Strict Scrutiny Podcast Summary: "The Atextual & Illegal Attack on Birthright Citizenship"

Episode Release Date: February 24, 2025
Hosts: Leah Litman, Kate Shaw, Melissa Murray
Podcast: Strict Scrutiny by Crooked Media

Introduction

In this compelling episode of Strict Scrutiny, constitutional law experts Leah Litman, Kate Shaw, and Melissa Murray delve into the contentious issue of birthright citizenship in the United States. The discussion centers around recent executive actions aimed at undermining this fundamental right, examining the legal, historical, and societal implications of such moves.

The Executive Order on Birthright Citizenship

The episode opens with an analysis of President Trump's controversial executive order attempting to strip birthright citizenship from individuals born in the United States to undocumented parents and foreign nationals on temporary visas. Melissa Murray highlights the constitutional foundation for birthright citizenship, referencing the 14th Amendment:

"The Constitution says in no uncertain terms that people born in the United States and subject to the jurisdiction thereof are citizens." [03:05]

Leah Littman underscores the textual integrity of the 14th Amendment, emphasizing that any deviation from its clear language is both unconstitutional and harmful to societal freedoms.

Challenging Originalist Interpretations

The hosts critically examine an op-ed by originalist law professors Alon Wurman and Randy Barnett, published in the New York Times, which argues in favor of President Trump's stance on birthright citizenship. Leah Litman points out the flaws in their interpretation:

"These male law professors insisted that if you disagree with them, that is, if you can read and take reading seriously, well, you just don't understand originalism or history." [03:39]

To provide depth to this rebuttal, the podcast welcomes historian Kate Mazur, an authority on the period leading up to the Civil War. Mazur elucidates the historical context of the 14th Amendment, clarifying that birthright citizenship was intended to be inclusive:

"Birthright citizenship in this country did not begin with the 14th amendment... It has always been our tradition... born here constitutes being a citizen of this country." [06:28]

Historical Context and Legal Precedents

Kate Mazur details how prior to the 14th Amendment, common law traditions already supported birthright citizenship, challenging the op-ed's claims that allegiance and protection were the sole determinants of citizenship. She emphasizes that historical debates around the amendment included discussions on immigrants, debunking the notion that birthright citizenship was contextually limited to post-Civil War considerations.

"The 14th Amendment puts into writing something that people had believed was part of the Constitution of the United States from the beginning." [06:36]

Debunking the Op-Ed's Arguments

The hosts dissect the op-ed's reliance on Attorney General Bates' 1862 opinion, arguing that the originalists selectively quoted historical documents to support their stance. Mazur clarifies that Bates himself advocated for universal birthright citizenship, rejecting any attempts to carve out exceptions based on parental status or legal standing.

"They are completely cherry picking from Bates Attorney General Bates opinion itself... they are like, it does not address that question." [12:05]

Leah Litman further criticizes the op-ed for ignoring Congressional actions that have consistently upheld birthright citizenship, pointing out the comprehensive legal framework that supports it beyond historical texts.

Broader Implications of the Administration's Policies

Beyond birthright citizenship, the episode explores other executive actions threatening civil rights and educational institutions. Melissa Murray discusses the administration's efforts to revoke federal funding from schools enforcing COVID-19 vaccine mandates and those maintaining race-conscious programs:

"This likely violates the spending clause and possibly the First Amendment by conditioning schools' participation in a federal spending program that is unrelated to COVID-19 on the schools expressing a particular view about COVID and the vaccine." [28:47]

Kate Shaw elaborates on how these moves aim to dismantle DEIA (Diversity, Equity, Inclusion, and Accessibility) initiatives, stifling efforts to promote diversity within educational and professional environments.

DOJ Actions and Federal Court Challenges

The podcast addresses the Department of Justice's (DOJ) tumultuous attempts to dismiss criminal charges against New York City Mayor Eric Adams, reflecting broader issues within federal judicial practices. Melissa Murray reads excerpts from a letter by AUSA Hagen Scotten expressing resistance to unethical prosecutorial tactics:

"If no lawyer within earshot of the President is willing to give him that advice... then I expect you will eventually find someone who is enough of a fool or enough of a coward to file your motion." [25:36]

Leah Litman criticizes these actions as emblematic of a constitutional crisis, asserting that attempts to manipulate judicial outcomes undermine democratic principles.

Court Culture and Advocate Conduct

Highlighting courtroom dynamics, the hosts share clips illustrating confrontational exchanges between judges and advocates. In one instance, a judge reprimands a seasoned attorney for the perceived tone of his brief:

"Why would she say this has no impact on existing or past cases?... you are the target of a joint boycott because of your sexual orientation." [75:36]

These interactions underscore the growing tensions within the judiciary, reflecting broader societal conflicts over rights and representation.

Upcoming SCOTUS Cases

Looking ahead, Strict Scrutiny previews several Supreme Court cases that will shape the legal landscape:

1. Ames v. Ohio Department of Youth Services: This case questions whether individuals from majority groups (e.g., heterosexuals) can claim sexual orientation discrimination, probing the boundaries of anti-discrimination laws.

2. Gutierrez v. Sans: Focuses on whether defendants can restrict judges from reviewing their claims, potentially setting precedents for bypassing judicial oversight.

3. *** vs. United States** and Pertue v. Richards: Address sentencing factors in revoking supervised release and the entitlement to jury trials in complex litigation scenarios.

"The court is hearing a few additional cases this week... We will cover those oral arguments in more detail in the next episode." [55:27]

Conclusion: A Constitutional Crisis Unfolding

In wrapping up, the hosts emphasize the severity of the current constitutional crisis, attributing much of the turmoil to the Supreme Court's jurisprudential shifts and the administration's aggressive legal maneuvers. Leah Litman calls for vigilance and accountability, stressing that reliance on corporate or insular judicial interpretations is insufficient to safeguard democratic norms.

"The Supreme Court enabled this particular presidency as well as laying the foundations for a lot of the specific lawlessness from this administration." [52:58]

Strict Scrutiny thus serves as a crucial platform for dissecting and understanding the multifaceted challenges facing American constitutional law, offering listeners an in-depth analysis of pivotal legal battles shaping the nation's future.

Note: This summary intentionally excludes advertisements, introductory remarks, and non-content segments to focus exclusively on the substantive discussions and analyses presented in the episode.