Will the US Supreme Court stand up to Trump?

Summary

Americast (BBC)

Episode: Will the US Supreme Court stand up to Trump?

Date: February 13, 2026
Hosts: Justin Webb, Anthony Zurcher
Special Guest: Professor Kate Shaw (former Supreme Court clerk, University of Pennsylvania Law School, co-host of Strict Scrutiny)

---

Overview

In this incisive episode, the Americast team explores the evolving role of the US Supreme Court under President Trump’s second administration. The hosts and their guest, Professor Kate Shaw, analyze whether the Court—now boasting a strong conservative majority—will act as a check on Trump’s expansive vision of presidential powers, or instead continue to endorse and enable his controversial executive actions. The discussion delves into recent and pending Supreme Court cases with vast impact on US law and governance, from trade tariffs and federal appointments to birthright citizenship. The conversation also tackles deeper questions of judicial legitimacy, historic precedent, and the potential for future political clashes over the makeup and power of the highest court.

---

Key Discussion Points & Insights

I. Is the Supreme Court Acting as Trump’s Ally?

[00:38–02:18]

• The episode opens with Justin questioning whether the Supreme Court is a “body of disinterested jurists,” “lackeys doing the work of Donald Trump,” or something in between.
• Recent Supreme Court decisions have largely favored the Trump administration, with examples including:
  • Access to Social Security data.
  • Slashing federal research funding.
  • Allowing the military ban on transgender troops.
• This record raises the crucial question: Is this Supreme Court ever going to stand up to Donald Trump or is it set on expanding his power?

II. The Supreme Court’s Power & Its Modern Visibility

[04:00–07:46]

• Anthony: Traditionally, the Supreme Court was relatively anonymous and less in the public eye. Now, with a 6–3 conservative majority (three Trump appointees), it plays an outsized and highly visible political role.
  • “Really, I think it's the most conservative Supreme Court that America has had in at least 75 years. And they are flexing their muscle time and time again.” (Anthony, 07:29)
• The Court has significantly shifted legal precedent on abortion, affirmative action, gun rights, federal regulatory power, and more.

III. Historical Precedents: The Court’s Transformation of America

[07:46–10:26]

• The discussion contextualizes the Supreme Court’s power to drive or resist societal change, referencing landmark cases:
  • Brown v. Board of Education (ending school segregation)
  • Plessy v. Ferguson (upholding racial segregation)
  • New York Times v. Sullivan (protecting press freedom)
  • Miranda case (rights of arrested persons)
• The hosts stress: “It is impossible to overstate how important the Supreme Court has been throughout America's history.” (Anthony, 10:23)

IV. Current & Imminent Cases with National Impact

A. The Trade Tariffs Case
[10:26–13:27]

• The Court is soon to decide Donald Trump’s authority to impose broad tariffs under emergency economic powers from the 1970s.
• Trump himself calls this case “one of the most important cases in the history of our country... it would be somewhat catastrophic [if we lose]” (Donald Trump, 12:12)
• Oral argument revealed skepticism from some justices about the president’s authority to unilaterally levy tariffs.

B. The Lisa Cook/Federal Reserve Firing Case
[15:47–17:07]

• At issue: Presidential power to fire agency heads with statutory job protections.
• Kate Shaw: “The justices seemed nervous about giving Trump the power to summarily fire the, you know, upend global kind of economy in certain ways...are going to try to find a way to rule against Trump there.” (16:52)

C. Birthright Citizenship Challenge
[19:11–24:14]

• Trump’s push to end birthright citizenship for children born in the US to undocumented immigrants is under Supreme Court scrutiny.
• Justin voices widespread uncertainty: “Is it fair to say people are less sure that they are going to rule against him necessarily?” (19:59)
• Kate is confident the Court will reject Trump’s theory, which she calls “such an outlandish claim that it's hard to imagine it getting more than zero votes on this Supreme Court.” (20:13)
• There is over 100 years of precedent and clear constitutional and statutory language upholding birthright citizenship.

V. The Evolution of Judicial 'Apostasy' and the Reliability of Partisan Appointments

[13:44–15:47]

• Anthony recounts that in the past, justices sometimes surprised those who appointed them (e.g., Justice Souter, Anthony Kennedy, Chief Justice Roberts and Obamacare).
• Kate agrees, but argues: “The more recent appointees...have been so thoroughly vetted and their views so entirely known...that there are fewer and fewer of these kind of defections.” (15:15)
  • With some exceptions, the current Court is seen as more reliably partisan along ideological lines than before.

VI. Court-Packing: Will the Left Respond?

[25:01–27:34]

• Justin raises whether future Democratic presidents might “pack” the court to counter its current rightward tilt.
• Kate underlines that only Congress can change the number of justices, but thinks calls for expansion are growing:
  • “...it could be a successful effort to essentially assert kind of a meaningful threat against the court... bringing the court to heel, even if it doesn't actually successfully result in a court with 13 or 15 justices.” (26:53)

---

Notable Quotes & Memorable Moments

• “Really, I think it's the most conservative Supreme Court that America has had in at least 75 years. And they are flexing their muscle time and time again.”
  — Anthony Zurcher (07:29)

• “If five of them agree, that is the final word on the matter.”
  — Anthony Zurcher (05:08)

• “I am not convinced this is the term that the court is going to stand up to Trump or that they really will ever stand up to Trump... the evidence that we have seen so far [doesn't support that].”
  — Professor Kate Shaw (28:18)

• “The president can't do it unilaterally regardless. So I think there are two distinct, at least two distinct reasons that the president, you know, in his day, one executive order purporting to end birthright citizenship is without legal authority....”
  — Professor Kate Shaw (24:14)

---

Timestamps for Key Segments

• 00:38 – Framing the question: Supreme Court as check or enabler?
• 04:00 – The Supreme Court’s structure and increased political relevance
• 07:46 – Landmark historical cases and the Court’s power to change society
• 10:26 – Discussion of the tariff case’s significance and the suspense over the ruling
• 12:09 – Trump’s direct statement on the tariff case’s importance
• 13:43 – Introduction of Professor Kate Shaw; discussion of historical justice ‘defections’
• 15:47 – The Lisa Cook Federal Reserve firing case and limits of presidential power
• 17:32 – Jerome Powell on the Fed case’s significance
• 19:11 – The challenge to birthright citizenship and its constitutional origins
• 25:01 – The court-packing debate revived on the left
• 27:34 – Final reflections: Will the Court ever stand up to Trump?

---

Conclusion

This episode offers vital, up-to-the-minute perspectives on the US Supreme Court’s current era, as it faces unprecedented tests of its role as a constitutional check on presidential power. With the Trump administration pushing the boundaries of executive authority—and a conservative Court often appearing to support that expansion—the stakes for checks and balances could not be higher. The panel cautiously concludes that, barring dramatic developments, the current Supreme Court is unlikely to act as a robust brake on Trump’s ambitions. However, legal and political uncertainty remains, especially as new cases are decided and politicians debate reforms to the Court itself.

---

Episode runtime analyzed: ~00:38–30:01 (content sections only)

Transcript

[Justin]

This BBC podcast is supported by ads outside the UK.

[Narrator]

If you can't keep up with all the Epstein news, you're not alone. This week, the files have nearly but not quite brought down a British prime minister. There have been allegations that Epstein was a spy. And surprising countries have been drawn into the scandal. From Norway to Poland to Israel to France. It's a lot. So we're recapping all the main developments and making sense of them. Listen to the global story on BBC.com or wherever you get your podcast.

[Justin]

Is America's Supreme Court A, a body of disinterested jurists doing their job as best they can? B, a bunch of lackeys doing the work of President Trump or C, somewhere in between, the court is about to announce a huge range of decisions that will affect the the ability of Donald Trump's White House to do what it wants to do in his second term. At the moment, it is fair to say that most of the decisions there have been have been very much in favor of him.

[Reporter]

That the Supreme Court handed the Trump administration two victories today in cases involving doge including giving an access to Social Security systems containing personal data on millions of Americans.

[Professor Kate Shaw]

And the Supreme Court's allowing the Trump administration to slash hundreds of millions of dollars in research funding. And in its push to cut federal diversity, equity and inclusion effort, a 6.

[Reporter]

To 3 Supreme Court rules. The Trump administration's ban on transgender troops from the US Military can take effect.

[Griff]

Now let's start with this USAID ruling. As you heard from my colleague Marilyn Rivera, it's a pretty big win for the Trump administration. What do you make of it, Griff? It is a fantastic win for the Trump administration. So late yesterday we got another decision. They went ahead and agreed with President Trump having the authority to terminate two appointees on behalf of President Joe Biden. And the reaction I was picking up online when this decision came across is that they were surprised that they allowed this to happen. It was an overwhelming.

[Justin]

So you get the picture. And here's the question. Is this Supreme Court ever going to stand up to Donald Trump or is it set on expanding his power? Welcome to AmericasT.

[Professor Kate Shaw]

AmericasT. AmericasT from BBC News.

[Donald Trump]

You hear that sound? I think when I hear that sound, it reminds me of money.

[Justin]

Nicolas Maduro yeffed around and he found.

[Professor Kate Shaw]

Out this is a big cover up and this administration is engaged in it. This guy has Trump derangement syndrome.

[Griff]

I have four words for you. Turn the volume up.

[Justin]

Hello, it's Justin in the worldwide headquarters of AmericasT in London, England.

[Anthony]

And it's Anthony in the BBC bureau in Washington, D.C. the American headquarters of AmericasT.

[Justin]

And we're gonna focus today on the Supreme Court, which of course, if we ever had a proper dispute about where the headquarters of AmericasT really was, they would have to weigh in on. And Anthony, we would have to accept the result of their deliberations, wouldn't we? And that, I suppose, is the point of the Supreme Court. It is hugely important and never more so when there is a president who is keen on doing things and stretching the limits of his own power. So a lot of people interested in this and a lot of the mericasters have written to us and asked us to take an interest in it. Just an example, Anthony, if I could kick it off with Ed Stranger who's written from London and asked this, I'm writing to request more discussion and analysis around the potential impact of the Supreme Court in impacting the Trump administration's agenda in coming years. This body surely has to start having a say in all manner of the administration's policies and and some in depth analysis of this currently silent branch of government would be interesting to hear reasonable points.

[Anthony]

Anthony Absolutely. We have heard the Supreme Court have some say, they have started to have a say. In that montage you played there, the Supreme Court has weighed in on a lot of these big issues involving Trump and executive power, but only tentatively. So a lot of those headlines you heard were that the Supreme Court deciding not to step in and stop Trump's policies from going into effect. They didn't definitively say whether those were legal or not, whether Trump could do them or not. And so there are these cases that are still out there now that we're waiting on in the coming months that are going to say exactly how much power Trump has on things like immigration, on things like presidential appointments, and perhaps most importantly, on Donald Trump's massive expansion of presidential power in the subject of trade and imposing tariffs on foreign nations. So those are still yet to be definitively decided. When we say definitively decided, as you point out, Justin, the Supreme Court, when they issue a decision, there's no appeal, it's final. They are the ones who pass judgment on whether laws are constitutional, whether laws are being properly applied. And these nine justices, if five of them agree, that is the final word on the matter.

[Justin]

Yeah, nine justices, Anthony, but of course, a big conservative majority at the moment, which has not always been the case, but is the case at the moment, including Supreme Court justices that Donald Trump himself has appointed. And that leads people to wonder about the not just the fairness of the Supreme Court, but also, in a sense, its legitimacy. And particularly Democrats who are hacked off about various decisions that have been made. And I suppose the big one, the end of Roe versus Wade, have this sense that the Supreme Court is now the enemy. It's fair to say, isn't it, that the Supreme Court and discussions about the Supreme Court, never mind what they do about the Trump administration's various efforts to do various things, the Supreme Court is, in a sense, in play in American politics in a way that has. It hasn't been for a bit.

[Anthony]

I think maybe going back a few decades, most people didn't give a whole lot of thought to the Supreme Court. They probably couldn't pick a justice out walking down the street or standing in line next to them in the grocery store if Supreme Court justices do go grocery shopping or they have someone do it for them. But they were relatively anonymous. Obviously, people who pay attention, the big cases, do know that the Supreme Court has power, but it was always the least understood branch of the federal government. That has changed, as you rightly point out, this Supreme Court with its six to three conservative majority, three of those conservative justices appointed by Donald Trump himself in his first term, they have, in the past five or six years, really dramatically reshaped the lay of the land as far as the law goes in this country. They have overturned the precedents that had been established sometimes for half a century or more, precedents, as you mentioned, on abortion, on racial preferences in higher education and how you could take that into account, on the power of federal agencies to issue regulations without court oversight, on all of these different environmental regulations, on gun control and handgun ownership rights. I mean, all of these things have been pretty stark in the way they have changed course in the past few years. And really, I think it's the most conservative Supreme Court that America has had in at least 75 years. And they are flexing their muscle time and time again.

[Justin]

And the other thing, and we'll talk about this with our guest, former Supreme Court clerk, in just a second, is that in doing that, they are following a tradition which is that the Supreme Court does change America. You think back to Brown versus the Board of Education, that decision back in the 1950s, that in a sense pushed open the doors for the whole civil rights movement. And that was the court making a decision, wasn't it? A decision that changed America in one specific instance. The business of education being mixed and not separate as it had been, particularly in the south until then, but a wider situation as well, a wider sense of American change coming from the Court. And I suppose you could say, couldn't you, that that's just what we're seeing now, right?

[Anthony]

There have been moments where the Supreme Court has stepped in and issued landmark decisions that really do set the framework for how Americans live. They affect our everyday lives. Brown vs Board of Education is a good one. Separate is inherently unequal, essentially ending racial segregation in American schools. If you go back on the flip side, something like Plessy v. Ferguson, which the Supreme Court decided in the 1850s that slaves were property and they didn't have any kind of rights and redress in the courts, that was an incredibly impactful Supreme Court decision. On the flip side, I mean, it led to essentially directly to the Civil War. And there have been decisions on things like abortion, on freedom of the press, New York Times v. Sullivan, protecting major newspapers from lawsuits when they're reporting. I mean, that was a landmark case. There are cases on access to birth control. There are cases involving individual liberties and right to protest. There are ones that protect individuals who have been arrested. Remember the Miranda case, which said that individuals had to be informed of their rights after they've been arrested? You can go through and see moments where the Supreme Court really has issued decisions that directly impact people's lives. There are other ones that maybe you don't feel quite as much that still have significant impact, ones about how government operates, how government regulates the rights of corporations and businesses and how they interact. But it is impossible to overstate how important the Supreme Court has been throughout America's history.

[Justin]

And talking about those decisions about how government operates, that brings us bang up to date. And this decision that the Court has yet to make about tariffs. And it's interesting, isn't it? Because I think people thought, didn't they, that it was going to come quite quickly, and it hasn't. And I wonder if we can or should read anything into that.

[Anthony]

Yeah, I think it is really interesting that we haven't seen the Court weigh in yet. They took that case on an expedited basis. They sped it up. They had early oral arguments. They stepped in before one appellate court had a chance to rule and before another appellate court had a chance to review its earlier decision. So it accelerated the whole process to get to this under pressure from a lot of these businesses that were telling the Court that their businesses were being impacted adversely by these tariffs and they needed to get some sort of certainty that these were legal as quickly as possible. And the Court appeared to agree, so they agreed to hear this case. They had the oral arguments. And now it's been kind of a waiting game where we've had a couple of instances where the court has announced that they're going to be releasing new opinions, and we all kind of gather around to see if this is the trade case, and then it's not. So, you know, it's always a matter of reading tea leaves because this court does not tip its hand very, very often. But, but it is interesting that they seem to be taking their merry time in releasing this decision.

[Justin]

And someone who wants it to go his way is the president himself. And it's interesting. He's, he's very open about that. Let's listen to him. This is actually back in November talking to reporters about the importance of this tariff to decision.

[Professor Kate Shaw]

What is your plan if they end up making a decision that's not in your favor?

[Donald Trump]

Well, I'd rather discuss that later. I hope we're going to win that case. I think it's one of the most important cases in the history of our country. So much evolves around tariffs. It would be somewhat catastrophic for our country. I have to be honest with you. I don't want to get too much involved. But what we've.

[Anthony]

So Trump there talking about how important this case is, and it centers around Donald Trump's trade authority and whether the law, he's citing an Emergency Powers Economic Powers act from the 1970s that doesn't even mention tariffs. It mentions regulating trade, whether that has given the president the power to put on tariffs on any country, on any amount, at any time, whenever he wants. And I was listening to those oral arguments that the court held last year on them. And a lot of the justices, even some of the conservative ones, seemed skeptical that the president had this kind of power. The Constitution says that Congress is the one that can levy tariffs. And they questioned whether Congress clearly delegated to the president all of its trade authority, essentially. So I think Donald Trump is rightfully a little nervous about this case, and it could very well cut against him, but we just don't know yet because we haven't gotten the decision.

[Justin]

Okay, this is a good moment to bring in our guest. Professor Kate Shaw is joining us. She's a former Supreme Court clerk herself. She's also professor of law now at the University of Pennsylvania Law School and co host of the podcast Strict Scrutiny. Kate, hello.

[Anthony]

Hello.

[Professor Kate Shaw]

Thank you for having me.

[Justin]

Well, thank you for coming on. Anthony. You were reminding us recently that there are occasions in the Supreme Court's quite recent history where justices have gone rogue, as it were. So they've been put in by a president who was confident that they would do X, Y or Z his bidding, as it were. And actually they haven't. I can't remember what the examples were you gave to remind us of who the people are you came up with who've actually not done the bidding that it was thought they were going to do.

[Anthony]

Right. If you go back to the 80s and 90s, Anthony Kennedy and Justice Souter both were appointed by conservatives and then ended up being more liberal. But even if you look at John Roberts, who was appointed by George W. Bush, he ended up ruling in favor of upholding Obamacare, which was a bit of a surprise. And I think John Roberts, everyone would say was conservative. But there have been instances where some of these justices have broken against the views of the presidents who appointed them. So it's not totally without any kind of precedent, although it seems like, and I don't know if you agree, Kate, it seems like more recently the conservatives on the court have been more reliably conservative. We don't see that kind of apostasy, I suppose you'd call it from these justices that you had in the past.

[Professor Kate Shaw]

I basically do agree with that. I think that there are lots of historical examples of justices, you know, disappointing sometimes in very significant ways, the expectations of the presidents who appointed them. But I think Anthony's right that the more recent appointees to the court have been so thoroughly vetted and their views so entirely known by the presidents who appoint them that there are fewer and fewer of these kind of defections or kind of upending of expectations. Although, you know, I think that it's a little early to say for sure whether someone like Justice Amy Coney Barrett might come to disappoint in certain respects.

[Anthony]

Right. And she was somewhat skeptical in another big case of presidential power, which was the Lisa Cook case, the firing of, or Trump's attempts to fire Lisa Cook, the Federal Reserve governor, for what he said was financial malfeasance. That was another interesting case and one that is floating out there that we haven't heard a decision on yet, but could define the scope of Trump's power. How do you think that one's going to break?

[Professor Kate Shaw]

So this is another, in addition to the tariffs case, enormously important case about presidential power here, the power to fire a high ranking government official, a Fed governor, in the case of Lisa Cook. So we have Supreme Court precedent stretching back nearly a century that says that Congress can create agencies in the federal government and give the heads of those agencies some protection against the presidents Just firing at will those officials. And yet the president, basically immediate, immediately upon assuming power for the second time, fired dozens of officials who have these statutory protections against being summarily fired by the president. The justices seemed nervous about giving Trump the power to summarily fire the, you know, upend global kind of economy in certain ways. But obviously that has worldwide potential ripple effects. And so the justices, I think, are nervous about owning that kind of chaos and are going to try to find a way to. To rule against Trump there.

[Justin]

Yeah, owning the chaos, but also massively extending presidential power. And of course, not just for this president. And that's why we ought to listen to him, actually. So the chairman of the Fed, Jerome Powell, was criticized, wasn't he, for actually going along to hear the oral arguments in the case? But his response was really interesting and absolutely underlines why this is so important. Let's just listen to him for a second.

[Jerome Powell]

I will tell you why I attended. I would say that that case is perhaps the most important legal case in the Fed's 113 year history. And as I thought about it, I thought it might be hard to explain why I didn't attend. In addition, Paul Volcker went to a Supreme Court case, famously, and I guess 1985 or so, so it's precedented, and I thought it was an appropriate thing, and I did it.

[Justin]

I mean, the fundamental point here, sort of stripped of all the legal arguments and indeed of the individual case as well, is is this court, Kate, intending to give this president and then future presidents a lot more power than they've had in the last, I don't know, 30, 40, 50 years, in fact, since the Second World War. Is that where we are?

[Professor Kate Shaw]

It sure feels like it. And, you know, since the Second World War, I'm not even sure that I think I might suggest that one relevant kind of point in time to look at is post Watergate. So after the resignation of President Nixon in 1974, I mean, Nixon abused his power in all kinds of ways. I don't think that's a controversial statement. And in response, after he resigned, facing, you know, essentially certain impeachment and removal, we passed a lot of laws that tried to reform certain aspects of the presidency and to create independence and checks on presidential power. And I don't think since Nixon, we've had sort of a president who has sought to assert this kind of muscular vision of executive authority that we are seeing President Trump assert. And I think in lots of respects, his vision of executive authority goes way beyond anything we saw under President Nixon.

[Justin]

Okay, let's turn to birthright citizenship, another massive decision the court has got to make. So at the moment, if you're born in the United States, you are an American citizen, a full American citizen. I know that very well because my daughter, who I quite often mention on this podcast, is an American citizen. She's also a great fan of Bad Bunny, so she's probably not in Donald Trump's good books. Possibly for that reason he wants to get rid of birthright citizenship. No, I'm joking. He's got other reasons as well. And there is a weird thing going on here, isn't there, which is that right at the start, Kate, everyone was saying he's not gonna manage to do that. It's in the Constitution. It's an Amendment. It's the 14th Amendment. He's not going to be able to. To do that. The justices won't go there. And now, actually, as the decision time gets closer, is it fair to say people are less sure that. That they are going to rule against him? Necessarily.

[Professor Kate Shaw]

I still feel reasonably confident, I would say quite confident that they're going to rule against him. This. This claim that he has the unilateral authority to essentially rewrite the Constitution is such an outlandish claim that it's hard to imagine it getting more than zero votes on this Supreme Court. And yet I think you're right that, yeah, I suppose you can find tiny little pieces of evidence, and if you stitch them all together, you can make an argument. Think it's a very, very weak argument, but you have seen a number of, kind of scholarly efforts to do that, to try to kind of suggest that this is subject to some active debate in sort of scholarship and among historians, which I think is just not true. I. I don't see how they get to finding that the president could unilaterally do this, because there are, in addition to the Constitution's clear language that all persons born or naturalized are citizens of the United States, there are statutes passed by Congress that also. Also confer citizenship on people born here, regardless of the status of their parents. And a president cannot unilaterally override statutes. And so even if Congress could make this change, it is crystal clear to me that the President couldn't. And so I come back to feeling reasonably confident that at most, two justices would vote in favor of Trump here. But I don't think that anything is out of the question with this court.

[Anthony]

And there's a Supreme Court case dating back over 100 years. That's precedent, pretty direct precedent on this well, as well. So they'd have to, they'd have to reverse that in order to rule in favor of getting rid of birthright citizenship, Right?

[Professor Kate Shaw]

Absolutely. So you have several other Supreme Court cases that just kind of seem to take as a given this notion of birthright citizenship. But you also have not just a Supreme Court court case, but many statutes passed by Congress. I, I cannot emphasize enough that it has never been very seriously or even seriously at all questioned, not just because of, you know, one Supreme Court opinion, but because of all of the constitutional actors in our system. That, that this is kind of clear as day that whether you, as a policy matter, think it's a good idea or not, the Constitution provides that all persons born here, regardless of the status of their parents, are citizens.

[Justin]

Right. So just to summarize what, what you've just been saying, Kate, it's in the Constitution, birthright citizenship. And I mean, obviously the Constitution can be changed and there've been amendments to it. But you're suggesting the Court itself. What, that it simply doesn't have the power to do this just on the whim of the president. Is. Is that what you're suggesting?

[Professor Kate Shaw]

So I think that birthright citizenship is in the Constitution, full stop. The Supreme Court in theory, could find that a provision in the first sentence of the 14th Amendment that says all persons born or naturalized in the United States and subject to the jurisdiction thereof. This is this phrase that the supporters of the president say, well, you're not subject to the jurisdiction of the United States if your parents entered unlawfully.

[Justin]

That's a really interesting one, just to hold on on that, because it's fascinating, isn't it? So I had a weird conversation with Trump lawyer, a very, very hardline Trump supporter. I was chatting to him about my daughter, and he made exactly the point that you have just made. He said, were you pointing at me? Were you subject to the jurisdiction of the United States when you were an American? I was on a visa, as was my wife. But he said, no, that doesn't mean you were subject to our jurisdiction. You were here as a guest, but you were actually still a subject of Her Majesty the Queen, as it was when I was in the United States. So actually, that argument that you've just brought up now, I mean, they do make it quite seriously, don't they?

[Professor Kate Shaw]

They do, but I, I don't. They're not even suggesting that if you were here, I mean, I guess it would depend on what kind of visa. But they're mostly arguing about individuals who come without any kind of lawful status. But whether you're, you're on a work visa or a student visa or have no legal authorization, you know, if you're arrested by the police for committing a crime, you're not going to be, you're not going to get very far making the argument that you're not subject to the jurisdiction of the United States.

[Justin]

I did try that a bit. Never worked.

[Professor Kate Shaw]

You're right to you and that to my mind is what subject to the jurisdiction thereof means. But they've got complicated arguments about allegiance that I just don't think get us very far. But that, but you're right that they're, they put a lot of weight on that phrase. But again, the, the Supreme Court, even if it said, well, that doesn't, you know, the Constitution doesn't necessarily confer this birthright citizenship. Congress has by statute done it. So Congress would have to repeal those statutes, pass new laws removing the entitlement to citizenship. The president can't do it unilaterally regardless. So I think there are two distinct, at least two distinct reasons that the president, you know, in his day, one executive order purporting to end birthright citizenship is without legal authority to do that.

[Justin]

Kate, final thought, and it's a really important one this cause it goes to the future. I was listening to James Carville, who's not a left wing Democrat by any manner of means saying the other day he wants the Supreme Court packed. And that's the word, isn't it, that is used. In other words, there are nine justices, but there don't have to be nine justices. What do you think the chances are that a Democrat president takes over in 2029 or indeed decades after that, if it takes them a bit of time to sort themselves out and says, you know what, I'm going to appoint as many justices as it takes to overturn all the stuff we've just had done.

[Professor Kate Shaw]

Well, once again, the president can't do it alone. You need so you're right, the Supreme Court, the size of the court is not set in the Constitution. That's a product of statute. So it's been nine for over a century, but there's nothing required about nine. But Congress would have to pass a law changing the size of the Supreme Court. So you first have to not just win the presidency if you're a Democrat, you also have to get both houses of Congress. But if that happens, I think it gets likelier by the kind of the, the day, the week, the month, the year. I think that for a long time there was Democrats, who I think are many of them dispositionally sort of institutionalists, were nervous about the notion of trying to change the size of the Supreme Court. Another Democratic president, fdr, very famously threatened to increase the size of the Supreme Court because it kept ruling against him. And he proposed to pack the court, and he lost in that he never successfully expanded the size of the Supreme Court. But in a way, he won because the court sort of backed down, in part because of those threats of court expansion, and it stopped striking down all of these New Deal initiatives that Roosevelt, you know, was obviously very committed to implementing. And so I think that there's a very good chance that a future Democratic president with a Democratic Congress tries, and maybe they succeed. But even if they don't, I think that it could be a successful effort to essentially assert kind of a meaningful threat against the court, threaten, you know, institutional threat that might cause a court to sort of trim its sails a bit, because this is a court that has been very hostile in lots of ways to things Democratic presidents have tried to do, and very protective of the prerogatives of Republican presidents, and Donald Trump in particular. So you can imagine that kind of institutional hardball having the intended effect of sort of bringing the court to heel, even if it doesn't actually successfully result in a court with 13 or 15 justices.

[Anthony]

So Justin opened this episode talking about whether this was gonna be the time when the Supreme Court stands up to Donald Trump to issues, decisions that curtails his power somewhat when the dust settles, and we'll get decisions over the next few months, and all of them by the end of June, when the dust settles on this term. Do you think that that is going to be what we're talking about? That we're talking about how the court finally said, okay, you've gone this far, but you can't go any farther. Or do you think we're going to be looking at this like we did a couple of years ago, where the justices ended up coming down on the side of Donald Trump and saying, you have much greater power, you have presidential immunity for your actions, than we even comprehended at the time?

[Professor Kate Shaw]

I am not convinced this is the term that the court is going to stand up to Trump or that they really will ever stand up to Trump? I will not rule it out. And I think from the perspective of a healthy system of separated powers, where the branches check one another, they very much should stand up to Trump. Um, and I think there have been some small but significant moments in which they have. They ruled against his efforts to deploy the National Guard to support immigration enforcement in Illinois in a ruling that applies, you know, everywhere the president has tried to send the National Guard, they ruled partially against him in a couple of early immigration cases. And I think as we've been discussing, they'll likely or at least potentially rule against him in the tariffs and likely rule against him in the birthright citizenship case and the Fed case. So I think that those are important. But the, that that's still sort of a small number. And the denominator in terms of the number of cases involving presidential power primarily on the shadow docket is very, very large. So he is still going to have a win rate of 80 or 90% even if he loses this handful of cases late in the term. And I, I think that contrasting that with what we've seen in the lower courts, which is many significant rulings, the overreaches that we've seen from the executive branch, I think that that's an accurate reflection of the way the President's assertions have, you know, sort of violated constitutional and statutory requirements. And the court's kind of track record looks very, very different. So maybe there is a shift afoot. But I am not at all convinced that the evidence that we have seen so far makes that the most likely trajectory that we are on.

[Justin]

Kate, this has been fascinating. Thank you so much for talking to us.

[Professor Kate Shaw]

I really enjoyed it. Thank you so much for having me.

[Anthony]

Thanks for coming on. Really appreciate it.

[Justin]

Okay, Anthony, I think we're going to be talking about the Supreme Court plenty more in the future, but more knowledgeably now, certainly from my perspective than we were in the past. But for the time being we ought to say goodbye.

[Anthony]

Bye Bye bye.

[Justin]

Thank you for listening to another episode. If you liked what you heard, why not subscribe to AmericaSt on BBC Sounds or indeed wherever you get your podcasts. That way you will be notified every time we publish a new episode. We also want to hear your thoughts, your feedback, questions, anecdotes, ideas. So do keep them coming in. We do look at every single bit of correspondence that we get so you can email us americastbc.co.uk the WhatsApp is 443-301-2392 480 and you can get involved in the AmericasT Discord server. The link for that is in the description and you can also watch us on YouTube. You just search for americast. Until next time. Bye bye.

[Narrator]

How are weight loss drugs changing our world? In the span of just a few short years, weight loss jabs have become so prevalent in our culture that they've transformed the way we live, move and eat. Restaurants are serving smaller portions and there's more protein rich food in grocery stores. Does all of this speak to a renewed obsession with skinniness? Listen to the global story on BBC.com or wherever you get your podcasts.