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BREAKING: SCOTUS Upholds Birthright Citizenship, Releases Other Major Decisions | Morning Shots
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- [00:01]
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- [00:58]
Sam Sty
Hey everyone, it's me, Sam Sty, managing editor at the Book, and I'm joined by the one and only Bill Crystal. We're here to talk about the World cup and the penalty kicks that happened yesterday. And then maybe a little bit of SCOTUS news. Andrew Eger will be joining us. But just for programming note, he decided he had to reboot his computer entirely, literally 30 seconds before the live. And here he is with a rebooted, rebooted computer. Andrew Egger, thanks for joining us. We're going to talk about scotus big news, obviously that just came down about, I don't know, 20, 30 minutes ago. They have invalidated the executive orders. That or executive order, I should say, that Trump issued that would end birthright citizenship. It was a 6 to 3 ruling. Although there's some technicalities here that Bill will get into. There's a lot to, to dive into with respect to the ruling itself. But as usual, we want to start big picture about this. Bill, let's go with you. Everyone in the legal circles was anticipating something akin to a 9, 0 or a 72 ruling. We got a 6, 3 ish ruling and that seems okay.
- [02:06]
Bill Crystal
I think it's from one point of view. It's okay from another point of view for me at least disappointing. I mean, okay in this sense that this was a signature executive order of Trump. So I think it was literally the first one he issued. He certainly issued on the first day and you know, this was important to him. And central to the whole mass deportation agenda and to his understanding of American citizenship and therefore, in a way, to his understanding of America. And the Supreme Court rejected it, and not just on technicalities, but said this is just facially unconstitutional. It was a facial challenge. So that. Which makes it a little, you know, you have to really be confident that it's unconstitutional to go with the majority. So that, from my point of view, is the good news. The bad news is when this came out, I think if you went back and looked at January 20, 2025, much shortling in legal circles, this is going nowhere. This is a gesture to his base, probably 90, it goes down maybe 81 or 7 2, and instead it's 6 3, as you said, Sam. But actually, Justice Cavanaugh thinks it conflicts with the law, the applicable law, the 1950s, I think it is Immigration act. That's pretty clear since it explicitly says birthright citizenship. But it wouldn't necessarily be unconstitutional for Congress to do this. So there are only five votes on the constitutionality or the required constitutionality, if that's the right way to say it, of birthright citizenship, which is a little bit shocking if you think that it really is a pretty conclusive case that the 14th Amendment meant this at the beginning and has really always meant this for 160 years or something like that.
- [03:32]
Sam Sty
So, Andrew, what'd you make of the wrong.
- [03:36]
Andrew Egger
Yeah, I'm a little more, I guess, optimistic or sunny side up about it maybe, than Bill is.
- [03:43]
Sam Sty
That's not surprising.
- [03:44]
Andrew Egger
It's a court that has typically wanted, especially in these cases where, you know, the, like, conservative impulse maybe cuts against what the law says or, you know, there's been this big push from the White House. Trump has seen it in one of his signature, as one of his signature issues. There was a path here for them to take a much narrower slice at this thing. They could have gone the route that Kavanaugh wanted them to go of basically just sort of forestalling the larger constitutional challenge and just saying we don't have to rule on this constitutional challenge because this is an illegal order under the law. That would have been sort of the, the sort of shrinking violet, minimalist, conservative approach on this. And I don't want to, I don't want to diminish the fact that they did not do that. Right. Instead of doing that, which again, could have gotten them to the same end of protecting people who are born here under birthright citizenship. Instead of doing that, they did take the bigger swing at the underlying constitutional question. They addressed it in the Most maximalist manner possible. Yes, they lost justices by doing that. It was not a 90 ruling or a 72 ruling. And yes, it is just remarkable to see again and again and again. Specifically, Alito and Thomas take these just really sort of like kind of whatever the administration wants them to take style opinions. But at the end of the day, this is a gigantic rebuke for the Trump administration. It is an enormous reassertion of the constitutionality of birthright citizenship. It goes down as, you know, black letter precedent. And I think that's something to celebrate.
- [05:21]
Sam Sty
So just back up a little bit. It was Chief Justice Roberts who wrote the main opinion. I will note. There was at times where I thought it was he went out of his way to be a little bit scathing towards the government. The word revisionist that is listed there five times, not all of them by him. But he, he, he calls the characterization that the, the Trump administration applied in trying to undo birthright citizenship revisionist. He also gives a sort of lengthy preamble about the history of citizenship that predates the founding of the nation and how it's passed down through, you know, the colonial era. And then he goes into the 14th Amendment itself. Obviously, the Chief justice is going to handle the biggest cases. But to Andrew's point, I'll direct this at you, Bill. He didn't have to necessarily do that. He didn't have to go through sort of a line by line, actually. No, your, your argument's kind of, and it's based on specious understanding of history and all that stuff. And yet he did. And, you know, I don't want to pretend like we're like in John Roberts's head or anything like that, but what do you make of the role he's been playing in these cases with respect to the administration?
- [06:37]
Bill Crystal
I mean, just on this case for a second. Yeah, I think one reason he probably. Well, I think he believes it and that's one of the main reasons he did it. He also, I mean, the reason he probably. They couldn't go on. I take Andrew's point about the statutory. They could have just done this on statutory grounds. On the other hand, Roberts would have then been writing for what, three or four justices in which you'd have three, three liberals saying, no, no, no, it's unconstitutional, and Alito and Thomas saying, no, it's all fine. And you would have had the spectacle of a fractured court, which I think Roberts hates more than anything else, actually, because he's, quote, specialist, whatever that means. So he may have had to go you know, he sort of ended up. He may have had Andrew's thought process, but ended up where he ended up. I mean, in general, he's, you know, tried to navigate these, these, these waters. And, and I take Andrew's point also. One shouldn't be too. I think a lot of my friends, and you're gonna be a little down on this. On the other hand, the end of the day, they invalidated the tariffs. Six, three. Pretty clear decision of upholding that was statutory, obviously not constitutional. But limiting Trump's right to do whatever he wants in a major sphere of policy that Trump cared about, cares about a lot. They've invalidated his core executive order on citizenship. Is there another thing they've done that's quite as dramatic, or are those the two big rebukes to the Trump administration? But they are big. I mean, one shouldn't. For a court that's six to three Republican and has gone out of its way at times to accommodate Trump and lots of littler.
- [07:58]
Sam Sty
They kind of, I mean, they basically ignored all the efforts in the. 2020.
- [08:02]
Andrew Egger
Yes. I was gonna say the two big recent ones. But, but yeah, yeah.
- [08:05]
Bill Crystal
In 2020.
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Andrew Egger
Yeah.
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Sam Sty
They're like, yeah, no, not gonna.
- [08:08]
Bill Crystal
So that's, that's, you know, that does show something. There is a kind of majority of the court that isn't quite willing to go all the way with Trump. There's also a majority that's willing to use the shadow docket, docket and other things. And on other issues, some of the administrative slaughter, but also some of the just application, some of the stuff DHS has been doing at all, that's finding ways to avoid fighting again, running, ruling against Trump. So, yeah, a mixed result for the whole.
- [08:36]
Sam Sty
Go ahead, Andrew.
- [08:36]
Andrew Egger
Another thing on the court more broadly is that I think that, like, when all of these discussions of sort of like the ideological makeup of the court, they're helpful in, like, some ways. But one thing that they sort of miss is the way that we really do just have a quite unstable Supreme Court right now because all these rulings, like, any time a big ruling comes out, it's like a roll of the dice who's going to be joining with who. And this is something I've got on my mind a little bit because my, my old colleague Sarah Isger at the Dispatch wrote a book about, you know, the makeup of the Supreme Court that, that I've read parts of. I need to read the whole thing. But, but I mean, her big case is you have to map this out on two axes. Right. It's like the ideological axis and then the institutional axis. And you have people who are like pretty far right, who are still institutionalists. They don't want to make big waves. You have people who are, you know, less far white, far right, necessarily on the merits of things like Neil Gorsuch, but who just aren't institutionalists at all. Right. They're gonna, they're gonna follow the, what they take to be the letter of the law, no matter what. And like, they're like really staunch textualists. And so it's just these coalitions are uneasy. They're always shifting based on these different cases.
- [09:36]
Sam Sty
Are they staunch textualists, though? Are they staunch textualists? I don't know.
- [09:40]
Andrew Egger
Yes, Gorsuch is. I mean, that's the question. Not in this case is like. Well, you can, you can make an argument that maybe, you know, Thomas or Alito is not always doing that sort of thing. But I mean, Gorsuch wrote Bostock, right? I mean, Gorsuch wrote one of the big trans rights decisions that has ever come out of the Supreme Court. Right. He's not just like a Trump guy like Gorsuch to both write Bostock and to dissent for, again, for textual reasons in this case. So it's like, it's, it's. You have to almost like drill down to the level of the individual justices to really get a sense of, like, what it means when you're talking about what the Supreme Court stands for right now.
- [10:14]
Sam Sty
Yeah, I agree with that to a degree. I, I do. I mean, yes, and yet here we are, and we just talked about this. But there were three justices who were comfortable, Gorsuch being one of them, with the president invalidating birthright citizenship via executive order. Right. Like, that's. I feel like there's a. Where do we have to accommodate that, too? Back to Roberts for a second. I want to read this. The, the conclusion that he had here in his argument, because I thought it was pretty powerful. This is not the conclusion. I will read from it. Oh, no, that is the conclusion. It's the start of it. Again and again, the dissents cast the common law as feudal, medieval, a remnant of the darkness of the Middle Ages. That was not the view of the Reconstruction Congress where the dissents see feudalism. The framers of the 14th Amendment saw emancipation. He goes on. Citizenship, then and now was the right to have rights to freely participate in our political community. The framers of the 14th Amendment extended that promise to quote every freedom born person in this land. We keep that promise today. The other person who wrote an opinion upholding birthright citizenship was Katanji, Brown, Jackson. I only got to read a little bit portion of that because we came on pretty quickly, but I thought that was put it this way, it gives you a sense of appreciation for the different perspectives that justices can bring to this right. Obviously, she is one of two black justices on the court, and she went incredibly deep on the history of civil rights before and in and around the Civil War. And one of the things she talks about in her concurrence is the delegates at the colored conventions and what they were trying to achieve and how they perceived a citizenship itself. And I just thought it was really interesting to get her perspective there. She writes, do not do note this. The citizenship thesis of the colored conventions was thus not that some new status should be created and conferred on freed blacks. It was instead that freed blacks already had a rightful claim to citizenship because they had been born on American soil. Yeah, I don't really know if I even have a question around that, but it is interesting that the I mean, the way they came about this decision and the different perspectives that they applied to it.
- [12:24]
Bill Crystal
BILL yeah, no, no. The point I'd make out of this is something I've long thought I thought I taught the Supreme Court in courts and public policy kind of stuff when I was briefly a political science professor. So I remember making this point back then. But the law professors all love chief justices who can get unanimous opinions or overwhelming majority opinions on key cases. And they're not wrong, too. I mean, from the point of view of the nation and public comedy and sort of people going along with decisions, you want Brown v. Board to be 9 0. You want other decisions to be as overwhelming as possible. And that's part of the chief's job. And Roberts particularly has made that kind of core to his view of the chief's job. On the other hand, I've also always thought, and this is kind of your point, Sam, there's something lost. I mean, you kind of these are nine presumably intelligent and well educated in the law. Human beings with different backgrounds, however, and different people appointed them. And it would be it's interesting to hear their arguments, actually. And it's not the end of the world to have concurring and dissenting opinions. And everyone kind of like makes fun a little bit because dissenting in part and concurring to only to part 3C and not to, you know, at some point it gets a little legalistic. But honestly, it is part of it can be educational and it's not the worst thing in the world for lawyers to have to go read a little more diversity of opinions, if I can use that term, than, you know, whatever has been able to get a majority to whatever compromises have been made behind the scenes to get to five or six or seven or eight or nine votes. So I kind of agree with you. I always like it when there's, when people. And she is very, and she's been the one most willing to do that. I think she has very strong views on a lot of these things. She's a very impressive person and is decided at some point in this term. I think we really did decide at some point in the Trump presidency probably that, you know what, it's more important for the future for me to say what I believe and make my arguments on some of these things than necessarily present a totally united front by just keeping quiet and signing on to the majority. And she signs on to the majority.
- [14:17]
Sam Sty
She does sign on to her concurrence
- [14:20]
Andrew Egger
too, which is just that. I thought it was interesting, you mentioned that the Chief justice was unusually prickly. Maybe prickly is not the right word. But he really did go after the argument of the dissents. I thought it was really interesting that she used that Ketanji Brown Jackson used her concurrence to go after the dissents, not just sort of like as they were technically argued, but in this sort of historical way for the case that they were making. That really, I mean, she kind of accuses Justice Thomas here of trying to reduce the 14th Amendment to this little like one time patch on, you know, the children of freed black slaves. Right. I mean, she, she writes. Let me find it real quick. She, she traced the history of advocacy leading to the Reconstruction Amendments as an, quote, an anti caste, anti subordination reset, anti subordination reset for the nation, not a mere spot treatment for the dark stain of slavery. So, I mean, really like this, this pretty strong, powerful argument that, like, no, what they were doing was in the 14th Amendment, not just solving this sort of clerical problem of these children of freed slaves, but actually making a real statement about the kind of country that we were going to be a real new reassertion of first principles, that people who are born here are subject to the jurisdiction of our laws, they're American citizens, full stop. And that, that controls for, you know, in perpetuity until the Constitution's amended again. And that's the way it should be. So I found that powerful.
- [15:42]
Sam Sty
Yeah, no, she, I mean, I encourage people to read that portion of it where she talks about the construction of the 14th Amendment and the bigotry that was being directed at various groups of different ethnicity and nationality in the country prior to then. Not just the question of what to do with freed slaves. And then she gets into the sort of the intricacies of the debate about whether to go minimalist or maximalist in terms of what it means to be a citizen. She talks about the amendment process itself and how they leaned on the colored, the citizenship, sorry, colored conventions. It's an interesting one. Andrew, back to you for a second because obviously this now gets into the realm of the political. We already have Mike Lee talking about whipping up a constitutional amendment to birthright citizenship. Rand Paul responding that he's got one in the works. It's going to take a little while, folks. Then we have this remarkable clip from Mike Johnson literally finding out about the decision while at a press conference and groaning as he has read the result. Let's listen to that.
- [16:44]
Bill Crystal
What they rule. Here we go.
- [16:46]
Andrew Egger
Children born in the United States, parents, parents unlawfully or temporarily present, are subject to the jurisdiction of the United States and our citizens at birth under the 14th Amendment citizenship clause.
- [16:57]
Sam Sty
What's your reaction to that?
- [17:00]
Andrew Egger
Well, this is real time.
- [17:02]
Sam Sty
I need to read the opinion.
- [17:04]
Bill Crystal
Okay, but obviously that's, I mean, you could say that's a textualist, originalist view.
- [17:10]
Sam Sty
However, I, I do think that this
- [17:14]
Bill Crystal
has been grossly abused in recent years. Okay.
- [17:17]
Sam Sty
And so that groan is, is identical to how I grown when Andrew files late.
- [17:28]
Andrew Egger
Very, very rare that you do that.
- [17:31]
Bill Crystal
This is like fiction, you know, this is a fictional groan.
- [17:36]
Sam Sty
Andrew, what did you make of Mike Johnson's response?
- [17:38]
Andrew Egger
Well, I mean, it's the poor guy in some respects, because he is supposed to be a sort of genteel constitutional conservative in good standing. I mean, that's sort of the brand that he projects. But his functional role is to deliver the President whatever he wants and to back the President up on everything he says. And there are moments when those things sort of uneasily coincide. And there are moments when they come into real tension, like here, obviously, when there is this, you know, cut and dry ruling from the majority of the court, including many of the Court's conservatives, basically saying, no, the 14th amendment says what it has always been taken to say, this was correctly decided and it's all right there in the text and in the historical record. But he can't just say, well, you know, they did their job and they kicked the tires on this thing and it is as it ought to be, because he knows that the President is going to have a thermonuclear reaction to this. And he needs to keep his Trump membership in good standing because Trump does not forgive even small slights, no matter how much credit somebody has supposedly banked up in terms of loyalty.
- [18:44]
Sam Sty
But what does that thermonuclear reaction mean? Like, what does that thermonuclear reaction look like?
- [18:48]
Bill Crystal
Well, but here's one thing, one reason why Johnson could be Joaning for a practical reason that complements Andrew's correct analysis there, I mean, there is legislation that was introduced in both houses to ch to legislatively do away with birthright citizenship. Now, five justices have said for now that that wouldn't be acceptable either, but four have said basically that it would be acceptable and it wouldn't be crazy. If you're strongly believe in this in Congress. And Trump sort of alludes to this, doesn't he, in this, in this social media post. He put up that, you know, to try to advance that legislation and then dare the Supreme Court to overturn contemporary contemporaneous legislation by Congress saying, no, no, no, this would be constitutional. And we're, and we're passing legislation just to take clear away this, you know, history from 1950 and so forth. So I wonder if Johnson's also thinking he's going to have some members, you know, put putting, you know, screaming and yelling if they want to vote on this on the floor and that he's going to have some of his members in a difficult position of what do they go with Trump or do they go with five justices of the Supreme Court? You know, so I don't think this issue doesn't die today is what I'm saying.
- [19:50]
Sam Sty
Well, hold on, let's play, let's, let's play this out. All right, so you're the, you're Stephen Miller. Obviously you're, you're upset with this. On second I have a person calling me and it's annoying. Get out of there. All right, you're Stephen Miller. You don't like this, but what do you do like? I mean, you force a vote, I guess. You go on Fox News and you lament this. I mean, is there anything else that is any other tools in the, in the tool shed here? I don't really know.
- [20:16]
Andrew Egger
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- [20:40]
Sam Sty
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- [20:47]
Bill Crystal
Just make sure you never have to leave the White House, you and Trump, so that you can make, you can get more Supreme Court appointments or, or ignore the Supreme Court down the road after they've stolen the election in 2028. I don't know. I mean, I do wonder though how much more talk we'll get. The slides, they haven't quite gone there obviously in terms of defying court decisions, even lower court decisions. That was something people feared very early on. And I think it's fair to say that the Trump people have tiptoed up to that a couple of times but pretty much stayed short of it. I've got to wonder at this point whether there'll certainly be more of a drumbeat about, you know what, at least we need to go ahead and challenge it legislatively and, and on some of the sort of what Kevin was and is sort of saying and that Gorsuch too, I think in their concurrences, you know, on some of these instances of where birthright citizenship seems most dubious, literally a tourist who's here for a week or something kind of thing, you know, can't we at least get rid of that? I, I don't think they're going to give up. I mean this is so central to their understanding of America that they may give up in the sense that they know they can't do anything for two and a half years, but it just will make all the more urgent that Trump himself or a Trump true believer be elected in 2028 so they can finally make this happen. It's not like political movements go away when they lose a court case. Right. They often get re energized.
- [21:57]
Sam Sty
I mean, repeal and replace Obamacare kind of petered out a little bit.
- [22:01]
Bill Crystal
But after how many years incidentally?
- [22:03]
Sam Sty
Yeah, 10 years. Yeah, maybe 12. I don't know. Andrew, you're going to say something.
- [22:06]
Andrew Egger
Yeah. I think in the immediate term this cannot but harm them politically because in the, in the, at least in the very most immediate term, the only thing that could happen would be that Donald Trump would take Bill up on this and essentially turn this into another version of the Save America act, which is a piece of legislation that he demands to have passed. There will be no coalition for there will not be even 50 senators who would be willing to pass a bill banning Birthright citizenship, let alone 60, because the leadership knows it's a dead letter. They know it would not. I mean, these same five justices would immediately throw such a law out or allow a lower court to do it because they have just ruled this broad facial ruling on the constitutionality question here. So it is dead in the water as a matter of anything that could happen until years and years and years and years down the road with a completely new Supreme Court that would be willing to take a new crack at it. I mean, it's a hypothetical of a hypothetical of a hypothetical. And meanwhile, it is just a thing that Trump could bludgeon his increasingly unwilling to be bludgeoned Senate about. Right. So, so you can see some of these guys, maybe they will start making noises about a constitutional amendment. Maybe they will try with some of these legislation, some of this, you know, unconstitutional now, obviously, so legislation, which is fine. Like, I mean, if people want to change the process, that's the way to do it. Right? You try to get an amendment going and like, you know, go crazy, guys, I guess, you know, lots of luck in your senior year. But I just, I, I think that the President is, has been dealt a major loss and he's going to have to take it on the chin. He's not going to try to throw it out. He has said that he's not going to try to throw it out. And I think he has felt stung. I mean, last year I think there was a real reason to fear that maybe they were gearing up to really cross the court. I don't think if they've done it by now. I don't think they do it on this. I really don't. I mean, I.
- [23:56]
Sam Sty
Well, let me, let me. Wait, wait, wait, wait, wait, wait, wait. Because we have heard from the man himself.
- [24:03]
Andrew Egger
Oh, did he finally. I was just checking.
- [24:04]
Sam Sty
No, no, no. He. This is from yesterday. Here's Donald Trump saying he will accept casually any ruling from the court. Let's play it.
- [24:11]
Bill Crystal
Birthright citizenship is next. What are your thoughts?
- [24:14]
Sam Sty
Birthright citizenship, what are your thoughts and will you accept it if it rules against you?
- [24:18]
Bill Crystal
I guess I have to accept. It's the Supreme Court, so I'll accept. I think it's very bad for our nation. We're the only nation that does it. No other nation does that. Birthright citizenship. No, not even close. Some did it. They ended it. It's tremendously destructive. It's extremely costly.
- [24:35]
Andrew Egger
Like 30 countries that do it.
- [24:37]
Sam Sty
Yeah, 30 countries do it. 30 countries do it. But he'll accept it. He'll accept it.
- [24:40]
Bill Crystal
I would just modify. I think Andrew's right short term. He'll create more problems himself, obviously, with Republican members of Congress, with people in districts who are in, who are not, which are not, are not. With Trump on birthright citizenship, who might have to vote on it, even conceivably before 2026 election. That would be. Having said that, let's just go back a little bit. Roe v. Wade comes down in 1973, January 73, 7 to 2 decision settled. I don't know. Net. Net. Over the next five years, the next 25 years, the next 50 years, did the fight against Roe help or hurt conservatives and Republicans? I think you could make a case that it became pretty good for them politically. And I don't. And they may think. And Miller and Trump wouldn't be crazy to think.
- [25:22]
Andrew Egger
I don't know.
- [25:22]
Bill Crystal
Why don't we just. It's not obvious that birthright citizenship is wildly popular. Some of the polling shows its majority support, but that could be eroded over time. So I think I, I'm just not quite, quite as certain that they don't think that they can run on this. And I mean, here's. Okay, here's the question. Will the Republican nominee in 2028 say, this decision is settled forever, I can't even challenge it. Or will the Republican nominee in 2028 say, you know what, we overturned Roe, we should overturn this?
- [25:47]
Sam Sty
I think we all know the answer to that. It's going to be the latter. Right?
- [25:50]
Andrew Egger
No, I don't think. But I just don't think anybody is or should be sitting here saying, like there was anything the Supreme Court could have done here that would cause, like, nativism as a.
- [25:59]
Bill Crystal
No, no. Fair. No, fair enough. I'm not saying I'm not.
- [26:04]
Andrew Egger
It's a sea change in the political terrain in the battlefield. Right. It is a big fat loss for those guys. It is the Supreme Court weighing in for the first time in this loud way on the specific constitutional question that a lot of these guys, I mean, they really did think there was a shot. They thought this is an untested constitutional question. They thought they had a novel legal argument for, you know, the way that subject to the jurisdiction thereof ought to be interpreted. And they went and they tried it and they put a lot behind it and they lost. And that isn't good for them. I mean, I'm not discounting your analysis at all.
- [26:35]
Bill Crystal
They didn't think they were going to win. I just don't agree with that. There's zero chance that Stephen Miller who and the actual conservative law professors who wrote the cases for that the Trump administration depends on often preface their articles by saying we don't think the votes are here yet for this, but we need to lay the predicate for this down the road. So I guess I just think they're a little less, they're a little less distraught than Andrew thinks and a little more optimistic about that. They may be wrong about the politics of it, but I think they are willing to fight. They wouldn't have done this in the first place if they weren't willing to fight this beyond June of what is it, July, June, July of 2026. So they'll fight. They may lose, but they're going to fight it.
- [27:12]
Andrew Egger
Can I go to a slightly narrower place where we maybe do agree because maybe you're right about the, about the conservative law professors and all of these things. Like, I totally take your point on that. There is one person who I think is, is cooking up like a world historical social media post right now. And I keep refreshing Truth Social to find it. He hasn't posted it yet. Donald Trump is not having a fun morning about this. Feel confident of that. He has posted twice about the two cases that preceded this. He said, big win. The United States Supreme Court just ruled against men playing in women's sports. Wow. That takes that ridiculous situation off the table. And then he posted the Supreme Court just took restrictions off political spending. A big win for Republicans and more importantly, the First Amendment. And then after that he went a little quiet. So I bet there, I bet he'll have more to say on, on, on the topic we have been discussing sometime in the next.
- [27:58]
Sam Sty
Yeah, but there's like now I'm going to try to do a segue into some other stuff here, but there is some. He's hamstrung a little bit in this, in that it's the justices who he appointed, at least two of them in this case, who cast deciding votes against him. I mean, I know Kavanaugh is a little bit squishy, but let's assume that we, we're going to put Kavanaugh in the bucket of people who didn't take the bait on the executive order. And then obviously Amy Coney Barrett, who has been kind of like a mild thorn in his side and, and on the right, frankly, people have drawn her sporadically. Gorsuch stands out. But so Trump has these three justices who he was involved in appointing in the first term who have not been lockstep. They've been like 90% lockstep. In some occasions with him. And then the two most committed Trumpists on the court are Clarence Thomas and Samuel Alito. Now, because it's in the ether, I'm going to explain what's happened prior to us coming on air. NPR reported that Samuel Alito had announced his retirement from the court. Now it looks like that was either an erroneous report or a pre write of a retirement announcement that journalists sometimes do in which they, you know, get something ready and then they click publish and then maybe in this case they accidentally did. Regardless, the story's been retracted. I'm only mentioning this because it's been out in the ether and people are talking about in the comments. The Supreme Court issued a very quick statement saying NPR's reporting regarding justice Leo is inaccurate and the reporting that there was any kind of court statement is inaccurate. That statement appears to be accurate. There have been no statement about Alito at all. And yet I do kind of want to talk about this because it's not beyond the realm of possibility that at some point Alito that this is actually, you know, embargoed, for instance, or that he does make a retirement. And the most likely ones to retire are Alito and Thomas for age considerations. Bill, if that were to happen and there were to be a Supreme Court confirmation fight in the Senate, two questions. First is what kind of justice would Trump nominate in this case because of the feeling that he got burnt on these first three and two, how does that impact the politics in the Senate which would have to have a nomination confirmation hearing?
- [30:23]
Bill Crystal
Yeah, if Alito or Thomas were to retire, they probably would do so later this week or next week. That's been kind of the custom. If you're going to retire, you retire at the end of term. It gives the president time to make a selection. It gives the Senate time to consider it and presumably get someone confirmed by the beginning of termin in October. So that's not why it's not crazy to speculate about it at this time. It's not always been that way, but it tends to be that way. There's been more rumors about Alito seems to be unhappy in his job than Thomas. So maybe it'll happen. Everyone thinks that Trump will appoint a loyalist and a hardliner. If I could put it this way, we're to the, you know, we're not, he's not, he's not going down the Gorsuch and certainly Amy Coney Barrett routed again. He's not going Federalist Society mainstream. He's going Federalist Society right wing. If I can put it that way. And I think he's going to go pretty Trump loyal, right wing. I mean I just think he, I mean let's put it this way. Every other appointment he's made in the second term, basically the loyalty loyal Trumps everything. Now there is a way in which he probably wants this person confirmed. So that might stop him from a Bill Pulte equivalent nomination, you know, but more like a Todd Blanche equivalent nomination. Makes me wonder whether he actually goes with Beauvais, who was in fact in the administration for a couple of months before Trump put him on the appellate court, or whether he just goes with a super loyalist hard.
- [31:43]
Sam Sty
Colleen Cannon.
- [31:44]
Bill Crystal
Yeah, yeah. Well maybe circuit court judge if you want to be more respectable. Maybe a district judge. Yeah. Like Colleen Cannon or maybe some other person who's out there and his own solicitor general. I guess his name's been kicked around anyway. How does it affect I don't know. I mean the conventional wisdom has been and I think it's probably been right that Supreme Court appointments over the last couple of decades really have helped the Republicans. Republican base cares cared more about it certainly when Roe was up in the up for grabs and just seemed to be more motivated on this. And Kavanaugh, I think people think it's been exaggerated a bit. But it's probably true that in 2018 it helped Republicans and close some close Senate races that last week. So in red states and we have Senate races in red states in play again. So I think I'm sort of skeptical maybe on the other hand, in a post Roe, post Dobbs world, the dynamic has changed in a Trump, he's also
- [32:33]
Sam Sty
pissed off a number of Senate Republicans. Well, not that they've shown much, you
- [32:36]
Bill Crystal
know, and a Trump second term. I was just thinking more broadly in terms of public opinion, even Trump's second term, the dynamics politically may change and it's like you really want another of Todd but Pulte, that's what I would, you know, that's what they'll say whoever's nominated, I suppose or another feed ex or another, you know, whatever Cash Patel. And then in terms of the dynamics of the Senate, I mean Andrew's been thinking about this a little more than I probably. But yeah, I'm the Susan Collins. They're clearly people for whom this vote won't be an automatic vote. And so does Trump get to 50 the 50 he needs plus JD Vance? I don't know.
- [33:09]
Andrew Egger
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- [33:29]
Sam Sty
T.com Spin Quest is a free to play social casino void where prohibited. Visit spinquest.com for more details. I mean, I'm thinking a lot here. You got Collins obviously in a tight race. Right. Then you have Murkowski who is fairly independent on these things and has been
- [33:49]
Bill Crystal
a no vote in the past on Trump nominees.
- [33:51]
Sam Sty
Yeah, right. You've pissed off Cassidy until. So they'll get on board no matter what. They'll figure it out. Right.
- [33:56]
Andrew Egger
I don't think that's necessarily tougher vote.
- [33:58]
Bill Crystal
Tougher vote. Could just one thing tougher vote for I'd say for Sullivan in Alaska. For Sullivan, people who are in slightly pro choicey states. You know, though Republican senators, pro choice I'm using generically but let's say sure, you know, not more liberal on some of these issues. States that's becomes a pretty tough vote. I think. So I, I think probably yeah. It keeps him as he might keep Tillis and Cassidy, but he might lose a couple of others who were in similar situations.
- [34:23]
Sam Sty
He'll gain a Fetterman. He'll gain a Fetterman. We know it. Come on.
- [34:27]
Bill Crystal
Not on this. Andrew, go ahead.
- [34:29]
Andrew Egger
I, I think that people have a few maybe misconceptions about how a future fight would go based on how past fights went. People are all, I mean there are people in the comments who are like, ah, you know, Susan Collins will fold, Lisa McCarthy, Murkowski will fold. These are people who have come around on Trump's nominees for SCOTUS in the past, but Trump was nominating relatively unobjectionable from the point of view of normal Republicans, Federalist Society type judges before. It's a completely different calculus than if Trump, as he has consistently signaled has soured enormously on that kind of judge and wants to nominate a crank at the same time. People like Thom Tillis who you mentioned before, you said, oh, he'll fold. But Thom Tillis has made a real stance that has moved things on personnel stuff specifically during this term. I mean he is the basically the reason why Kevin Warshed chair went the way that it did. He basically got Trump to finally pull back and blink on the, on the criminal investigation of Jerome Powell and then got Warsh in there. I mean like this is not the kind of thing where Trump has a lot of power and control over the Senate. He cannot install an acting Supreme Court justice to, you know, soak up, you know, just do his bidding in the meantime and slow walk a nomination. He needs to get a person in there and he needs to get a majority of the Senate to confirm them. I will say this would be the biggest test of this because of, you know, whether there's any true Republican backbone left, because if it happened, the pressure will be monumental. There's this. There's this expectation or at least the possibility or if not the likelihood that, that Republicans could lose control of the Senate in just six months here or something like that. So it's probably going to be a one shot thing. You know, Trump is going to put forward one person and they're going to have a chance to get him, him or her through before the midterms. And so if Trump does, you know, dare them to shoot somebody down, there will be enormous pressure on even these senators that I've mentioned to get in line and push them through lest they lose their chance to confirm somebody at all before the midterms. So I'm not saying it won't be like a staunch test for these guys, but I do not think that guys like Cassidy and Tillis are an automatic rollover. And vote yes, vote for a potential future Supreme Court nominee.
- [36:41]
Sam Sty
Okay, we'll see. Pin it. Everyone clip this and play it back. Okay. There were two other decisions or major decisions that we kind of glossed over. One was that the court said that states can in fact bar transgender athletes from participating in sports. So a transgendered girl participating in a girl sport, I believe is Montana. But I might be wrong about that. I had a law in the books that can't happen. States went with that. And the other one was this kind of relatively not obscure, but not really discussed campaign finance story, which actually does have some real implications in that world, which is that as of now, there had, or as of yesterday, there had been limits on how much a political party could spend in coordination with a candidate. And the court ruled that those limits are not constitutional violation of free speech. And so there's already been basically unlimited giving in political campaigns. You just had to give to, like a super pac, right? And the super PAC can't coordinate with a candidate. Now you can go through the political party. So like the nrsc, which brought the suit, you can give them a huge check and they can basically spend it as they wish on the candidates and get coordinated spending that way. I want to just Dwell for a little bit on that one, because people I talk to are kind of torn about how big a deal this is. Obviously there's tons of money already and there's not really spending limits or donation limits that exist anymore. And yet this allows parties to do direct coordination that they hadn't been able to do before. So I talked to one Democrat this morning who's like, yeah, it's a big deal and people are underplaying it. And then I talked to another who's like, well, it just means the parties grow stronger. I don't know if you have any thoughts, Bill.
- [38:24]
Bill Crystal
Well, dubious. The party is going to grow much stronger because I think they just, the people, the donors, don't even trust them to spend the money wisely. They like having control they could have when they're the biggest donor to a pack as opposed to being one of a zillion donors to parties. But I also think the people who do this for a living like to, oh, my God, what a big deal. Coordination. Really, the amount of coordination that happens already. I mean, we. Right. You can signal how you want the, the party or the super PAC to spend money. I mean, legally. And so I, I'm pretty dubious that it makes a big difference. It's, it's. In practice, I could be wrong, but maybe I'm underestimating how. As a practical matter, I think the main thing is you get cheaper ad rates with the campaign and they can now funnel all the money to the campaign. Right. And therefore that is exactly how cheap the ad rate. So. But presumably both parties can do this sort of roughly at the same scale. I don't know. So I'm a little dubious.
- [39:15]
Sam Sty
Well, that is, that is the wrong presumption because as of now, the DNC is like 3 million in debt. RNC has about 110 million in the book.
- [39:23]
Andrew Egger
So that is the point that I was going to make is that at least in the immediate term, to the extent it has a big political impact, it is for. It is better for the Republicans because, you know, Republicans are still giving to the Republican Party. Democrats are not giving to the specific entity that is the dnc. Right now. They have no cash on hand. They are giving directly to candidates or they're giving to PACs or whatever. But, but, you know, to the extent this unlocks money for anybody, it is for the Republicans.
- [39:49]
Sam Sty
Okay, let's talk a little bit before we go about America 250. You guys have thoughts on how it's going? We're sending, we're sending some folks down there to take some video today because it doesn't look particularly well attended. And then the thing that's really bothering me, I guess, is that they do these close ups of like, the, the edifices that they put on the mall. And it turns out it's just like drapes that are stapled on. Have you seen this? And they're kind of coming apart. Looks bleak, Andrew.
- [40:18]
Andrew Egger
Yeah, they don't seem like they're having very much fun. I have been enjoying some of the, some of the just sort of more normie coverage of people who are just showing up because they're like, hey, it's the state fair, you know, let's go see what's going on. And they've traveled in from, you know, Pigeon Forge, Tennessee, or I don't know where, and they're like, yeah, we're just, you know, we're not paying much attention to all that stuff. We're just having a good time. We're seeing the booths and all these sorts of things and, you know, more power to those people. But there aren't very many of them. I know anybody showing up at this thing. I mean, the crowd shots. I don't know if you guys have seen some of these videos where you have, like, first of all, just administration figures on stage doing just like, normal crowd patter, Republican rally stuff. I mean, it's really shameless that this is what they have. Not just at the rally at the beginning, but throughout the whole thing. But, but just nobody's there.
- [41:05]
Sam Sty
Nobody talking about Dr. Oz.
- [41:07]
Andrew Egger
Yeah, like, I think, I think maybe Matt, I, I, I, we might.
- [41:10]
Sam Sty
And it's because there's tons of people here. It's a huge space, and it's just going to get more and more crowded as the week goes on. Not only do we have a lot of people here, we have people that
- [41:19]
Bill Crystal
you want to have, like Stacy Garrity, that woman's going to be next governor of Pennsylvania. There we go.
- [41:25]
Andrew Egger
And it's so the one thing to note there, in addition to just the hilarious, like, there's nobody there. Like, look at all these people. But they're just like. And how about Stacey Garrity, the next governor, Republican candidate for governor in Pennsylvania, who's polling at like 29%, by the way, but apparently it's just like the policy of the United States of America at this 250th anniversary celebration that, like, she's the one who should win that election. I mean, it's just, it's, it's clownish, it's ridiculous. It's, it's funny because nobody's there and because it's a black guy for the administration. It's sad because we could have had something cool that was actually, you know, bipartisan, where we don't just have random functionaries of this regime up there doing random GOP patter, where you don't have the Transportation Secretary calling performers who were afraid it was going to be politicized libtards from the stage. But, but really, I mean, it's just, I don't know, you can take your pick of what. It's also a little alarming because they're going to have this, you know, fireworks display on, On Saturday. It's like the biggest. Or. Yeah, on Saturday, on the 4th, it's like the biggest in history. Guinness World record setting. But it's not going to happen until 11. It's going to be after Trump's giant rambling speech. And there's. The security is going to be so intense that people can't bring, like, lawn chairs or coolers or water bottles. It's going to be 100 degrees.
- [42:38]
Bill Crystal
That's the worst part.
- [42:39]
Sam Sty
And they were like. There's four hydration stations, like, just four, like.
- [42:42]
Andrew Egger
Yeah. I mean, it's like a fire festival type. I don't know.
- [42:46]
Sam Sty
Fire festival. I don't know, Bill. I, I got some sports Spinal Tap vibes from this. I don't know if you feel the same way. Like, the Stonehenge performance and everything's. No one's there and it just feels a little slap dash. That's what came to mind for me.
- [42:59]
Bill Crystal
Yeah. No, I'm pleased that Trump hasn't succeeded, I think, in generally, in, in hijacking the 250th very successfully. He's certainly tried to in so many different ways. The fight at the White House, the 250, Bill, you name it. Right. But it doesn't seem like that stuff's working very well. I mean, it's funny, like, he seems to think that DC on the 4th is A. Is going to be a huge draw. I mean, that's not been the American tradition. The July 4th is a very backyard community focused where you're going on, you know, type holiday. Right. I don't know, people. Sometimes it's a week where you come to D.C. the kids are out of school, and it's a week for a vacation. But it's not. That's not like, we're not like, I don't know, some European country where everything happens in the capital. Quite the contrary. So I'm Sort of pleased that people seem to be planning on enjoying the Fourth and wherever they're living or wherever they're visiting their kids or their relatives or, you know, or friends or places they're going on vacation. Anyway, I don't feel they should come to D.C. because that's where Donald Trump, our grand emperor and president and wizard of Oz and, you know, great and good leader, is presiding. And it's just like you have to go to Pyongyang to pay tribute to Kim Jong Un, I guess, you know, whatever their equivalent is, you have to come to D.C. it's funny how Trump has become so D.C. obsessed. I think I was thinking of writing something about, you know what I mean? He's really into the redecorating, not decorating, the revolution, whatever construction of D.C. it's like he doesn't plan on leaving his first. What makes you wonder his first term was, whatever his other problems, that he loves Mar A Lago, and that's all its own story. He wasn't particularly obsessed with DC That I recall the first time. In fact, he's left it a lot. Didn't he went to Mar a Lago. So.
- [44:27]
Sam Sty
So the difference is he had. In the first term, he had his hotel, and he would go to his hotel a lot. I guess now he doesn't have his hotel. And so, I don't know. Maybe.
- [44:37]
Bill Crystal
Yeah. That's interesting.
- [44:39]
Sam Sty
Yeah.
- [44:40]
Andrew Egger
Did you guys see that report? Did you guys see that report from this week? I think I wrote a blur about it in Morning Shots. But not only is he DC obsessed and, you know, doing all these projects and stuff, but he's slurping up tons of national park money that was earmarked for other stuff around the country in order to do, you know, his. His new granite walkway from the White House residence to the Oval Office and all these different beautification projects for, like, you know, you can't build new. New, you know, banisters on the top of cliffs at, you know, Grand Canyon national park or. That's not a real one, but that's the kind of thing that they were mentioning in that story. Yeah, I know. I also really take your point, Bill, about the Capitol pilgrimage. I mean, like, I'm not even. I'm in St. Louis. I'm not even gonna go downtown. The best fireworks show are the. Are the municipal neighborhood ones where they're a little iffy on the different regulations, and they're probably launching them a little too close to the crowd. So the noise of them is sort of like knocking, you Back in your seat and you can sort of smell the gunpowder and all that. And that's what you want on the 4th of July. You don't need to. You don't need.
- [45:39]
Sam Sty
I'm a little bit.
- [45:39]
Andrew Egger
Manage production.
- [45:41]
Sam Sty
I'm. I got to be honest, I'm really actually legitimately nervous about what's going to happen on July 4th, because it is going to be like 102 degrees in D.C. and they're going to make people kind of stay around. And to Andrew's point, not, you're not allowed to bring like, water or something. You got to go to these hydration stations. And then this fireworks display seems totally irresponsible to me. Like, 45 minutes straight of fireworks into the humidity DC night at 11pm the
- [46:10]
Andrew Egger
numbers that I have seen are it's a 100 fold increase. 100 times more fireworks than is typically launched in the DC display. I mean, it. Could it conceivably be cool? I guess.
- [46:22]
Sam Sty
Have we ever. Have we run the experiment on what might happen here? Like, also, they're shutting down the airspace. It's like, this is better.
- [46:29]
Andrew Egger
With that many fireworks, what could go wrong?
- [46:32]
Bill Crystal
What could go wrong, guys? What could go wrong? I mean, you know, this is being done at the highest level of specifications. Trump's personally hired the people who do the fireworks at Mar a Lago to do these fireworks, and he's hired the safety, the safety inspectors that he trusts from his Trump Tower construction to do this, the safety inspections. It's all going to be great.
- [46:49]
Sam Sty
Same guys who did the poll. All right, I got to run because I have so much more to do today in terms of. I got a live feed coming up with at 1:00 clock with Brian Tyler Cohen, but that's on substack, so I'm just teasing for folks if they want to see that. But since we did talk about it, since we brought it up July 4th, I do want to make sure that people know we have a promo going on. This is for people watching. If you're not a bullet subscriber, this is a great time to do it. So a couple things. First, we talked about the Supreme Court decisions up top, or at least for much of this. We have a legal news recording today. Sarah Longwell is going to be joined by Supreme Court and American legal scholar Steve Vladic. Steve's awesome. Uh, Bill's talked to him a bunch. Steve knows this stuff inside and out. He's gonna have really expert insights on what the Supreme Court ruling means, uh, and what you should take away from it. So be sure to be on the lookout for that episode of Illegal News. And then obviously, before we go, I want to talk about our Fourth of July promo. It's called Take Back the Fourth. It's our rallying cry this week. We mean it. July 4th is not a property of any one political tribe. You got the flags, the fireworks, the whole thing. Maybe too many fireworks for Donald Trump. But look, we want to take it back. Help us take it back. So we are just talking about American patriotism. And it's not about deporting 100 million people or prosecuting political enemies or just having Kid Rock ride around helicopters. It is about truth. It is about democracy. It's about understanding the importance of holding power to account. So for that, get a full year of a Bulwark plus membership, which means complete access to everything on our website. And you can get that just for $86. 8686 the spin 86 the rage. 86 the media that won't tell you the truth 86 at all. So you'll get our original reporting and must read newsletters. Go to the bulwark.com July 4th. That's the bulwark.com July 4. There will be a link to that in our show notes. And as I mentioned, I will be streaming with Brian Tyler Cohen on YouTube and substack this afternoon. All right, fellas, thank you so much for doing this. The experts, Bill, Andrew, thank you guys. Really great broadcast. And for all those tuned in, thank you for tuning in. Really appreciate that as well. Talk to you soon. Oh, I have had no luck lately.
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Andrew Egger
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Bill Crystal
I got you.
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Sam Sty
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