Everything Wrong With The Supreme Court’s Birthplace Citizenship Ruling

Summary

Podcast Summary: Federalist Radio Hour

Episode: Everything Wrong With The Supreme Court’s Birthplace Citizenship Ruling
Date: July 2, 2026
Host: Mollie Hemingway
Guest: Shawn Fleetwood

---

Main Theme

This episode dives into the Supreme Court’s dramatic and controversial 5-4 ruling in Trump v. Barbara, which held that children born on U.S. soil to illegal aliens and temporary foreign visitors are U.S. citizens under the Fourteenth Amendment. Mollie Hemingway and Shawn Fleetwood break down why they believe this to be a devastating “modern worst” decision, critiquing the reasoning of the majority and discussing the strong dissents, the implications for American sovereignty, and the broader context of Supreme Court dynamics.

---

Key Discussion Points & Insights

1. The Supreme Court’s Birthplace Citizenship Decision

[01:17 – 03:54]

• Overview of Ruling: The Court, in a 5-4 split, decided that the Fourteenth Amendment requires birthright citizenship for children of illegal immigrants and temporary foreign nationals.
  • Majority: Chief Justice Roberts (author), Justices Kagan, Sotomayor, Jackson, and Amy Coney Barrett.
  • Principal dissent: Justice Thomas (joined by Gorsuch and Alito); Kavanaugh wrote a concurrence in judgment but disagreed on the constitutional reasoning.
• Kavanaugh’s Position: Although aligned with the majority in the result, he does not believe the 14th Amendment guarantees such citizenship—argues Congress has power to regulate (03:02).

“He does not see the 14th Amendment as giving children of illegal aliens a right of citizenship.” — Mollie Hemingway [03:02]

• Magnitude of Impact: Both hosts emphasize this ruling as “one of the worst in modern history” for its disregard of original constitutional meaning and possible long-term consequences for national sovereignty.

---

2. The Dissents: Thomas, Alito, and Gorsuch

[04:40 – 07:42]

• Thomas’s Dissent:

  • Deeply originalist; traces the Fourteenth Amendment’s history, showing it was meant to guarantee citizenship to freed slaves—not to anyone born on U.S. soil regardless of parental status (10:41).
  • Uses post-Civil War legal examples of temporary residents being denied citizenship.

• Alito’s Dissent:

  • Practical, focused on policy outcomes: warns that decision “greenlights birth tourism” and dilutes the meaning of U.S. citizenship (06:19).
  • Quote:

  “Careful analysis...shows it [the 14th Amendment] does not degrade the concept of United States citizenship in this way.” — Justice Alito, summarized by Hemingway [07:42]

• Gorsuch:

  • Short but forceful dissent, joined Thomas’s principal dissent; distinguished the new case from the 1898 Wong Kim Ark precedent which dealt with lawful permanent residents’ children (41:54–42:44).

---

3. Critique of the Majority

[09:35 – 12:49]

• Roberts’s Political Mindset:
  • Seen as acting out of concern for the Court’s public role and perception, not legal principle.
• Amy Coney Barrett’s Originalism Questioned:
  • Praised as a Scalia protégé, her vote is seen as a betrayal of originalist expectations.

  “There’s absolutely nothing originalist about saying that the 14th Amendment citizenship clause...extends to children of illegal immigrants and children of temporary migrants.” — Shawn Fleetwood [09:35]

• Majority’s Use of British Common Law:
  • Critiqued for relying on subject-hood to the British king, missing fundamental distinctions between subjects and citizens (07:42–09:35).

---

4. Supreme Court Nominations and Conservative Expectations

[12:49 – 19:28]

• Reality of Judicial Appointments:
  • Appointments don’t take place in a vacuum; political constraints play a major role.
  • Barrett, Kavanaugh, and Gorsuch discussed in the context of confirmation politics and Republican priorities.
  • Emphasis on “managing expectations”: Barrett’s “clunkers” provoke more anger due to her originalist reputation (19:28).

---

5. The Challenge of Judicial Supremacy and Potential Remedies

[24:42 – 31:45]

• Judicial Supremacy Debate:

  • The right of the Supreme Court to have the final word is heavily criticized.
  • Comparison to Lincoln’s response to Dred Scott—the other branches have power and responsibility to push back.

  “You don’t have to accept republic-threatening bad decisions.” — Mollie Hemingway [27:13]

  • Roger Severino’s advice: Keep pushing; press the logic in U.S. territories to force continued judicial engagement ([29:10]).

• Republican Apathy:

  • Critique of GOP’s tendency to accept court decisions passively, lack of political fight and enforcement in immigration and sovereignty.

---

6. Broader Context: Court’s Recent Term and the State of the Judiciary

[33:30 – 39:30]

• Other Supreme Court Cases:

  • Rulings on executive authority, women’s sports, and protected status.
  • Praise for the overturning of Humphrey’s Executor—restoring presidential removal power.

• Transgender Athlete Cases:

  • The absurdity of these cases even reaching the Court is lamented; highlights cultural and legal confusion.

---

7. Reflections on the Conservative Legal Movement

[43:01 – 51:18]

• Balance of Good and Bad Rulings:

  • Recognition that justices can produce both excellent and deeply flawed opinions.
  • Barrett’s tenure: moments of hope, but today’s ruling as a grim milestone after six years.

  “You have to give them a little bit of time. But now she’s had six years and...what a way to be involved in something very bad.” — Mollie Hemingway [51:07]

• Caution on Calls for Thomas/Alito to Retire:

  • Warns that replacing them with lesser justices could be catastrophic for constitutional originalism ([48:16]).

---

Notable Quotes & Memorable Moments

• “I would say it’s probably one of the worst decisions we’ve had in modern history. And I try not to over exaggerate things, but it’s really that bad.” — Shawn Fleetwood [03:54]
• “He explains how the 14th Amendment was passed to say that you cannot deny citizenship based on race, not that you don’t get any say at all in citizenship.” — Mollie Hemingway on Justice Thomas’s dissent [04:40]
• “Careful analysis...shows that it [the 14th Amendment] does not degrade the concept of the United States citizenship in this way.” — Paraphrase of Justice Alito, via Hemingway [07:42]
• “There’s absolutely nothing originalist about saying that the 14th Amendment...somehow extends to the children of illegal immigrants.” — Shawn Fleetwood [09:35]
• “You don’t have to accept Republic threatening bad decisions.” — Mollie Hemingway [27:13]
• “It was 5-4 on this issue...so close. And I just think it is important to remember it was close. Doesn’t comfort you? Maybe, but okay.” — Mollie Hemingway referencing Roger Severino [29:10]
• “If it takes five or six years to get a handle on things, I’m just worried about what this means for Barrett because this...will be six years for her, and if this is who she is, that’s not the best sign going forward.” — Mollie Hemingway [51:07]

---

Important Timestamps

• 01:17 – Overview of Trump v. Barbara and the Court’s decision
• 03:54 – Hosts assess the ruling’s historical weight
• 04:40 – Thomas’s and Alito’s dissents described
• 07:42 – Alito’s practical critique and memorable quote
• 09:35 – Barrett’s vote and originalist expectations
• 12:49–13:52 – How nomination politics shaped the current Court
• 19:28 – The role of expectation-setting for justices
• 24:42 – Judicial supremacy and what can be done next
• 27:13 – Lincoln, Dred Scott, and the obligation to resist bad rulings
• 29:10 – The narrowness of the decision (5-4), Roger Severino advice
• 31:45 – Republican passivity vs. judicial activism
• 41:54 – Distinction between Wong Kim Ark and Trump v. Barbara
• 43:01 – Other notable cases this term (Trump v. Slaughter, Cook)
• 46:36 – Alito retirement rumor and long-term Court composition
• 51:07 – Final reflections on Barrett and the future of the Court

---

Conclusion

Mollie Hemingway and Shawn Fleetwood deliver a deep, passionate, and critical analysis of the Supreme Court’s birthplace citizenship ruling, seeing it as a major loss for constitutional originalism and national sovereignty. They celebrate the vigor of the dissents, lament what they view as a betrayal by the current conservative majority, and urge continued engagement—political and legal—against what they characterize as judicial overreach. The conversation is especially useful for listeners wanting both a detailed breakdown of the case and an insider’s reflection on the machinations and consequences of current Supreme Court dynamics.

Transcript

[A]

Foreign. Welcome back to a special edition of the Federalist Radio Hour. Make sure to subscribe wherever you get your podcasts. Follow us on social media at FDRLST. Email us at radio the federalist.com Become a subscriber to the Federalist website. Do other things. You can become a supporter of our website. All sorts of stuff. Anyway, I am Molly Hemingway, editor in chief at the Federalist, here with Shawn Fleetwood, our intrepid Supreme Court reporter. And we are recording this shortly after the end of the 2025, 2026 Supreme Court term, which ended with quite a bang this week. And Sean Fleetwood, thank you for being here with us.

[B]

It's great to be here. Thank you for having me.

[A]

And maybe you can tell us about how things ended, what happened on the last day.

[B]

So it's kind of mixed bag. We got three big opinions today. I think the biggest one that everyone's focused on right now is the birthplace citizenship. Trump v. Barbara this, of course, deals with the question of whether the children of illegal aliens or foreign nationals who are here temporarily in the United States are, in fact, U.S. citizens. And in a 5, 4 decision on the reasoning, the court said, yes, that these children are, in fact, U.S. citizens. And just because, you know, they're born here to illegal parents, that doesn't mean that they're deprived of citizenship under the 14th Amendment. It was Chief Justice John Roberts who authored the majority decision, and he was joined by the court's three Democrat appointees as well as Justice Amy Coney Barrett in the dissent. You had Justice Thomas, who wrote the principal dissent. He was joined by Justice Gorsuch. And then you also had Gorsuch and Alito author various dissenting opinions as well. Justice Kavanaugh authored a concurring opinion, concurring in the court's judgment, but declining and dissenting on the reasoning. So he said basically that, that the executive order issued by President Trump does not comply with federal law, but that he does not believe that the 14th Amendment enshrines some sort of constitutional birthplace citizenship. Right. That just because you're born to illegal aliens or, you know, temporary migrants on U.S. soil, that doesn't automatically grant you U.S. citizenship. And that Congress basically has the power to, you know, regulate that as they see fit. So that's pretty much.

[A]

Yeah, thank you for clarifying that. Because even though Kavanaugh, you know, it looks like he was with the Roberts team, he actually wasn't. He was, you know, because he also would have found the executive order to be not appropriate. He's with them. But on the reasoning, he's actually much closer to Alito or, you know, and, and then less close to Thomas, but still on that side of things, he does not see the 14th Amendment as giving children of illegal aliens a right of citizenship. And all of these decisions, concurrences, dissents are really interesting to read, but I think this was, you know, one of the biggest decisions we've had in a very long time. And unfortunately, given the makeup of the Court, it's a devastatingly bad decision. What do you think?

[B]

Yeah, I would say it's probably one of the worst decisions we've had in modern history. And I try not to be like, to over exaggerate things, but it's really that bad. And you mentioned Kavanaugh on his position on it. And I think when we talked last week, that was kind of our hope, like the best case scenario that neither one of us thought the court was actually going to side with Trump in this dispute. But maybe they would say, okay, well, it's not a constitutional right, this birthplace citizenship stuff, but maybe the court will say that it's an issue that Congress has the power to regulate. But unfortunately that's not what the majority saw. I still kind of trudging through the dissents, but Justice Thomas, from what I can see, put out a pretty lengthy, I think it's like 90 pages or something.

[A]

I know how much you, you like Justice Thomas, and I have to say you are going to love every word of it. It is eviscerating. And he cares so deeply about the 14th Amendment and why it was passed. And he explains how the 14th Amendment was passed to say that you cannot deny citizenship based on race, not that you don't get any say at all in citizenship. And who's this? It's like, not that you must be a citizen if you are born in the United States to people who are not legally domiciled here. And he shows how it's a violation of everything that we have known throughout history about, about legal domicile. And Alito also does this goes through the history, goes through the track record of why the amendment was written and what it meant. And I, it's, they're both so eviscerating, even though they're, you know, Thomas is more stringent and Alito is trade, you know, in his trademark smile, less stringent. But they're both so devastating to that majority opinion that Kagan, Sotomayor, Katanji Brown Jackson and Amy Coney Barrett agreed with Chief Justice Robertson. It's not a good, you know, it's not a. You don't want to be in that group of five. You want to be with the other four. Probably if you saw just like on, you know, from a distance, there are five people here and then there are these four people over here, you'd want to be with Alito, Thomas, Gorsuch and Kavanaugh over Roberts and the ladies.

[B]

Oh, yeah, 100%. And I think one of the effective things that Thomas did that I've seen so far through reading his dissent is he lays out like clear cut examples of temporary residents or people here temporarily in the United States in the Years after the 14th amendment was ratified, showing how these people were denied citizenship because they were not domiciled in the United States. And Alito, who you wrote about in your excellent book Alito, which people should go pick up, you talk about how he's very practical in his thinking oftentimes in these decisions. And you sort of see that in his dissent. From what I saw, kind of laying out how this decision by the court basically greenlights this foreign birth tourism industry, that you're a foreign national, a pregnant woman, you can come here in the United States, have your kid, he's granted citizenship and then you can just go home and he still retains the full rights of being a US Citizen. I mean, it's just completely insane. And what that will mean for the future of the country. Like for example, if you get a Democrat president who wants to have a completely open border or be very lax when it comes to legal immigration policies, what that's going to mean for the country in the long term? I think it's very effective in further showing how ill advised and terrible the majority's decision was in this case.

[A]

Yeah, I think it's worth going through just a little bit of each of these dissents by Alito and Thomas. And Thomas and Alito begins, he's a very reserved individual. He is more powerful in his writing. But he begins by saying, this is one of the most important decisions in the history of the Court. And in my judgment, the Court has made a serious mistake. As interpreted by the court today, the 14th amendment confers citizenship on virtually everyone who happens to be born in this country, including the children of birth tourists, women who come here solely for the purpose of giving birth to a child and then promptly return home. Careful analysis of the text of the 14th Amendment and the process that led to its adoption shows that it does not degrade the concept of the United States citizenship in this way. Instead, the 14th Amendment confers citizenship only on only those Children who at birth owe allegiance solely to this country. And you saw the same thing in what Justice Thomas said, that this decision by Roberts and the ladies degrades the notion of citizenship. I can't remember if it was Alito or Thomas. Do you remember which one did the point about how the majority basically says, well, in Britain, you're subject to a king, and this was written, and, you know, that's kind of our heritage. And one of the dissents was like, we're not subjects, we're citizens. Citizen citizenship means something, and it's not to be subject to some arbitrary authority like this. But what a. I don't know, it's just hard because this was a pretty good term in general, but this is a devastatingly bad decision on the eve of our 250th anniversary.

[B]

Yeah, it kind of puts a damper on things and kind of overshadows a lot of the good that the Court did this term. And I think when you talk about the justices in the majority, I mean, John Roberts, we know he's very political, very much cares about how the Court is perceived by the public and how its credibility matches up with the public and the media. So this decision makes sense from him. But when you look at a Justice like Amy Coney Barrett, who clerked for Antonin Scalia, who makes herself out to be an originalist, there's absolutely nothing originalist about saying that the 14th Amendment citizenship clause, which was designed and enacted to grant citizenship to freed slaves and their children, somehow extends to the children of illegal immigrants and children of temporary migrants in the United States. There's no through line there. There's no logical way that you can say that that's the original meaning of the 14th Amendment. And yet that's what Amy Coney Barrett did in this case.

[A]

So Justice Thomas begins his dissent by pointing out that history of the Supreme Court deciding in Dred Scott to permanently deny citizenship to blacks as a subordinate and inferior class. And Thomas points out that after the Civil War, the Reconstruction Congress overruled Dred Scott first with the Civil Rights act of 1866 and then with the citizenship clause of the 14th Amendment. He says both of these things guaranteed citizenship to persons born and domiciled in the US Regardless of their race. Neither guaranteed citizenship to persons who were not domiciled in the United States. And he goes through the history, and it's very powerful and meaningful to think through why the 14th Amendment was written. We do have a lot of information about what they meant by it, what they didn't mean. By it. And the majority.

[B]

Yeah.

[A]

Just kind of runs roughshod over all of it. And I totally agree with what you were just saying. Like, I think nobody should expect much of Roberts. He's a. He's a self avowed, non. Originalist. Non. He says, I don't have a legal philosophy. I just kind of do what I think is best. Amy Coney Barrett asserted that she would be in the mold of Scalia. I don't think there's much confusion about what Scalia would have said when presented with this case. I mean, all the arguments against birthplace citizenship are originalist arguments and they're strong. None of the arguments in favor of birthplace citizenship are originalist. Like, they're the quality of the briefs that were filed in this. It was overwhelmingly in favor of those who said, whatever else you think about how to do this, Kavanaugh or otherwise, the 14th Amendment was never intended to be a thing where people who were not legally domiciled here get citizenship. So what's Amy Coney Barrett doing there?

[B]

Yeah, I mean, her tenure has been very frustrating for a lot of conservatives. And I think in part that's because of the expectations that were set for her. Maybe when you compare it with a different justice like Kavanaugh, who, when Anthony Kennedy, who was this big moderate step down from the court when Brett Kavanaugh was nominated, nobody was really like, oh, this guy's like a Thomas Alito level originalist. He's going to be like a Scalia. No, everyone kind of understood that. Yes, he'll certainly be better than Kenned, but not necessarily this super strong originalist like those justices I just mentioned. But with Amy Coney Barrett, it was very different. It was portrayed very different, that she was, you know, a Scalia, you know, protege, that she was going to be this super strong originalist when she got on the court. And since getting there, she certainly has been a part of some big, pretty, you know, pretty big rulings like overturning Roe. But then you get these decisions like the Trump v. Barbara case, where it's just a complete, you know, out of left field, has nothing to do with originalism.

[A]

So I do think people should always remember that nominations do not happen in a vacuum. You take a Justice Alito, his nomination didn't happen in a vacuum. It happened after a very particular set of events that led to him being able to fairly easily be confirmed. But it was not something the Bush administrator, the George W. Bush administration, originally had in mind. It was after a failed nomination of someone who was perceived as too weak. For the court. So in order to placate the base of the Republican Party, the George W. Bush team had to nominate someone really good. They've kind of gotten away with Roberts as this, you know, appeals to everyone kind of guy. He was overwhelmingly confirmed. Then they tried to do Myers and then, you know, they had to deal with a, an angry base. Sometimes you have to deal with an angry opposition party. So if you take just Donald Trump's three appointees, are they who he would have chosen in a vacuum? Maybe not. In the first case, you had the very contentious Decision by Mitch McConnell to hold open the Scalia seat until the next president was elected. And so the idea there was, I think, for Donald Trump. He had put out a list of people he was going to, he said he was going to nominate from that list. It kind of constrained him. And he picked someone who was very strongly in the mold of Scalia, few decisions notwithstanding. He has turned out to be that way, you know, very libertarian minded and also someone who could make it through the Senate and not without difficulty. You might remember that Mitch McConnell had to blow up the Supreme Court filibuster in order to, to get him through. Then you have Kavanaugh. And just like you said, this is not in any way was like the candidate who was the dream candidate of the conservative legal movement. It was, okay, Trump's about to be ousted by all sorts of different scandals that have been cooked up by different people. You've got a very contentious Senate. You've got even the Republicans in the Senate who are kind of angry. You have very, very narrow majority and you've got Susan Collins who doesn't. You've got on the one hand Susan Collins who's pro abortion and doesn't want to vote for anyone who might correct Roby Wade. But you also have an entire political party that has spent 50 years focused on overturning Roe v. Wade in that particular environment. Kavanaugh was kind of perfect, right? And then similarly for Amy Coney Barrett, this happens. The timing issue is key. The choice essentially, essentially there, there's like a little bit of a quibble, Harry, where you could say maybe Trump could have gotten someone slightly better than Amy Coney Barrett, but the choice was basically Amy Coney Barrett or Katanji Brown Jackson. And what I mean by that is either you're going to get someone through who could again get the votes of non conservative Republicans or hope to, and she ended up not getting them. Like Susan Collins did not vote for Amy Coney Barrett, or you don't get Anyone. And then Biden appoints Katanji Brown Jackson. Those were the choices. It wasn't like Amy Coney Barrett or someone better. And because of the unfortunate, like, sex issues, Ruth Bader Ginsburg being a woman. And if. If Trump hadn't nominated a woman, it's very likely he would not have been able to push a nominee through. Like, you have to deal with reality. And so when people are like, I can't believe Trump nominated Amy Coney Barrett, it's not a choice between Amy Coney Barrett and perfection. It's a choice between Amy Coney Barrett and Ketanji Brown Jackson. That's actually the choice.

[B]

Right, Right. Yeah.

[A]

So people need to remember that and have perspective and not be stupid when they're even like, I am. I'm appalled and embarrassed about Amy Coney Barrett joining with Roberts on this. Appalled and embarrassed. But I also understand that even so, she's had many better. She's got a much better track record than a Katanji Brown Jackson.

[B]

Yeah. And that's kind of what I was kind of wanting to get at is that I see a lot of these criticisms on X and from various pundits and saying, like, she's the worst thing ever. And I certainly agree with a lot of the criticisms, like this birthplace citizenship case, like the Watson VRNC case, where she joined the majority and wrote the majority decision saying that Election Day is not actually Election day and that states can accept ballots for days or even weeks after the election. And so, I mean, for all of those bad things, she has had her good moments, like, overturn, like I said, overturning Roe, overturning Chevron doctrine, some of these other decisions that were issued today and over the past few days, defending women's laws, defending women's sports, upholding executive authority for the president. I mean, so she's been a part of those big decisions. It's just, I think the consistency of having that originalist doctrine showing through all of these cases, you don't see that as much or as like, you see Thomas and Alito, and there's that consistency. Whereas with her, it seems to be kind of in flux at times.

[A]

I do want to also say that I just want to affirm again what you said about expectation setting. The big problem for Amy Coney Barrett isn't just that she's kind of had some disastrous roles and opinions. It's that people told us she was going to be the best thing that ever existed. So when you compare it to Kavanaugh, people are like, well, I guess. I guess we can do Kavanaugh. He's. Everyone's like thrilled with how great he is. He's shown some real courage and he's had some really interesting arguments and he's built some interesting coalitions. Whereas with Amy Coney Barrett, she has two, but she's also had a few more of the clunkers. And it's mostly about the expectations. People were expecting clunkers from Kavanaugh. They were not expecting them from her.

[B]

Yeah. And I think some of the other frustrations with her, and I think this also applies to Kavanaugh, so it's not exclusive to her, is the willingness to take up some pretty pertinent cases. Cases. So the way that it works for our listeners at the Court is that you need at least four justices to agree to hear a case before it can be heard before the whole Court, where you have oral arguments and then the Court issues a decision on the merits and oftentimes on Second Amendment cases, on First Amendment cases and other important issues, you've had Justices Thomas, Alito and Gorsuch say we'll take up a case, but they don't get the fourth justice to actually get the Court to fully take it up. And something tells me the mindset there, and this is just me guessing, is that some of these younger Republican appointed justices think, well, we don't need to tackle all of these big precedents now. We'll have time to do that over time where we can repeal them and tackle these issues. But I think you pointed this out in Alito, where Justices Alito and Thomas understand that originalist majorities, originalist majorities like this only come once in a lifetime and that you got to strike while the iron's hot and get these bad precedents overturned and actually litigate these issues now. Because as the death of Ruth Bader Ginsburg shows, anything can happen at any time. And you really need to make sure that the Constitution is being upheld and enforced in these really important areas of public law and policy. What if political disagreement didn't have to become political warfare? That's the idea behind the Future of Freedom podcast. Each week, two liberty minded thinkers tackle a major issue from different perspectives. One conversation, two viewpoints. No yelling, no dunking, no debate, stage theatrics, just thoughtful arguments presented in good faith, giving listeners the chance to weigh the evidence and reach their own conclusions. In a media environment built for outrage, Future of Freedom is built for curiosity. Listen to Future of Freedom wherever you get your podcast.

[A]

So back to just the substance of the birthplace citizenship opinion decision. I think maybe also people have what they think the law was versus what it really was, or what the Supreme Court had said about this versus what they had never said about it before. So a lot of people just kind of reflexively assumed that if you were born here to illegal aliens, that that made you a citizen. That was kind of just common knowledge. But it turned out that the Supreme Court had never looked into this particular issue, and it had kind of become like a de facto policy of the United States, but definitely not viewed as the Constitution requires this. So once people start looking into it, and they actually only recently started doing scholarship on it, because also it wasn't like the world's biggest issue until recently, as we had the willful importation of tens of millions of illegal aliens for the purpose of having anchor babies who then, you know, keep the family on the public dole while they're living here illegally. But this is the first case that gets people, that gets to the Court on this issue. And so this is the first time in history that the Court has ever said not only do you get to be a citizen if, like, a hostile foreign power manages to birth you here, but that the Constitution requires you to be a citizen like that. There's no debate. You're just a citizen. This is not a policy question. There's nothing Congress can do. There's nothing the President can do. We're just going to assert on high that there are no such things as borders or national sovereignty or the ability of people to decide what makes for a citizen or not. We're just going to say the Constitution requires it. It's pretty absurd. And I had tried to, like, in my mind, I was trying to prepare for all the possible. All the possible outcomes and scenarios.

[B]

Yeah.

[A]

But I just had a really hard time believing there were five justices who would. Who would say that with a straight face. Did I believe that the Democrat nominated justices would? I did. I thought at least two of them would, but probably three. Did I think even maybe one of the. Of the Republican nominated justices would. I did. And I'll be totally honest, I kind of thought Gorsuch might be one of them.

[B]

I did, too.

[A]

Although I. I want to talk a little bit about where he ended up, too, and where he was in oral argument. But the idea that it would be five and that Amy Coney Barrett would be one of them is. Was not something that I. I don't know. I just. There's not living up to expectations, and then there's living so far down to them that it's It's. It's where you're worrying about the future of the country.

[B]

Yeah.

[A]

Heck of a job, guys.

[B]

Yeah. And one of the things that I've seen, I think some of the people in Congress have said, well, we can just pass a constitutional amendment. And that's very much easier said than done. But also, I think it kind of gets at this. It kind of subscribes to this idea of what has been dubbed judicial supremacy. Right. That the Supreme Court and the judiciary writ large have the final say on matters of law and public policy in America. That the people's voice, through their elected representatives, whether it be in the executive or the legislative branches, doesn't matter that what the court says is the final word. And that's not really the system that our founders had envisioned. Obviously, the courts play an important role in society. We have Article 3. But when you have founding fathers like Alexander Hamilton saying, well, the judiciary should be the least dangerous branch, right? Because it can't. It doesn't have the power of the purse, doesn't have the sword to enforce its judgments. It relies on the executive to do that. But now in America today, we have this situation where the courts are reigning supreme irrespective of what the Constitution and law says. And so it kind of pushes America into this area of, well, what happens when the judiciary is violating the Constitution? Does that mean that the other two branches are forced to go along with it? So those are the types of conversations that I think really bad decisions like this from the court invite that maybe they actually don't want to have.

[A]

So I just saw that Trump had been asked about the ruling from the Supreme Court, and he said something like, well, I guess I have to just accept it because it's the Supreme Court. And it was like, well, you swore an oath to the Constitution too, buddy. So, no, you don't. I mean, John Davidson was pointing out how Lincoln did not recognize the, like, perfection of Dred Scott or what was it? Dred Scott? Yeah, I think so. Yeah.

[B]

Dred Scott.

[A]

So you don't have to accept republic threatening bad decisions. And on that point, I thought Roger Severino made a really great point. He's over at Heritage, and the first thing he says in his post on X is so close. And I do want to point this out. It was 5, 4 on this issue of whether the 14th amendment gives children of illegal aliens birthplace, citizenship. When this first started coming down the pike, you had a lot of people, a lot of dumb dumbs being like, this is gonna be non zero. Because the 14th amendment says it has to be. And you know, once people start actually looking at the arguments, you see people, I, I cannot tell you how many people, like highly respected, serious attorney types who have told me in the last year that they personally changed their mind when reading the scholarship on this. So you had some people out there that have been saying this for a long time. John Eastman, Kurt Lash, Elon Wurman is not the oldest guy, but he's, this is like his thing that he has written really beautifully on. Randy Barnett more recently. But when people read these very respected constitutional legal scholars, they're like, oh, this is actually kind of cut and dry the other way. But anyway, so Roger Severino says, so close. And I just think it is important to remember it was close. Doesn't comfort you? Maybe, but okay. 5, 4 decision favoring birthplace citizenship. President Trump should immediately amend his executive order to apply to US terror territories which are not auto bound by the 14th amendment. Trump should keep pushing the issue wherever he can and force the court to reckon with the logic of its decision. Will they overrule the insular cases next? Completely agree with Roger. In no way should you say, well, I guess the Supreme Court said we can no longer function as a country. Guess it's lights out, we're going to be just like Europe. No, like, have some fight in you. This is an existential issue. Do you get to have sovereignty? Do you get to determine who's a citizen? And nobody of any integrity should just lay down and say, well, I guess if Chief Justice John Roberts and Katanji Brown Jackson agree on something, it's the end of the story. It's not. And there are things that can be done, including this idea about pressing the issue in the territories.

[B]

Like, it's so much apathy with Republicans that, oh, bad court ruling. What, what can we do now?

[A]

Yeah, we'll show we're better than other people by just quietly accepting it.

[B]

Okay, you guys literally don't do anything at all. And it kind of goes back to the judicial coup. I think we talked about maybe this last week about how you have these lower court judges overstepping their balance, issuing these overreaching injunctions, and the Republican Congress is doing nothing about it. The Trump administration is doing nothing about it. They're not pushing for any sort of, you know, limitations on their jurisdiction. And like, I fully expect the same thing here with birthplace, citizenship. You might see, like a Republican congressman or senator put up a resolution saying, we're putting forward this amendment to change the Constitution to make sure there's no birthplace, citizenship, knowing full well it's not going anywhere. But they're not actually looking at the root causes, like making sure that we have mass deportations, actually enforcing immigration law, both illegal and legal immigrants, and making sure that the people coming into our country actually want to be here, actually want to assimilate into American society. Republicans aren't actually looking at those problems and making sure that they can address them in the best way possible. In fact, I think they're on vacation right now and then they're going to go on vacation again for August. So again, it goes back to that issue of the judiciary is having the final word on these matters of law and public policy, and the other two branches are rolling over and taking it and not doing a single thing about it.

[A]

You just reminded me of that time that I went to the White House for the, you know, the like, extra seat they have so that it's not just all CNN or ABC News that are there. And, and my question was, like, what are you going to do about the judges? Or something like that, you know, so what are you going to do? You've said there are problems with this judicial coup going on. What are you going to do about it? Because it's not sufficient to complain. You actually have to take action. But of course, the best body to do oversight of rogue lower court judges or other parts of the judiciary would be Congress, and they've really just failed. There are so many ways to abuse a populace and it's not just by eventually having a bad decision on, say, birthplace citizenship. It's also by allowing ridiculous challenges to just last for like a decade before resolving them. You know, Alito had some really good decisions this last week dealing with things like is temporary protected status Temporary? No. Well, that's a good decision. But that it had to take 10 years to get to that is not good and means that you win. Even when you ultimately lose at the Supreme Court, you won by stopping the deportation of thousands upon thousands of Haitians who were supposed to be here for 18 months 16 years ago and are still here and, and apparently like purchasing houses that many American citizens can't afford to buy.

[B]

You mean, Molly, when you are in Mexico, you don't arrive in the United States. Like that's literally an issue that the Supreme Court just ruled on another issue or another decision by Justice Alito. But to your point, like we just had also today, this pair of cases, West Virginia vs. BPJ and Little v. Hecox, which dealt with state laws barring trans identifying men from competing in Women's sports. It seems like a very straightforward law, straightforward policy, but yet this issue has to be decided by the Supreme Court. The fact that it even got to the Supreme Court is a problem in and of itself where we're having to actually defend laws recognizing biological reality. So while they, the trans movement per se, may have lost this case, they actually won because they've been able to string out these challenges and put these laws on hold for years throughout the legal system.

[A]

I want to point out that Sonia Sotomayor, in her. I think it was a descent for this. I can't remember what the actual breakdown of everybody was. She used a slur, like a very inappropriate slur to describe women. Yeah. She called them cisgenders, which is a really inappropriate. I mean, it's like the N word, you know, kind of level of inappropriate to be just like casually writing it an opinion. Or as I always think of Norm MacDonald saying that it's a term to marginalize normal people or like marginalize healthy people. But she just, like, threw it out there. And everyone just acts like it's totally okay to use an. An insane word, which is a propaganda term used by trans activists to say that you can be transgender or cisgender. And CIS means that you're a fully functioning person who understands that people are made male or female and that that's an immutable trait that can't be changed.

[B]

But, yeah, Jackson also used the phrase sex assigned at birth in her solo descent for that case.

[A]

I love. First of all, I want to say. I want to do a little bit of bragging here, but I think it was a reader who chastised me for saying birthright citizenship and said it should be birthplace. Can't remember. Or I would give proper credit to whoever encouraged me to say birthplace. So we started saying birthplace at the Federalist. And I'm not sure if you noticed that a bunch of people are saying birthplace citizenship. We try to not use terms that are propaganda terms or terms that fake the question, meaning that assert what the outcome should be without going through the debate. Birth right citizenship, to me, begs the question of whether being born in this location gives you a quote, right quote to citizenship. So birthplace citizenship over so called birthright citizenship. But and then with this, with this situation on the trans ruling, I was thinking about this part in the book about certain types of attorneys in D.C. who love justice Alito over the more libertarian justices. And you see this where at the end of a term, some people will assess the term, and it's like they're completely divorced from the effects of the decisions. And so they'll be like, oh, this was a cute turn of phrase. Or oh, I liked what he did there. And for the, for the attorneys who like Alito, someone had said to them about them that they're people who understand that a good ruling does not save the country and that it's impossible to put the toothpaste back in the, in the tube. When you start having problems in the country, it's very difficult to get things back to where they should be. And that's what I feel about the so called huge victory in the trans case. It's a very good decision and recent jurisprudence from the court has been very good on it and they should be ruling this way. But it is such a bad sign for the country and for society that they're having to rule on these.

[B]

Yeah. And I think in Justice Thomas concurrence for this decision, he, it was very short, but he basically said that man is man, woman is a woman, and to lie and pretend to your fellow citizens otherwise is to treat them with disrespect or some kind of paraphrasing there. But that was basically the gist of it. That you would outwardly lie to your fellow Americans about something as simple as biological sex is just not treating them in any sort of respectful manner. But I think one of the things that came up during oral arguments you mentioned Justice Alito and this made me think of it, was in oral arguments he was questioning one of the attorneys trying to fight for this law, or fighting against the law, I should say. And he was like, okay, well why don't you define man or woman for me? And the attorney kind of like refuses to do so. And then he's like, well, how are we supposed to know whether there's been sex based discrimination for equal protection purposes if we can't define what man and woman is? It's a very simple question, but yet the fact that we have to ask it in the Supreme Court hearing is just so crazy to me. Again, yes, it's a great ruling, but just underscoring the absurdity of the times we live in where this is an issue that has to be presented for argument and decided by the US Supreme Court.

[A]

So I wanted to mention that Gorsuch, who authored the Bostock decision, which was a trans insanity decision and he's roundly mocked for it, he tried to defend it today even in this ruling. That was the proper ruling on the, on the trans stuff. I just wanted to highlight that because I think a Lot of people are hoping that he would have of recognized the error of his ways in the Boock decision in which he asserted that the Civil Rights act was passed to protect men who claim to be women. Just not, not true at all. But the other thing I wanted to point out was that Gorsuch, a lot of people had misinterpreted his line of questioning in the Trump B. Barbara oral argument. That was the, that's the birthplace citizenship case. And he kind of asked Sauer, the, the advocate for Trump, some questions about immigration laws and how they changed over time and some tribal issues. And I think Sauer himself kind of took not umbrage, but he was kind of like on defense about it. But I'd spoken with some smart people who said there was a way of interpreting what Gorsuch was doing there as actually finding his way to the proper decision, the proper treatment of understanding the 14th Amendment as it was originally, as it was originally written and passed. And it turns out those people were right because Gorsuch was with not just not Alito. He wasn't with Alito, who was like the more balanced of the dissenters. He was with Thomas, who was much more strident about. Don't even, don't even think of saying the 14th Amendment could apply here. Here.

[B]

Yeah, he's one of my, besides, Alito is one of my favorite justices to listen to in oral arguments. I think he's very good at it. And I think his descent, if I recall, was very short in this case. He did, like you said, signed on to Thomas's. So that was like the principal dissent that he was going with and the rationale there. But one of the things he pointed out was that this case that was decided in the late 19th century, I believe, called USV Wong Kim Ark or Kim Wong or something like that.

[A]

It's the only other case that ever dealt with anything close to this. But go on.

[B]

Right. Like the Supreme Court had said that I think it dealt with Chinese lawful permanent residents and their children being U.S. citizens.

[A]

Yes.

[B]

Basically recognizing that they're here under our jurisdiction and so their children are entitled US Citizenship. But like, like you said, that's not the issue that was presented here in the Trump v. Barber case. And I think oftentimes the media unsurprisingly misconstrue that Wong Kim Ark case to kind of justify and say, well, see, the Supreme Court has said that there's birthplace citizenship in the 14th Amendment when in reality that's not true. And so it was nice to see Gorsuch just reaffirm that those two cases and the legal issues in them are in fact separate.

[A]

Okay, so anything else we should highlight from the recent decisions, either this week's or last week?

[B]

Do you want to talk about Trump v. Slaughter, Trump v. Cook, another John Roberts masterpiece.

[A]

Yeah. Although I'm not as upset about it. It was poorly done and a really good piece on it was that John Eastman, who wrote for us as a federalist on this, Roberts is all over the place on executive authority. But having said that, it just, I think it was, is sort of narrow to a particular case and easily overwhelmed. The issue is do presidents, are they able to remove presidential appointees or federal employees? Federal appointees. And in one case they're like, yep, Humphrey's executor is overruled. And the next one it was like they have to, they have to have a little bit of due process here, but it's not really the end of the day that they did. So I don't think it's, I don't know, maybe you think it's worse than that. That.

[B]

No, I generally agree with that. It basically was like, oh, the Federal Reserve is kind of this, oh, its own little area over here. But other than that the President kind of has this, you know, broad power to hire fire officials within the executive.

[A]

I do love that Humphrey's executor is over turned because it's always on everybody's list of decisions most needing to be overturned. And it was on the books for a very long period of time from back in the FDR presidency when FDR tried to remove Humphrey, Humphreys, William Humphrey from the Federal Trade Commission. But then, and then Humphrey went after, you know, sued over it. But then he died. But then his estate kept the battle going and that's why it's Humphrey's executor instead of Humphreys. And now it's finally overturned that the President does in fact have the right to remove people under his oversight. That's a good.

[B]

And I think they've been chipping away at it over the past few years. But now this is definitively saying like this is finally overturned. Which is just nice to see. For all of the many, many problems with the birthright citizenship or birthplace citizenship ruling and some of these other cases. It's nice to see that in these instances the court recognizing like, yes, we do have separation of powers. There are problem or areas that Congress has oversight over, powers that they have and there are powers in areas that the President has and this is one of them. And I really liked Gorsuch's concurrence, kind of laying out like, yes, it is true, as the dissent espouses its problems with the majority opinion. Yes, it is true that presidents have this massive amount of power, that the executive branch has all of this regulatory authority, but that's a problem that Congress should be addressing. That's a court that this court also has a responsibility to address when these issues come before us. And so, yes, I think that you're right to have concerns about executive power and the authority of the executive in some of these areas of life. But ultimately it's going to be incumbent upon the other branches to do and fulfill their roles under the Constitution. And we don't see Congress doing that in a lot of cases.

[A]

Well, it's good to remember that there are some good movements there, even as we are discouraged by some of the other rulings from the courts. But did you also hear that NPR's Nina Totenberg reported that Justice Alito was retiring?

[B]

Yes, I did hear that.

[A]

And then retracted that a few minutes later. You can imagine having, you know that with because I just wrote that book on Justice Alito, my phone lit up with like 40 phone calls immediately, like, is this true? Is this true? But even people close to Alito were like, like, what is going on here? So I suppose anything is possible.

[B]

But yeah, I think NPR is really showing why they deserved our tax dollars over those years. And that might not be a bad peace idea that I might not.

[A]

Yeah, why don't you write that up for the Federalist? I also love that I saw someone say, well, it makes sense, like maybe she, maybe Nina Totenberg just jumped the gun because as the doyen of the Supreme Court supporter world, it would make sense that she would be given this information. And I'm like, I again, maybe, maybe she knows something. I don't know. But I feel like if Justice Alito were to give that information to someone or his chambers were to get it to someone, I don't see it going to Nina Totenberg. Yes, from, from him at least.

[B]

But and you bringing this up reminds me of something you've said in the past, which I think is really critical to underscore, which is there have been a lot of people who will say, like, well, Justice Thomas, Justice Alito, they're getting up there in age. Republicans have the Senate now, we have the White House. Now would be a good time for one or both of them to step down and we can appoint another Amy

[A]

Coney Barrett to replace Justice Thomas.

[B]

Yes. And people will throw out names here, there. But you need to make sure that whoever you're replacing these legal giants with on the court is actually just as good, if not better than them. Like, we cannot afford another birthplace type, citizenship type ruling from an Amy Coney Barrett type justice. We need someone who is going to fill their shoes, who's going to actually uphold the Constitution, be consistent in their jurisprudence, and actually make sure that we have Constitution in a country, a sovereign country, at the end of the day. So that's just something maybe to keep in mind for people as they call for these two excellent legal minds to step down and retire.

[A]

Okay, this does remind me of one other thing I wanted to mention about. About Barrett. So I don't doubt she has intelligence and that she's had some really good. She's had good decisions. I mean, even Roberts has had some really good opinions and decisions. And I wish people would be able to appreciate the nuance when we're talking about these things. Like, Roberts has had some of the worst decisions of the time he's been on the court. He also is responsible for getting rid of affirmative action anywhere he can. Like, that's his baby. That's his baby more than anyone else's. And so it's confusing that someone can be both good and bad on the Constitution, but it's the reality of it. But having said that, one of the things I've been saying to audiences who frankly, have been disappointed with Barrett for. For years now. Well, last year she ended pretty strongly and everybody was like, okay, phew, she's maybe going to live up to this good potential. She had some really good. She did some really good work last year and had some good work this year, too. But I would always say, you know, it takes a few years for someone to figure out their way on the court. And Roberts, for instance, he. He seemed actually really great for six years before his Obamacare disaster, where he changed his vote on Obamacare to placate Barack Obama in order to save the legitimacy of the court, that embarrassing thing. And other people, you know, Alito was right there with him during that time, and Alito did not change. He stayed strong. Or Thomas, who started strong and. And just kept being strong. If it takes five or six years to get a handle on things, I'm just worried about what this means for Barrett because this, you know, this will be six years for her, and if this is who she is, that's not the best sign going forward. Does that make sense? I don't know. It's just.

[B]

Oh, yeah, totally.

[A]

You have to give them a little bit of time. But now she's had six years and.

[B]

Right.

[A]

What a way to be involved in something very bad there at the end of that. Like she.

[B]

And I think you maybe can make some excuse early on because she came in at such a weird time. Like she came in. I think she was confirmed at the end of September, beginning of October 2020. It was like Covid season and insanity was reigning supreme. You're having to deal with all those restrictions. You have to hire clerks, you have to get a staff together. All these things just compounding right off the get go. So yeah, like you may say, like, oh, maybe it takes your a year or two to get adjusted to things since the beginning was kind of hectic and not normal. But now, like you said that it's been five, six years in the making and we're still getting these type of head scratching decisions, or I guess head banging in the wall decisions. With today's birthplace, citizenship, ruling, that's. That's pretty concerning to me.

[A]

Me too. Okay, what else? Anything or are we done?

[B]

Culture? No, I'm not gonna.

[A]

Also, I've been so busy, I don't have any culture. Okay, so that will be it for this special edition of Federalist Radio hour. Be lovers of freedom and anxious for the fray. Thank you very much for joining me, Sean Fleetwood and Molly. Molly Hemingway signing off. Thanks again, Sean.

[B]

Thanks, Molly. Have a good one.