A Constitutional Travesty Narrowly Avoided

Summary

Amicus With Dahlia Lithwick: "A Constitutional Travesty Narrowly Avoided"

Episode Date: June 30, 2026
Hosts: Dahlia Lithwick (A), Marc Joseph Stern (B)

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Overview

On the final day of the Supreme Court’s 2025 term, Dahlia Lithwick and Marc Joseph Stern break down a historic, stunning, and unsettling decision narrowly upholding birthright citizenship under the 14th Amendment. The conversation focuses on the alarming closeness of the Court’s 5-4 constitutional ruling, exposing deep rifts and vulnerabilities in guarantees once considered untouchable. The episode unpacks the opinions, especially Justice Kavanaugh’s position, and reflects on the broader implications for constitutional rights and conservative legal strategy.

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Key Discussion Points and Insights

1. The Supreme Court Upheld Birthright Citizenship—But Barely

• The Court issued its final rulings for the term, with the spotlight on birthright citizenship.

• Both hosts note their shock—not at the legal outcome, but at how narrow the margin was.

• The ruling was 5-4 on the constitutional question, rather than the expected 9-0 or 8-1.

  “Certainly the big news… is that, as we predicted after oral arguments, the Supreme Court upheld birthright citizenship. Small, tiny applause. ...This was not a 9-0 decision, as it should have been, or an 8-1 decision, as it might have been. Nope. This is only when, insofar as five members of the Court today could not bring themselves to say that the Constitution means whatever Donald Trump thinks he wants it to mean...”
  — Dahlia Lithwick [00:46]

2. Alarm Over the Divided Court

• Marc and Dahlia emphasize astonishment and anger that four justices dissented on such a fundamental constitutional guarantee.

• Stern calls the outcome "a scandal," warning that it could set the stage for renewed attacks on constitutional rights.

  “I am shocked. I am stunned. ...Four justices said outright that they believe that under the 14th Amendment, the federal government can refuse to grant birthright citizenship to the children of many immigrants who are here temporarily or who are unauthorized. This was as close to a win as Trump could realistically get.”
  — Marc Joseph Stern [01:43]

3. Spotlight on Justice Kavanaugh’s Convoluted Stance

• Justice Kavanaugh sought a “middle ground” but ended up siding substantially with the conservative dissenters.

• On the statutory question, he maintained broad birthright citizenship. On the constitutional question, he argued it's up to Congress to limit it.

  "...Kavanaugh tried to split the baby, said that in his view, the federal statute that mirrors the 14th Amendment does provide birthright citizenship to pretty much everybody born here...But he then goes on to say that in his view, that is a misunderstanding of the 14th Amendment..."
  — Marc Joseph Stern [03:30]

• Stern warns that Kavanaugh’s position opens the door for Congress to revoke birthright citizenship from children of immigrants—including those in the US legally.

  "Kavanaugh says, if that's what Congress wants. The other three dissenters say, if that's what Trump wants. ...It would create this underclass of non citizens who by accident of birth are denied basic rights and civil liberties and are detainable and deportable at will..."
  — Marc Joseph Stern [04:37]

4. The Rise of Dangerous Legal Theories and Faux Originalism

• The hosts express concern over the conservative movement’s ability to give fringe legal theories mainstream legitimacy.

• Dahlia names this drift “beyond bad, bad, bad history,” noting that the dissenters' historical claims are rooted in "crackpot" reasoning.

  “You can find one crackpot who’s like, ‘I think history says this,’ and then root your whole historical analysis in it. It's chilling.”
  — Dahlia Lithwick [06:26]

5. The Infrastructure Powering Conservative Legal Change

• Stern details the right’s sophisticated strategy: using law review articles, amicus briefs, and lower court precedents to launder radical notions up to the Supreme Court.

  “It is impressive… that the right spent decades and billions of dollars creating this system... have these kind of shameless, hack pseudo scholars write these nonsense law review articles, convince some student editors… get it cited by some hack on the lower court, get it… pushed up to Sam Alito and Clarence Thomas… suddenly it's got four votes, maybe five, maybe six.”
  — Marc Joseph Stern [08:35]

• He warns that this “machine” can threaten any constitutional protection:

  “The sky's the limit for what constitutional guarantees and what precedents are vulnerable at this Supreme Court. And the people who run this whole machine, they know it and they are absolutely ready to say, hey, we came one vote away this time.”
  — Marc Joseph Stern [11:25]

6. The Limits of Institutional Solutions

• Dahlia cautions that superficial fixes—like a single new justice—won’t solve the underlying institutional capture by this conservative ecosystem.

  "The fix here can't be cosmetic, that when you have an entire infrastructure..."
  — Dahlia Lithwick [12:59]

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Notable Quotes & Memorable Moments

• On birthright citizenship:

  “You would be hard pressed to find a clearer constitutional guarantee than this... This one says that the children born here are American citizens.”
  — Marc Joseph Stern [08:35]

• On the judicial swing towards fringe ideas:

  “A completely, as you say, crack potty theory that was off the wall a year and a half ago can go to not just an on-the-wall theory... but garner four votes.”
  — Dahlia Lithwick [07:27]

• On the potential for further erosion:

  “They’re going to run it with assault weapons next term, right? ... They already did it with the Voting Rights act, saying that it's unconstitutionally racist to protect racial minorities in voting. They're gonna do it on every single thing.”
  — Marc Joseph Stern [08:35]

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Main Segments & Timestamps

| Time | Segment | |-----------|---------------------------------------------------------------------| | 00:07 | Episode intro, context, and last day of the term | | 00:46 | Overview of Supreme Court’s split decision on birthright citizenship| | 01:43 | Shock at the narrow 5-4 margin; comparison to Plessy v. Ferguson | | 03:02 | Justice Kavanaugh’s complex, conflicted opinion | | 04:37 | Implications: creation of an underclass, chilling consensus shift | | 06:26 | The spread of “bad history” and rise of faux originalism | | 07:19 | The danger of right-wing theories obtaining near-majority support | | 08:35 | Stern analyzes the conservative legal machine’s impact | | 12:09 | Discussion about limits of adding a new justice as a solution |

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Tone & Style

Engaged, worried, sometimes incredulous and sardonic; the hosts combine deep legal knowledge with commentary that’s activist and urgent, confronting the radical shifts at the Supreme Court.

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Takeaways

• The Supreme Court’s narrow decision to uphold birthright citizenship was disturbingly close; what’s been an unquestioned principle is now vulnerable.
• Conservative justices, via meticulously built legal infrastructure, are amplifying once-fringe arguments, threatening diverse areas of constitutional law.
• Institutional change in the Supreme Court will require more than a single appointment; the entire conservative legal ecosystem must be confronted.
• Listeners are warned to be vigilant—future terms may see similar (or even successful) assaults on foundational rights.

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For more in-depth discussions—including Professor Jed Sugarman on the dangers of “faux originalism”—listen to the full episode or join Slate Plus for extended content and analysis.

Transcript

[A]

This is Amicus Slate's podcast about the courts and the law and the Supreme Court. And here we are. It is peak opinion Palooza, the final day of the Supreme Court term. Or at least the final day where the justices take the bench. Confusingly, we call this the 2025 term because it started in October of 2025. Don't ask. I'm Dahlia Lith.

[B]

And I'm Marc Joseph Stern. And after 58 argued cases since last October and a steady stream of shadow docket decisions, the court issued its final four rulings Tuesday morning on the weirdest last day in recent memory.

[A]

It's just an extremely weird day, and at least the term didn't bleed over into July. So that's the good news, and I guess the fake good news. But certainly the big news, Mark, is that, as we predicted after oral arguments, the Supreme Court upheld birthright citizenship. Small, tiny applause. A thing that is in the text of the Constitution, has been ratified in a statute upheld by precedent in an unbroken line of cases. This was not a 90 decision, as it should have been, or an 81 decision, as it might have been. Nope. This is only when, insofar as five members of the Court today could not bring themselves to say that the Constitution means whatever Donald Trump thinks he wants it to mean, if he were the king of the world. So I'm gonna say, Mark, not in any way, shape, or form. A banner day.

[B]

I am shocked. I am stunned. I was ready for this to be 8:1 and for you and I to come on here and say, you know, I really think that the Court doesn't deserve much credit because this was an easy case, and a lot of what the Court did this term was awful, and we shouldn't let this cover that up. But, oh, my God. Instead, I am here. This was only 5:4 on the Constitutional question. That is a scandal. That is an outrage. That is stunning. Four justices said outright that they believe that under the 14th Amendment, the federal government can refuse to grant birthright citizenship to the children of many immigrants who are here temporarily or who are unauthorized. This was as close to a win as Trump could realistically get, and way closer than you and I thought he would get. And so the mood that I expected to be in, which was like, yeah, let's celebrate, but let's not give the court too much credit, is not manifesting. And instead I'm like, thanks, Roberts and Barrett, for coming through when it mattered, because if they hadn't, we would be looking at probably the single biggest blow to the Constitution and certainly to the Reconstruction amendments since Plessy versus Ferguson in 1896, which is apparently something, by the way, that Clarence Thomas wants to bring back.

[A]

But I want to talk for one minute about Justice Brett Kavanaugh, everyman who always kind of wants to get in that Solomonic mental mark and sort of say on the one end, on the other end. So today he splits the baby, again, weighing in on both sides 5 to 4, as you said, on the constitutional issue, but 6 to 3 on the statutory question. And certainly making it plain that if Congress wants to go ahead and revoke birthright citizenship, that'd be cool.

[B]

Yeah. So Kavanaugh tried to split the baby, said that in his view, the federal statute that mirrors the 14th Amendment does provide birthright citizenship to pretty much everybody born here, including children of immigrants, because that was the understanding of the law when Congress enacted it in the middle of the 20th century. But he then goes on to say that in his view, that is a misunderstanding of the 14th Amendment and that in reality, the 14th Amendment does not necessarily apply to the children of immigrants. And he cited the fact that the children of. Of diplomats in the 1860s were recognized as an exception to birthright citizenship because they were not subject to full U.S. jurisdiction because they inherited and carried their parents diplomatic immunity. And he claimed that those children are somehow relevantly similar to the children of undocumented and temporary immigrants today, and that Congress has the latitude to therefore expand the class of people who don't receive birthright citizenship from this tiny, quirky little category of kids born to diplomats who are residing in the United States to potentially like all children of undocumented and temporary immigrants, including visa holders, including those who are lawfully here and are here for quite some time. That is not what I expected. I thought he might write an opinion like this, but I thought he might leave the 14th Amendment question open. Instead, he went whole hog and he decided to cast his lot with Trump and basically tell Mike Johnson and Republicans in Congress, in my view, this is an open question and you guys can settle it. And we should talk about this. But like the consequences of Kavanaugh's position and of Thomas and Alito and Gorsuch, you know, we'll get into it, but it would be so catastrophic. It would create this underclass of non citizens who by accident of birth are denied basic rights and civil liberties and are detainable and deportable at will, deportable to countries they've never set foot in. The whole thing is so perverse. And you don't get Any recognition of that from the dissenters. They are all on board with the MAGA cruelty. Kavanaugh says if that's what Congress wants. The other three dissenters say if that's what Trump wants. And so look again, I'm gonna give Robertson Barrett their due. This was a straightforward majority opinion by the Chief justice that did what it needed to do, that reiterated the history, that said the Supreme Court got this right in 1898's Wong Kim arc that the Supreme Court does not have any reason to go back and revisit what Wong Kim Ark said, that the children of immigrants are American citizens by birth. But that should have commanded an overwhelming majority of the Court. It was the view of all three branches government and all serious legal scholars and historians until very recently. The fact that four conservative dissenting justices embraced an idea that was strictly relegated to fringe nativist freaks until so, so, so recently nearly gives me a heart attack.

[A]

So we're actually going to talk on this week's show, the main show, with Professor Jed Sugarman about, you know, the bad history of not just deployed here in the dissents, but also as deployed in the Rebecca Slaughter case. And we will really dig down on, you know, we used to call it faux originalism, right? Faux originalism. This is so much more pernicious. This is just beyond bad, bad, bad history. And as you said, you know, you can find one crackpot who's like, I think history says this, and then root your whole historical analysis in it. It's chilling. But I want to say stay for one beat, Mark, if we can, with the implications of having a 5, 4 ruling here, because I'm not sure that's going to get nearly enough airtime in the next couple of days of news

[B]

cycles, in part because Kavanaugh's vote confuses people. Right? People are going to say, oh, it was 6:3. It wasn't really 6:3, but I do

[A]

think strip away birthright citizenship. Strip away the fact that, as we all agree, this is a 9 nothing case. Constitution says what it says, Won Kim Ark says what it says, statutes say what they say. There's no there there. Strip that away. And let's pretend for just one second that the conservative legal movement learned a really important piece of information, which is that a completely, as you say, crack potty theory that was off the wall a year and a half ago can go to not just an on the wall theory, you know, supported by a couple of scholars, but that they can garner four votes. What's the play? I just want to know for Those who take today not as a win for birthright citizenship, but as a challenge to do it right the next time. You mention Kavanaugh essentially saying, wink, wink, Mike Johnson, do it right the next time. We just need a statutory tweak. What's the lesson here, Mark? In you've got four votes for anything Donald Trump wants, Right?

[B]

So the lesson for the other side is that you can run this playbook on almost anything and come within striking distance. They did it with mail ballots on Monday. They did it with birthright citizenship this time. They came so close to upending elections in 30 states and here to overturning the very first sentence of the 14th Amendment. I wrote in my piece today, Dalia, and I'll say it again, you would be hard pressed to find a clearer constitutional guarantee than this. There are many provisions of the Constitution that are these majestic generalities that are vague, that are kind of antiquated, and it's difficult to know exactly what they're supposed to mean in 2026. But this one is as straightforward as it gets. This one says that the children born here are American citizens. And again, as Roberts explains, there are a few tiny exceptions that everyone understood to be the exceptions in the 1860s. People who were not subject to US jurisdiction, who were subject to the powers of a foreign sovereign. And so the United States did not exercise its sovereign authority over them like diplomats. Undocumented immigrants are not diplomats. Their children certainly aren't. There is no reason to buy into any of this nonsense just because we had some Federalist Society scholars cook up this garbage about how there's a secret escape hatch in the 14th amendment that lets Donald Trump do whatever he wants. So if they could run it on this, they can run it on anything. And we'll talk about this. They're going to run it with assault weapons next term, right? They're going to run it with a whole bunch of items on Donald Trump's wish list. They already did it with the Voting Rights act, saying that it's unconstitutionally racist to protect racial minorities in voting. They're gonna do it on every single thing. And I guess I wanna take a step back and think about the infrastructure that they've built up, because we can complain about it, and we will for the rest of our lives, but it is impressive. It's genuinely impressive, right, that the right spent decades and billions of dollars creating this system where they could have these kind of shameless, hack pseudo scholars write these nonsense law review articles, convince some student editors, you know, some two ls, to publish it in a prestigious law review journal, get it cited by some hack on the lower court, get it kind of pushed up to Sam Alito and Clarence Thomas, have them embrace it and argue for it behind the scenes and suddenly it's got four votes, maybe five, maybe six. I mean, this was an impressive kind of creation by the legal right that had never existed in the United States before. And we're just seeing it run so effectively over and over and over again, always in support of Donald Trump and his agenda like he is the luckiest president of all time in many, many ways. But one of the big ways is that he is the beneficiary of this machinery that creates legal scaffolding to support his wackiest, most nativist and racist ideas. The sky's the limit for what constitutional guarantees and what precedents are vulnerable at this Supreme Court. And the people who run this whole machine, they know it and they are absolutely ready to say, hey, we came one vote away this time. They can go tell their billionaire funders, right? They can go tell Leonard Leo, they can go tell everybody we came one vote away, believe in us, because next time we'll get that vote. And frankly, they might because we all know that Robertson Barrett, as good as their votes were in this case, they are very much up for grabs in a lot of them. And they are susceptible to this kind of fake history, fake scholarship too, for evidence. Just look at the Slaughter case, which we'll, we'll talk about on the main show this week. That was proof that, you know, with the right bogus history, John Roberts will sign on and just pretend that this completely concocted, ahistorical, cherry picked historical record is the truth of the Constitution.

[A]

It raises the question that I think always runs under our conversations here, which is if there's anyone listening who thinks that this 54 problem is solved by, oh well, you know, maybe you capture the Senate and then you get a strategic retirement and then maybe you could put a 46 liberal on the court like this machine that you are talking about. You know, the amicus brief, industrial complex, the insanity, the utter insanity of law review articles with fake facts. And you noted this yesterday about the shocking language about vote fraud that got inserted into yesterday's opinion.

[B]

And got four votes.

[A]

And got four votes, same four votes

[B]

as the dissenters today.

[A]

And so I think we need to be really clear eyed mark that the fix here can't be cosmetic, that when you have an entire infrastructure. Slate plus members can access our conversation in full right now, visit slate.com amicusplus to get access wherever you listen and we are running a Flash sale. Yay. For a limited time get a whole year of slate plus for just $29.

[B]

If you join now, you'll have access to all our Opidia andpalooza extras across slate.com and here on Amicus, including an invite to a live taping of our end of Term All Star panel.

[A]

Slate plus members can register to join our end of Term roundup with the sharpest legal minds we know and Dalia

[B]

and I will be hosting A plus member Only Q and A to answer all questions your birding questions after this outrageous term.

[A]

Go to slate.comamicus+ to join us.

[B]

You can also subscribe to Slate+ directly from the Amicus show page on Apple Podcasts and Spotify.

[A]

If you are already a Slate plus member, you can register for our live online [e-mail] breakfasttable that's all one word. We'll be back with your regularly scheduled episode of Amicus on Saturday morning. Until then, do take good care.