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- [00:00]
Isaac Saul
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John Wall
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Sarah Isker
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- [01:19]
John Wall
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- [01:21]
Isaac Saul
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- [01:23]
John Wall
Head over to getstarted.TikTok.com tiktokads from executive producer Isaac Saul, this is Tangle.
- [01:47]
Sarah Isker
Good morning, good afternoon, and good evening and welcome to the Tangle Podcast, a place we get views from across the political spectrum, some independent thinking, and a little bit of my take. Keeping up with all the action that's happening at the Supreme Court or the very many legal challenges to the Trump administration's actions can be extremely difficult these days. One of my go to resources is the podcast Advisory Opinions, which is hosted by Sarah Isker and David French over at the Dispatch. They are true legal experts and they recently acquired the blog SCOTUS Blog, which is famous for being an independent Supreme Court watcher with really balanced, informative views, headed by Amy Howe. We often cite Scotus blog here at Tangle, so I was thrilled this week to get to sit down with Sarah and talk to her a little bit about what was happening at the Supreme Court in recent weeks and what is going to come to the Supreme Court in the coming weeks. Most of our conversation was spent on the birthright citizenship case that is before the court and some of the questions it brings to the surface about nationwide injunctions. And as I expected, Sarah had some extremely compelling insights and some really thoughtful commentary about what's going on. I think you're going to very much enjoy this conversation and I'm super excited to share it with you guys. So without further ado, here's Sarah Isker on the Tangle podcast talking about the Supreme Court. Sarah Isker, welcome to the show. Thanks so much for being here.
- [03:27]
John Wall
Thanks for having me. I'm so excited.
- [03:29]
Sarah Isker
So, first of all, there's some big news in the dispatch world these days. I am an avid reader of scotusblog.com and was excited to see that you guys acquired them recently, brought them into the Dispatch umbrella. I'm curious, like, tell me a little bit about how you guys are planning to work together, what's going on there? I'd love to hear a little bit about the coverage you have coming down the pike.
- [03:54]
John Wall
Yeah, I mean, I sort of think of this as like the old Victorian house that we were all driving by and it was so beautiful, but it was kind of getting into disrepair and like someone needed to buy it and you know, put in the time to like put in a new coat of paint and change out some of the light bulbs so they work again. SCOTUS Blog has been an institution for 25 years in the legal world, started by Amy Howe and Tom Goldstein. And it has been such an important part of my legal knowledge to have Amy Howe covering the court this whole time. I mean, the work that she's done, covering every merits argument, being in every oral argument and giving what I just, I've never heard anyone say otherwise, is the most independent straight news reporting on what the Court is actually doing. So I'm thrilled to have her as part of our extended universe family. And there's so much more we can do with SCOTUS Blog. So bringing back Stat Pack for those who are longtime SCOTUS Blog followers, where at the end of the term we have about a 25 page PDF of all of the major statistics coming out of the Court's term and comparing that to previous terms. We'll definitely be doing that again this year, being able to expand our coverage, but still continuing things like relist watch, where a cert petition of course is considered by the Justices at conference and we expect to hear something at their next orders, but then we don't and it gets re listed for the next conference. So for instance, there's a case right now about a kid who wore a T shirt to his middle school that said there are only two genders. Now the school had had a policy in fact encouraging students to wear Rainbow Gear Pride Month gear. And so when they barred this student from wearing his T shirt, he sued. Well his dad did and he lost his case at the circuit Court. They asked the Supreme Court to hear the case. The Supreme Court has been moving it from conference to conference and not making a decision on it, at least not publicly for us 12 times now. So this has been on the court's docket since October was when they first asked the court to look at it. So things like that are information you really can't get anywhere but SCOTUS Blog and shout out to John Elwood who's a big time lawyer in town who does that for SCOTUS blog as well.
- [06:27]
Sarah Isker
Yeah, we cite SCOTUS blog regularly in Tangle and our coverage, it is a totally indispensable resource. I was jealous when I saw the acquisition happen, wishing that I thought of it sooner. But yeah, really excited to see you guys do together. And I know like you I mean I found their coverage just the most independent and fair minded and level headed out there. So highly recommend it to anybody who wants to keep up with the Supreme Court happenings.
- [07:01]
Paige
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- [07:04]
Sarah Isker
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- [08:11]
Paige
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- [08:55]
Sarah Isker
Speaking of the Supreme Court happenings, I mean, there's so much to talk about. I struggled and went back and forth about where to even begin with you. This is obviously an area of expertise for you and I think maybe the most relevant one for us to talk about as we record this. It's Monday, May 19, which in today's news cycle is relevant for anyone listening to this. I'm not 100% sure when this podcast will come out.
- [09:18]
John Wall
12:45Pm because the court has been dropping some bombs on us late at night recently.
- [09:24]
Sarah Isker
Yeah. So anything could happen between now and this reaching listeners ears. But this birthright citizenship case, which I guess isn't really about birthright citizenship, but in part was happened on Thursday. We got oral arguments. And really the case is about, as I understand it at least, and you can correct me if I'm wrong, but much more about nationwide injunctions and the degree to which the Supreme Court is going to let some federal justices, some federal judges put these into place and slow the executive branch down. I'm wondering if you could kind of tell us a little bit about what happened at oral Arguments. What were some big key takeaways for you? As we are in this kind of weird spot where the Trump administration is not really defending their main thing, which is trying to amend the birthright citizenship, but they're just trying to stop the courts from stopping them doing that, which I think I'm understanding it correctly.
- [10:19]
John Wall
Yeah. I mean, let's go back to 1857. The Supreme Court has its most notorious decision in American history, really one of the biggest stains on our country's legacy, which is Dred Scott. And that not only holds, of course, that Mr. Scott could not be a citizen of the United States because he had been held in slavery, even though he had traveled to free states, by the way. And he had his his owner had taken him to those free states. And so Mr. Scott claimed when he crossed the border into those states, he had become free along with his wife and two children. And the Supreme Court says not only can Mr. Scott not sue in our court because he's not a citizen, but in fact, no black person in the United States, free or slave, can be a citizen or has any rights in our courts to sue. Well, we fight a big civil war over that, as you know. And coming out of that, in 1868, we have the 14th Amendment ratified. And it says, for the explicit purpose of superseding that Dred Scott decision, that anyone born in the United States, quote, subject to the jurisdiction thereof, is automatically a citizen of the United States. So when Trump first takes office, he has this executive order that says, yep, everyone born here is a citizen of the United States automatically, except if your mother was unlawfully present here and your father did not have lawful permanent resident status, or if your mother was temporarily visiting here and your father didn't have permanent resident status. So this would apply to tourists and illegal aliens if they have children in the United States. So some states, some groups, all run to different federal courts in the country. And every federal court, district court to see this, like, says, nah, dog. Like, that's not even a close call. Since 1868, we've had birthright citizenship, meaning, like, we don't have to ask you any questions. If you're coming out in an American hospital, you are by definition an American citizen. So not only do they say that that executive order can't go into effect while this litigation is ongoing, and that's an important part of this. They're not making some final decision here. They're saying, well, while this lawsuit's pending, what's going to be the status quo in the meantime? So those district courts say, while we're deciding the bigger questions in this lawsuit, the status quo is going to be, there is no executive order. It will be the status quo before the executive order. And because, for instance, if you're New Jersey, and you're saying this affects your ability to figure out who's a citizen in your state, it not only would, it wouldn't work to just do it for the state of New Jersey, because what if you and you, your New Jersey very pregnant wife travel over to Pennsylvania and, oh, my gosh, she goes into labor, you were driving, you know, over some bumps too fast. And so you have your baby in Pennsylvania. Y' all are residents of New Jersey, though. How is all that going to work? And so what these judges all do is they issue, quote, unquote, nationwide injunctions. They're sometime called universal injunctions. So it doesn't just apply to the party to the case, in this case, New Jersey, it applies throughout the whole country. And so the question here was from what power does a judge? Can a judge do that when, like, Texas didn't sue? So why can they bind Trump from administering this executive order in Texas when they never heard from Texas? They don't know anyone from Texas. This was a New Jersey lawsuit. And again, there were more states involved in this. But for our purposes, and because New Jersey argued part of this, we're just going to stick with New Jersey. And this has been a question for a long time. Universal injunctions don't really exist for most of American history. They really, this was actually a question at the oral argument, when was the first universal injunction? And the advocate for the Trump administration said it was this, you know, one case in the 1960s, but then there's not another for another decade or two. For our purposes, these really start in the Obama administration. Think DACA about dreamers, dapa, which was the parents of dreamers. There were others within the Obama administration. Then they pick up hugely within the first Trump administration. Then Biden even. I mean, the eviction moratorium, student loan debt forgiveness, the vaccine mandate, which I should have a disclaimer that my husband was the council of record in the vaccine mandate case against that executive order. But then, of course, we have Trump, too, and he's had a record number of these nationwide injunctions just in the first hundred days of his presidency, more than all of Biden's presidency. So throughout this time, each side has been arguing based on their own partisan interests, whether nationwide injunctions are a good idea and whether they are constitutional. And so here we are, met on a great battlefield to finally decide that question. The Supreme Court, though, has had many, many opportunities to decide this for the last 15 years. They picked this case to decide that. And I think that's meaningful because this birthright citizenship, eo, as I mentioned, and why I brought in the history, is so, so much of a break with everything that came before it. Even if you think that there are some questions over what subject to the jurisdiction thereof means in the 14th Amendment, it's hard to believe that a president acting by himself, signing a piece of paper that could have been written in crayon, could have the power to undo 150 plus years of American history without Congress even weighing in on the question. And so even though we've heard from seven of the justices over the course of their careers that they are uncomfortable with the scope of what these district courts have been doing with these nationwide injunctions, the fact that they took it on this case is probably pretty good for the fans of nationwide injunctions.
- [16:35]
Sarah Isker
We'll be right back after this quick commercial break.
- [16:41]
Isaac Saul
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- [17:49]
Sarah Isker
It's really interesting listening to the oral arguments and reading all the analysis of them. I found myself really torn. I think, like there's a, that's good.
- [17:58]
John Wall
That means you, you understood the assignment. You should be torn.
- [18:02]
Sarah Isker
Yeah, there, I mean, there's, there's so much to be said about, you know, the degree to which a single judge shouldn't be able to stop the executive branch from doing this thing. And then I think it was Sonia Sotomayor, Justice Sotomayor, and the arguments who, you know, brought up this hypothetical, I think to obviously pluck at the conservative heartstrings. A bit like imagine a future Democratic president deciding to take away everybody's guns and seize the military, like, have the military seize everybody's firearms. Are you really telling me that you think we should have months and months of court rulings and appeals before we do anything to stop that? I guess I'm curious, like, and don't.
- [18:39]
John Wall
Forget, it's also worth noting because I think this is a big complaint among, well, Republicans when they're in power and Democrats when they're in power. When, you know, the state of New Jersey or Texas, sue, let's say they go into the first District court, the first district judge says, I don't think this is that big a deal. So you lose, you can keep going like 300 judges can say no to you, but if the 301st judge says yes and issues a nationwide injunction, that's the ball game. So the administration has to bat a thousand and the people suing only have to find one judge who agrees with them. And I think that's been a big source of frustration because basically you're always, you can never bat a thousand if you're a presidential administration.
- [19:24]
Sarah Isker
Yeah. And, and then I guess the other side of that is the other hypothetical some of the liberal justices brought up, which is like, if an administration knows that they have a losing case, like they seem to know in this situation, I think they just won't appeal. They'll just let the case sit where it is without bringing it to the Supreme Court. And then they can just, if they're willing to ignore the lower court rulings or the injunctions, they can just keep doing what they're doing.
- [19:51]
John Wall
A really big, big problem. Justice Kagan brought that up, that why would you ever seek review by our court again? And the winning party, you know, the one that New Jersey in this case, so like, the birthright citizenship order is unconstitutional. New Jersey wins, they can't appeal. So if it only applies in New Jersey and nowhere else, you would need every single state to sue or every single pregnant woman to sue. And that's just, it's not going to work for something like a birthright citizenship executive order.
- [20:21]
Sarah Isker
Yeah. I guess. Given all that, I'm curious. I mean, what do you imagine might be a clean way to resolve this? Or I don't know if that's like a. What would Sarah Isger do if you were on the Supreme Court versus, like, what you imagine the court might do? Because this seems like a particularly messy situation to get out of.
- [20:41]
John Wall
There is no clean way to resolve it. I think the justices were hoping over the last 10 years with all of their public speaking, and you've seen some separate writings telling the district courts to cut it out, to not, not, you know, issue nationwide injunctions like candy to trick or treaters. And it hasn't happened there. The justices seem very frustrated with that, that the lower courts aren't taking that responsibility seriously enough. And so on the one hand, you have the birth rate citizenship eo, where maybe a nationwide injunction is the only option. And on the other hand, you have these much I don't want to use smaller because for the people that any administrative action effects, it's a big deal to them. But in situations where you probably didn't need a nationwide order on, on a president's actions, and yet nevertheless, the district judges were doing it because it's like, well, what's the harm? Why not? It's like, easier to do a nationwide injunction, and that's a problem. So there is no clean answer here. It's why the justices have taken 15 years to even take a case like this. What are they going to do about it? I think the, like, Vegas odds are that they're going to split the baby a little bit. They're going to trim in what circumstances you can issue a nationwide injunction. They'll probably be some type of, you know, three or four factor test, as the Supreme Court is always enjoys coming up with. But this is directly in tension with the judicial philosophy of some of the conservative justices, where they're really trying to move away from these, like, judicially created factory tests. That's like a Justice Breyer model, which Justice Breyer has said is pragmatism. Judicial pragmatism is really his guiding light for the conservatives, or several of them at least. They have tried to say, like, no, it's textualism, it's originalism. While there were no nationwide injunctions at the time of the founding, there's nothing in the Constitution about nationwide injunctions. Congress has never said anything about nationwide injunctions. So there is no text and there is no originalism. It's only practicalism, if you will. And so there's a lot of tension for some of these justices hearing this case. So I, I usually come on podcasts and happy to tell you exactly how I think it will come down. Even if I'm going to be wrong. I think it's hard for me to even guess what you're going to get five or more justices to agree on. I will say I don't think this will be a 5, 4 opinion or a 6, 3 opinion along ideological lines. I think you saw all of the justices struggling with this. They know it's not a liberal issue or a partisan issue, even if it's the current administration facing the problem. You know, we did a live blog at SCOTUS blog during the argument, and we were all showing, I think, or talking about the necessity for nationwide injunctions in some circumstances. And a lot of the listeners, slash viewers were sending us comments that were like, it's because you guys are all liberal. First of all, I think it's a little hard to argue that I'm too liberal in this case, but my husband was the Solicitor General of Texas during that litigation about dreamers, about DACA during the Obama administration. He's the one who got the nationwide injunction against DACA and dapa, and he wrote an op ed in the Wall Street Journal saying nationwide injunctions are necessary to good constitutional order and conservative housekeeping, if you will. So right now it's liberals who like nationwide injunctions during the Biden administration. It's conservatives who like nationwide injunctions. I think the big thing I'd want people to take away from this is you've got to take this out of the current moment to really understand the issue.
- [24:42]
Colin Seberger
Hey everybody, this is John, Executive Producer for Tangle. We hope you enjoyed this preview of our latest episode. If you are not currently a newsletter subscriber or a premium podcast subscriber and you are enjoying this content and would like to finish it, you can go to readtangle.com and sign up for a newsletter subscription. Or you can sign up for a podcast subscription or a bundled subscription which gets you both the podcast and the newsletter and unlocks the rest of this episode as well as ad free daily podcasts, more Friday editions, Sunday editions, bonus content, interviews and so much more. Most importantly, we just want to say thank you so much for your support. We're working hard to bring you much more content and more offerings, so stay tuned for the rest of the crew. This is John Law signing off. Have a fantastic weekend, y' all. Peace.
- [25:35]
Sarah Isker
Our Executive Editor and founder is me, Isaac Saul, and our Executive Producer is John Wall. Today's episode was edited and engineered by John Wall. Our editorial staff is led by Managing Editor Ari Weitzman with Senior Editor Will Kaback and Associate Editors Hunter Casperson, Audrey Moorhead, Bailey Saul, Lindsay Knuth and Kendall White. Music for the podcast was produced by Diet17 and John Law, and to learn more about Tangle and to sign up for a membership, please visit our website@readtangle.com.
- [26:18]
Isaac Saul
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John Wall
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Isaac Saul
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- [27:18]
John Wall
The onslaught of the Trump administration, wondering what progressives can do to mobilize? We've got answers. The 10 is a weekly show from the center for American Progress Action Fund that keeps you up to date on politics, policy and progress. It's co hosted by me, Colin Seberger and me, Daniella Gibbs Leger. Tune in for expert interviews, news updates.
- [27:37]
Sarah Isker
And progressive wins and strategies.
- [27:39]
John Wall
If you want a weekly lifeline to stay empowered, join us under the 10 on YouTube, Apple, Spotify, or wherever you get your podcasts.