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Intelligence Briefing: SCOTUS Special Edition

Intelligence Briefing Intelligence Squared

The Supreme Court just wrapped up a historic term. In this week’s special edition of the Intelligence Briefing, we bring you the debates behind the most consequential rulings this year. From LGBT rights at work to Trump’s tax returns, here’s what you need to know.



In two separate cases, Trump challenged subpoenas for his personal financial records – one from a New York grand jury and one from Congress. While the court rejected the president’s claim of “absolute” immunity from such requests, it did not immediately pave the way for either New York prosecutors or Congress to get the information they want. Is this a win for the president?


For The Decision:The Supreme Court deals a blow to Trump’s delusions of untrammeled power

“The president stands as every other citizen does — not above the law, but fully within its reach and the beneficiary of its protections. This is as strong a statement as ‘the president is not above the law’ as one could hope for.”- Jennifer Rubin* | The Washington Post

Against the Decision:The Supreme Court lets Trump run out the clock. “Rather than uphold the validity of the subpoenas, as the lower federal courts had done, the Supreme Court sent both cases back to the lower courts, giving Mr. Trump another chance to delay and come up with more arguments about why the American people should be kept in the dark.”- Editorial Board | The New York Times

Read Chief Justice John Robert’s majority opinion in Trump v. Vance and Trump v. Mazars.



Heralded as a landmark achievement for LGBT rights by some and condemned as a judicial overreach by others, Bostock v. Clayton County was one of the most talked-about decisions this term. The court held that, when it comes to federal employment protections, discrimination on the basis of “sex” includes sexual orientation and gender identity, not only biological sex. Did the court read the law correctly?


For The Decision:Harry Potter and the Scales of Justice

“Does it not occur to these people that trans people are who they are, in part, as a function of biology? Or that there is by now a broad understanding that gender is complex, shaped by a wide range of factors in addition to chromosomes? I suspect not; science has never been the chief concern of social conservatives.” – Jennifer Finney Boylan | The New York Times

Against the Decision:The Supreme Court’s Mistaken and Misguided Sex Discrimination Ruling “The logic of Gorsuch’s opinion, such as it is, makes no sense once you get beyond “trans” gender and consider contemporary gender theory. Perhaps that is why he used the term “transgender status” rather than “gender identity.” But it is wishful thinking if he thinks this will be a limiting principle going forward.” Not “rather than uphold…” – Ryan T. Anderson | Public Discourse

Read Justice Neil Gorsuch’s majority opinion in Bostock v. Clayton County.



In a surprise to many, Chief Justice Roberts joined the court’s more liberal justices in striking down a Louisiana law that would require doctors who perform abortions to have admitting privileges at a nearby hospital. Back in 2016, he voted against striking down a similar law from Texas. The chief’s reason? Legal precedent. What does this case mean for the future of abortion rights at the Supreme Court?


For The Decision: No one has the right to tell you what to do with your body — including the State of Louisiana

“Like all modern abortion restrictions, the law that was challenged had nothing to do with the safety of women, and everything to do with making abortion access inaccessible and burdensome, particularly for poor women and women of color.” – Mandie Landry | The Advocate

Against the Decision:Supreme Court swing vote – What’s behind John Roberts’ legal gymnastics? “It is the court’s job to uphold the Constitution, not its old cases. If its precedents conflict with the Constitution, it must reverse them, just as it refuses to enforce executive orders or statutes that violate the Constitution.” – John Yoo* | Fox News

Read Justice Stephen Breyer’s plurality opinion in June Medical Services v. Russo.



Honoring a historic land treaty between the U.S. and Muscogee (Creek) Nation, the court ruled that nearly half of Oklahoma – including much of Tulsa – is Native American land. This decision has sweeping consequences for the local justice system as state authorities will no longer have jurisdiction over criminal cases involving Native Americans there. What does this mean for Native American tribes more broadly? And should we see this as a win for indigenous rights?


For The Decision:The McGirt Case Is a Historic Win for Tribes

“In the long Indigenous struggle for justice, McGirt v. Oklahoma might be one of the most important Supreme Court cases of all time.” -Julian Brave NoiseCat | The Atlantic

Against the Decision:Native American Sovereignty Is No Liberal Triumph “The Creek have the authority to prosecute crimes in their territory, but under federal law they are constrained in the punishment they can dole out (generally no more than a few years in prison)”- M. Todd Henderson | Wall Street Journal

Read Justice Gorsuch’s majority opinion in McGirt v. Oklahoma.



Chief Justice Roberts has long triumphed the judiciary as both wholly independent and nonpartisan. But has the Supreme Court really been able to live up to this promise? Can we trust that the highest court in the land is really above the political fray?

The Roberts Court Is Nothing Like America

“Fortunately, there is no aisle on the Supreme Court bench, literally or figuratively. True, most justices most of the time vote in line with their partisan affiliation. But their partisan affiliations do not invariably result in partisan decisions.”- Akhil Reed Amar* | The New York Times

Is John Roberts trying to save the Supreme Court from Democratic packing? “Roberts might think his middle-of-the-road position will preserve the court’s independence. But the old saying of Texas progressive politician Jim Hightower may yet prove true: ‘There’s nothing in the middle of the road except yellow stripes and dead armadillos.’” – Henry Olsen | The Washington Post

How do you think SCOTUS performed this term? Tell us what you think of the arguments and opinions on twitter @opentodebate #SCOTUS2020 * Denotes former Open to Debate debaters.

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