Birthright Citizenship Oral Arguments

Summary

Advisory Opinions Podcast
Episode Title: Birthright Citizenship Oral Arguments
Date: April 1, 2026
Hosts: Sarah Isgur & David French (The Dispatch)
Special Guests: Professor Amanda Tyler (Stanford), Professor Akhil Reed Amar (Yale), Amy Howe (SCOTUS Blog)

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Episode Overview

This live episode dives deep into the U.S. Supreme Court’s oral arguments in Trump v. Barbara—the landmark case challenging the Trump administration’s executive order revoking birthright citizenship for children born in the U.S. to non-citizen parents. The hosts and their guests analyze the justices’ questioning, discuss historical and constitutional context, and offer predictions about the likely outcome and its broader legal and political implications.

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Key Discussion Points and Insights

1. Changing Court Dynamics and Predictions

• Initial Expectations: Prior to oral arguments, most court-watchers, including the hosts, believed the administration faced a nearly insurmountable challenge, with speculation centered on whether the ruling would be 8-1 or 9-0 against the executive order.
• After the Argument: The balance felt less lopsided. Justice Alito’s vocal participation created the sense that there was greater Court sympathy for the government’s position, but careful analysis suggested the administration still faced a near-certain defeat.
• Quote:
  “If you really squint, you know, a Justice Gorsuch might be a little more sympathetic to the administration's opinion position than I thought, but it's still very hard for me to count even above 2 right now for the administration's opinion or administration's position.” —David French ([03:52])

2. The Scope and Consequence of the Executive Order

• Synopsis: The order would deny automatic citizenship unless at least one parent was a U.S. citizen or green card holder, fundamentally reversing long-standing practice.
• Layered Hurdles:
  • (1) 14th Amendment’s Text: "...all persons born in the United States and subject to the jurisdiction thereof are citizens..."—meaning and historical context hotly debated.
  • (2) Congressional Statute (1952): Congress used the same language as the Amendment decades later, reaffirming birthright citizenship.
  • (3) Method of Change: Trump’s use of an executive order, not an act of Congress, is highlighted as a key legal vulnerability.
• Quote:
  “They have to bat a thousand here.... If [Congress] didn’t like what the Supreme Court had said in Kim Wong Ark...it could have changed it in 1952, and it used the exact same language.” —Sarah Isgur ([04:22])

3. Historical Precedent and Retroactivity

• Professor Tyler’s Amicus Brief:
  • Tyler recounts the WWII-era case Regan v. King, where attempts to strip citizenship from Japanese Americans were “literally laughed out of court.” Even judges hostile to Japanese Americans rejected arguments analogous to those now before the Court.
  • Ramifications of Retroactivity: Questions about whether citizenship could be stripped retroactively highlight the impracticality and harshness of the administration's position.
• Quote:
  “They filed a lawsuit seeking to strip the citizenship of the native born Japanese Americans...the 9th Circuit judges...said, we don't even need to hear from the other side. This is absurd. We are going to uphold birthright citizenship here.” —Amanda Tyler ([08:28])

4. Dual Allegiance and “Jurisdiction”

• Justice Alito’s Hypotheticals: Raised concerns about dual citizenship (ex: Iranian-born to Iranian father on a visa) and questioned whether "subject to the jurisdiction thereof" should allow for dual allegiances.
• Rebuttal: Historical and real-world examples exist of children born in the U.S. with citizenship ties to other nations, yet no serious legal challenge or legislative change ever resulted from these circumstances.
• Quote:
  “Those same arguments would apply to Italian born children...and Japanese American children born to Japanese immigrants during World War II.” —Amanda Tyler ([13:46])

5. Inside the Courtroom: The President’s Presence

• Unique Occurrence: President Trump attended the argument, an exceedingly rare event for a sitting president, prompting heightened security and subtle shifts in courtroom dynamics.
• Observations: Amy Howe (SCOTUS Blog) reports most justices maintained their usual demeanor. Solicitor General Sauer was “more animated than usual.”
• Quote:
  “He did seem more animated than usual… There was a little bit more sort of verve going on there from John Sauer than I'm used to saying.” —Amy Howe ([19:09])

6. Judicial Temperament, Body Language & Questioning

• Engagement: All justices, especially Alito, were deeply engaged. Justice Jackson notably struggled to interject due to her junior status.
• Technical Focus: Justice Barrett’s detailed, technical questions suggested she was probing the practical implementation and possible chaos of the government’s position.
• Quote:
  “[Barrett’s] questions came from the civil procedure background...If we were to go down that route under the 14th Amendment in determining citizenship, it really would be chaos.” —Amanda Tyler ([38:22])

7. Statutory vs. Constitutional Rulings: Possible “Off Ramp”

• Little Attention to Statute: Despite speculation that the Court could rule on statutory grounds and avoid the constitutional question, there was little oral argument on the interplay between the 14th Amendment and the statute—suggesting most justices see the EO as unenforceable on both grounds.
• Quote:
  “If you're going to rule against the challengers...you have to rule against them on both grounds...the fact that they weren't talking a lot about the statute means...everyone concedes that the statute is knocked down.” —Akhil Amar ([29:12])

8. The Role of Judicial Methodology: Textualism, Originalism, and Strategic Advocacy

• Unexpected Advocacy: The administration’s SG advanced what sounded like a “living constitutionalist” position, while the ACLU lawyer emphasized “original public meaning.”
• Horseshoe Effect: Liberals and conservatives switching methodological stances in pursuit of preferred outcomes.
• Challenges for Less-Experienced Advocates: The ACLU’s arguments were less fluent in “conservative legalese” (originalism/textualism), underscoring the dominance of these frames in today’s Court.
• Quote:
  "The lawyer for the ACLU says, no, we need to go with original public meaning. And that might have been the most effective part of her entire argument..." —David French ([52:31])
• Quote:
  “Who’s your daddy?” —Justice Gorsuch’s line about the statute’s omission of the words “mother” and “father,” highlighting textualism concerns ([32:23])

9. Standout Moments & Memorable Quotes

A. John Roberts’s Retort:

• Solicitor General Sauer: “We're in a new world where 8 billion people are one plane ride away from having a child who's a US Citizen.”
• Chief Justice Roberts: “It’s a new world. It’s the same Constitution.” ([53:19])

B. Historical Reflection:

• Wong Kim Ark and Justice Harlan’s legacy invoked as a “North Star” for the justices, even though Harlan dissented in the case—he later recognized in public statements that the majority view of absolute birthright citizenship was correct.
• Quote:
  "He himself did acknowledge that the correct interpretation of Wong Kim Ark is the one that the ACLU and the challengers adopt." —Amanda Tyler ([42:03])

C. Political Independence:

• Trump’s public attacks on the Court may actually underscore its independence, though such rhetoric is damaging to the institution more broadly.
• Quote:
  “If the government, excuse me, if the court is handing down decisions that invoke the ire of the President, it certainly lends score credence to the notion that the court is an independent institution, which of course was the very vision of the framers.” —Amanda Tyler ([60:54])

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Timestamps for Notable Segments

• 01:04 — Big picture impressions post-oral argument (Isgur, French, Tyler)
• 04:22 — The legal structure and challenge facing the administration
• 08:28 — Professor Tyler’s WWII precedent: Regan v. King
• 12:35 — Dual citizenship hypotheticals and “jurisdiction thereof”
• 17:20 — Amy Howe’s inside look at the oral argument—with President Trump present
• 20:18 — Justice body language and dynamics in the courtroom
• 22:28 — Professor Amar’s analysis: textualist arguments, statutory “off-ramp” discussion
• 32:23 — “Who’s your daddy?”—Textualism on statutory language re: parentage
• 36:08 — What happens after oral argument? Clerk process, opinion assignment, Chief’s likely role
• 38:22 — Justice Barrett’s domicile hypotheticals: practical fallout of the government’s argument
• 44:08 — The “horseshoe effect” and shifting legal interpretive camps
• 49:50 — Justice Barrett, Chief Justice Roberts, and Justice Kavanaugh: swing votes assessed
• 53:19 — John Roberts’s defining quote: “It’s a new world. It’s the same Constitution.”
• 58:03 — “Jurisdiction,” Iran hypotheticals, and real-world application
• 60:54 — Political attacks on the Court: independence vs. institutional cost

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Expert Predictions & Closing Thoughts

• Case Outcome:
  Likely a strong majority to strike down the executive order, possibly with concurring opinions that differ on reasoning (statutory vs. constitutional grounds).

  • Possible breakdown: 8-1, 9-0, “with a bunch of concurrences.”
  • The Court likely forecloses future attempts to undo birthright citizenship via executive order.

• Judicial Legitimacy:
  Both hosts and guests suggest ruling against such a signature Trump policy would further disprove accusations that the Supreme Court is a mere instrument of Trumpism.

• Advocacy & Court Process:
  Oral argument highlighted both the enormous pressure on advocates in high-profile cases and the centrality of originalist/textualist framing in the current Supreme Court.

• Constitutional Takeaway:
  The repeated theme: “It’s a new world. It’s the same Constitution.” The majority of justices seem poised to affirm that significant constitutional change must come via the amendment process, not by executive order.

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Select Quotes Recap

• David French (on body language and oral argument):
  “It was 95%, just the pure constitutional question...95% of the time they talked about the big constitutional picture...the absence of that wrestling, to me, is an indicator that. . . even the justices who might think that there’s a constitutional argument . . . really don't see this EO as being an enforceable document at all.” ([34:09])

• Sarah Isgur (on the weight of precedent):
  “What role does [Harlan] play in this? ...Nobody wants to be Tawney. Everyone wants to be Harlan.” ([39:37])

• Amy Howe (on the justices’ independence):
  “If America could see this branch of government, I think they'd generally be proud compared to that one...the least dysfunctional.” ([27:54])

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This episode offers a comprehensive, nuanced review of Supreme Court oral arguments in one of the most consequential constitutional cases of the era. The guests’ historical expertise, the hosts’ sharp analysis, and unique courtroom reportage by Amy Howe provide a rich, accessible resource for understanding the legal, historical, and political stakes of the birthright citizenship case.

Transcript

[Sarah Isger]

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[Professor Amanda Tyler]

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[Amy Howe]

Ready?

[Professor Akhil Reed Amar]

I was born ready.

[Sarah Isger]

Hello, and welcome to the live advisory opinions podcast after the Trump vs Barbara birthright citizenship argument. I'm Sarah Isger, that's David French. And we will have special guests throughout this podcast, starting with Professor Amanda Tyler. Now, Professor, I want to get to everything. You have filed an amicus brief in this case. You had a wonderful piece in the Atlantic. But first, let's do big picture. Now that we have listened to the oral argument, David, we both went into this thinking that the administration had a tough road to hoe, to put it mildly. When you talk to law professors or advocates, you know, extreme court watchers, the big debate was whether it would be 8, 1 or 9, 0 against the administration. This argument was not. Did not feel as lopsided as all of that. I'm curious if it's changed your opinion on the outcome or maybe the vote or maybe neither. And it just. That's how oral arguments go. They're always a little bit more fair, even handed, tough questions for both sides than, you know, what you sort of feel from vibes in the briefs.

[David French]

Yeah, there were a couple of things about the. The argument that really stood out to me. And I think one of the reasons why the vibes might feel different than sort of the incoming commentary was how much time Justice Alito spent talking in this opinion. I mean, in this argument. And he spent a lot of time talking. And Justice Alito was, in my mind, obviously the most sympathetic to the administration of the nine justices. And so if you have the one who's most sympathetic doing much, if not most of the talking, it's going to create sort of an. An impression. But I think the really most telling moment. There's a fascinating moment here, Sarah, something I never thought I would hear, see whatever in my life. And it was when the Solicitor General for the Republican administration, when asked a question about, okay, under your reading, would the children of Native Americans be citizens, said yes under kind of what was clearly a sort of living constitutionalism interpretation. And then when the same question is submitted to the advocate on the other side, who is the chief counsel, I believe, for the aclu, and she says, no, we have to go with the original public meaning here. And I felt like I was in a bizarro world, but I think that that was exactly the right answer that she gave. And I think that as I'm looking at it, my overall impression is still 8:1 to 7:2. But I think the vibe shift was that the 1 or 2 spent a lot of time speaking in the oral argument, whereas I got the impression it was very hard to count. I mean, if you strain, if you really squint, you know, a Justice Gorsuch might be a little more sympathetic to the administration's opinion position than I thought, but it's still very hard for me to count even above 2 right now for the administration's opinion or administration's position.

[Sarah Isger]

Okay, so this entire case is about the President's executive order that he signed on the first day in office. That would change how we have been assigning citizenship at birth. Instead of like, oh, hey, you're here, you are born a US Citizen, it would look at the citizenship of the parents, and unless your parents are US Citizens, one of your parents or, or permanent residence, you would not automatically get US Citizenship. So anything except US Citizen or green card holders would not have automatic citizenship. Professor, when we had talked about this case beforehand, we had sort of said there were multiple different ways for the administration to lose this case. They sort of had to bat a thousand here. One, you have the meaning of the 14th amendment. When it's ratified in 1868, all persons born in the United States and subject to the jurisdiction thereof are citizens. So what does that subject to the jurisdiction thereof mean? They have to win that second. Congress then puts this into statute in 1952. They have to win that statute. It's the exact same language, but now we're decades later where there's been birthright citizenship the whole time. So Congress is sort of, if it didn't like what the Supreme Court had said In Kim Wong arc, if it didn't like what the application of the 14th amendment had been up to that point, it could have changed it in 1952, and it used the exact same language. And then the third bucket is the President did this by executive Order only. Right. He didn't do it by statute, which would be for me a more interesting question. And as David and I talked in the last episode, he also didn't just do sort of what I think would have been the easiest facts. If you are here on a tourist visa for under six months and you have a child, that child is not a US Citizen. Instead, they tried to, you know, take the absolutist position instead of having these incremental wins. All right, given all of that, will you talk about your amicus brief in this case and then your impressions of

[David French]

the oral argument, which was awesome, by the way. It was an amazing amicus brief. Just want to say that.

[Professor Amanda Tyler]

Thank you, David. That's very nice. I want to add one more point to your uphill battle list of reasons why the administration had such a difficult argument here. And it's the fact that the executive order is prospective. And the administration, when represented by the Solicitor General in the court, was asked about that. And, and the Solicitor General said, yes, it is only prospective. We're only asking for a prospective ruling. And now I'm forgetting which justice I think it might have been, Sotomayor or Kagan, was asking about this, said, well, what if the next administration comes up and says, no, actually, we're going to make it retroactive, then we're going to have to strip the citizenship from hundreds of thousands, if not millions of people under your interpretation. And the Solicitor General really didn't have a response to that.

[Sarah Isger]

So we would have to go back to 1868, figure out everyone's citizenship, then, then do lineages for everyone in the United States. So, for instance, I'm not sure if I'm a US Citizen because my grandparents both came from Ireland and they never became citizens. And I don't know when my mother was number 10. So maybe by that point one of them had a green card. I don't know. David Latt, we know, would not be a US Citizen. His parents were both here on work visas as doctors in the United States when he was born. So, like. But we're going to have to go back to grandparentage. And then what status would I have? Just none. David Latt and I are like, little. I don't know what are we as a.

[David French]

As a person who could be a member of the Mayflower Society if I so chose? That all sounds like a you problem, Sarah.

[Professor Akhil Reed Amar]

That

[Sarah Isger]

rude.

[Professor Amanda Tyler]

Wow.

[Amy Howe]

Well,

[Professor Amanda Tyler]

you know, I, I think what is so interesting about that point and the reason why I, I do want to talk about my brief and I'M delighted to have the opportunity to do so. But I, I did want to make this point at the outset is because one, the ramifications of retroactive application of the government's rule would be dramatic, to say it mildly. And two, it is remarkable to me that a Republican administration is asking for a rule to be prospective only with respect to the Constitution, given that for decades conservatives have railed on the Warren Court for its prospective constitutional rulings in criminal procedure cases like Miranda. So it just, it's another example, you know, to add to David's of, of the court question about the Native American citizenship issue, where we see sort of opposites in terms of the approach. I have been working on a book about The World War II mass incarceration of Japanese Americans and specifically a book about the principal figure behind Ex Parte Endo, the woman, Mitsuye Endo Tsutsumi, who I think is an American hero of the stature of Rosa Parks and who has really been ignored. So that's the project I've been working on. And in the process of my research, I learned about a case called Regan vs King that was filed by the Native Sons of the golden west during World War II, right as General DeWitt was rolling out the implementation of Executive Order 9066 that led to the mass incarceration of Japanese Americans on the West Coast. Over 100,000 Japanese Americans, including some 70,000 natural born citizens, were incarcerated in camps by the government. And the Native Sons weren't happy with that. They wanted to go further. They filed a lawsuit seeking to strip the citizenship of the native born Japanese Americans. And they filed it right as General DeWitt was rolling out his orders. And what was fascinating to me about the case is that they made many arguments that were analogous to the arguments the government is making today, including going after this theory of dual allegiance. The argument was that Japanese Americans born here, especially those who were born before 1924, were automatically treated as citizens of Japan, of the Empire of Japan, because their parents were Japanese citizens, citizens. And so Japan obviously followed the rule of blood citizenship. And the argument the Native sons made was for that reason they are effectively still Japanese and should not enjoy the privileges of birthright citizenship. Now this argument was made by the Native Sons to the same judges, both at the district and the appellate level, who presided over Fred Korematsu's criminal prosecution and convicted him at the district court level, sentenced him to, you know, sentence, and, and then the Ninth Circuit confirmed, affirmed, excuse me, his criminal conviction. So these are not judges who were necessarily amenable to arguments, civil rights arguments made by Japanese Americans during World War II. And yet the argument in the Reagan case to strip Japanese Americans of birthright citizenship was literally laughed out of court in the 9th Circuit. The 9th Circuit judges sitting in bank heard the argument and then said, we don't even need to hear from the other side. This is absurd. We are going to uphold birthright citizenship here. And then the Supreme Court didn't take the case. A lot of people don't know about this. I didn't know about it until I was researching for my book. So I wanted to file a brief highlighting that this is not the first time these issues and these arguments have been before the court.

[Sarah Isger]

Justice Alito talked a lot about this dual allegiance problem. The example he gave was an Iranian citizen is here in the United States, an Iranian father, you know, on a work visa or student visa or something else. He has a son who was born here. And that son, because Iran follows blood citizenship, would be a citizen of Iran with a military allegiance to the country of Iran that we are at war with at the same time that we follow birthright citizenship. And so he would also be a citizen of the United States. And so isn't it absurd to read the language of the 14th Amendment, the subject to the jurisdiction thereof language in a way that would allow for that outcome? There was pushback on like, you know, from the Chief. Look, the, there may be bad policy, but the policy implications don't matter. And I think what Justice Alito and Solicitor General Sauer were saying is yes, but it's a way of reading the text in context. Congress wouldn't pass an absurd statute. And I'm curious what you think about those arguments, Professor.

[Professor Amanda Tyler]

Well, I mean those same arguments would apply to Italian born children, to Italian immigrants to during World War II and Japanese American children born to Japanese immigrants during World War II. And of course, well, maybe not. Of course, to all your listeners, Japanese immigrants could not naturalize until 1952 under federal law. So every child born to a Japanese immigrant during World War II on American soil would fall into that example. And the Italian tradition clear.

[Sarah Isger]

While their parents could not naturalize, every child born to them was a natural born US Citizen. And Congress did not change that. And no court challenged that understanding. And during Korematsu, sorry, I'm using Korematsu here to mean the detainment of Japanese Americans. Nobody said, oh, and obviously they're not children because look at that language in

[Professor Amanda Tyler]

the 14th Amendment to the contrary, the Supreme Court multiple times in multiple cases endo and Korematsu. At least I haven't gone back and looked at here by and Yasui on this. But in both Korematsu and Ex Parte Endo, the Supreme Court said and referred, including in the majority opinion by Justice Black in Korematsu, that these are citizens. And then you have a line in Justice Robert Jackson's famous Korematsu dissent which is not challenged in fact is agreed upon by the majority saying Fred Korematsu was born on American soil and that makes him an American citizen.

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[Amy Howe]

So the public information office really didn't confirm that Trump was going to be arriving, although it was he had tweeted or truthed last night that he wanted to attend. And late last night, it was on the President's public schedule. But it was one of those things where, you know, we didn't believe it until we actually saw it. When I arrived at the court today, there was a much heavier than usual security presence, including people who had big vests on that said Secret Service. So that seemed to be a little bit of a tip off. And right around 9:47, the president did arrive. He came in through one of the side doors to the courtroom, pretty much as far away from the press corps as you could be, which I'm sure was a total coincidence. He sat in the front row of the public section, sat down, and a couple of minutes later moved to a seat that was a little bit still in the first row, still in the side section, a little bit closer to the center, maybe for a better view. Not entirely clear. There wasn't any fanfare when he arrived. He just came in and sat down. And he stayed until about 1120. A couple of minutes after John Sauer, his Solicitor General, sat down, he that and Cecilia Wong, who represented the challengers in the case, was a few minutes into her argument, he stood up and left again without any fanfare. But, yes, it was a highly unusual day at the court in more ways than one.

[Sarah Isger]

It didn't seem to affect Solicitor General Sauer's argument style or any of the justices. We couldn't hear anything on the live audio. You know, there was no murmuring. We didn't hear him get up or move seats or leave. Did it feel any different in the room?

[Amy Howe]

I mean, I will say I've seen John Sauer argue several times now. And, you know, maybe it was just, this is something he feels very strongly about, maybe because his boss was in the room. He did seem more animated than usual. He was really, you know, not just sort of gesturing, but also kind of seemed sometimes like sort of bobbing and weaving with his body. There was a lot of body language going on, speaking incredibly quickly. Sometimes I had a hard time understanding what he was saying. So, you know, there was a little bit more sort of verve going on there from John Sauer than I'm used to saying. I know, causation, correlation, I don't know.

[Sarah Isger]

Give us your vibe check on the justices. For instance, Justice Alito, as David mentioned, talked a lot during the oral argument. We had several people in the live blog saying, boy, I wish we could see his body language. One person saying, channeling Amy Howe here. This is why we need cameras. I, of course, said that's absolutely incorrect. Terrible idea. We'll put that fight aside. That you and I have a. But what was the body language of the justices? Anything meaningful?

[Amy Howe]

We're all pretty engaged. You know, there were several times where somebody would start to speak and another justice would start to speak. And Justice Jackson in particular had a hard time getting a word in several times. But, you know, as the most junior justice, the protocol is that if two Justices start speaking at the same time, the junior justice is supposed to seed to the more senior justice who wants to speak. So she lost out on that battle several times. I mean, they were all engaged. The temperature actually was not particularly hot. It was definitely sort of more sort of medium. You know, Justice Alito had some tough questions, but he also had some questions for Cecilia Wong that, you know, seemed almost to be trying to help her out a little bit. So, you know, so I don't know whether you all have talked about predictions yet, but, you know, I think going into the argument, I had thought it would be likely to be 7 to 2 to strike down the order. With Thomas and Alito dissenting, that's still possible, but it also could be 8 to 1. I mean, Alito, I think, was kind of on the. Could be kind of on the bubble.

[David French]

Yeah.

[Amy Howe]

You know, the other difference in the vibe was that John Sauer, you know, got a pretty steady drip of questions from all of the Justices. And we spent quite a lot of time in his round robin questioning. Everybody pretty much had questions for John Sauer. Cecilia Wong, you know, had questions, but they gave her more of a chance to speak. There wasn't quite as much of a jockeying to ask her questions. And then there were fewer questions during the round robin questioning for sure, which

[Sarah Isger]

is usually a good indication of which side is having the tougher day. I know Professor Amar is there with you and that he filed an amicus brief as well. Let's have you guys talk for a few minutes.

[Amy Howe]

Terrific. Professor Amar, it is so great to have you here. And you were here in the courtroom as well. So I'd love to have you start by just giving us your sort of first 35,000 foot impressions of the oral argument.

[Professor Akhil Reed Amar]

And such an honor to be here. And thank you so much. I don't come to these very often. I think this is my third or fourth or fifth. And I agree with you that. So I think it went quite well for the ACLU team, for the challengers to the law. I agree with you that Justice Jackson at the beginning didn't quite get her points in. But at the very end, when she was the last one, she actually made some very important points about how even people who are here illegally, even here, appear here temporarily, owe a duty to obey American laws. They're subject to American jurisdiction, and their kids, because you can't equate the parents with the kids, if born on American soil, are permanently citizens and allegiance. So she made that point very well, more crisply, I think, than anyone else. So, you know, save the best for last. That was good. Several of the other justices, I thought, asked excellent questions that showed they really had followed the case very closely. I think if you follow the questions and the answers. Justice Kavanaugh asked some really great questions about the relationship between the Civil Rights act of 1866 and the 14th Amendment, which have different language. And if the language is different, while the 1866 act may not be quite so good for the challengers, but the language of the amendment is. And he hammered that point home, because that was a little bit iffy. Before he came in, he. In trial court parlance, he rehabilitated, you know, the witness. I'm looking at a great trial lawyer, actually. He's also here with me, Chris Duggan, who actually had many shout outs to his brilliant amicus brief, which is about framers of the 14th Amendment, talking about the children of gypsies, talking about the children of Chinese people in California, talking about the children of Irish folks. So Kavanaugh, I think, was really prepared. Justice Amy Coney Barrett asked exquisitely good and technical arguments about how to think about the law of the soil versus the law of the blood. And if it's about the law of the soil, these exceptions aren't really exceptions. They're just places where the soil runs out. Because the American soil and the American flag really don't govern occupying areas. If there's a military occupation or foreign embassies or certain Native American enclaves that were territorially based. She was outstanding. Justice Gorsuch actually said, well, you know, and several others said, it doesn't really say parents, which was a point that

[Amy Howe]

you made in your amicus print.

[Professor Akhil Reed Amar]

Oh, thank you for noticing, Amy. I couldn't say it, but you can. Okay, modesty forbids. But I think if you're an original public meaning guy, a textualist, an originalist, like, why wouldn't you start with the words not just what they say, but what they don't say? Parent, mother, father, allegiance, domicile. They don't say any of those things. So Justice Gorsuch was on it. Justice Barrett was on it. Justice Jackson was on it. Justice Kavanaugh was on it. That's on one side. I thought my friend Elena Kagan was very fair. She asked actually a tough question of Cecilia as well as a tough question. I say she was my former student, so we go way back. But also a tough question to the government. John Roberts was rather quiet, you know, more than I do. But I'm thinking he's thinking he may end up writing the thing and he'll just. He's listening to his colleagues. But I'd be surprised if the challengers get all of those votes and don't get his. There were some harsh and not harsh, but. But good questions asked on the other side, especially by Justice Alito, who remains one of the best questioners, maybe the single best questioner on the court. And he had actually a series of questions. And at first, Cecilia kind of, he led her down a path and maybe where she didn't want to go. She says, well, the 1866 statute means the same thing as the Amendment. And the 1866 statute says this language, which isn't so good for you, okay? And then she says, well, eventually, when Kavanaugh came back, if there's a difference, go with the 14th Amendment. And by the way, under this other theory, if you say, oh, if you're born to parents, even though it doesn't say parents who owe some foreign allegiance, that would be true of people who don't have green cards, you know, but they have allegiance until even who do have green cards, excuse me, you know, they're allegiant to their home countries until they become citizens. So that can't be the right test to justify. And she did say that to Trump, justify Trump's executive order. So the justices showed in some that they are prepared, they do their own work. This is not just sound bites, the

[Amy Howe]

questions, which is why we could have it on television.

[Professor Akhil Reed Amar]

I'm with you on all of that. And you also have advocated that when they're releasing oral, they're releasing opinions. Why can't, you know, we have at least oralized.

[Amy Howe]

I didn't prepare this for that, but.

[Professor Akhil Reed Amar]

Oh, I'm with you, my dear friend, but. But if America could see this branch in government, of government, I think they didn't generally be proud compared to that one.

[Amy Howe]

I like to say the least dysfunctional.

[Professor Akhil Reed Amar]

That's exactly my phrase that I used to. The least dysfunctional. Our friend Sarah Isger talks, you know, about this branch because of the three branches. I think if the framers could be brought back to life they would be most impressed by this one. They say, that's what we were hoping for. They sometimes disappoint me. They sometimes break my heart, but they do their own work. They sometimes cross party lines. They're really seriously taking the text seriously, the precedence seriously. So God save this honorable court.

[Amy Howe]

All right, I want to ask you another question. So the justices had questions about the difference between the 1866 Civil Rights act and the text of the 14th Amendment. They also had questions about the similarities between the 14th Amendment and 8 USC 1401 A, which was a law that was enacted in 1940 and then reenacted in 1952 that basically codifies birthright citizenship.

[Professor Akhil Reed Amar]

Yes.

[Amy Howe]

And, you know, there's been some suggestion that that could give that statute, could give the Supreme Court basically an off ramp to affirm, to strike down the order, affirm the concept of birthright citizenship without having to rule on the Constitution. Do you have a sense of which way they might go?

[Professor Akhil Reed Amar]

So she was asked, Cecilia was at the end by Justice Kavanaugh, why can't you just win under the statute? And she says, well, we'll take a win however we get it, and it's ultimately up to the justices. But I do think it's interesting that there was not very much discussion of that. And if you're going to rule against the challengers, against the aclu, the. You have to rule against them on both grounds. And the fact that they weren't talking a lot about the statute means, like, actually, everyone concedes that the statute is knocked down. Because Even if the 14th Amendment means what John Sauer thinks it means, no one thought that in 1940. No one thought that in 1952 when these statutes were passed. No one thought that when the Court is glossing the statutes in a case called Hintopolis, which got a brief mention from Justice Sotomayor. So the answer to your question in part is. Audience members, if you want to know a little bit more on the statute. Oh, we've got some great SCOTUS blog pieces for you to actually read on that. Two or three or four. And, oh, I forgot to mention Justice Barrett had a great question on foundlings about children. You don't know who their parents are, but they're American citizens. It doesn't matter who mommy and daddy are, and she's an adoptive parent. She pays attention to foundling, the little baby Moses.

[Amy Howe]

She actually asked a question in the oral agreement in Dobbs about foundling safe haven laws and baby Moses safe haven laws. And that is an amicus brief.

[Professor Akhil Reed Amar]

It does, and it features actually in our most recent SCOTUS blog posts, actually the last two on Scoda's vlog imagined 20 questions for Sauer, 15 questions and answers for Cecilia. And we talk about the foundling issue in those as well. But you asked me the big question. Might they go on the statute? I could imagine Justice Alito saying, you know, I don't know about the Amendment. It's complicated, 1866 act, but maybe the statute is pretty clear and they didn't go into it. But even though Amy is the same words, it's not the same words. The amendment talks about state residence. And John Sauer tried to make a big point about how it says residence. Well, if that's in the 14th, that's not in section 1401A. And it's a big deal that other statutes passed contemporaneously with the 14th amendment use the words parent, mother, father, and Justice Baradath, like which, you know, which is it? The mother, father. Maybe it was Justice Gorsuch, you know, like which parent is it? But it's not just that Congress knew those words in the 18. In 1860s in statutes. In the immigration law of 1952, those words appear in section 1401. Just not a, but B, C, D, E, F. It says mother, father. They knew those words. They didn't put them in 1401 A. So even if it was the same sentence, it's not quite. It's alongside other sentences that make that omission of which parent both, you know.

[Amy Howe]

Exactly. There's a lot.

[Professor Akhil Reed Amar]

Who's your daddy?

[Amy Howe]

The justices highlighted a lot of potential logistical questions. Well, thank you so much for joining us. I hope we can get you down here for another argument sometime soon and

[Professor Akhil Reed Amar]

listen to our podcast as part of the SCOTUS blog.

[Amy Howe]

Exactly. We've got Mara Brothers content on SCOTUS Blog. You should check it out.

[Professor Akhil Reed Amar]

One final thing, since not only is my partner, podcast partner Andy Lipker here, our scrivener on the brief, Chris Duggan, is here. He wrote an amazing amicus brief that in effect was referenced eight times by the justices.

[Amy Howe]

Fantastic. All right, thanks so much for joining us.

[Professor Akhil Reed Amar]

Thanks.

[Sarah Isger]

Thank you, Amy, for that excellent reporting from the sidelines. You're better than anything ESPN has to offer. I know you have lots of writing to get done this afternoon, so we will let you get to work. And Amy will have her take on this oral argument on SCOTUS blog soon. I mean, really, we expected any minute now. Like, wasn't she writing while she was doing that okay, David, that was really interesting because basically the people in the court had a different sense of how the argument went than those who were just listening. And I'm more inclined to trust them than I am us. They seem to think we could still have like a 9, 0 narrow decision, 8, 1 narrow decision with, you know, yeah, a bunch of concurrences on what the 14th Amendment means or all of these other issues, but that at the end of the day, they may just, we may have five votes that the 14th Amendment doesn't mean that nine votes, that the statute doesn't mean that maybe nine votes, that a president can't do it without a statute. The fact that they thought Alito actually was not a solid vote on the other side, I know very different than what we felt like we heard.

[David French]

I was fascinated by that because exactly the reason you said, which, you know, when I think as they were saying that I was reprocessing my own interpretation, I thought, oh, I think I could see, I could see a situation in which you have say, and I know on the result with Alito on a concurrence is talking about sort of the constitutional issue is more complicated than just you're born here, you're a citizen, but the statute, the statute is the controlling law right now in the statute that this executive order doesn't trump the statute. And Professor Amar said something that I was thinking as well, which is, if you're really going to dive into is this executive order constitutional and enforceable, you're going to spend a lot more time on the interplay between the statute and the eo. And they didn't. They spent very little time on that. It was 95%, just the pure constitutional question, which was kind of, in a way almost a reverse of what you would expect if they were going for the 90 narrow decision. They were talking about the big constitutional picture 95% of the time and about 5% of the time they talked about the statute. But you don't uphold this EO without really wrestling with the statute as well. And the absence of that wrestling, to me is an indicator that I think even the justices who might think that there's a constitutional argument there around the 14th amendment really don't see this EO as being an enforceable document at all. And so it was an interesting omission that I think is quite telling.

[Sarah Isger]

Professor Tyler, you clerked for Justice Ruth Bader Ginsburg on the court. I want to just do some nuts and bolts with you. What happens after the justices left the

[Professor Amanda Tyler]

bench today, right so they will debate this in conference on Friday and issue their preliminary votes. And at that point the opinions would be assigned the. Assuming there is a majority opinion that speaks for a court that includes the Chief justice, he'll make that assignment. And then if anyone wants to dissent, the most senior justice in the dissenting group would assign that opinion and, or, you know, individual justices obviously can write their own opinions. I think I, I tend to agree that it's likely we'll see an opinion from the Chief in this case. He likes to write in the big cases, as it were. This is a pretty darn big case, about as big as I think the Court has heard in a very long time. And obviously it's heard some very big ones recently. So I would be surprised. I'd be shocked if the Chief didn't write. I do think that the lack of discussion of the statutory issue during the oral argument was something. I agree with, David, was something that really stood out. And it does suggest that the President's order is not going to survive. And I don't think I'm saying anything that any one of you disagrees with. It's just a question of what the numbers are. And it is interesting, given the lack of discussion of the statutory issue. Does that mean that the statutory issues, plural, does that mean that the Court is not going to go down that route? It's hard to say. You know, I do wonder a little bit about the President being in the audience, whether that did influence how the Court members behave today, the questions they asked. All that being said, you know, it's always hard to predict exactly how the lineups will go. I did hear Alito to be more sympathetic to the challengers than I expected he would be going into this. Perhaps that has to do with his own heritage. His father was an Italian immigrant. His mother, I think, was second generation Italian immigrant. The other exchange that I did want to highlight that I thought was really important, and also I think that this will harken back to one of my prior appearances with the two of you is we had really great questions from a former civil procedure professor. And I'm speaking specifically of questioning by Justice Barrett about how we would apply a domicile rule. And her questions came from the civil procedure background, because domicile is a rule in diversity jurisdiction that leads to trials over intent to remain in a particular jurisdiction, a particular state. When you're thinking about in personal jurisdiction, when you're thinking about the reach of states laws and state domicile. And those trials are really tricky to undertake. And she was alluding to that fact. You know, the classic example is the New York Grandma Snowbird who splits her time between New York in the summer and Florida in the winter. There have been countless trials trying to suss out which is her state of domicile. And if we were to go down that route under the 14th Amendment in determining citizenship, it really would be chaos. And I took her to be making that point.

[Sarah Isger]

So the justices, right after this, will go to lunch where they're not allowed to talk about work at all. The conference room, interestingly, I thought, has a portrait of John Marshall Harlan because he is the great dissenter in Plessy versus Ferguson. They all take their oath of office on the Harlan Bible. But he also has significance in this case as well. He's in the dissent for Kim Wong Ark, and of course, his grandson is on the court for some of these other cases that we're talking about. What role? I mean, if we think of John Marshall Harlan as being the North Star for all of these justices and Justice Roger Tawny as being the South Star, if you will, nobody wants to be Tawny. Everyone wants to be Harlan. And they're going to sit there and talk about this case for the first time together in this room, where Harlan is looking over them. What role does he play in this that he was in dissent in Kim Wong Arc? What did that case have to do here? Like, how did you think it worked, an oral argument for them?

[Professor Amanda Tyler]

Well, what I think is interesting is that the oral argument highlighted his role significantly so underscoring your points. He's so influential, but he, after the fact, gave a speech in which he made clear that a very absolute rule of birthright citizenship was the right interpretation of the Wong Kim Ark decision. And he also said I was obviously wrong. Now, in the oral argument today, I think it was John Sauer said, well, maybe he was just being polite or being nice or something like that. It's hard to know. Unless, again, you could read the body language and you were in the room. We only have the written transcript. But he, I will add, Harlan didn't bat a thousand, in my view. He dissented. An ex parte young, which is a critically important case for ensuring government officer compliance with the Constitution and for protecting civil rights. And he got that one wrong, in my view. So he didn't bat a thousand. But even if you hold him as that North Star, he himself did acknowledge that the correct interpretation of Wong Kim Ark is the one that the ACLU and the challengers adopt.

[Sarah Isger]

David, you alluded to this earlier, but I want to dig into it now because we've talked about it on previous podcasts. A couple of things. The horseshoe theory of politics seems to have landed squarely in legal world these days. Yes, that we have sort of a flipping of textualism and originalism that that appears not just to be happening now randomly, but at pace that it's picking up. And once again, I thought we saw an advocate, this time for the ACLU who did not speak fluent legal conservative, did not speak originalism, textualism as a native language, and I thought struggled unnecessarily with some of the justice's questions, including some of the questions from, for instance, Justice Sotomayor that we presume were friendlier questions. Now, she's only argued once before at the court. I've said that I don't like the over professionalization of, you know, the justices, the clerks and the advocates. So maybe it's just that we're so used to hearing people who are there, you know, every month. Paul Clement, by the way, has argued nine times this term. He has one more left. I think it could be an overall record, although there's some question of whether some SGs argued 10 times if you include consolidated cases or whatever. But without a doubt it would be a record as a percentage because the court is taking fewer cases. So talk about the over professionalization of the repeat players. So David, if you can put these thoughts together of the conservatives now being like living constitutionalism, love it. Who cares what the text says? And, and you've talked about this in the context of liberals now saying states should have more power vis a vis the federal government. We need to look at what that text really says, that it turns out the process arguments that had been dubbed conservative and liberal for the last 40 years really were no such thing. Thing.

[David French]

Yeah, there's nothing inherently, in my view, and Professor Tyler may disagree with this, there's nothing inherently conservative in originalism. And I think that what you're seeing is that reality play out. But so as people who are very smart, progressive minded people are realizing these are the terms of the debate now, this is the, these are the lanes. The lanes are originalism. You can walk into court and you know, Professor Amar has demonstrated this for years and years, you can, you can make very powerful arguments that have what you might call liberal coded outcomes politically through originalism. And I think you saw that here. Now I will totally agree with you, Sarah, that this was not a Paul Clement fluent originalism performance. But also, as you said, it's her second argument. And I'm just putting myself in her shoes. It's my second argument. Every newspaper in the country is broadcasting me live, and for the first time in living memory, a president who hates

[Sarah Isger]

me

[David French]

five feet from me. You know, I mean, imagine the pressure of that moment, you know, just really on everybody. I mean, you have Solicitor General Sauer. And Amy was talking about how he seemed more animated. You know, there is just an absolute pressure here that I don't think any of us can really quite comprehend. I've never been in that situation. And given that, I thought, you know, the argument I thought was very effective. I think the one part. And. And you guys, help me if I'm misremembering this, because this was a kind of complicated back and forth, but there was a part where I think Alita was trying to help her, and she didn't pick up what he was laying down. And that when he was trying to help her was when he was talking about the Wong Kim Ark decision. And he said, well, why. Maybe they talked about domicile so much because the parents there couldn't actually become citizens. In other words, there's just. There wasn't a normal path for them. And so the word domicile was doing a lot of work to just basically say, look, they live here, the parents live here. And. And I thought he was kind of giving that to her to sort of where you could make an analogy to an undocumented immigrant who's coming here and making a life here. They live here. They are domiciled here in a way that everyone would recognize they live here. And I felt like she didn't quite pick up what he was laying down there and kind of pushed back on that. And I was a little bit surprised that she pushed back on that, because that was my thought when I see the word domicile there. It was just the court emphasizing these. This is a child of people who live here, not a child of people who are here very transiently. And I think it would be, as we talked about in an earlier podcast, I think it would be very interesting if you had Congress pass a statute that said that prohibited birthright tourism. And then as part of the. As part of that policy and as part of that statute, tried to indicate that under certain circumstances, factors that they created to determine that somebody who is a. Who is born as parents, who are coming in, giving birth and leaving, that there would. They were never subject to the jurisdiction thereof. But the numbers on those people, I mean, 20,000. I mean, it's very small in a nation of 350 million people. It's a, as I said before, it's like a rounding error. But when it comes to the actual population that Trump seems to be aiming at, which is the children of undocumented immigrants, which could be, you know, theoretically millions of people over time. The, the Alito line of questioning there seemed to be really designed to help her out, in my view, that, look, this, the analogy here is really that word domicile was just to say these folks live here. That's what it means. It's not a hyper technical. It just means these folks live here.

[Sarah Isger]

We've talked about the hard row to hoe that the administration has had in this argument, but one of them is a textualism road. In order to win, they need to read into the 14th Amendment or the statute words like domicile and then a very specific definition of domicile, which, as you said, would not be the, the layman's definition if people just use the word domicile all the time in their cocktail conversations. But if you did, you would mean a place where someone lived quasi, permanently, parents, parentage. None of those things appear in any of these places. And as Professor Amar pointed out, they knew what those words were because they use them elsewhere in the statute, at least. Mothers and fathers and who your parents are for these purposes, but not when it comes to this. It's all about the kid and the text. And so for the administration to win, they have to overcome the text. And maybe we're going to see that tension that we've talked about in Bostock, for instance, where there's a tension between the text maybe, and the original understanding at the time. I think that's what the administration's kind of going for here, is an original public meaning that may be just different from the text. But let's focus on our swing Justices with our time we have remaining. Professor, you've talked about Justice Barrett. She is in some ways the most difficult to read at oral argument because she's such a formalist. And so she's going into these highly technical questions to try to suss out some of these. If you were to sort of give her a score on where she is, where do you put her at this point?

[Professor Amanda Tyler]

Well, she does do that sometime, but I read her in this case, and I could, of course, be wrong, but I took her to be pointing out the implementation problems with the government's position. I think she was laying the groundwork for basically saying to her colleagues in the back room, if we were to agree with the Government. This would be an absurd set of circumstances that would result where we would have trials over what the intent of the mother was in terms of staying or going from the United States. So I think she's all in on the other side. I could be wrong.

[Sarah Isger]

We're going to go in order. Justice Barrett last term was the third most likely justice to be in the majority. Let's go with number two, the chief. We didn't hear much from him. Where are you putting him, Professor?

[Professor Amanda Tyler]

So he's a harder read, but if I had to predict, I would see him writing a majority opinion. And if I'm really pressed, I think he will look for as large a majority as he can get to coalesce around a position. But he may not be able to pull everyone. We'll see. So, you know, I think that's going to be the first line of decision making for him. How can I get the largest number of justices to speak with one voice? Because this is one of those cases where the court really should try to speak with one voice. That being said, to the extent that the court goes narrowly and goes on statutory grounds, they may invite this case to come back, which they probably would not want to happen. So that is a reason that would nudge him in the direction of a constitutional decision.

[Sarah Isger]

Okay. And then we have our swingiest of swing justices. The justice who was most likely to be in the majority since 1953, he is the justice at the highest percentage in the majority. That would be Justice Kavanaugh. Now, remember, he voted against the Trump administration in the National Guard case, whether the president could federalize the National Guard in Chicago. He voted for the administration in the tariffs case, which was another executive order. He seemed quite keen on executive power in that dissent. So what about here?

[Professor Amanda Tyler]

I think the arguments for independent executive authority here are really hard to make. I just. I don't see Kavanaugh grabbing onto that here. I would be very surprised. Very surprised.

[Sarah Isger]

David, differences, highlights.

[David French]

You know, look, I would say if there were. There were so many exchanges here that I thought were really fascinating. So I already highlighted one which was. I'm going to say it again. The lawyer for the ACLU says, no, we need to go with original public meaning. And that might have been the most effective part of her entire argument, because she really caught the administration with a kind of living constitutionalism. And here's another exchange. And I think if you're going to have common good constitutionalism versus originalism in one exchange, it's this between Sauer and Roberts. And so Sauer Says we're in a new world where 8 billion people are one plane ride away from having a child who's a US Citizen. JOHN Roberts. It's a new world. It's the same Constitution.

[Professor Amanda Tyler]

Same Constitution. That was such a big moment.

[Sarah Isger]

We're going to be citing that for a long time to come. And I think the chief almost, he's known to be very clever and witty, but I don't know whether he had had that in his mind at some time beforehand because he was just on it with that line and he seemed to deliver it knowing that it was a meaningful line.

[David French]

I felt, I thought it was a phenomenal line. It's exactly correct. And what that also tells you is, yeah, if it's a new world in the same Constitution, what do you do? You change the Constitution if you can. You don't change your reading of the Constitution. And so right there, I thought, was just a perfect encapsulation of, because I've long described the conservative majority of the court as these are, this is the last vestige of pre, pre Trump conservatism in the American branches of government. And that was a perfect encapsulation of the difference between Trump conservatism and pre Trump conservatism in nine seconds. There it was, Sarah, right there. And I thought it was very effective. And I thought that that's, that's the theme of his majority opinion right there. That's the theme of his majority opinion.

[Professor Amanda Tyler]

I think that's right. Can I jump in? I, I, I just really think that's right. And, and I also think, going back to your earlier question, to me, Sarah, that underscores the importance of Kavanaugh having repeatedly tried to tease out the difference between policy and constitutional law. So I think they both were laying breadcrumbs along those lines.

[Sarah Isger]

Okay, so then the question is, what happens from here. Let's assume that they do issue a constitutional decision, that there's five votes for that at minimum. I think we've all counted here and we can count to five on that. It doesn't mean they will necessarily do it, but it certainly appeared that there would be five votes. And to your point, Professor Tyler, they may not want this to come back. And so at least highlighting that there's five votes for that, you know, you could end up with one of those opinions where so and so joins part 2B, but not part 3C, but you still count to five on the constitutional question. What room does that leave the administration next? Could they, you know, to my point that I thought they did this in a weird way. Why not start with the EO about birthright tourism, for instance, and then build up incrementally. They started with the absolute position. They lose that again. We're, we're presuming at this point. Can they then try to do a birthright tourism eo, or do you think that will be foreclosed by this?

[Professor Amanda Tyler]

I, I it depends how the opinion is written, but my guess is the opinion is going to be written in a way that will foreclose that. Interesting. I don't know if you all disagree, but I think it's going to be hard. I think one of the challenges for the government's position from the outset has been how hard it is to draw a constitutional rule that distinguishes between that situation and some of the other incremental situations. And that's why I think that exchange between Alito and Wong was so important where he was talking about Wong Kim Ark and why Won Kim Ark's terms are so important when you really parse that decision. One thing that she could have said in response to Justice Alito that I tried to make a point of highlighting, both in my brief and in my Atlantic piece, is that the court there emphasizes his parents. Wong Kim Ark's parents had moved back to China and were subjects of China. They owed allegiance to China. The government's position to win all the way across the board and as presented, is a position that says you can't effectively owe allegiance anywhere else. And that is incredibly sweeping. But it's also really hard to defend because at its extremes, it reaches all dual citizens, the children of any immigrant who is not a soldier, sole US Citizen. It's quite sweeping. And so the question then becomes, is there a way to draw a line constitutionally that is narrower? And I think it's very, very hard to do that. And I doubt we'll see the court leave room for that. I could be wrong, of course, especially if we get a narrow opinion that is only on statutory grounds or that is even narrower in terms of limiting the president's power in some way. But even there, then, for the president to come back and try to do it again through an executive order, he's going to face an uphill battle.

[David French]

Can I jump in on that point real quick about the subject to the jurisdiction thereof and the citizenship of parents and allegiances. So if you are, let's suppose you're born and by, let's just suppose, you know, the Islamic Republic of Iran, it's by blood and you are a citizen when you're Born and you're subject as a citizen to Iranian conscription rules. In other words, you know, as an Iranian, but you are not, if you're in the United States and US Citizen, the IRGC can't conscript you. You are outside the literal jurisdiction of the Islamic Republic of Iran, outside the IRGC's scope and reach. You are inside the jurisdiction in the United States, subject to American law. And so that felt like to me something that, you know, in the army we had the statement like it briefs well, which was something that, it sounds good, but in real world, application just sort of falls apart on any examination. And I thought that hypo around Iran is one of those that briefs well in the sense that, oh, subject to conscription into the Iranian army. How can they possibly be an American citizen? They're not. They're not really. They're here in America. They are not vulnerable to conscription in the Iranian army at all. They cannot reach them at all. But if we pass conscription, they're subject to conscription in the American army.

[Sarah Isger]

I think the example is this person wants to serve in the Iranian army because they are a citizen of Iran and because their parents were Iranian. And so they go back, serve in the Iranian army, but they're a U.S. citizen, so they can get back into our country very easily. And that would raise national security, security concerns.

[David French]

But we have citizenship stripping provisions when you're talking about serving in a foreign military against the United States of America.

[Sarah Isger]

Okay, last question to you both. President Trump has attacked the Supreme Court multiple times after his tariff tariffs were struck down. In advance of this oral argument, he said that several of the justices were, quote, unquote, dumb, assume this decision will come out in late June and that he will not be happy with the outcome, and that he once again attacks the justices of the Supreme Court. Professor Tyler, starting with you, is that helpful or harmful to the Chief Justice's project? On the one hand, it raises the temperature for the court. It puts more political focus on the court. Certainly we've seen the approval numbers of the court go down, mostly driven by Republicans who no longer approve of the court. Democrats already didn't. On the other hand, it kind of proves the independence of this third branch of government, that they are not politically beholden to one side or the other. And isn't that what Chief Justice Roberts, you know, it's about the friends we've made along the way for him, I think.

[Professor Amanda Tyler]

Sure. If the government, Excuse me, if the court is handing down decisions that invoke the ire of the President, it certainly lends score credence to the notion that the court is an independent institution, which of course was the very vision of the framers. Hamilton all the way through. But there is no scenario where a president attacking the court is generally healthy and particularly where a president does it in the way that Trump has done. So I would point out there are so many things that were disturbing about his pre argument post attacking the court. If I could be trivial for a moment, I would say one of the things that was disturbing about it is that he was speaking almost like Yoda and I really didn't like that.

[David French]

Yoda's a good guy. Yoda's. Don't, don't do that.

[Professor Amanda Tyler]

Thank you. And he, but the attacks on the court are just, they're bad no matter how you look at them, when they're, when they're wielded in the way that he does. So.

[Sarah Isger]

David.

[David French]

Yeah, you know, I, I agree with that completely. It isn't good. It, it is very bad. And it, it creates that sort of sense of, it, it falsely creates a sense of illegitimacy in the, in the president's, amongst the President's core supporters. And also it's just not going to have the effect he wants it to have. He's not dealing with Republican members of Congress here. That is not who he's dealing with. This is not Mike Johnson. These are different people. They have different responsibilities. They have life tenure. They're not going to be primaried. The culture of bullying Judges historically try that. Like, yeah, just try that. That does not work. Right. And so I think judges almost constitutionally in their DNA and this is a good thing, have this anti bullying imperative. And so I just, it's just not going to work. But at the same time that doesn't mean that it's benign. It is, it is bad. But let me also say flip this all the way to the other side of the spectrum. If, if the court rules as we expect that it will here and you know, look, we gotta wait and see, there's always a chance that we're all wrong. But if it does rule the way, then I'm just gonna be so completely over the argument that this court is illegitimate and in the hands of Trump. Like at what point how much more of like Trump's signature close to his heart.

[Sarah Isger]

Most important things, federalizing the National Guard, tariffs and birthright citizenship all in one

[David French]

term and one term. And then don't forget the election in 2020. It doesn't get closer to the man's heart than that. And that's not to say that I agree with every court ruling that this court has. You know, I don't agree with the immunity ruling. I've said that I'll shout that again from the mountaintops. But I think it's just fundamentally wrong to say that that was a Trump centric ruling. I think that was an executive branch centric ruling. Those are very different things. And so just sort of flipping it around to my friends on the left who really hate this court, what else do you want them to do other than just go ahead and rule all the ways you want at all times? And that's not the, that's not the definition of legitimacy.

[Sarah Isger]

I want to thank Amy Howe from SCOTUS Blog, Professor Akilah Mar of Yale Law School, David French, my sometimes guest and Professor Amanda Tyler of Stanford University who has this wonderful piece in the Atlantic. You are running the Boston marathon in just three weeks. What number marathon is this for you?

[Professor Amanda Tyler]

28.

[David French]

Oh, my gosh.

[Sarah Isger]

Eight marathon. Well, thank you for taking a break from your training to join us today. And we'll make sure to put that Atlantic piece in the show notes. Thank you for joining us and thank you all for joining us and for watching. We'll see you next time on Advisory Opinions.