Podcast Summary: Strict Scrutiny – "Will the Courts Let Trump End Birthright Citizenship?"
Release Date: May 19, 2025
Host/Author: Crooked Media
Description: Strict Scrutiny delves into the intricacies of the United States Supreme Court, exploring its cases, culture, and the personalities that shape its decisions. In this episode, the hosts—constitutional law professors Leah Litman, Kate Shaw, and Melissa Murray—examine the Trump administration's recent legal maneuvers aimed at redefining birthright citizenship and the broader implications for constitutional law and civil rights.

1. Breaking News Highlights

[02:16] Leah Litman:
The episode opens with a rapid-fire rundown of significant legal developments, including:

• Stephen Miller's Controversial Stance on Habeas Corpus:
  Stephen Miller, a key figure in the Trump administration, suggested suspending the writ of habeas corpus—a fundamental legal safeguard against unlawful detention.
  Quote:
  "The writ of habeas corpus can be suspended in a time of invasion." [03:37]
  Leah counters this by emphasizing the constitutional constraints, noting, "It's clear there is no rebellion or invasion. It's also clear the public safety doesn't require it." [04:43]

• President Trump's Attempt to Acquire a New Air Force One:
  The administration expressed dissatisfaction with the existing Air Force One and attempted to procure a replacement jet from Qatar.
  Quote:
  "It is literally like the leftovers of the Qatari government... It’s just like a dumping operation." [12:58]

• Mifepristone Regulation:
  The administration is scrutinizing mifepristone, a drug used for terminating early pregnancies, amid safety concerns raised by conservative groups.
  Quote:
  "The label needs to be changed." [17:06]

• Firing of Library of Congress and Copyright Office Heads:
  The Trump administration fired Dr. Carla Hayden, head of the Library of Congress, and Shira Perlmutter, head of the Copyright Office, raising alarms about potential politicization of these institutions.
  Quote:
  "Do not fuck with librarians." [25:50]

2. Main Focus: Trump’s Executive Order to End Birthright Citizenship

The crux of the episode centers on a significant Supreme Court hearing regarding President Trump's executive order aimed at revoking birthright citizenship—a right enshrined in the 14th Amendment of the U.S. Constitution.

[30:49] Melissa Murray:
Melissa introduces the topic, explaining that the executive order seeks to deny citizenship to babies born in the U.S. to non-citizen and non-lawful permanent resident parents, potentially rendering thousands stateless.

Guest:
Elora Mukherjee, a Columbia Law School professor and director of Columbia's Immigrants Rights Clinic, joins the discussion to provide expert analysis.

Key Arguments Against the Executive Order:

• Constitutional Violation:
  The order directly contradicts the 14th Amendment, which guarantees citizenship to all persons born or naturalized in the United States.
  Quote:
  "The executive order is blatantly unconstitutional... all people born on US Soil are US Citizens." [32:56]

• Supreme Court Precedents:
  Landmark cases like Wong Kim Ark affirm that birthright citizenship is a constitutional right, reinforced by subsequent legislation in 1940 and 1952.

• Administrative Chaos:
  Implementing the order would impose significant burdens on hospitals and families, requiring verification of parents' citizenship status during childbirth.
  Quote:
  "Pregnant people would need to somehow prove their citizenship status... It poses enormous burdens on hospitals." [41:36]

Legal Procedural Concerns:

• Nationwide Injunctions:
  The Trump administration is not contesting the unconstitutionality of the order per se but is challenging the use of nationwide injunctions—court orders that prevent the enforcement of policies across all jurisdictions.
  Quote:
  "Can one district court judge issue an order that applies to people across the country?" [31:50]

• Supreme Court's Deliberation:
  There is anxiety that the Supreme Court may not address the merits of the case directly, potentially limiting the effectiveness of legal challenges and allowing the administration to continue enforcing the order selectively.

Notable Exchanges:

• Justice Sotomayor's Emphasis on Rule of Law:
  Melissa Murray highlights Justice Sotomayor's analogy likening executive overreach to commandeering gun rights, underscoring the dangers of unchecked presidential power.
  Quote:
  "If a new president takes away everyone's guns, we shouldn't have to wait until all the named plaintiffs come forward to stop it." [36:56]

• Solicitor General John Sauer's Defense of the Order:
  Sauer maintains that the president can lawfully issue the executive order despite constitutional and historical precedents.
  Quote:
  "Despite the Constitution's plain meaning... the President is nonetheless authorized to lawfully issue this executive order." [38:45]

Guest Insights:

Elora Mukherjee emphasizes the potential human cost, including the creation of stateless children and the logistical nightmares for medical institutions. She also raises concerns about the administration’s broader strategy to bypass collective legal actions, forcing individual litigation that may be untenable for many affected families.

3. Additional Legal Developments

a. Mifepristone Regulation Challenges

[14:28] Kate Shaw:
The administration is pushing for increased regulation of mifepristone, seeking to strip away established safety protocols like in-person dispensing and mandatory screenings.

Quote:
"It's all about upping women's pain and suffering." [21:17]

b. Barns vs. Felix Supreme Court Decision

[27:54] Melissa Murray:
The Supreme Court unanimously rejected the Fifth Circuit's "moment of threat" rule in Fourth Amendment cases, emphasizing a more comprehensive analysis of circumstances surrounding the use of deadly force.

Quote:
"The Supreme Court has described the writ as the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action." [07:45]

c. AARP vs. Trump: Alien Enemies Act Case

[89:24] Melissa Murray:
In a related case, the Supreme Court held that the Trump administration violated due process rights when expelling Venezuelan migrants to El Salvador under the Alien Enemies Act. However, the Court did not rule on the broader applicability of the Act itself.

Quote:
"The detainees' interests at stake are accordingly particularly weighty under these circumstances." [90:52]

Justice Kavanaugh's Concurrence:
Justice Kavanaugh advocated for prompt resolution by granting certiorari, bypassing lower courts, to directly address the legality of the executive actions.

d. 8th Circuit's Ruling on Voting Rights Act Section 2

[84:20] Melissa Murray:
The 8th Circuit erroneously concluded that private plaintiffs cannot use Section 1983 to enforce Section 2 of the Voting Rights Act (VRA), contradicting decades of legal precedent and Congressional intent.

Quote:
"It makes no sense. And it means that, as a practical matter, plaintiffs can't sue to enforce the VRA in the 8th Circuit at all." [86:47]

4. Court Culture and Judicial Attitudes

a. Supreme Court's Approach to Nationwide Injunctions

The episode underscores a growing concern that the Supreme Court may seek to limit the scope of nationwide injunctions, thereby restricting judicial recourse against executive overreach. The administration's reluctance to appeal unfavorable lower court decisions could undermine the efficacy of collective legal challenges.

b. Justices' Interactions During Oral Arguments

The hosts highlight moments where Justices, particularly Justice Kagan and Justice Jackson, appeared sympathetic to the plaintiffs' positions, contrasting with the more combative stance of conservative Justices like Alito and Thomas.

Quote:
"If a court tells a defendant, stop doing the unlawful thing, the defendant is the important player here. Everybody else benefits from the stopping of the unlawful thing." [67:27]

c. 8th Circuit's Misinterpretation of VRA Enforcement

The 8th Circuit's decision reflects a misunderstanding of the VRA's enforcement mechanisms, potentially eroding the ability of individuals to seek judicial remedies against discriminatory voting practices.

Quote:
"We have never so held and it is highly questionable whether it is permitted." [87:51]

5. Concluding Insights and Final Thoughts

[81:15] Kate Shaw:
The episode concludes with reflections on the potential ramifications of the Supreme Court's decisions, emphasizing the necessity for public awareness and legal advocacy to safeguard constitutional rights against executive overreach.

Final Quote:
"Strict scrutiny is brought to you by Fatty 15 Aging... Protect your skin, just as we protect our constitutional rights." [77:00]
(Note: This appears to be a misplaced sponsorship message and is excluded from the summary focus.)

Guest's Closing Remarks:
Elora Mukherjee remains cautiously optimistic but underscores the urgent need for decisive legal action to prevent administrative abuses from undermining fundamental civil liberties.

[81:19] Elora Mukherjee:
"Thank you for having me and covering this critical issue for millions of families across the country. And I guess we will see what happens next."

6. Key Takeaways

• Constitutional Safeguards at Risk: The Trump administration's efforts to revoke birthright citizenship pose significant threats to established constitutional rights and could lead to unprecedented legal and social chaos.

• Judicial Process Under Strain: Attempts to limit the scope of nationwide injunctions may hinder the judiciary's ability to effectively check executive overreach, thereby endangering the rule of law.

• Court Culture Reflects Divisiveness: The Supreme Court's internal dynamics reveal deep ideological divides, with conservative Justices often at odds with their liberal counterparts on critical civil rights issues.

• Need for Vigilant Legal Advocacy: The complexity and high stakes of these legal battles underscore the necessity for robust legal representation and public advocacy to protect vulnerable populations from discriminatory policies.

This episode of Strict Scrutiny offers a comprehensive examination of the Trump administration's aggressive legal strategies to reshape fundamental aspects of U.S. citizenship and civil rights. Through incisive analysis and expert insights, the hosts illuminate the profound implications these legal battles hold for the nation's constitutional framework and the everyday lives of its citizens.