← Amicus With Dahlia Lithwick | Law, justice, and the courts
Amicus With Dahlia Lithwick | Law, justice, and the courts
SCOTUS Is About to Suffer Buyers Remorse, Again
01:03:10
They decided to tackle the very messy question of nationwide injunctions instead of answering the easy, obviously unconstitutional issue.
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- [00:02]
Dahlia Lithwick
This episode is brought to you by Choiceology, an original podcast from Charles Schwab hosted by Katie Milkman, an award winning behavioral scientist and author of the best selling book how to Change. Choiceology is a show about the psychology and economics behind our decisions. Hear true stories from Nobel laureates, authors, athletes and everyday people about why we do the things we do. Listen to choiceology@schwab.com podcast or wherever you listen.
- [00:35]
Mark Joseph Stern
Ryan Reynolds here from Mint Mobile. I don't know if you knew this, but anyone can get the same Premium Wireless for $15 a month plan that I've been enjoying. It's not just for celebrities. So do like I did and have one of your assistant's assistants switch you to Mint Mobile today. I'm told it's super easy to do@mintmobile.com.
- [00:53]
Dahlia Lithwick
Switch upfront payment of $45 for 3 month plan equivalent to f $15 per month required intro rate first 3 months only, then full price plan options available, taxes and fees extra. See full terms@mintmobile.com I'm Dalia Lithwick and this is Amicus Slate's podcast about the courts and the law and the Supreme Court. We will hear argument this morning in case 24A884, Trump v. Casa Incorporated and the consolidated cases. General sour Mr. Chief justice, and may.
- [01:27]
Mark Joseph Stern
It please the court.
- [01:29]
Dahlia Lithwick
On January 20, 2025, President Trump issued Executive Order 14, 160 protecting the meaning and value of American citizenship. The Supreme Court heard what was doubtless the most weighty case of this term on Thursday, the multi state, multi plaintiff challenge to Donald Trump's Executive Order doing away with birthright citizenship, a right enshrined indelibly in the 14th Amendment. Two and a half hours of argument told us close to nothing about what the various Justices think of just torching the idea that if you are born in the United States, you are a citizen. Until very recently, this wasn't a closed question. Indeed, it really wasn't a question at all. Just to establish the fact that it's not a closed question, here is Justice Sonia Sotomayor reeling off the certainty with which the Court precedent has addressed this issue. We have the one ARC case where we said fealty to a foreign sovereign doesn't defeat your entitlement. Your parents fealty to a foreign sovereign doesn't defeat your entitlement to citizenship as a child. We have another case where we said that even if your parents are here illegally, if you're born here, you're a citizen. We have yet another case that says even if your parents came here and were stopped at the border, but you were born in our territory, you're still a citizen. And we have another case that says even if your parents secured citizenship illegally, you're still a citizen. So as far as I see it, this order violates four Supreme Court precedents. Mark Joseph Stern and I sat through all of the arguments on Thursday and we are going to take you through what we heard and what we think it signifies. The arguments actually unfolded as a pretty technical fight that really does require a bit of Saturday morning jurisprudential quarterbacking. You could be absolutely forgiven if it was eye crossingly arcane to you, but here we are to help you out. Mark Joseph Stern covers the courts for us at Slate, and I think it's fair to speak for both of us and say that we found Thursday's arguments twisty and kind of unreadable, hard to predict, and in general chaotic in much the same way that the prospect of this executive order being allowed to go into effect will be. So, Mark, welcome back.
- [04:11]
Mark Joseph Stern
Hi Dalia. Happy to be here.
- [04:13]
Dahlia Lithwick
Are you really happy?
- [04:14]
Mark Joseph Stern
No, I'm not really.
- [04:15]
Dahlia Lithwick
Okay.
- [04:16]
Mark Joseph Stern
I mean, it's always a pleasure to be with you, Dahlia. But these arguments were such a mess.
- [04:21]
Dahlia Lithwick
I have to say. The texts and the whatsapps and the emails I got throughout the very long morning tended to be of the WTF variety. Yeah, it's very hard to understand why we talked about everything but birthright citizenship, but I think you and I, just by way of setting the table, should talk about birthright citizenship for just a moment. Because I think that a lot of the work that was done in the media teeing up this case made it sound as though we were going to have a clinic on the meaning of the 14th Amendment citizenship clause. So let's just lay out what that clause did and why, and then we can talk about why we never talked about it.
- [05:01]
Mark Joseph Stern
Okay, well, let's do the work that the justices should have done but didn't is what you're saying, Basically. So birthright citizenship was the foundational rule in the early American Republic, and it was inherited from English common law that changed because of racism and slavery. Notoriously, the Dred Scott decision stripped birthright citizenship from black Americans. And so after the Civil War, one of the top priorities of the Reconstruction Congress was to reestablish birthright citizenship and enshrine it explicitly in the Constitution so that nobody could ever do something as crazy as try to take it away from a whole class of people. So the very first sentence of the 14th Amendment, ratified in 1868, says that all persons born in the United States are citizens, citizens of the United States. There is a very narrow exception for people who are not subject to the jurisdiction of the United States. That means people who are not subject to the laws of the United States. It targets the children of foreign diplomats who are doing a tour of duty in the United States, the children of invading soldiers who happen to be on an incursion to the United States. But other than that, the amendment established this very broad principle that if you're born here, you get citizenship. The Supreme Court affirmed that reading in 1898 in a famous decision called Wong Kim Ark and said, yes, this applies not only to the children of enslaved people. It applies not only to people of color. It also applies to the children of immigrants, and made it very clear that this was not just about slavery, that the children of immigrants must receive citizenship when they are born in the United States.
- [06:44]
Dahlia Lithwick
And.
- [06:44]
Mark Joseph Stern
And that principle was relatively uncontroversial for many, many decades until the Republican Party started making it controversial and Trump decided to try to repeal it. I could go on, but I'll just flag. You know, we talk a lot about originalism and sort of vague history here. This is one of the few areas where the history is super duper clear, right? During the debates around the 14th Amendment, the senators considering it and drafting it actually talked about the children of immigrants and said, what should we do about them? And decided, oh, yes, they too must receive citizenship under this clause. It's right there in the debates. It's in the historical record. There are some unsettled and confusing and muddled constitutional issues. This simply isn't one of them. And so when Donald Trump came into office and issued this executive order attempting to strip birthright citizenship from the children of undocumented immigrants and the children of temporary visa holders, all of us with any familiarity of the 14th Amendment pretty much stood up and uniformly said, that is illegal.
- [07:51]
Dahlia Lithwick
We just did a show with Professor Amanda Frost from UVA in which she more or less put on a masterclass on this question that Mark has just laid out, which is, what was the intention behind the drafting of the 14th Amendment citizenship clause? What is it that they were seeking to overturn? What is it that they were seeking to enshrine? And more pointedly, Mark, I think Amanda made the point that this was an absolute commitment to a non monarchic, pluralistic, inclusive idea of democracy that, as you say, is not in question. If you look at what the intention of the drafters was, I Think before we get to whatever the heck happened on Thursday, let's do one more beat, if we can, on these three consolidated cases that come up to the court for this argument. Because we have not one, not two, but three district courts that are all hearing sort of chunks of this case and then appeals courts. So how does this get to the US Supreme Court, please?
- [08:57]
Mark Joseph Stern
So a bunch of plaintiffs sued and all of them won in the lower courts. Three different district courts, as you said, issued injunctions and applied them nationwide and said, this policy is so unconstitutional and the harms from it are so great that we need to apply these blocks all across the country so that there are no infants out there who are being denied their fundamental constitutional right of citizenship. The plaintiffs fell into three buckets. Basically. There were pregnant women who needed to ensure that their forthcoming children would be citizens. There were organizations that advocate for the rights of immigrants and the rights of pregnant women who needed to have this right established clearly. And then there were 22 states, including New Jersey, the leader of this coalition of states, who said, look, this is going to harm us, too. It's going to throw us into chaos. We want to ensure that all children born in our state are citizens. We want to ensure that we can still continue to provide benefits to these individuals as citizens. We do not want to deal with the absolute mayhem that would result. If your citizenship depends on where you were born within the United States, what if someone's born in Philadelphia, but then their parents take them across the river to Camden, New Jersey? Do they get citizenship? What's the deal? And so, in response to these very pressing and claims, the nationwide injunctions were issued and the federal courts of appeals upheld those injunctions and said, yeah, obviously this was the appropriate move in an extreme case like this. Then the Trump administration, through the Justice Department, asked the Supreme Court for emergency relief, but as we'll discuss and as you previewed, didn't actually ask the Supreme Court to uphold this policy on the merits, but simply said, we want you to narrow these injunctions to the named plaintiffs in the cases.
- [10:46]
Dahlia Lithwick
And this becomes really important because it allows us to get out of the exigent emergency of birthright citizenship willy nilly being overturned and states not knowing what to do, and the Justice Department having no real answer to what they plan to do about it, and instead focuses on the exigent emergency of nationwide injunctions. Right. So really, this is a choose your own ending kind of drama where it gives the opportunity to the justices to not have to answer the easy question, which is, is birthright citizenship protected by the Constitution. And instead to answer, and I would say go so far as to answer, if you're Justice Thomas, as an originalist, whether nationwide injunctions are, in fact permissible. And so really, you have these two competing harms, except one of them. And we can talk about it or not talk about it. I think there is broad agreement. We heard it at Thursday's argument that there's a lot of problems with nationwide injunctions. Right. With single district judges who say, hey, I'm going to make this thing unlawful throughout the nation. And when Matthew Kaczmarek does it with mifepristone, it's a problem. And we've seen it as a problem for many, many years over many administrations. But the attempt to say squirrel nationwide injunctions, that's the crisis that the court has to address today, was a very savvy move by the Trump Justice Department to get the focus off the real exigent problem, which is how the hell does this chaos get administered?
- [12:18]
Mark Joseph Stern
Yes, I guess I, I would say it's a moderately savvy move. It seems savvy because the Supreme Court fell for it. Right. Like the Supreme Court took the bait and said, oh, we won't answer this super easy question. Instead, we'll only reach out and grab this much more difficult question and tear ourselves into pieces trying to answer that instead. I do not know why the justices did that. We can discuss. I have a couple of theories. Maybe there's just a lot of angst around nationwide injunctions, and they thought this would be the case where they could finally sort of, and get a resolution. But this is the worst possible case for them to do that because the policy is so brazenly unconstitutional and because the harms of narrowing these injunctions to anything less than nationwide scope would be so extreme. So a big mistake by the Supreme Court to do what it did here. And to the extent that you and I were frustrated and deeply irritated by these arguments, I think it's a result of the justices just making a really bad decision to let Trump's Justice Department, not a paragon of brilliance or tactical smarts, back SCOTUS into a corner that it didn't need to be in.
- [13:25]
Dahlia Lithwick
I love that framing, Mark. And I guess I would add to it that it's doubly rich when you then hear the justices ringing their hands over how quickly they can get to the merits in this case. Right. As though, I mean, what can we do? What we really want to do is decide birthright citizenship, and God knows we want to do it expeditiously. They keep throwing that word around, but weirdly, given the opportunity, they've decided not to decide it, and instead, they're going to decide, as you say, a vehicle. That, and Amanda Frost made this point on the show a couple of weeks ago, actually proves better than anything else why nationwide injunctions are sometimes imperative. So you pick the worst vehicle and then you decide, and then you're like, huh, we can't get to the merits. Okay, That's, I guess, the upside down world that the case arrives at. One thing that John Sauer does to try to make it seem like the nationwide injunction is the real emergency here is by counting the number of them. Right. So it's not just that these are unprecedented and never used until the 1960s, but that, oh, my God, they're just. It's crazy. The judges have gone nuts, and there's all of them. Multiple district courts promptly issued nationwide or universal injunctions, blocking this order. And a cascade of such universal injunctions followed. Since January 20, district courts have now issued 40 universal injunctions against the federal government, including 35 from the same five judicial districts. And I just want to reflect on the fact that that's almost like saying, oh, you brought like, 20 counts of murder instead of one count of murder, so therefore it's your fault. Like the crimier the Trump administration is, the more they want to disagree, discount the numbers of injunctions that have been leveled against them. Right.
- [15:22]
Mark Joseph Stern
Yeah. And this is a point that Kelsey Corcoran made in, in so many words during her argument that the denominator matters, that the reason why the Trump administration has been slapped with so many nationwide injunctions is because it has issued an unprecedented number of sweeping executive orders. And, sorry, Brett Kavanaugh, I actually don't think that they were issued in good faith. There are a lot of them that seem designed to test the limits of the law a lot like these, like the one we're discussing here, that that's just so flagrantly unconstitutional, it seems designed to, to tee up a confrontation with the courts where Trump can speak out about, you know, these rogue federal judges trying to steal the presidency from him. And so this really narrow lens that you have to look through to see an injustice here, it completely ignores that it is actually a false count. It's double counting. It's over counting. It's not as many as, as the Justice Department claims. But setting that aside. Yeah. If this is an unprecedented slate of injunctions, that's only because it's a response to an unprecedented spree. Of illegal executive orders that require immediate and sweeping action to try to restore constitutional order in this country.
- [16:29]
Dahlia Lithwick
Let's take a short break. This episode is brought to you by Choiceology, an original podcast from Charles Schwab. Choiceology is a show all about the psychology and economics behind our decisions. Each episode shares the latest research in behavioral science and dives into themes like can we learn to make smarter decisions? And the power of do overs. The show is hosted by Katie Milkman. She's an award winning behavioral scientist, professor at the Wharton School, and author of the best selling book how to Change. In each episode, Katie talks to authors, historians, athletes, Nobel laureates, and everyday people about why we make irrational choices and how we can make better ones to avoid costly mistakes. Listen and subscribe@schwab.com podcast or find it wherever you listen. PMS, pregnancy, menopause, being a woman is a lot. Ollie supports you and yours with expert solutions for every age and life stage. They just launched two new products exclusively at Walmart. Period. Hero Combats, Bloat, Mood swings and more during PMS and Balance perimeno to support hormonal balance, mood and metabolism during perimenopause. Grab yours@ollie.com Ollie these statements have not been evaluated by the Food and Drug Administration. This product is not intended to diagnose, treat, cure or prevent any disease. And Mark Joseph Stern and I are back with more analysis of the big birthright citizenship arguments at the Supreme Court this week. Looming over this entire case is the fact that this court is almost certainly, definitely sometime in some future date is going to announce that birthright citizenship is protected in the Constitution. So that's both on the table and off the table. And then we are now having a kind of meta fight about how such a case is going to get to the court and how quickly it's going to get to the court. And of course the liberal justices were wondering, and this was, I think, really the thrust of their questions for Solicitor General John Sauer, if you go ahead and do away with nationwide injunctions, how is this case going to get to the court on the merits? So here's Justice Ketanji Brown Jackson asking a version of that question with this freighted question underneath it of this is going to take a really long time. The real concern, I think, is that your argument seems to turn our justice system, in my view at least into a catch me if you can kind of regime from the standpoint of the executive where everybody has to have a lawyer and file a lawsuit in order for the government to Stop violating people's rights. Justice Kagan says, let's assume for the purpose of this that you're wrong about the merits that the government is not allowed to do this under the Constitution. And yet it seems to me that your argument says we get to keep on doing it until everyone who is potentially harmed by it figures out how to file a lawsuit, hire a lawyer, et cetera. And I don't understand how that is remotely consistent with the rule of law.
- [19:44]
Mark Joseph Stern
Such an elementary but crucial point here. I mean, the Trump administration is teeing up a scenario in which every single person whose rights are violated has to go to court and secure an independent judgment, which, you know, many, many people do not have the means to do. And so I think this is maybe our first entry into the other meta question that was looming over these arguments, which is, can the Trump administration be trusted to respect the law? And if it's given these tools to evade a judgment of a court, you know, a kind of catch me if you can situation, as Justice Jackson put it, will it exploit those in bad faith and use it to really kind of drain the power of the judiciary altogether? Which I think is obviously a real concern given the administration's behavior over the last four months.
- [20:31]
Dahlia Lithwick
Yeah, it's such an interesting problem. And we talked about this throughout Trump 1.0. In fact, I think that the T shirt was lie to us better. Right? As long as the Trump Justice Department would bring John Roberts something that looked like some plausible, you know, effort, some decent due diligence, the court tended to be like, yeah, okay, and so now the question is, we've lost Kagan, we've lost Jackson, was never on the court at that time, never had Sotomayor. And as we're going to discuss, Justice Barrett also doesn't seem inclined in this case to give the presumption that, yeah, we think the Justice Department is going to do the right thing all the time. So that's part of. I think you're exactly right. The other thing that looms over this is who wants to go along with the pretense that everything is regular and normal at Department of Justice land, and who is basically saying, I think you're in bad faith here, and I think you're going to do more bad things. Let's listen to Elena Kagan, if we can, for a minute, who I think came as close to the line of just straight up saying to Solicitor General John Sauer, I think you're going to do really bad things. Let's listen to her colloquy with him about how they're going to proceed to litigate these cases. I mean, let's assume that you lose in the lower courts pretty uniformly as you have been losing on this issue, and that you never take this question to us. I mean, I noticed that you didn't take the substantive question to us. You only took the nationwide injunction question to us. I mean, why would you take the substantive question to us? You're losing a bunch of cases. This guy over here, this woman over here. You know, they'll have to be treated as citizens, but nobody else will. Why would you ever take this case to us?
- [22:23]
Mark Joseph Stern
This is so important to understand. And this is classic Justice Kagan ninja move. Like, it's subtle but vital. The Justice Department is making a weird argument here. They are saying we don't have to abide by the district court's decision except as to the named parties. Right? And they're saying that district courts can't issue universal injunctions, so only the named parties benefit. The Justice Department is also saying that that rule applies to the federal courts of appeals, so that if, say, the Ninth Circuit issues a decision blocking the birthright citizenship order, that according to this Justice Department, the government only has to respect that decision as to the parties in the case and can keep enforcing the order as to everybody else, the tens of millions of other people who live within the 9th Circuit. And the. The final argument that the Justice Department has presented is, oh, but we will respect a decision from the Supreme Court. And by the way, this tracks exactly what Donald Trump keeps saying about the difference between lower court judges and the Supreme Court, where he has said, I'm not so sure about lower court judges, but I respect the Supreme Court. That is this policy translated into legalese? The Solicitor General is saying, if the Supreme Court rules, then we will essentially acknowledge its judicial supremacy and we will respect and apply the Supreme Court's decision across the board to every single person in this nation, and that will solve the problem. So the issue that Justice Kagan has flagged here is, what if a case never gets to the Supreme Court? What if all of the lower courts are in total agreement that the Trump administration is wrong, that this policy is unconstitutional, and they all rule against it? Well, then, if this scheme that's been laid out by the Justice Department prevails, the Justice Justice Department could simply refuse to appeal any of those decisions to the Supreme Court. I don't think that anybody else would have standing to intervene and appeal it. And then the Justice Department could turn around and say, well, we don't have to respect the decisions by these courts of appeals, except with regard to, you know, whoever happens to be a named plaintiff. And so it could do exactly what Justice Jackson is warning about with her Catch me. If you can question and say everybody who's not a part of this litigation, we're going to screw you. We're going to take away birthright citizenship from your kids, going to deport them, we're going to deny them benefits, and we're going to keep this case away from the Supreme Court forever. So there's nothing you can do except hire your own lawyer and slog your way through to a personalized injunction that applies to you. And that is exactly why as, as Justice Jackson said, this is a deep threat to the rule of law.
- [25:03]
Dahlia Lithwick
Right. And I think it's also maybe important to flag here that literally they say the strategy is. And Sauer was like, weirdly, I think, willing to say, you know, up to a decision from the Supreme Court, which we will abide by. And he said that several times. But up until that point, yeah, we may or may not follow a circuit court ruling, the plan almost seems to be we're going to win by losing. We're going to take our handful of losses as to the handful of folks who prevail with the knowledge that there's no vehicle to protect everyone else. And so everybody else, as you say, is screwed. And he's pretty open about that. And Mark, I want to play the clip of where he loses. Amy Coney Barrett listeners, if you were just kind of completely gobsmacked by what was going on at this argument, that was a palpable moment where she was saying, oh, my God, did you just say you're not going to listen to what a circuit court says? Let's have a listen. Did I understand you correctly to tell Justice Kagan that the government wanted to reserve its right to maybe not follow a circuit, second Circuit precedent, say, in New York, because you might disagree with the opinion, our general practice is to respect those precedents, but there are circumstances when it is not a categorical practice, and that is not this administration's practice or the long standing practice of the federal government. And I'm not talking about in the Fourth Circuit. Are you going to respect a Second Circuit? I'm talking about within the Second Circuit. And can you say, is that this administration's practice or law, as I understand it, long standing policy of the Department of Justice? Yes, that we generally, as it was phrased to me, generally respect circuit president, but not necessarily in every case. And Certain. Some examples might be a situation where we're litigating to try and get that circuit president overruled and so forth. Well, okay, so I'm not, I'm not talking about a situation in which, you know, the Second Circuit has a case from 1955 and you think it's time for it to be challenged. That's not what I'm talking about. I'm talking about in this kind of situation. I'm talking about this week, the Second Circuit holds that the executive order is unconstitutional. And then what do you do the next day or the next week? Generally, we follow. So you're still saying generally. Yes. And you still think that it's generally the policy, long standing policy of the federal government to take that approach? That is my understanding. Okay, so, but it sounds to me like you accept a Cooper versus Aaron kind of situation for, for the Supreme Court, but not for, say, the Second Circuit, where you would respect the opinions and the judgments of the Supreme Court. And you're saying you would respect the judgment, but not necessarily the opinion of a lower court. And again, and I think in the vast majority of. So, Mark, this colloquy is really quite amazing because what we have, and you've said it already, but it's so important is essentially we have Trump's Solicitor General saying the same thing that Trump says every time he goes on tv, which is we don't have to listen to judges we don't like. But as our friend Professor Jack Goldsmith from Harvard noted, this is a challenge by Trump's Solicitor General to the jurisdiction of the courts to remedy bad behaviors by the Trump administration. But the same principle that allows them to say, we don't like your remedy, we think it's unconstitutional, is certainly a principle that would allow them to say, also, we don't like the Supreme Court remedy. So it's now just a feelings ball question.
- [28:28]
Mark Joseph Stern
Yes, yes, exactly. The theory that Sauer put forward on Thursday is utterly incoherent. It makes no sense. It falls apart upon the slightest bit of scrutiny. Because if it is true that district court decisions only apply to the name plaintiffs and courts of appeals decisions only apply to the name plaintiffs, there is no reason why Supreme Court decisions should not also apply exclusively to the named plaintiffs. All that sour could offer in response to Barrett pressing him on this point and Kagan pressing on this point was, well, we respect the Supreme Court. Right. That's all he could say, which is almost verbatim what Trump says when pressed with this question. I cannot stress enough how quickly the Justice Department and Donald Trump the man are converging on what the executive branch owes to the courts, which is very, very little in this estimation. And so, you know, this is Barrett being a professor. This is Barrett being like a sort of meticulous, nitpicky logic hawk saying, I don't get it. You know, if you're saying that the courts of appeals can be defied and you are saying that, then why not the Supreme Court as well? And I loved her tag teaming with Justice Kagan. And this reminded me a good bit of arguments last term in the emergency abortion case, where Justice Barrett also sort of threw down the flag on the field and said, wait a minute. When Idaho's lawyer was like, well, maybe we'll kill women. Maybe you'll just have to wait and see. Justice Barrett doesn't like these games, and she could see that what Sauer is putting forward is fundamentally a game. It is a game where you keep losing and then you parlay those losses into a win by keeping a case away from the Supreme Court. And finally, and perhaps most importantly, there is nothing that would bind the Justice Department to the representations that Sauer made on Thursday that they would respect the Supreme Court. If they're not gonna respect courts of appeals, again, why not just disrespect the Supreme Court? Why not just say in a future case, you know, we thought that we would apply the Supreme Court's decisions across the board. We thought we would respect it as a kind of universal judgment, but we've changed our minds, and we're not going to do that anymore. And if you take away the principle of judicial supremacy, as Jack Goldsmith calls it, you know, this idea that the Supreme Court's decisions are binding on everyone, and you take away the district court's power of nationwide injunctions to ensure that everybody's rights are protected, you have effectively taken away judicial review. And that seems to be the end goal of the Trump administration. Administration's battle in this case.
- [31:04]
Dahlia Lithwick
Right? I mean, Sauer pretty much offers up a pinky swear, wink, wink, between the nine of you. Just know that if the court decides something nationwide, we'll abide by it.
- [31:16]
Mark Joseph Stern
Yeah, your court, the real court.
- [31:18]
Dahlia Lithwick
And who the heck would take him at his word? Well, we're about to talk about who the heck would take him at his word. But before we do that, I just want to point out you and I have had this conversation a lot in recent years, but I think it really reached its apex when the court handed down the immunity decision. And again, Amy Coney Barrett kind of Interestingly, peeled off and cabined that decision or attempted to narrow it from what the John Roberts opinion offered Donald Trump. But it's worth saying again that at the time you and I said, as I recall, this is an imperial court that has arrogated to itself unprecedented, historic power to decide all the things creating an imperial presidency. Right. It has constructed a world in which the court is the most powerful institution in the country. And also the presidency, the executive branch, is the most powerful institution in the country. And you can almost see this as the inexorable battle between an Imperial Court and an imperial Trump administration. And I heard echoes in the colloquy, as you say. So sort of masterfully tag team by Justices Kagan and Barrett with SA power. I heard a kind of Rubber meets the road moment where they were like, and now you need to promise us that this stops here. And it was so. I described it as breaking through the fourth wall. It was essentially just saying, america, I think that this imperial presidency might try to bigfoot over the Imperial Court.
- [32:53]
Mark Joseph Stern
Oops. Oops. We gave it all the tools to bigfoot the Imperial Court, and now it's doing it. Can you believe consequences of the court's own actions. Who could have seen it coming? Dahlia, truly.
- [33:05]
Dahlia Lithwick
Let's take a moment on the boy v. Girl energy, because again, we started clocking this two terms ago, then again last term. I think we just have to straight up say now this is a five to four court, boys versus girls, that puts John Roberts at the center. He's the decider. And Amy Coney Barrett is a liberal. Certainly she is aligning with the three women on the liberal wing of the court. And I think this was a really strong example of the kind of, as you say, movement conservative, has been a conservative all her life. Professorial. We know where she comes down on most issues. And yet something doesn't allow her to throw in with the wing of the court that is essentially saying, oh, well, shruggy emoji. I guess we're gonna let Donald Trump be king today.
- [33:58]
Mark Joseph Stern
That's right. I think we should clarify when we say that Amy Coney Barrett is a liberal, we are being grimly sardonic.
- [34:03]
Dahlia Lithwick
Iron hands are wildly doing finger quotes. Okay, not a liberal, not a liberal.
- [34:09]
Mark Joseph Stern
Just envision them. Yeah, it's more like jazz hands, but close enough. Yeah, she is going to issue really terrible decisions and cast really awful votes in a bunch of cases, including the religion cases this term. Like, she is certainly not joining the left block the court, but there are these rule of law cases where she is not willing to suspend her disbelief. She is not willing to buy into the fairy tale that the Trump administration is selling, especially about its compliance with court orders and with the law. I think that may have explained her vote in that massive, massive order a few months ago requiring the payout of $2 billion in foreign aid. And I think it explains her posture here. But it's just a skepticism that was utterly missing from the male justices, which feels weird to say. I don't like saying male justices and female justices like, what a weird gender essentialist way to split up a court. But that is exactly how these arguments went. I think it's telling that we've been talking so far, the justices who are asking good questions and really holding sour's feet to the fire, and it's all the women. And now we are about to turn to the justices who asked terrible questions and tried to toss softballs to the Solicitor General and it's going to be all the men. Like this divide is so bizarre because no one was expecting this from Justice Barrett. I wouldn't say that it was present in her early years on the court, but as she is settling in, as she's getting less green, she is willing to stand up and at least defend, I don't know, basic principles of logic and reason and the court's independence and not treat it all away to stay on Donald Trump's good side. The unfortunate thing is that she's only the fourth vote there and that when the Chief justice won't go along with her, the nation remains screwed.
- [35:54]
Dahlia Lithwick
So you've just all but implored me to play the tape of Justice Samuel Alito who really, really had not one good thing to say about, really about judges, the judic branch, certainly about district court judges and their maniacal self regard. He was smashing his hand over and over again, just pounding away in the manner of Nikita Khrushchev like a weird metronome or drummer. I don't know what that's about, but I think I had to just paint the picture. Here's how Justice Samuel Alito thinks about district court judges who issue nationwide injunctions. All Article 3 judges are vulnerable to.
- [36:38]
Mark Joseph Stern
An occupational disease, which is the disease of thinking that I am right and.
- [36:46]
Dahlia Lithwick
I can do whatever I want now.
- [36:48]
Mark Joseph Stern
On a multi member appellate court that is restrained by one's colleagues. But trial judge, the trial judge sitting in the trial judge's courtroom is the most monarch of that of that realm.
- [37:02]
Dahlia Lithwick
And there are, Mark, you go ahead and respond, but I just want to actually bracket that quote by saying, this comes at a moment when judges around the country are facing unbelievably vicious, malevolent threats. Not just the pizza orders, not just the uptick in needs for security, uptick in threats to families. I mean, all the stuff that we've seen, the formalized calls for impeachment, but like Donald Trump. Trump and proxies for Donald Trump going on television and saying, these are not real judges. So this is the moment when John Roberts has for the second week in a row said, hey, I'm worried about how we talk about judges. And here's his brethren, Sam Alito, just crapping all over judges. Okay, go.
- [37:49]
Mark Joseph Stern
Yes. And while we should spell out when you say pizza order, this is not a pizzagate reference. This is conservative harassers placing orders of pizza delivery to individual judges homes to show them that they know where the jud live. Right. Which is just inherently threatening and becoming, I guess, a huge problem throughout the judiciary, especially since we're just a few years out from the assassination of the son of a district court judge, Esther Salas, at her home by an assailant who was almost certainly targeting her. And so on top of all of that, you know, for Alito to, you know, suggest that they are megalomaniacal and that they have this king complex, that they have this monarchical sense of absolute power and rightness, that they can just wield this sweeping authority, however they choose shoes and could never consider that they're wrong. Sam Alito, look in the mirror. My God, if there is any justice who perfectly encapsulates that attitude, that approach to the law, it is Sam Alito and maybe Neil Gorsuch and Clarence Thomas right alongside him. It's a. It's one of those three part folding mirrors, and they're all standing in it. These guys never acknowledge, ever, ever, ever, that they could possibly have erred. They are so certain in their correctness, and they do not hesitate to wield their very strong, incorrect opinions to radically alter the law. And so for Alito to sit there and pile on these district court judges who are under immense fire, as we've discussed, who are under, you know, constant threat, who are being slandered by the president himself repeatedly and his top allies, for Alito to suggest that there's something especially wrong with them, that they have this disease of the mind that convinces them that they're right all the time, it felt like a real low point. It felt like a deeply unfortunate and totally gratuitous jab at these judges who are very much on the front lines of defending democracy and civil liberties against Trump. And it could not be more starkly different from the speech that Justice Jackson gave right just, just a couple weeks ago, urging district court judges to stay strong and courageous and applauding their independence and backbone.
- [39:58]
Dahlia Lithwick
We're going to pause to hear from some of our sponsors. Every time you go online without ExpressVPN, it's a little bit like going out in the world and leaving your front door flun open Every time you connect to an unencrypted network. Think free WI fi in cafes, hotels, airports. Your online data can be compromised by a hacker on the same network. Hackers are known to steal personal data, including passwords, bank logins, credit card details, and your browsing details. So stop hackers from stealing your data by creating a secure, encrypted tunnel between your device and the Internet. With ExpressVPN, I just downloaded it onto my phone and onto my computer and I'm embarrassed at how exposed I was before. ExpressVPN works on all devices from phones, laptops, tablets and more, so you can stay secure on the go. Just tap one button to turn it on and you're protected. It's that easy. Secure your online data today by visiting expressvpn.com amicus that's E X P R E S s v p n.comamicus to find out how you can get up to four extra months free. Expressvpn.comamicus okay, I am a plant mom and so I know how important it is to wipe down their leaves and I want to make sure I'm using safe cleaning products around my plant babies. Introducing Blueland. Their products are made to meet the highest environmental standards and the products are not just clean but their plant mom clean Blue Lamp products are made with certified clean ingredients that are safe to use around your family and plants in the house. You don't have to choose between the safe option and what actually gets your house clean. And right now I am a huge fan of the dishwasher tablets and the toilet tablets and the way everything smells fantastic and is so easy to use. Blueland has a special offer offer for Amicus listeners right now. Get 15% off your first order by going to blueland.comamicus you won't want to miss this. Blueland.comamicus for 15% off that's blueland.comamicus to get 15% off. This show is sponsored by BetterHelp. Mental health awareness is growing but there's still progress to be be made. 26% of Americans who participated in a recent survey say they have avoided seeking mental health support due to fear of judgment. And when people hesitate to get help, it doesn't just affect them, it impacts families, workplaces and entire communities. This Mental Health Awareness Month, let's encourage everyone to take care of their well being and break the stigma. Better Help has over 10 years of experience matching people with the right things therapist from their diverse network of more than 30,000 licensed therapists with a wide range of specialties. BetterHelp is fully online making therapy affordable and convenient, serving over 5 million people worldwide. Join a session with the click of a button and easily switch therapists anytime at no extra cost. We're all better with help. Visit betterhelp.comamicus to get 10% off your first month. That's BetterHelp. H E L p.comamicus Mark, Joseph Stern and I are back with more analysis of that monster birthright citizenship case at the Supreme Court this week. Mark, I want to reflect back on one other Justice Alito specific thing. I'm sorry, but it seems important. A year ago, you and I were talking about the immunity case and the ways in which he did the exact same move, right? You can have a structural constitutional argument about judicial remedies. You can have a structural constitutional argument about presidential immunity. But the sort of chip shot of going after institutional actors who are for the most part trying to do their jobs in good faith. And it can't help but remind me of last year, just listening to him go after the deep staters, right? The prosecutors who are just like vile, horrible men who want to do nothing in the world but persecute then presidential candidate Donald Trump. And it's just like, why? Why do you have to impute bad faith? And so that actually seamlessly leads me to the next question, which is why do we have to also impute good faith? We've kind of danced around it a little bit, but I want to untangle it now, which is the number of justices who need to pretend to feel good that Donald Trump is a regular, ordinary president, like all the presidents who came before, just wanting to do president y things presidentially. And again, it's such a weird echo of the like big sucking sound at the immunity case last year, which is actually, he's kind of different. I just want to play a moment of Brett Kavanaugh's like good people on both sides colloquy where he's really just insistent on saying that all presidents sign aggressive executive orders and they all have good intentions to do Good things. Let's just listen. Presidents want to get things done with good intentions.
- [45:25]
Mark Joseph Stern
The executive branches that work for those presidents push hard to when they can't.
- [45:31]
Dahlia Lithwick
Get new authority to stretch or use existing authority.
- [45:36]
Mark Joseph Stern
And they've been pushing, understandably, all with good intentions.
- [45:40]
Dahlia Lithwick
All the presidents, both parties. Right. With good intentions, pushing. I don't know what to say, Mark, other than why. Why do they have to pretend that he's amazing? Why?
- [45:50]
Mark Joseph Stern
I mean, I think Brett Kavanaugh believes that. And, and I've been saying this for a while. I think that Brett Kavanaugh really likes Donald Trump. I think he established a deep emotional connection when Trump stood by and defended him during his confirmation, when Christine Blasey Ford accused Kavanaugh of sexual assault, assault. And I think that he really shares Alito's view that Trump is subject to all kinds of unfair gripes and complaints and court orders. And I think that Kavanaugh, you know, after four years of, of letting these district courts slam Biden from every direction and enjoying so many of Biden's policies, he's now really irritated that it's happening to Trump. And so he wants to put on this kind of mask of both sides, ism, like you said, good people on both sides sides and say, well, it's a problem across the board. And there is no difference between Trump and Biden and Obama and even Bush, who Brett Kavanaugh worked for and still deeply loves, as I understand it. You know, they're all doing this and there's no problem at all, and it's all in good faith. But we really wouldn't want district court judges to have too much power to stop them, would we? Only we, the Supreme Court, get to do that. Meaning so frequently, Brett Kavanaugh himself, when we're talking about incoherent arguments, Brett Kavanaugh's always got to be first in line. I just don't think that his comments really hang together in this case. He's saying, oh, these presidents, they do this stuff. There's no problem. It's in good faith, but sometimes we need to stop it. And he mentioned the court's decisions in cases like Lope or Bright reigning in the president. But also we don't want district courts to stop it because they're exercising too much power. What do you want, Brett? Do you just want Trump to be the king? Will you just come out and say it? I guess they came close in the immunity case, but this, I think, for me was the least helpful moment of the entire, entire morning, because I really don't believe that Justice Kavanaugh is even pretending to do law here. He's putting on his kind of mediator hat and trying to figure out how to hand Trump some kind of win here on the procedure, an eventual loss on the merits, and do it all without incurring Trump's wrath and staying in his good graces.
- [48:00]
Dahlia Lithwick
I can't believe I'm going to mount a zealous defense of Brett Kavanaugh here.
- [48:04]
Mark Joseph Stern
Don't you dare.
- [48:04]
Dahlia Lithwick
I will say. I, I'm gonna. I, you know, I, I've been known to. No, I've never been known to, but I'm going to do it right now. And it's neither zealous nor really a defense. But I will say I think you're wrong about just one thing, which is actually, this is perfectly coherent, because as I said at the beginning, the problem with nationwide injunctions, and this is a problem as we talk about it and, and as we try to think about it, is they're always good when your side is stopping a bad thing, and they're always bad when your side is being stopped. And so, in that sense, sense, the utter incoherence of a sort of systemic analysis of the problem that Kavanaugh offers up actually maps perfectly into the utter incoherence of how to analyze this problem, which is when Matthew Kaczmarek says that I'm going to do away with FDA approval of Miffy, it's really bad. So, I don't know. It's not that there's good people on both sides. It's that there's bad people on one side and sometimes you have to. To just say it. So I guess that's not actually a defense of Brett Kavanaugh, but in some sense, the utter incomprehensibility of how he squares the circle is very much a reflection of the incomprehensibility of how I feel about nationwide injunctions, which is why this case shouldn't be the vehicle to decide them for all time. Okay, come on. Moving on, moving on. I think you and I have both said that it was, if I'm counting again, again, pretty clear that you do not have nine votes or really three votes or any votes that I can really call for today about the birthright citizenship problem. I don't think birthright citizenship eventually is eradicated by the Supreme Court. But that's not what we're counting votes for. We're counting votes on nationwide injunctions. Do you have any sense whatsoever, based on this incredibly long two and a half hour conversation, only about nationwide universal injunctions junctions, how this court is going to try to find some path to give Donald Trump some kind of a win on this issue.
- [50:08]
Mark Joseph Stern
I mean, I don't think the court itself knows what it wants to do or what it will do, which again is why it never should have taken this case and this question in the first place. Surely there are at least seven justices who want to rein in nationwide injunctions in some capacity. Like you say, they are bad when you think the policy that they are being issued against is constitutional. And it is a huge problem that a lone district court judge can have a case shopped directly to him or her. And you know, this is something that Republicans do more than Democrats. But forum shopping, judge shopping, it is a huge problem and it allows for the judiciary to wrest control of an entire presidential administration, freeze a policy very, very broadly. It's an issue. But no one, as far as I could tell, has a clear bead on exactly how you resolve it in a consistent and coherent way. Which is why our conversation is devolving into me just screaming about incoherence from the justices because they didn't have a solution. I thought maybe they would trot out some perfect Solomonic compromise on Thursday. They didn't. It ended more muddled than it began. So I think there's a chance that they issue some five factor test that the chief justice cobbles together where they say, here are the rules for when you can issue a nationwide injunction. Good luck, luck and hope that that reigns in the problem. I don't think it will, but it'll, you know, give the Supreme Court a kind of out. I also think it's possible that the Supreme Court says, oops, we took the hard question instead of the easy one and puts this case over for re argument on the merits. Because once they answer the question on the merits, then they don't have to deal with the nationwide injunction issue anymore. But that would mean confessing error, which I also don't think they want to do. So they're saying, seem to me to be no good solutions at this point. The briefing on the merits is way too scant to justify a holding and a decision at this stage. So I think they might just have to hear this whole case all over again and actually get to the heart of the issue next term. Otherwise, I think we should expect a big mushy bowl of oatmeal in the form of a multi factor test that is designed to limit nationwide injunctions and winds up doing absolutely nothing once it escapes containment and enters the Real world of the judiciary.
- [52:25]
Dahlia Lithwick
I want to talk about the states, Mark, because argument was divided three ways with groups challenging the executive order, as you said, on behalf of pregnant women, individual plaintiffs, and other groups. And then we had the states who were given time to argue in the person of the Solicitor General from New Jersey. And the states have very different interests here, and they're important. And they're especially important for a court that used to care a lot about federalism and states rights. So I wondered if you could just talk for one little minute about New Jersey's purported harms that the state's gonna suffer and the other states that join in, and why it's slightly different from the challenge brought by those who are gonna be injured personally.
- [53:12]
Mark Joseph Stern
Yeah. And we should say that both lawyers arguing against this policy, Jeremy Feigenbaum, the Solicitor General of New Jersey, and Kelsey Corcoran, who represented the individual in groups, they did a fabulous job in a very difficult situation. And Jeremy Vegenbaum seemed to convince several of the conservatives that maybe they had made a mistake. There was a point where. Where Sam Alito was questioning him and then just stopped and gave up and withdrew his question, which I don't think I've ever heard. It was pretty startling in deciding the. The question that is before us here. Do you think we should.
- [53:49]
Dahlia Lithwick
Never mind.
- [53:50]
Mark Joseph Stern
I withdraw that. I have no further questions. And what Solicitor General Faganbaum did here was spell out not just the legal issues, but the chaos on the ground, as he put it, of having your federal citizenship, your American citizenship, depend on what state you are born in. And so he brought forth this sort of pocketbook argument that the states will have this issue where they don't know who gets federal benefits, they don't know who's a citizen, they don't know who's a non citizen or who's subject to deportation. They'll have all kinds of practical, costly issues administering these programs that the state has to administer. But he also said, we're just going to have absolute mayhem because we might have a New Jersey parent who goes to another state, delivers a child there, that child doesn't get citizenship because it's not one of the states that challenges policy. But then they come back and they are citizens again. We might have a situation where someone faces a deportation order when they're in Pennsylvania. Again, not one of the states states that challenge this order. But then when they come back to New Jersey, they are citizens, they can't be deported. What happens then? He spelled out all of the bizarre consequences of narrowing these nationwide injunctions only to the plaintiffs when 22 of the plaintiffs are states themselves. States that want to protect the citizenship rights of their residents, but understand that as a rule, people get to move around the United States, people get to move from one state to another. And normally that's not a big deal. But if you're citizen citizenship flickers on and off, depending on what side of the Delaware river you are standing on, then it creates a totally unworkable system and it undermines not just individuals rights, but the state's ability to know who it owes certain obligations and rights and privileges to. And it was a very powerful argument that I think really showed in just a few minutes why the court shouldn't have taken this case. Like we've laid out all of the other reasons, but this is, I think, the single biggest one. There's no better example of when you need a nationwide injunction than when you're dealing with a federal policy that in the absence of a nationwide injunction would turn on citizenship for newborns in 22 states and turn it off for newborns in 28 other states. That is not a workable system, period.
- [56:07]
Dahlia Lithwick
There was one other thing that I thought Faganbaum did really eloquently, Mark, and maybe we'll end on this because I think it marries so well with Amanda Franklin Frost's analysis of what it was that the citizenship clause sought to remedy and sought to imagine as a better way for citizenship in the United States in the wake of Dred Scott and enslaved people who had no citizenship. He makes this point that as you say, to have a system in which the lights turn on and off depending on crossing state lines has some such an ugly, ugly echo that goes back to the Civil War.
- [56:51]
Mark Joseph Stern
We've never in this country's history since.
- [56:53]
Dahlia Lithwick
The Civil War had your citizenship turn on when you crossed state lines.
- [56:57]
Mark Joseph Stern
So we don't have answers to these workability questions. Not just because it wasn't presented in the district court, not just because it's two sentences in an emergency application, but.
- [57:05]
Dahlia Lithwick
Because for over a century, executive practice.
- [57:07]
Mark Joseph Stern
Has been uniformly to the contrary.
- [57:10]
Dahlia Lithwick
And Mark, I think it's worth just ending on this note that, that we don't think of citizenship as something that chases you from state to state, and we don't think of it as something that is abandoned when your family drives across a state line.
- [57:29]
Mark Joseph Stern
If ICE has initiated a removal proceeding.
- [57:31]
Dahlia Lithwick
When you live in Philly and you move to Camden, I suppose the ICE.
- [57:35]
Mark Joseph Stern
Removal is supposed to turn off at.
- [57:36]
Dahlia Lithwick
That point, potentially because your citizenship status has changed.
- [57:39]
Mark Joseph Stern
I don't know if you live, if you move back to Philly, whether you.
- [57:42]
Dahlia Lithwick
Were born in New Jersey or born in Philly, move to Camden and move back.
- [57:45]
Mark Joseph Stern
It's a very porous part of the country.
- [57:47]
Dahlia Lithwick
I don't know if the ICE removal.
- [57:49]
Mark Joseph Stern
Turns back on when you cross state lines.
- [57:50]
Dahlia Lithwick
Again. It is such a fundamental principle of what it is to be American that we don't do that anymore and that the really ugly shadow of slavery hangs over this case in that sense.
- [58:04]
Mark Joseph Stern
And I think where I want to end is just pointing out that the citizenship clause is so deeply bound up in the entirety of the 14th amendment. Remember, this was an amendment designed to ensure the absolute legal equality of all persons in the United States, to end caste based discrimination. And so it's not just equal citizenship, it's broader equal protection, right privileges or immunities, due process. All of these bedrock guarantees were enshrined and applied across the board through the 14th amendment. And if you start to unspool that, it all comes undone, done. If you take away birthright citizenship, you create an underclass of non citizens who live in this country without receiving the full benefits, the full privileges and immunities of American citizenship, who do not receive equal protection of the law, who do not have due process before their fundamental rights are stripped away, whose basic liberties depend on which state they happen to be born in or which state they are standing in at the moment when ICE agents come to arrest and deport them. That is a vile, vile contradiction of exactly what the 14th amendment stands for. And so even though we're narrowly talking about one part of the Constitution here, what Trump is attempting to pull off here would be an assault on so many other of the most treasured constitutional guarantees of this nation.
- [59:29]
Dahlia Lithwick
I love that as a place to landmark, both as a, a way of thinking about what is at stake in the case, but also as a way of really bringing home this notion that, that if we lost you anywhere in this conversation, I think this is a case about the role of the judiciary in protecting those rights and fundamentally whether there is some urgent, essential need for the judiciary to step in when those rights are being stripped away. And this is such a strange triple decker sandwich of ideas about judicial remedies and jurisdiction. But it's also, at the end of the day, the court kind of counting itself in or out of this game. And it's really, really profound that despite the hyper technical arguments about injunctions and the nature of injunctions, this is also at bottom, a case about whether the Supreme Court wants to be around for the next round of this, which is when the court decides the merits. Mark Joseph Stern covers the courts and the law for us here at Slate, and that was a day Mark, but there's nobody I'd rather day with. Thank you. You thank you.
- [60:42]
Mark Joseph Stern
Thanks Dalia.
- [60:47]
Dahlia Lithwick
That is all for this episode. Thank you so much for listening and thank you so much for your letters and your questions. You can keep in touch@amicusatslate.com or you can find us@facebook.com Amicus Podcast on this week's Amicus Plus Bonus episode, I'll be talking to Vanity Fair link legal writer Christian Farias, who has just this week launched a brand new podcast in conjunction with the Knight foundation, and it's a podcast about Donald Trump's war against First Amendment freedoms. We're going to talk about the Tufts doctoral student Rumesa Ozturk, who was returned by order of a court to Massachusetts last weekend after being held in ICE custody in Louisiana for 45 days because she wrote an op ed the Trump administration did not like. You can subscribe to Slate plus directly from the Amicus show page on Apple Podcasts and Spotify, or visit slate.comamicusplus to get access wherever you listen. That episode is available for you to listen to right now. We'll see you up there. Sara Burningham is Amicus senior producer. Our producer is Patrick Fort, Hilary Fry is Slate's editor in chief, Susan Matthews is executive editor, and Ban Richmond is our senior director of operations. We'll be back with another episode of Amicus next week.
- [62:27]
Mark Joseph Stern
Hi, I'm Josh Levine. My podcast, the Queen, tells the story of Linda Taylor. She was a con artist, a kidnapper, and maybe even a murderer. She was also given the title the Welfare Queen, and her story was used by Ronald Reagan to justify slashing aid to the poor. Now it's time to hear her real story. Over the course of four episodes, you'll find out what was done to Linda Taylor, what she did to others, and what was done in her name.
- [62:57]
Dahlia Lithwick
The great lesson of this for me.
- [63:00]
Mark Joseph Stern
Is that people will come to their own conclusions based on what their prejudices are. Subscribe to the Queen on Apple Podcasts or wherever you're listening right now.