amplified impact. Transcript: B.A. Parker But to remind you all here, the number of athletes we're talking about is also really small. When the president of the NCAA was questioned by the Senate in 2024, he said out of around half a million college athletes right now, fewer than 10 were out as trans. Jess Kung And then, for what it's worth, the NCAA complied with the Trump executive order in 2025 and banned athletes assigned male at birth from participating in women's sports. But these rulings have all ultimately been pretty narrow, primarily affecting state laws. There's not necessarily sweeping precedent about trans people and equal protection yet. But it's part of the broader assault on trans existence. And Imara says this ruling on ([Time 0:12:09](https://share.snipd.com/snip/3d25f7be-8812-4b9c-b471-f467039ccd52)) - **Birthright Upheld But Not Unquestioned** - SCOTUS upheld birthright citizenship against Trump's executive order in a 6-3 ruling but opinions reveal fractures about methods. - Justice Kavanaugh said denial via executive order was invalid yet suggested Congress could change citizenship, signaling future vulnerability. Transcript: Jess Kung Last case we watched closely right ahead of decisions was about birthright citizenship. Right. B.A. Parker This was about President Trump's executive order to withhold citizenship from people who were born to parents who had temporary or undocumented status in the U.S. The Supreme Court ruled it unconstitutional. Jess Kung Right. And the decision was, like, jarringly close. B.A. Parker Right? Like, I definitely would have expected a more unanimous call for a right that was written into the Constitution. Jess Kung Yeah. So the court ruled 6-3 to uphold birthright citizenship. But some people are kind of counting it as 5-4 because four justices say that the executive order is ultimately constitutional. Justice Kavanaugh took this half-and stance that the premise of denying citizenship like this doesn't violate the 14th Amendment, but it's like a technical foul to enact it through Executive order. But if it went through Congress, it'd be fine. Okay, then. And I'll just say, this set of opinions is notably long. The other cases we're talking about, the packets are like 50, 70, 90 pages. That's like everyone's opinions and dissents and concurrences. B.A. Parker Well, how long is this? Jess Kung 194 pages. And 91 of those pages is all Clarence Thomas's opinion. ([Time 0:13:35](https://share.snipd.com/snip/a3822b42-7c8f-4c1f-b9a5-9d16f36cf65b)) - **Historical Debate Over Birthright Citizenship** - The opinions traced the 14th Amendment history from Dred Scott to Wang Kim Ark to show why soil-based citizenship matters. - Justice Jackson used historians to argue Black leaders envisioned expansive birthright citizenship including everyone born here. Transcript: Jess Kung Most of them lay out the history of the 14th Amendment, all the way back to Dred Scott in 1857, which we can also lay out that history quickly. B.A. Parker Yeah, the Dred Scott case ruled that enslaved people and their descendants were not citizens. Now, it's widely considered the Supreme Court's worst decision and was a step towards the Civil War. Jess Kung And it made that claim of non-citizenship by saying that blood, not soil, determines citizenship. Basically, being born into slavery to the descendants of Africans makes you not of the U.S. B.A. Parker But that made it a huge point of correction during Reconstruction after the Civil War and led to the 14th Amendment in 1868. Jess Kung The justices in these opinions spend a lot of time with the first line of the 14th Amendment, which establishes birthright citizenship. This is soil, not blood. All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United Court ruled that people born in the U.S. B.A. Parker To parents from other countries are U.S. Citizens. Jess Kung Yeah, that's the case about Wang Kim Ark, a man born in San Francisco to Chinese parents who were prevented from becoming U.S. Citizens under the Chinese Exclusion Act. Granting him his citizenship allowed for more than a century of this precedent for U.S. Birthright. B.A. Parker So now four justices are poking at the 14th Amendment again. Jess Kung Jean recently interviewed Daisy Hernandez, the writer, editor, and author of Citizenship Notes on an American Myth, about what's at stake when birthright is threatened. After the decision came down, she saw that between Justices Jackson and Thomas, you can see two very different interpretations of the 14th Amendment and its promises of citizenship. Ximena Bustillo Justice Thomas is saying Black Americans wanted citizenship for themselves. They were not thinking about immigrants. And Justice Jackson is drawing from the work of historians to say Black Americans had a very expansive vision of birthright citizenship. ([Time 0:15:09](https://share.snipd.com/snip/fb998ea9-a9ce-4db2-9a96-717a634dac53)) - **Court Sidesteps TPS Review** - SCOTUS limited its role in TPS disputes, ruling it lacks jurisdiction to second-guess DHS's country-by-country TPS designations. - That 6-3 outcome affects terminations for Haitians, Syrians and weakens legal challenges for other terminated TPS groups. Transcript: Ximena Bustillo Hey, Jimena. Hey. All right. There were other immigration related decisions within the Supreme Court this term. And I wonder if you could break those down for us. Virtually non-existent. But this was litigation essentially resurfaced by the Trump administration over their ability to enact a policy. And the way that this one works is, you know, if someone comes to a port of entry at the southern border, they're standing on Mexican land before they enter and cross the physical border. And so this gives border patrol agents more power to turn people away should that policy be in place. But asylum was already really limited. So out of all the decisions, this one has the least immediate impact. But there was a second case on temporary protected status, and that was particularly related to Haitian and Syrians. This has broader implications because the Supreme Court in another 6-3 decision said that they basically don't have jurisdiction over deciding whether or not a country is granted Temporary protected status or not. And so although this case was particularly about the termination of TPS status for Haitians and Syrians, it does broadly impact the terminations of about nine other countries that The Trump administration has moved forward with. ([Time 0:18:13](https://share.snipd.com/snip/e9533afd-102d-413a-869d-bc6ea50e264d)) - **What TPS Means And Who Loses It** - TPS is a countrywide DHS designation protecting nationals from return when their home country is unsafe and grants work permits. - Terminations strip work authorization and legal status, affecting over 1 million people and risking mass departures the administration expects. Transcript: B.A. Parker What does that mean? Ximena Bustillo Yeah. So TPS is kind of like a label or a designation that the Secretary of Homeland Security will assign to a country. And it is assigned to that entire country. So different from asylum where, you know, someone might have an individual claim of persecution or reason to be fleeing. So this is more like an entire country label. And essentially, that signifies that that country is not safe to return to. War, political instability, just a slew of different reasons why a secretary might say it's just not safe to have people go back. Now, this has been a program since around 1990, and the DHS secretary can assign TPS from 6 to 18 months. And there are cases where this gets renewed and renewed and renewed spanning years. So El Salvador, for example, has had TPS specifically since about 2001, and it's just been renewed and renewed and renewed. TPS designation that was set to expire, they just terminated it. And that ultimately affected an estimated over 1 million people that, let's say two years ago in 2024, did have work permits, did have legal status. Over the course of last year, they lost that. ([Time 0:19:54](https://share.snipd.com/snip/93e606a2-9ddb-455b-a6bd-14959d8e79a5)) - **Millions At Risk From TPS Cuts** - Nearly 2 million people could be affected by TPS terminations across countries, including already-impacted over 1 million and ~270,000 in upcoming expirations. - Effects ripple to families, employers, and communities beyond the direct TPS holders. Transcript: Ximena Bustillo So there are, you know, about nine other countries that had a terminated TPS last year that are in various stages of litigation. And immigration attorneys that are fighting these cases tell me that, you know, a lot of the legal basis for those lawsuits might just be weaker now. And so they might not stand as strong in court after this decision. But we also know that there are four countries that have a current not expired TPS, El Salvador, Sudan, Ukraine, and Lebanon. And they are set to expire in the fall of this year. And so it is possible that the administration could move forward with these terminations. And by the end of the year, no one technically has a TPS. So ([Time 0:21:32](https://share.snipd.com/snip/c6472bdc-92c4-4769-8464-6b4b57f435bd)) - **Asylum Pathways Are Severely Narrowed** - Asylum access was already narrowed before SCOTUS moves: app systems closed and policies pushed people to ports of entry, making claims scarce. - The Trump administration shut the CBP appointment app early in its term, further limiting ways to request credible fear screenings. Transcript: Ximena Bustillo So towards the end of the Biden administration, there were already new policies that basically required that people come to a legal port of entry to claim asylum. And there was an app formerly known as CBP-1 that was the way people could set up an appointment to fill out an application to request asylum to get what was called a credible fear assessment In order to kind of like weigh whether their fear persecution was real or not. And then, you know, we saw during that very first few hours of the Trump administration that that app got shut down. So for the last year and a half, there have been very, very, very limited ways to claim asylum. Once you're in the country, can only really claim asylum within a year of being here. So there were already, there was already a very significant narrowed scope of how to even request asylum and who could even ask for it. ([Time 0:23:23](https://share.snipd.com/snip/941d6d1e-2d63-47f7-bb40-4b873ce1ed4b)) - **Rulings Fit A Broader Restriction Strategy** - The suite of rulings aligns with a broader policy goal to reduce immigration flows, legal and illegal, and are hailed by DHS as border tools. - Court outcomes feed administrative strategies aimed at shrinking refugee, TPS, and asylum pathways. Transcript: Ximena Bustillo This is all a part of a broader effort to reduce the levels of immigration, legal and illegal, into the country. And we really saw that in the reaction to the asylum and the TPS decision from the court. There were officials at DHS that celebrated this, literally calling it additional tools to protect the U.S. Borders. ([Time 0:26:57](https://share.snipd.com/snip/d6b89e0c-30b0-4698-b7fc-07fa1d3b984d)) - **Economic Need Keeps Some Visa Flows Open** - Despite restrictions, the administration preserves selective immigration channels like labor visas and tailored refugee slots for perceived assimilability. - Agricultural and tech visas continue to be in high demand, revealing economic motives driving some immigration policy choices. Transcript: Ximena Bustillo There are a few areas. So when you think about the refugee program, that has been significantly reduced. So we're accepting less refugees than we have before, But an overwhelming number of those slots are particularly going to Afrikaners, which is white South Africans. And, you know, the State Department and DHS have been very clear that they really want to bring in people who can, quote unquote, assimilate easier into the United States. So that's one example. Another example that I've been tracking closely is different forms of labor visas. So when you're thinking about agricultural visas or tech visas, a lot of those are continuing to function nearly as normal. If not, they continue to be in really high demand, particularly agricultural visas continue to increase in their demand through fiscal year 2025. And so that just goes to show that there are some economic-based reasons to continue the flow of migration, even if, you know, the intent of these visas isn't that people will stay forever. But there is an acknowledgement that there is a supply chain need, that there is a labor need for additional people to come into the country. ([Time 0:27:35](https://share.snipd.com/snip/1130a0c7-187a-4dcd-afb5-acefee70bbf8)) - **Mandatory Detention Case Could Expand Detentions** - Upcoming SCOTUS cases could decide on mandatory detention for people who entered illegally, potentially expanding long-term detention for many. - Over 2,000 people have been detained longer than a year under detention policies already, signaling high stakes for the court's review. Transcript: Ximena Bustillo Yeah, we already know about a handful of immigration-related cases that the Supreme Court is slated to review next. And one that really sticks out to me involves the administration's mandatory detention policy. This is something that has been challenged over and over again in different courts that essentially says anyone who entered the country illegally is subject to be detained. No matter how long they've been here, what their status or their claims are, who they are, how old they are, they need to be in detention while their cases play out in immigration court Or other courts. And so we have seen this mandatory detention policy have some pretty significant effects on people. We've seen more people be placed in detention. Over 2,000 people have been in detention for longer than a year. ([Time 0:29:01](https://share.snipd.com/snip/cec95c91-a705-4c7d-ad20-5fd55d31cc4d))