Michael Popak (69:08)
No, you're supposed to think it through before you file your papers. And as you're standing in oral argument, even John Sauer, the solicitor general who will say anything even if it means undermining his credibility and refusing to acknowledge illogic in his own argument, wasn't prepared for this or on purpose because there's no argument. You, you played where I said from John Roberts the moment it happened early on. And it was right around that time that Donald Trump stood up and walked out setting history twice. First sitting president to ever attend an oral argument and first sitting president to ever walk out as his hand picked Supreme Court justices rebuked him to his face while he was there and then fired Pam Bondi on the, on the way in. It was a very momentous day that day. But I pointed to that same clip when, when John Sauer said, I think I'll go down in history as, as the, the loser argument that it is. Well, there's, there are, you know, 8 billion people that are only one plain line plane ride away from US Citizenship and it's a whole new world order, but it's the same old constitution. For me that was the weekend at Bernie's moment. He was, John Roberts was dead at that. I mean John Sauer was dead at that moment. In response to John Roberts, you know, you could I joke that it reminded me of the phrase that, that Senator Kennedy used against Kristi Noem when she testified about no competitive bidding or competitive bidding for her ad campaign that got her fired from the, from the Homeland Security, that she's as dead as fried chicken. He was dead as fried chicken at that moment. But it got worse. Everybody and the bookends for me, and I'll just summarize it without playing it is when the, inevitably when the, the Wong Kim Ark case came up. See, as, as complicated as Supreme Court cases can be in oral arguments, this one wasn't. There were four big pieces of paper. I joked in one of my hot takes, it's not like One of these 2000 piece jigsaw puzzles of put the Statue of Liberty together. There's like four big, four big issues here. That's how simple the puzzle was. It was the 14th amendment in the language that you read. It was a statute where Congress codified who is a citizen cribbing exactly, copying and pasting the exact language of the 14th amendment in 1940 and then re codifying it in 1952. Which completely undermines the argument that Donald Trump has made and sour tried to make, which is this constitutional provision is for slave babies. That's Trump's words, not mine. Babies of slaves. Look at the date. Donald Trump said in a social media posting. This has to do with descendants of slaves, not anyone else. Well, the problem with that is it says a person, which is when a drafter or framer of the Constitution or amendment uses the term a person, it is the broadest definition and meaning. It means everybody that's in the United States, regardless of their immigration status or their whether their parents served us, it's the person in the United States. And so you may want to, you could say maybe in 1868 when the reconstruction amendments came out of which the 14th amendment is one. All right. On the minds of the legislators, on the amendment drafters was the newly freed, now black Americans. And a famous decision, infamous decision from the United States Supreme Court at the Time called Dred Scott, which even to this day, you know, in when they teach it in law school, you hear gasps in the room that that was the Supreme Court's position, that human beings in America who happen to be black and slaves, having been brought by, having been brought into involuntary servitude by, by Americans, would now be considered not to be American citizens. So we're human beings at all. So, yes, that's where that amendment came from. But then how do you describe a 1940s Congress during the height of the, of World War II? They weren't worried about the descendants of slaves or black or slave babies. How about 1952 during the Korean War? They weren't thinking about that either. So those are three big pieces of paper. And the last one is the case from 1898, which is the Wong Kim Ark case. And in Wong Kim Ark, a baby born in San Francisco to Chinese parents when he was in his 20s, left the country to go to China to visit family and come back. When he came back, they said, you're not an American citizen. He said, I was born in San Francisco. They said, yeah, but your parents are Chinese. We're not letting you be an American citizen. Because there was a lot of, as there is today, a lot of anti Chinese sentiment. Then Chinese had, much like the, the black, what became black Americans were put into involuntary servitude, many of them, to build the railroads in America. And they're. And there they were not well liked and to say the least in America. And so that went up to the Supreme Court. And Justice Gray famously wrote, with an analysis that's right on point, that Wong Kim Ark is an American citizen with birthright citizenship. That's the case. Now, what you and I had hoped is that why are they even taking this case? Just say the 1898 precedent stands or the federal law that and the executive order violates both of those and be done with it and don't take the case. But no, because the Trump administration was pushing, this is the bulwark of our immigration policy. You must take this case. They took the effing case. We were a little worried. It's a little white knuckle moment. What are they going to do? I said, watch Roberts. Watch Amy Coney Barrett. What I didn't know is how quickly Gorsuch and Kavanaugh would come to the rescue of the Constitution. And so there was this moment about this Wong Kim Ark case where. And I interviewed the American Civil Liberties Union Deputy director of Immigration Rights Project a day before the oral argument About Cecilia Wong? No, I don't think a relation, because I think she spells it W A N G. Cecilia Wong was the advocate for the American Civil Liberties Union against John Sauer. And there's this amazing moment where there's actually laughter. You know, John Sauer's position effectively got. Got. People laughed at it when. When Kavanaugh, of all people, said to Cecilia, let me ask you a question. If we were to find that the Wong Kim ark case from 1898 is dispositive and the precedent here be a pretty short ruling, it would be a pretty short ruling, Right. That would be the easy way to handle this case. Right. And she waited like a beat, like a comedic beat, and she said, yes. And the entire. I don't know if that's the moment Trump walked out, everybody laughed because of the, you know, brevity is the soul of wit. You know, she just can't. You know, that was like a. That was an answer 30 years in the making with her law career, but that was the right answer. And then just moments later, as a bookend, Gorsuch is going back and forth as you played one clip with John Sauer, and John Sauer knowing that he got hurt, and you and I have been, you know, advocates before appellate courts, and, you know, when you get hurt and you know what you got to deal with the next time you get up. And knowing that he got hurt on the Wong Kim Ark precedent, decided to try to use it to his advantage. And he got one second into that, he said, well, in the Wong Kim Ark case, and Gorsuch stopped him and said, I don't think you should be using the Wong Kim Ark case to support your position. So I'm like, okay, so let's just do the math. Donald Trump has to get to five. Is the count to five, life. I'm not even sure how he counts to three. We got Sotomayor Ketanji Brown Jackson, who had a great line in there, and talk about an Orwellian vision. She said, I'm confused. Are we supposed to have pregnant women come in for depositions to talk about their allegiance or that they're going to be subject to the law like in other. I started to picture, you know, a maternity ward attached to a conference center where you whisk these women in, you know, to have depositions under oath? And of course, John. John Sauer had no good answer for it for this thing that was pointed out by Katanji Brown Jackson. So. So to Mayor Katanji Brown Jackson and Kakan, three votes against ripping out the 14th Amendment out of the Constitution by executive order. And then you've got wherever Alito and Thomas are, interestingly enough, besides Donald Trump arriving at this, he threatened to go to the tariffs oral argument. He went to this one. First question out of the box was by, was by Thomas Clarence Thomas, African American, who asked the question about Dred Scott. That case I told you about earlier to kick things off didn't really go anywhere because there's not much to go with that based on, you know, try to give a historical reference to this. So let's put Thomas out there, maybe even Alito. We'll talk about him in a minute too out there. Gorsuch, Kavanaugh, Amy Coney, Barrett Roberts. I think slide over. Maybe we lose one. I doubt it. I think it's 8 to 1, 7 to 2. And yes, we should. And I want people who are in favor of the democracy the way we understand it, it to be encouraged when we talk about things like this. But keep it in perspective. The perspective is that in 90% of the emergency docket cases for this term that they've sided with the Trump administration, they let him make a shamble to the federal government, destroy the relationship between the federal government funding and the states and by extension, voters, destroyed federal programs that matter to people and make their life have dignity and affordability, destroyed our standing around the world, including through U.S. aid, let him fire everybody in the executive branch and of course, you know, give him immunity and let him let him run into action, probably side against on voting mail in ballots having a grace period by which they can still be counted after arrival if they've been voted on in time and probably destroy the last semblance of Voting Rights Act. So we're still waiting on some rulings.
