Amicus Podcast Episode Summary: "SCOTUS Is About to Suffer Buyers Remorse, Again"

Date Released: May 17, 2025
Host: Dahlia Lithwick
Guest: Mark Joseph Stern
Podcast: Amicus with Dahlia Lithwick | Law, Justice, and the Courts
Provider: Slate Podcasts

Introduction

In the episode titled "SCOTUS Is About to Suffer Buyers Remorse, Again," hosted by Dahlia Lithwick, the discussion centers around the contentious Supreme Court case challenging former President Donald Trump's Executive Order 14,160. This order seeks to redefine birthright citizenship, a right long established under the 14th Amendment of the U.S. Constitution. Dahlia is joined by Mark Joseph Stern, Slate's courts and law correspondent, to dissect the intricate legal arguments presented before the Supreme Court and the potential ramifications of the Court's impending decision.

Background of the Case

Executive Order and Legal Challenge

On January 20, 2025, President Trump issued Executive Order 14,160, aiming to eliminate birthright citizenship as defined by the 14th Amendment. This executive order has sparked a significant legal battle, culminating in the Supreme Court hearing multiple consolidated cases under the designation 24A884, Trump v. Casa Incorporated.

Dahlia Lithwick (00:52):
"We are facing what is doubtless the most weighty case of this term, challenging Donald Trump's Executive Order that seeks to abolish birthright citizenship—a right indelibly enshrined in the 14th Amendment."

Lower Court Rulings

The case amalgamates challenges from three distinct groups:

1. Pregnant Women and Their Children: Individuals directly affected by the executive order, seeking to ensure their children's citizenship status.
2. Advocacy Organizations: Groups dedicated to immigrant and women's rights, pushing for the preservation of birthright citizenship.
3. States (Including New Jersey): States argue that the order would create administrative chaos and pose significant legal and logistical challenges.

All plaintiffs have secured victories in their respective lower courts, resulting in nationwide injunctions against the executive order. However, the Trump administration, through the Department of Justice, is contesting these injunctions, leading to the Supreme Court's involvement.

Legal Arguments

1. Birthright Citizenship and the 14th Amendment

Historical Context and Legal Precedents

Mark Joseph Stern provides a comprehensive overview of the historical underpinnings of birthright citizenship:

Mark Joseph Stern (05:01):
"The 14th Amendment, ratified in 1868, explicitly states that 'all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.' This was a direct response to the Dred Scott decision, which had stripped citizenship from Black Americans."

He further emphasizes the Supreme Court's reaffirmation of this principle in the landmark case of Wong Kim Ark (1898), which extended citizenship rights to children of immigrants and those born to parents subject to U.S. jurisdiction, regardless of their parents' legal status.

2. Executive Order and Lower Court Rulings

Legal Challenges and Nationwide Injunctions

The executive order has been uniformly condemned by lower courts for contravening established Supreme Court precedents. Each district court that heard the case issued nationwide injunctions to prevent the enforcement of the order, a decision upheld by the federal courts of appeals.

Dahlia Lithwick (08:56):
"The plaintiffs fell into three categories: pregnant women, advocacy organizations, and 22 states, including New Jersey. All have been granted injunctions to block the executive order, citing its unconstitutionality and the potential chaos it would unleash nationwide."

3. Supreme Court’s Handling of Injunctions

Nationwide vs. Universal Injunctions

A central issue in the Supreme Court's deliberations is the permissibility and appropriateness of nationwide injunctions. Dahlia and Mark discuss how the Trump administration is attempting to shift the focus from the merits of birthright citizenship to the procedural aspects of injunctions.

Dahlia Lithwick (10:46):
"The administration isn't seeking to uphold the policy on its merits but is instead maneuvering to narrow the scope of the injunctions, focusing on the named plaintiffs rather than addressing the nationwide implications."

Mark critiques this strategy as a tactical ploy to avoid addressing the substantive constitutional questions at hand.

Mark Joseph Stern (12:17):
"The Supreme Court is being baited into dealing with the procedural nightmare of nationwide injunctions rather than the clear-cut constitutional violation that the executive order represents."

Analysis of the Justices' Reactions

1. Questions from Justices Ketanji Brown Jackson and Elena Kagan

Justices have expressed significant concern over the administration's handling of injunctions and its broader implications for the rule of law.

Justice Ketanji Brown Jackson (19:43):
"If your argument allows the administration to continue violating rights until individual lawsuits are filed, how does that align with the rule of law?"

This highlights fears that the administration could systematically undermine judicial decisions by avoiding broad compliance.

Dahlia Lithwick (19:43):
"Justice Kagan questions how the administration can expect the judiciary to function effectively if compliance depends on individual litigants securing injunctions."

2. The ‘Nationwide Injunction’ Debate

The debate centers on whether district courts should have the authority to issue nationwide injunctions that have sweeping implications beyond the involved parties. Justices are wary of the precedent this sets and its potential to disrupt federalism and state sovereignty.

Mark Joseph Stern (13:24):
"Justice Kagan and others fear that allowing nationwide injunctions in this context could erode judicial authority and create a fragmented legal landscape."

Potential Outcomes and Implications

Undefined Judicial Stance

Dahlia and Mark express uncertainty regarding the Supreme Court's forthcoming decision. They speculate that the Court may attempt to establish a multi-factor test to govern the issuance of nationwide injunctions, though skepticism remains about its effectiveness.

Mark Joseph Stern (52:24):
"The Court might introduce a multi-factor test to limit nationwide injunctions, but there's little hope that it will effectively contain the problem."

Delayed Resolution

There's a possibility that the Court may defer addressing the merits of birthright citizenship entirely, postponing substantive rulings to a future term to avoid immediate confrontation.

Mark Joseph Stern (52:24):
"If the Court defers, it might require the case to be heard again, further delaying a definitive resolution."

The Divide in Justices

Gender Dynamics and Judicial Perspectives

A notable observation is the apparent gender-based divide among the Justices. Female Justices like Kagan and Jackson are portrayed as staunch defenders of judicial independence and constitutional principles, while male Justices, including Samuel Alito and Brett Kavanaugh, exhibit skepticism towards the administration's intentions.

Dahlia Lithwick (33:58):
"The justices asking probing questions are all women, highlighting a gender-based dynamic in defending judicial integrity."

Mark Joseph Stern (34:03):
"Amy Coney Barrett aligns with the liberal wing in safeguarding judicial independence, contrasting with the male Justices who appear more aligned with administrative perspectives."

Justice Samuel Alito’s Stance

Justice Alito's remarks during the proceedings reveal a critical view of lower court judges issuing nationwide injunctions, characterizing them as overstepping their authority.

Justice Samuel Alito (36:38):
"District court judges issuing sweeping nationwide injunctions exhibit an 'occupational disease,' believing they hold absolute authority beyond their jurisdiction."

This rhetoric underscores a broader tension within the Court regarding the balance of power between different levels of the judiciary and the executive branch.

Concerns about Judicial Independence and the Rule of Law

Executive Branch's Approach to Judicial Decisions

The Trump administration's strategy, as articulated by Solicitor General John Sauer, emphasizes selective adherence to court rulings, potentially undermining the Supreme Court's authority.

Mark Joseph Stern (22:22):
"Sauer's stance mirrors President Trump's rhetoric—questioning the legitimacy of lower court decisions while professing respect for the Supreme Court."

Threats to the Judiciary

The episode highlights the escalating threats and hostility toward the judiciary, exacerbated by high-profile Justices like Alito disparaging lower court judges and the administration's disregard for established legal precedents.

Dahlia Lithwick (37:02):
"Judges across the country face increased threats and hostility, with figures like Alito openly criticizing their independence and authority."

Implications for Federalism and State Sovereignty

States' Arguments Against the Executive Order

States, particularly New Jersey, argue that Revoking birthright citizenship would create a fragmented national system where citizenship status varies by state, leading to chaos and administrative burden.

Mark Joseph Stern (53:50):
"Jeremy Feigenbaum of New Jersey detailed the chaos of having citizenship contingent on the state of birth, citing inconsistent access to federal benefits and legal protections."

Dahlia Lithwick (56:51):
"Such a system echoes the disjointed and discriminatory practices of the Civil War era, where citizenship was inconsistently applied across state lines."

This perspective underscores the fundamental issue of uniform citizenship rights versus state-specific policies, highlighting the impracticality and constitutional violations inherent in the executive order.

Concluding Thoughts

The episode encapsulates a critical juncture in American jurisprudence, where the Supreme Court faces the daunting task of upholding constitutional principles amidst political maneuvering and administrative overreach. Dahlia Lithwick and Mark Joseph Stern express concerns that the Court's handling of nationwide injunctions may inadvertently empower the executive branch to bypass judicial scrutiny, thereby eroding the foundational checks and balances integral to the U.S. legal system.

Dahlia Lithwick (59:28):
"This case transcends procedural debates; it's a fundamental question about the judiciary's role in safeguarding constitutional rights against executive overreach."

Mark Joseph Stern (57:04):
"Removing birthright citizenship would unravel the 14th Amendment's guarantees, creating a precarious underclass and undermining equal protection, due process, and other core constitutional principles."

As the Supreme Court deliberates, the episode serves as a sobering reminder of the fragility of constitutional safeguards and the imperative need for judicial vigilance in preserving democratic integrity.

Notable Quotes

1. Dahlia Lithwick (05:01):
   "The 14th Amendment... ensures that all persons born in the United States are citizens, a principle reaffirmed across multiple Supreme Court decisions."

2. Mark Joseph Stern (10:46):
   "The administration's move to narrow the injunctions is a tactical ploy to sidestep addressing the clear constitutional violations of birthright citizenship."

3. Justice Ketanji Brown Jackson (19:43):
   "If your argument allows the administration to continue violating rights until individual lawsuits are filed, how does that align with the rule of law?"

4. Justice Samuel Alito (36:38):
   "District court judges issuing sweeping nationwide injunctions exhibit an 'occupational disease,' believing they hold absolute authority beyond their jurisdiction."

5. Dahlia Lithwick (59:28):
   "This case is a fundamental question about the judiciary's role in safeguarding constitutional rights against executive overreach."

Conclusion

"SCOTUS Is About to Suffer Buyers Remorse, Again" offers an incisive exploration of one of the most significant legal battles of the term. Through meticulous analysis and expert commentary, Dahlia Lithwick and Mark Joseph Stern unravel the complexities of the Supreme Court's engagement with executive power, judicial independence, and the enduring principles of citizenship and equality enshrined in the Constitution. For listeners keen on understanding the interplay between law, politics, and individual rights, this episode serves as an essential guide to navigating the tumultuous landscape of American jurisprudence.