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Foreign.
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Hello, and welcome back to another episode of the City Journal podcast. I am your host, Rafael Mangual, and I am joined today by the most famous Georgetown professor emeritus, Ilya Shapiro, also my colleague here at the Manhattan Institute, where he works at our center for Constitutional Studies. Ilya, how are you?
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I'm doing all right. It's the spring, so it's Supreme Court speculation and get those opinions out season.
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That's right. That's right. And that's exactly what we're going to do on today's episode. We're going to speculate, we're going to talk about the future of the court. But I want to start with just a quick overview of some of the interesting decisions that have come down. I mean, a lot of people may not know this, but the Manhattan Institute is super, super active at the Supreme Court. We're constantly filing amicus briefs in cases that are before the. That are likely to come before the court. So why don't you just start us off by talking a little bit about some of the opinions that have already come down, particularly with a focus on the ones that MI has been involved in.
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Yeah, we actually file a lot at the cert stage, meaning at the stage where the court is deciding whether to take up a case. And that's very, very important. You don't get as much publicity for that, but it's an important step because the court reverses or vacates the lower court opinion in upwards of two thirds of the cases that it takes. So getting it to take an important case is more than half the battle. And so we're very good that we have a higher than, a much higher than the normal rate of getting our cases taken up. The cases before the court, the biggest one in which we, we were involved that's been decided already is probably Childs versus Salazar. This is a case of a licensed case counselor in Colorado that ran afoul of a state law that says you cannot counsel people regarding gender dysphoria or other sexual issues unless you're going to take a progressive perspective affirming a sex change, gender identity.
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B
This was, this opinion was widely maligned, I think as sort of ban on conversion therapy. Right.
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I mean, that's what it's called. But it's just trying to deal with, you know, but it's speech. It's not, it's not electroshock. It's not some of the weird things that were done to gay people in the past. It's just talk therapy. And the court, 8 to 1, reversed the lower Court and said this law violates the principle of viewpoint neutrality. That is potentially a state could ban all talk therapy. I don't know. That would be a weird law. But it can't say. You can only counsel in one particular direction with one particular viewpoint.
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B
Eight to one is one of those, you know, numbers that almost never gets reported. Right. I mean, when I was reading the coverage of that case, I mean, you would have thought that this was, you know, an even split along ideological lines, you know, six, three, with the courts conservatives on one side and the courts progressives on the other side. But in reality, this seemed to be a pretty straightforward opinion. Who was the lone dissenter in that case?
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No prizes for guessing. Justice Ketanji Brown. Jackson.
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That's right. That's right. And I mean, I found her dissenting opinion hard to follow, frankly. And I think some of the other justices did as well, including some of the other progressive justices who seemed to treat that opinion pretty harshly.
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That's right. And Kagan, who wrote a concurring opinion joined by Sotomayor, said that the issue would have been much more difficult if Colorado had enacted a content based but viewpoint neutral law. So this is different than the Scrametti case last term where the court okayed a Tennessee law that blocked medical and surgical interventions for treatment of gender issues in minors. Because here it's a First Amendment question.
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B
Right, right. So what are some of, what are some of the other cases that, that have come down this, this term, especially ones that, you know, unlike, unlike the Salazar case, may not be as sexy or as sort of.
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Well, I mean, whenever President Trump's involved that, that tends to get a lot of attention. And there's a trio more than that really. But the focus is on, on three big executive power cases, one of which was already decided. The, the invalidation of the so called Liberation Day tariffs under one particular statutes. And that's being, you know, new kinds of tariffs are being litigated in lower courts. But basically the court said it's a bridge too far for the President to levy any kind of tariffs on any country just by saying that it's, that it's an emergency. That's a big case. And the other two big executive power cases, Trump versus Slaughter, we haven't, we're waiting for. But it's likely that the court will allow the President to remove the heads of so called independent agencies because we don't have a fourth or fifth branch of government. If something is part of the executive branch, the President has to have control over it. And the third Big case that we're waiting for is the executive order on birthright citizenship. My guess that was argued very recently. My guess is that the Court will not reach the constitutional issue and will simply say maybe the 14th amendment does not require birthright citizenship, but the President can't change that century old practice that's codified in law so simply with an executive order.
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I want to talk a little bit about the independent agency case. Right. Because it makes total sense.
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That's the only one of the three, by the way, in which we were involved.
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Right, right, yeah. I mean, I want to talk a little bit about that because I mean it does. I find it just interesting that there are so many people in this country who seem to take for granted the idea that there can be such thing as an independent agency. When I hear the term independent agency, I don't think like oh good, this agency is insulated from the influence of government. I think, oh how terr. Here's a completely politically unaccountable institution that isn't responsive to any coalition within the country that has a way of participating in the political process.
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That's exactly right. The issue here is not the scope of agency power and we can talk about that. The Court's been kind of cutting back on that, trying to force Congress to take back the reins of lawmaking. It's simply who controls, who sets the policy agenda for these agencies. Now 90 years ago there was a Supreme Court case called Humphreys Executor that said that because these agencies exercise some quasi legislative and some quasi judicial functions, not purely executive, Congress can insulate them from presidential removal. That may or may not have been the case 90 years ago, but now it seems pretty clear that it's, it's an agenda setting, it's an enforcement, it's a, an executive branch agency and you simply can't have something completely independent asterisk. The Fed is different and we can get into that. But all of these Alphabet agencies, the Federal Trade Commission, the Federal Communications Commission, the Consumer Financial Protection Bureau, the Securities and Exchange Commission, all of these agencies, if they are insulated from presidential control, then they can be doing things at loggerheads from what the President was elected to do and it can get very frustrating. On the other hand, if the President does have control over them, well then voters can hold the President accountable and the President's party accountable if they start doing things that people don't like.
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B
And where would the U.S. commission on Civil Rights fit in all this? Would that be one of the agencies over which the President now Enjoys.
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It's interesting because those appointments are partly presidential, partly congressional, and they're meant to be bipartisan. The issue there is the Civil Rights Commission has no power. I mean, it convenes hearings, it issues reports, but it has no enforcement power. It has no subpoena power. It can recommend things to Congress and other bodies, but because it has no real power, it is this kind of free floating, weirdly designed thing that at the time it was set up was important as a symbolic thing and it got a lot of publicity and, and coverage. Now it just kind of hangs out. And what it does nobody knows about beyond the Beltway.
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B
Yeah, yeah. So let's talk a little bit about the birthright citizenship case because I do think this is the biggest case on the docket this year that everyone's going to be keeping an eye out for. As you said, it was just argued very recently, the US Is kind of unique globally insofar as it offers citizenship to anybody born within its borders under any circumstances. That makes us an outlier in a way. And so from a policy perspective, I think there are a lot of people who view this initiative of the President's as a reasonable one. Right. We're just bringing the United States sort of in line with the rest of the world. But as you note, there might be an issue with the process here. Talk to us a little bit about what the arguments are. I know, I listened to the oral argument. There was a lot of time spent over interpreting the meaning of the 14th amendment and what does it mean to be within the jurisdiction of the United States. And you know, so I think the public is, will be interested in your takes on that. Yeah.
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The 14th Amendment in relevant part says all persons born in the United States and subject to the jurisdiction thereof are citizens of the United States and the state where they reside, with exceptions for foreign armies, ambassadors and Indians. And 100 years ago there was a law that actually gave citizenship to, to Native Americans. And so there's this debate of, well, what about children of illegal aliens, what about tourists or anybody else who's visiting non permanently, anybody short of a green card? And it's unclear under the Constitution because these illegal or temporary visitors didn't exist. The concepts didn't exist in 1868 when the 14th amendment was ratified. So it's, it's, you know, you read the debates and it doesn't answer that many questions. You kind of have to extrapolate what, what they were getting at. And that's why you have these secondary debates about what really is the meaning of jurisdiction. It's not simply jurisdiction for criminal purposes. You can get arrested and tried and what have you. It's. Does it have to do with domicile, which is a legal term of art, that means where you live and where you have an intention of living? Well, if it's an intention of living, which is what domicile means legally, does your Status under the 14th Amendment Change Day to day based on your subjective intent? What about allegiance? You have an allegiance to some sovereign. What does that even mean these days? Well, you flee some country, do you really have an allegiance to that country that you're fleeing? But can you form an allegiance to the United States without being here legally? Unclear. I mean, that's why this is a close question and not clearly answerable. But it's not. It's not a frivolous argument. You know, some, you know, say that this is some sort of xenophobic or bigoted response by Trump and his supporters. Not at all. Now, we've been doing it where for over 100 years by statute, that anyone who's born here gets automatic citizenship. And it's not a complete outlier in the world. Most of the Western Hemisphere actually does it that way. It's more of a new world, old world sort of situation where, you know, Europe or Asia are more about blood and soil, and the Western Hemisphere has been more about, you know, if you're here in the new World and the frontier and all of that. But again, things have gotten a bit out of hand. And the modern, very modern concept of birth tourism, where, you know, women come here when they're eight and a half months pregnant, give birth, and go back to. People are concerned about China, but it comes. Happens from other countries as well. And what does that mean? Maybe it would be good policy to change that. But then, and here's where the real legal debate is, even if it's good policy, can the president change that with an executive order?
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B
Right. Yeah. And so what would then the right process be? Right? So let's imagine that the Supreme Court chooses not to rule on the constitutional question and, you know, give us a definitive interpretation.
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I mean, I can see a splintered ruling where Brett Kavanaugh is in the middle and he's the one that was most concerned about this statutory question, or maybe they're not. Not even a clear majority in any way. But his is kind of the controlling opinion because it's the, it's the. It's the middle way. It would need an act of Congress. You would need Congress to change the rules and say, you know, no visas short of a green card, get your kids automatic citizenship, and if you're here illegally, that doesn't get it. There could be some compromise, you know, the DREAM act or who knows what, but it would be up to an act of Congress to do.
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B
And would it be enough for Congress to do that statutorily, or would they have to change the 14th amendment, do we think?
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Well, again, if, if the Supreme Court rules that the 14th Amendment, you know, as a matter of constitutional law, gives birthright citizenship to the children of, well, everybody other than invading armies, diplomats and Indians in the archaic sense, then Congress couldn't change that by law. But if it doesn't rule on the, on the constitutional question, then Congress presumably has free rein. Except that would be challenged and then they would have to rule on the constitutional question at some future time.
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Yeah, I mean, this case, like some others from recent terms, and I should
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mention that our colleague Elon Wurman, an adjunct scholar at mi, has engaged in significant scholarship and filed an amicus brief supporting the President on the constitutional issue.
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And he's got a great new podcast of his own, actually. Do you know the name of his podcast?
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I forget it. It's out of the University of Minnesota where he's.
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Yeah, it's really, really fantastic for, you know, for people who are looking to, you know, kind of sort of an introduction to some of the legal issues. I mean, I think they do a really great job of explaining it for non lawyers. So really, really cool. You guys should check that out. But yeah, I mean, this case kind of falls in line with, I think, you know, a handful of other cases over the last several years that I think may indicate a trend in which the Supreme Court is moving that is away from this sort of broad interpretation of, of executive power. The Supreme Court seems like it wants to return us back to sort of, I don't know about congressional supremacy, but certainly making sure that Congress isn't abdicating its duty and reserving powers that are allocated to it for that particular branch of government. Do you see that as a broader trend, or is the Supreme Court kind of splinter on this?
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I would put a little wrinkle in that, in that it seems to be moving to greater executive presidential control over the executive branch, what's sometimes called the unitary executive theory. So whatever the scope of executive power, the president has control over it with carve outs for civil service protections. And there's other things that we can talk about. But in terms of, and therefore Trump's executive orders, whether that flurry on day one or week one, or in general, have the most bite when he is reorganizing executive branch agencies or offices or telling them how to interpret the law, how to proceed, what kinds of regulations he wants issued, that sort of thing. But if the President purports to change the law or otherwise impinge on the prerogative of other branches, there they are pushing back, whether the President or administrative agencies, for that matter. And so in overturning Chevron, for example, it's saying that courts should not defer to agency interpretations of statutes, that judges need to interpret those statutes for themselves. And it won't. The major questions doctrine. The court will not read grand powers to be given to agencies unless Congress is explicit in saying so. This is forcing Congress, the legislative branch, to actually legislate rather than punting and aggrandizing the executive branch or with a presidential executive order. If you're trying to change rights, if you're trying to, you know, do things, again, that start affecting congressional actions or statutes, you can't do that. So there's greater executive presidential power over the executive branch, perhaps not as much executive or administrative power overall.
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Got it. Got it. So I want to move on to some other topics, but before that, I mean, I think there are a couple of other cases that are going to be coming down before the end of the term that people should be keeping an eye on. What do you think are kind of the real big ones?
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There's a voting rights case called Calais vs. Louisiana, which we're getting a little, you know, a lot of states have already had primaries for this fall's midterm election. It might be too late to really affect too much district drawing, gerrymandering, what have you for this election. But certainly for 2028, if, as it looked likely, the court will drastically cut back the consideration of race in drawing districts, because we sort of have a Goldilocks standard currently. You have to use race a little bit to give minority groups the power to elect a candidate of their choice, but not too much because all of a sudden that becomes equal protection and it's become very. It's become unworkable, as the case here. Louisiana first got sued by one side, then it changed the maps pursuant to court order, and it got sued by the other side. If, as is likely, the court will drastically cut back, if not eliminate altogether the use of race in districting, then that will affect how districts are drawn going forward. Another case which we filed in involves campaign finance and coordination of communications between parties in candidates. And you're thinking, what's wrong with parties coordinating with candidates? Yeah, that. That is a. The question. Indeed. It looks like the court will remove that kind of restriction. So political cases and then what? In doing, you know, previewing the court last fall, I talked about the so called sex cases, transgender boys in. In women's sports. It looks like the court will allow states to restrict women's sports to biological women. That's a big culture war issue. Obviously. We've had Childs, the therapy case, and we're looking at. There's just one case on the emergency docket called Mirabili, which I wrote about for City Journal about the secret social transitioning of kids in public schools. The court just yesterday, as we recorded, decided not to take up a case on the merits docket involving this issue. But there's another one that's coming down the pike. I think this sort of issue, the clash of parental rights and school district policy is coming.
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B
Yeah. The oral argument in the transgender sports case was interesting to me. Right. Because you sort of saw this interesting question rear its head again, which is, you know, how to define the sexes, particularly how to define what a woman is, which was a question that Ketanji Brown Jackson famously would not answer during her confirmation hearing. But it came up in the oral argument. Right. I mean, why is it important to have that definition in a case like that?
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Title 9 in this case is likely to be decided based on Title 9. It came up from two separate cases, one from challenging a West Virginia law, one challenging an Idaho law. It came up both on the constitutional equal protection question to protect women, but also Title 9 of the Education act is meant to protect women's equal access to educational opportunities. And that includes sports at both the collegiate and high school levels. And so if you don't have a theory of what a woman or a girl is, then it's hard for you to articulate exactly why this does or doesn't violate Title ix. And the challengers did not come up with a definition, which is, I think, why the justices are skeptical to those challenges.
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B
Yeah, yeah. I mean, you know, it's an interesting set of culture war issues before the court in those cases, which makes me think of Justice Thomas recent remarks on progressivism. I mean, you know, he took out a pretty hard line on the congruity of modern progressivism with the sort of core of American identity. Talk to us a little bit about your reaction to his remarks.
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I just had a piece up at City Journal about this. I think it's an important speech. It got misreported misrepresented as Todd reporting the, you know, the left of the country now. But he was making a deeper, more historical argument about capital P. Progressives. We're talking turn of the century fdr, Woodrow Wilson, even before Woodrow Wilson, the progressive populism in the industrial era, during the Industrial Revolution, saying that the idea that the Constitution is antiquated because we figured out all the questions, we know what good government means and so conceptions of natural rights and that, you know, your liberties come not from the government but from the state of nature. Progressives didn't like that. You know, they thought we need to administer, whether it's agricultural policy or social engineering in whatever ways. Housing, race based questions, eugenics. We have the scientific answers of administration in kind of a German late 19th century idea. And all of these antiquated constitutional barriers, checks and balances, separation of powers, federalism, that gets in the way of good progressive meaning advancing progress, government in the new century, in the new 20th century. And that developed through FDR and beyond. But Thomas was really focusing on that basic point of political philosophy. You know, ours is a, is a system of government that understands that if you empower government to do various things, then there's real dangers that it will take away your liberty. And so, as Madison put it in Federalist 51, since men aren't angels and angels don't govern men, it's men governing men. We live in the real world. You first have to empower government to have the ability to secure and protect our liberties and promote human flourishing, while at the same time obliging government to check itself. And that's why you have some of these cumbersome obstacles that Woodrow Wilson didn't like.
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B
Yeah. And look, the worries about government overreach are more than theoretical. Right. I mean, you can go back to decisions like Buck v. Bell comes to mind. Right. This is a case in which Oliver Wendell Holmes signed off on the state practice of eugenics. Right. I mean, the sterilization of certain undesirable segments of the population, as he put it. You know, that was real, that happened. And that was a core part of sort of progressive era jurisprudence that I think, you know, rightly illustrates the dangers
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associated with, imagine your worst political enemies having all the power just because they have a majority, tyranny of the majority. And it's primarily these structural features of our constitutional order that's America's real innovation that's protected us. As the late Justice Scalia often said, any tin horn dictatorship has a Bill of rights. The 1978, Soviet constitution was amazing. You know, paid the right to a clean environment. I mean, all of these things that progressives want, and yet those people were oppressed and didn't have real rights because it's structure. That's the guarantee.
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B
Structure is destiny, right? Structure is destiny. Structure is everything. Well, look, I really enjoyed his speech, and it made me start thinking just about the future of the court. I mean, it's no secret that Thomas is getting up there in age, as is Justice Alito. And as much as I would miss their wisdom on the bench, I think a lot of people are starting to wonder when, if at all, they will consider retiring so that President Trump can fill their vacancies and, you know, solidify a conservative majority, you know, for another, say, 10, 20 years even. What do you think the prospects of that is?
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Justice Thomas is turning 78 in June. Next month, he becomes the second longest ever serving justice. If he serves through May of 20, 20, 28, he becomes the longest ever serving justice. And I think he's gunning for that. I mean, for that matter, he's, you know, he said all these folks picked on me and, you know, went after me for 43 years. I'm going to serve at least 43 years on the court. So we might have a while to go. He might have to be carried out. And by the way, I saw him last a few weeks ago. He seems to have lost some weight in the last couple of years, so that's a, that's a good thing to see. But I wouldn't expect him to retire until after the 27, 28 term at the earliest, so we could have a confirmation battle right in the teeth of the presidential election. As for Alito, he just turned 76 a couple of weeks ago, also looking fit. Seems to, along with Thomas, be enjoying the job. He's at the height of his powers, has never had more influence. You know, the actuarial tables say that a male, you know, of his station who's gotten to age 76 will likely live at least another decade. And to the extent that we look at crass political considerations, the Republicans are more likely than not to hold the Senate after this fall's midterms. Now, there's some nuance there. There is a difference if the deciding vote is Mitch McConnell versus Lisa Murkowski, say. But I don't know if those subtleties are really enough to persuade someone like Alito to go. And indeed, based on reporting that we've seen very recently by Jan Crawford, he's indicated that he's not looking to go this term, Maybe next term, maybe, you know, we'll see what the political composition is, how he's feeling, what his wife wants to do, who knows. But I will just say that, you know, we've seen this buildup of speculation, but it's just rumors based on rumors based on speculation. Unless you hear something directly from the justice or maybe his wife, I would discount it.
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B
Yeah, no, I think that's probably right, but it just makes me think. Right. I mean, I've seen some of the reactions to some of the recent sort of conservative victories at the court, if you want to put it in those terms, and people seem apoplectic. Right. As if it wasn't the case that conservatives were suffering, you know, loss after loss for nearly 50 years of having
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a sort of progressive or just having the human jump ball, Justice Anthony Kennedy in the middle.
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B
That's right. That's right. You know, talk to us a little bit about what this recent sort of conservative era has looked like. I mean, you know, is it the progressives worst nightmare or. I mean, you know, I'm hearing decisions coming down 8 1, you know, 9, 072. How many six threes are we seeing? How much of the Court's decision to are being sort of made along ideological lines?
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A
Cleanly last term there were six, six to threes, 10% of the docket. And that's in line with recent trends. It basically goes between about 10 and 25%. About half of the cases tend to be decided unanimous or 8 to 1. So, you know, the big politically controversial ones, and we talked about them, tend to have a higher likelihood of falling on those ideological or partisan lines. And that's why the left is upset. You know, we, we are living at a time of historically low societal trust in institutions, can't commit with our populist moment and all that. But the Supreme Court, even though is not immune to those trends, it's kind of have enjoys lower confidence than it did 20 years ago, but still much better than pretty much any other institution, certainly at the federal level, short of the military. But what's striking is the difference between public confidence or approval ratings as between conservatives and liberals or Republicans and Democrats. And that is unprecedented and unhealthy because it's not good to have people think of the Court the way they think of Congress or the presidency, that it's all Republicans and Democrats, that it's all partisanship, that it's all politics all the way down. What we have instead, it's hard to get away from because we have the culmination of various trends where divergent interpretive theories. And it's not the triumph of conservatism, it's the triumph of originalism and contextualism in the legal context, which is an important distinction.
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B
Right.
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A
I mean, the idea, it's not simply, you know, you figure out what the conservative result is and you vote that way. It's figuring out what the Constitution means when it was enacted or what a statute, a federal law, what the text of that statute actually means, rather than what the purpose of Congress might be or what the result, you know, a good justice might demand or something like that. And that's been a revolution that's been a long time coming, and that's the real victory of the conservative legal movement. Now, that doesn't mean that President Trump always wins. It doesn't mean the Republican position always wins. It doesn't mean that the conservative position always wins. Not at all. But it does mean that you have a more faithful tie to the Constitution, which we were discussing why Woodrow Wilson didn't like that Today's progressives don't like it for similar reasons.
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B
Yeah, yeah. But, you know, as much as we've, we've seen the court sort of, you know, make decisions, not necessarily along ideological lines, there does seem to be, you know, some lingering tension between the court's right flank and left flank. And some of that came to the fore earlier this week when Justice Sotomayor issued an apology to her colleague Brett Kavanaugh after some remarks she made about the justice, I believe at the University of Kentucky, or was it Kansas? One of the case states.
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A
Yeah, yeah. She said that because he grew up in privilege, he didn't really understand something in a particular case, I think. But then she apologized, which, you know, shows you how the court works better than the other institutions. When's the last time you ever heard an apology from a politician for.
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B
That's right.
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A
For something. Justice Jackson has also, you know, said that the court is, you know, doing bad things on the, on the emergency docket, you know, query if the court was, you know, blocking President Biden's executive orders as it was before, what she would have been saying about that. But anyway, there are tensions. There are clearly some frustrations on the left side of the court. I have a review of Molly Hemingway's new book on Justice Alito that's coming out next week in the Washington Free Beacon. And she broke some news in that book that Justice Kagan, after the leak of the Dobbs draft overturning Roe v. Wade, was just furious and tried to slow walk the release of that decision despite security threats to the, to the majority justices. So anyway, yeah, there, there are certainly tensions, but at the end of the day, these people have to live with each other for decades and it's a small community and so they figure out a way to muddle through, I think. I don't think you have, you know, real enemies like you did, you know, a century ago, there was one justice who was particularly ornery and antisemitic at that and refused to be in the same room as Justice Brandeis, for example, other than for official portraits. I mean, we've had much worse relations among the Court than we do now.
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B
In other words, the rest of our political institutions should be looking to the Court as a model.
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Absolutely. As my friend Sarah Isger, who has a book out this week, it's the last branch standing in terms of semi functional governance.
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B
Indeed it is. Indeed it is. Well, I guess we'll, we'll leave it there. Ilya, it's always great to have you back on the show. I hope you'll come back soon. I hope those of you who've been watching enjoyed the episode and that you like comment, subscribe, leave us a note, leave us a review, let us know how we're doing and make sure that you follow us every week when new episodes drop. And until then, we will see you soon.