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- [00:00]
A
We are so sort of bound up in the present. But like, 20 years ago, you might have one or two of these decisions per year. And now, you know, we didn't even have time to talk about all of them in an hour. So, you know, I think that the point is not about any one particular case. It's about a court that has been completely emboldened to do whatever it wants, whenever it wants. And, you know, separate from the actual bottom lines that will produce, I'm not sure in the long term that's an especially stable or healthy place for us to.
- [00:33]
B
Hello, everyone, and welcome to the Illegal news. I'm Sarah Longwell, publisher of the Bulwark, and it's Tuesday, June 30, and the Supreme Court handed down its last decision of the term. So joining me today is Supreme Court expert Steve Vladic. Steve, you are professor at Georgetown Law, the author of One First, a weekly or more substack all about the Supreme Court. We're so glad you're here because we got a lot of stuff to talk about. Thanks for being here.
- [01:00]
A
Thanks for having me.
- [01:01]
B
Okay, let's jump right in. So, as I mentioned, we're recording this on the very last day of June, and the Supreme Court wrapped up its term this morning just in time for their summer vacation, and they issued some bangers today. So it upheld the birthright citizenship for children born here to undocumented parents or parents in the country temporarily. Just to start, can you remind me of the background, like, how did the question of birthright citizenship get to the Supreme Court?
- [01:32]
A
Sure. So one of President Trump's, you know, first day executive orders was an effort simply by executive order, to rewrite the rules for which kinds of individuals born in the United States would be automatically entitled to citizenship. And, you know, the president's executive order would have denied automatic citizenship to children of parents where one of the parents was undocumented and the other was either undocumented, documented, or here temporarily, basically would have taken a large number of folks born in the US and said, nope, you're not entitled to citizenship simply because you were born here. Sarah, as you know, that order never went into effect. It was blocked by a whole bunch of federal district courts last year before its effective date. Even when the Supreme Court, you know, stayed those rulings last June, it was promptly blocked again. And so it's, you know, it's never gone into effect, and it won't because of the ruling we got this morning.
- [02:25]
B
Okay. So I think a lot of people are, I mean, I guess I was relieved When I saw this, because, okay, they upheld it, that was important, especially because, you know, the constitutional language on this has always seemed pretty straightforward and clear. So, like, yes, it's good that they ruled to uphold the Constitution. On the other hand, there was like a weird outcome for this. Maybe you want to walk us through it, because I'll mangle it if I do. But this was not as straightforward as one might think it would be.
- [02:59]
A
Yeah, I mean, I think a lot of folks, Sarah, assumed that the court would, you know, slap back against the Trump administration fairly emphatically. And frankly, the oral argument back on April 1st really was pretty darn one sided. And so I think there was a fairly broad assumption among folks who follow the court carefully, maybe not that this would be 9 nothing, but that it would be 7 to 2 with maybe a concurrence or a partial dissent by Justice Thomas and Alito. And in fact, it was really close. I mean, it was 6 to 3 on the executive order itself being unlawful. But Justice Brett Kavanaugh, who is one of the six, broke from the majority on whether Congress could by statute change the rules along the lines that President Trump's executive order purported to, and he said yes. And so actually on the underlying constitutional question, it was only five to, which was, I think, a much closer run thing than folks expected, both before and after the oral argument. You know, really sort of puts a lot of weight behind the notion that this court, there's a lot of votes for a lot of pretty crazy stuff that we would have thought of as outlandish as recently as 10 years ago.
- [04:08]
B
Yeah, I wouldn't say I left this decision feeling a ton better. And also, maybe you could tell me. So there was a few things, and I'm not, I'm a layperson and I'm going to be very upfront about all my layperson Supreme Court views. I, as a, as more of a political observer than a, than a real observer of the court. Which is why you are here. I found the fact that both the Chief justice wrote the opinion himself and that there were all these different dissents, like they all wrote a different one. And so, you know, there's always a palace intrigue around the court. But I guess I wondered if, if the reason this one came so late was because Roberts was trying to get a much cleaner opinion than he got to kind of hold the court together. And instead he got these like, all these weird opinions where he got the. Every single one of the dissents writing their own and then Kavanaugh writing his own off in the world. Different kind of thing. So what do you make of. Of that?
- [05:11]
A
Yeah, I mean, it's. It's a fair point, Sarah. I guess. I guess I'll say two things. The first is, you know, this case was only argued on April 1st, and so I would have been surprised unless it was unanimous to get a ruling much before the last couple weeks of the term. I mean, it went to the last day, and maybe there are reasons for that. Also, Justice Thomas dissent is 91 pages all by itself. You know, that. That doesn't get written overnight. And so I guess I'm less, to me, the Kremlinology here that's interesting is less the timing and more just your other point that Roberts really wasn't able to build a real coalition here. And when we think about the most emphatic rejections by the Supreme Court of presidents across the Court's history, a lot of them have been unanimous, and they've been unanimous on purpose. I mean, I think most pointedly about the Watergate tapes case in 1974, where the court really sacrificed any shred of analytical coherence in the name of just writing something that all eight of the participating Justices could sign. Because there, in that moment, it was more important that the Court speak with one voice. That than anything that voice actually said, this is the opposite of that. Right. This is a. You know what I think a lot of folks should have thought, should have been a pretty straightforward constitutional holding that really looks like Roberts had to push and shove just to get it over the finish line. And I think that's a really powerful, I would say, indictment, but certainly, at the very least, window into just how little this Court is able, right, to muster any kind of institutional heft, given the internal divisions it has.
- [06:49]
B
I, I want to talk about the separate dissenting opinions because, you know, Justice Jackson wrote a concurrence to the Court's opinion, but Kavanaugh wrote an opinion concurring in part, dissenting in part. Then Thomas, Gorsuch and Alito wrote their own dissenting opinions. Is it ideological? Is it political? You read these different dissents, and I gotta say, just personally, I thought we were gonna get a 7:2. I was so surprised to see Gorsuch on the Gorsuch.
- [07:18]
A
That's right. I thought Gorsuch is the vote here that I found the most hard to explain, especially given, you know, what the kinds of questions he was asking. The oral argument.
- [07:26]
B
I assume you read them. I mean, there was a lot to go through. I don't know if you had a Chance to. But, like, what is Gorsuch doing in there?
- [07:33]
A
That is a very good question. And it's actually, I think, the one question that is the hardest to answer just by going through the opinions, in part, because I think, you know, part of how this is all set up is that Gorsuch didn't actually say much separately in his dissent. I mean, I think part of the problem here is that you have Thomas writing 91 pages. By the time you get to Gorsuch, it's really just, I think, what, six, no, three pages, Sarah, right at the very end. And I think the problem there is that it almost would have been better if he wrote nothing, because all of the things he doesn't explain. How does he reconcile his vote here with his, you know, very, to my mind, progressive jurisprudence on the rights of Native Americans, which was a huge part of the conversation when it came to the adoption of the 14th Amendment. I guess I'll just say, I think part of what happened here is that again, and this is maybe where the timing did play a role, the. The Alito and Thomas descends sort of take on different arguments. So one of them really focuses on this allegiance idea, which is that the citizenship clause of the 14th Amendment should be interpreted to apply only to, you know, parents of children, where the parents owe allegiance to the United States, and that that would therefore carve out potentially right, undocumented immigrants. The other version of the argument is the domicile argument, that the language subject to the jurisdiction thereof means you actually have to be domiciled here, meaning you are here in some permanent capacity. Right versus transiting through the country versus being out of immigration status. And, Sarah, what strikes me about both of these arguments is that no matter how many pages you write in support of them, they really don't respond to the fundamental purpose of the citizenship clause, which the majority opinion by Chief Justice Roberts makes abundantly clear, which was to obliterate these very distinctions, which was to avoid giving the government the opportunity to use, you know, different kinds of statuses as a way to subjugate entire classes of people. It was a response to Dred Scott and the Supreme Court's own holding that, you know, enslaved people and children of enslaved people weren't and couldn't ever be citizens. And so that's really why I think folks were so, I think, first, troubled by the policy, but second, convinced that this wouldn't have been a close case in the Supreme Court. And yet it was. And so, yeah, I mean, I'm reminded, you know, my grandmother, when I passed the bar. I called her, I said, grandma, I passed the bar. Her reaction was, oh, thank God. Right? Not like, congratulations, not like, good job, just relief. And I feel very much the same way about the decision we got today.
- [10:11]
B
You feel relief?
- [10:13]
A
Yes.
- [10:15]
B
Because you think this court was being just wild enough based on these dissents that you think, man, they could have gotten there on this. They could have found their way to overturning birthright citizenship.
- [10:26]
A
I imagine a universe in which Justice Barrett signed on to Justice Kavanaugh's separate opinion. And so you still would have had six votes to strike down President Trump's executive order. But Sarah, with five votes saying, but actually the Constitution doesn't require birthright citizenship for the children of undocumented immigrants, that would have been a massive shift in how we think about the Constitution, and one that I think would have been not just problematic, but really, I think from a moral perspective, you know, not just a legal and historical perspective, something that would have been very hard to swallow.
- [11:00]
B
Well, let's talk about Kavanaugh's view of things here, specifically, because this is, this is the reason that I don't feel better. So I'm glad that you do. And I realize that what you're saying is, guys, actually we dodged kind of a bullet here, but again, layperson, so nobody should listen to me on this. Not a lawyer. But it did seem to me like, actually it was kind of the way that Kavanaugh is arguing that the underlying merits of citizenship can be, like, statutorily over. Meaning Congress could decide to challenge this. They could change the law here. Right. And you were going to have to tell me if I'm getting this slightly wrong, but it, it's, it seemed to me to be setting up a future where you get one more, you know, MAGA Supreme Court justice, or, you know, you get a super Republican majority, like, they try to do this five years from now. That's, that's how I interpreted it.
- [11:57]
A
So, I mean, I guess I, I would say two things can, and in this case, I think are true, which is, I'm relieved that there weren't five votes, but I'm also a little bit horrified that it was a close run thing in the first place. And yeah, you know, to me, that is a real sign of how much President Trump himself has succeeded in nudging this very conservative court even further to the right by taking positions that, frankly, Sarah, folks like me would have said a decade ago were completely fringe and litigating them to a point where they got four votes in the Supreme Court. You know, that may not necessarily mean it's not fringe, but it certainly puts it on the wall in a way that it wasn't before that. And so I think it is at once a relief that the court ruled this way, but an indictment that it wasn't nine thing because it should have been. And I think it's, you know, when we put it alongside yesterday's decision in Trump vs. Slaughter, when we put it alongside, you know, the campaign finance and transgender discrimination rulings from today, I mean, this is a court that really is just completely unencumbered by anything and does what it wants, what it wants. And it just so happened that it wasn't quite ready to go all the way there today. But as you say, there's nothing to stop it from going there tomorrow. And I think that's, that's the court we have.
- [13:15]
B
Yeah, it just, it feels like even though Trump didn't get what he wants in terms of the actual executive order overturning birth rate, citizenship being codified by the Supreme Court, he got pretty far in shifting, let's say, the Overton window or re anchoring our values to a new place that I found made me, made me feel not good in my tummy, I'll tell you what I mean.
- [13:42]
A
And just to take one example of that, I mean, think about how folks think about birth tourism, for example, Right. You know, if that were actually a real problem, Congress could address that in a second. Right? Congress could pass statutes that says we're not going to grant you a visa in these circumstances. Right. But so many folks now think about the birthright citizenship question as basically the birth tourism question. And that's not how we used to think about it. And I think, you know, this is one of the things that I think we often lose, right. When end of Supreme Court term conversations just focus on the bottom lines, which is what it means that this is where we ended up in this case. Right. And here I think you're right. I mean, Trump was remarkably successful in taking an issue that should never have been a viable legal theory and getting not just this far, but, you know, producing along the way a pretty significant Supreme Court decision last year about narrowing so called nationwide injunctions. That's, you know, that's not for nothing. And maybe, Sarah, that's why we haven't seen President Trump yet. Right. Publicly, you know, criticizing and lambasting the court the way he did after the tariffs decision.
- [14:50]
B
Last question on this before we get to Slaughter and Cook, because I want to talk about that next. But I've seen, I don't know if you're following sort of the taste makers on the MAGA tastemakers, but they have their knives out for Amy Coney Barrett in a big way. They keep DEI hire. And, you know, I think we got, we got old Matt Walsh out there saying that every woman on the Supreme Court's been a disaster. We shouldn't have women on the Supreme Court. So, okay, what do you make of Amy? I don't know if it's a, if this is a question exactly about Amy Coney Barrett or about the way that the right feels about her, but, like, why don't you just take those and wrestle with that frame?
- [15:32]
A
Yeah. I mean, so the first thing to say is that really drives home that to the folks who are making these arguments, all that matters, right, is toeing the party line. Like heck with your principles. And you're only going to get rewarded. You're only going to get kudos for following the party's line, no matter what. And what's striking about this is that it's not, you know, there are six Republican appointees. Barrett can't cross the right by herself. She needs a buddy. And in, you know, the most recent significant examples, it's been Chief Justice Roberts. And it's interesting that it's Barrett who gets the ire, not Roberts. Yeah. You know, more broadly, Sarah, I mean, I continue to find Barrett the most difficult justice on the current court to understand and the hardest justice to predict. Where one day she's in the dissent in Lisa Cook's case, where, frankly, I thought she'd be in the majority and where she's the fourth vote in what I thought wouldn't be a 5 to 4 ruling on whether President Trump needed more than just his say so to fire Lisa Cook. And then the next day, she's the key vote, or at least one of the key votes in the birthright citizenship case. I think this is just who she is. Like, I think she has principles that she may not have fully articulated yet that lead her to be, I wouldn't say a centrist, but a justice who's going to vote more like John Roberts than Neil Gorsuch. And, you know, that doesn't mean she and Roberts are always on the same side. They weren't in Cook. But I think it does mean that, like, she is more likely to end up in narrow majorities with the Democratic appointees than Justice Kavanaugh is and except for his, like, pet issues, than Justice Gorsuch is. And I think we're seeing that does that mean she's some kind of liberal squish? No, I mean, look at, look at all the six to three decisions we've had this term where she was in the majority, some of which she wrote. But I do think it suggests that, you know, there really is at least a little bit of daylight between her and the chief on the one hand, and the other four Republican appointees, at least in these kinds of cases.
- [17:36]
B
I do find her just a much more interesting justice than I do Kavanaugh, who just seems like he wants everyone on the right to like him, like Thomas and Alito, makes so much sense to me because they're just like old guys now who are basically, they're like your grandpa mainlining Fox News and they're just like reflecting back whatever they see there. And like Gorsuch is sort of increasingly moving into this weird territory, whereas she has like a very. Yeah. Interesting mind. I have disagreed with her on many things, but also she, she does seem to have, like, her own rubric for. Yeah. How she thinks about this stuff. And there's part of that that I can kind of respect in the sense that she seems to not. It's not the outside world imposing on her. She has her own way of thinking about it and is saying, I'm going to apply that to these cases, which is not the way the partisans on the court operate.
- [18:29]
A
Yeah. I mean, and I think the contrast between her and Justice Kavanaugh is probably the most visible one, which is, you know, there are cases where Kavanaugh ends up in the majority with the Democratic appointees and she ends up in dissent. And again, the Lisa Cook case is the most recent example of that. But they're not the big ones. Right. Like, they're not, they're not the, they're not. The mail in ballots case, which is the example from yesterday, I think, really touched off the firestorm on right wing social media. I think you're right. I think she is not nearly as worried about what people think of her and about how her jurisprudence is perceived than Kavanaugh is. And I think that comes through all the time. You know, there's a. I'm not going to get this quote exactly right, but there's a quote in Ruth Marcus's book about the nomination and confirmation of Justice Kavanaugh where one of his former colleagues on the D.C. circuit said something like, the thing you have to understand about Brett Kavanaugh is that he's a wonderful colleague except when it matters. And, you know, leaving aside that I would yeet myself into the sun. If anyone ever said that about me, I really do think that that's not how Barrett goes through her job. And I think she, you know, she goes where she thinks she should go without regard to how it's going to play at the country club. And that's not always where I wish she would go. I think it's not even always, Sarah, where her oral argument questions suggest she is going to. But yeah, your word is right. Interesting. She is, I think by far the most interesting justice. And you know, I think it's as we look back on this term, there are a lot of cases where I think she and the Chief justice were the difference between some degree of moderation on the court's part and just a full on, you know, MAGA takeover of the Supreme Court.
- [20:11]
B
Yeah. All right. The court also issued a slew of opinions Yesterday, including the U.S. v. Slaughter and U.S. v. Cook cases which concern the president's ability to flee fire independent commissioners. So Steve, maybe you can just give us just a quick background again on like why did the president try, like why did he fire or try to fire these people that led to these Supreme Court cases?
- [20:36]
A
Sure. So you know, Sarah, for about a century we've had this slew of agencies within the executive branch that have gotten the moniker of independent agencies. So don't think cabinet departments think like the Federal Communications Commission or the securities and Exchange Commission Commission. And what made those agencies independent was the reality that the president couldn't just direct what they did on a day to day basis, rather that their heads, whether it was a single person or a multi member commissioner or commission, were protected from being fired except for cause. And so, you know, President Trump couldn't say do this or I'll fire you. President Biden couldn't say do that or I'll fire you. You actually had to commit malfeasance. The as the Supreme Court of the last really 25 years has increasingly gravitated toward what's known as the unitary executive theory of presidential power, that independence has been in direct conflict with the theory because the theory is that Article 2 makes the president the head of the executive branch and so therefore vests all of the executive power in the president. And having agencies that do any executive power stuff without direct presidential control is actually taking power from the president and giving it to the agency. So the big ruling Yesterday in Trump vs Slaughter was basically like the apotheosis of this theory because you had the court say in general statutes that limit the president's ability to remove all of these Agency heads are unconstitutional. And in the process, the court overruled this 91 year old precedent called Humphrey's Executor. What is so bizarre and to my mind, maddening about this development is not the sort of problems in the unitary executive theory itself. It's that in the same moment, like literally in the press room, they handed these two decisions out at the same time. The Court says, oh, but the Federal Reserve is totes different. Which, you know, as a practical matter and as someone with a retirement account, I kind of like. But if the point of the unitary executive theory is that every agency exercising executive power must be directly answerable to the President, it doesn't really make a lot of sense to have exceptions just because the Fed is too important.
- [22:52]
B
Yeah. Can you just give us a quick what did the Court decide in each case? I mean, is it as simple as saying, they said, no, you can't fire the head of the Fed, but yes, you can fire the head of every other independent agency just about.
- [23:04]
A
I mean, that's, you know, that's actually not that superficial a description of what the Court did. So in Slaughter itself was about Becky Slaughter, who was a commissioner on the Federal Trade Commission, and she was one of really dozens of folks that President Trump tried to fire last year. Lower courts had blocked those filings and the Supreme Court in a series of orders last summer had stayed those lower court rules, basically allowing Trump to fire them while the case is worked away at the Supreme Court. Lisa Cook was different because even in those orders last summer, the Court went out of its way to say the Fed is different. And so in her case, President Trump didn't try to fire her without cause. Rather, President Trump claimed he had cause for firing her, to wit, these allegations of mortgage fraud. So the two actual holdings, the in Slaughter, you had a 6, 3 majority, the usual suspects in an opinion by Chief Justice Roberts saying not only could President Trump fire Becky Slaughter, but actually every statute that imposes for cause removal restrictions on people like Becky Slaughter. So commissioners of all of these agencies except the Fed is unconstitutional. In Lisa Cook's case, the Court said two things. One, the Fed is different for, you know, reasons. And then two, at least at this juncture, President Trump has not provided enough process to Lisa Cook to justify firing her, basically that she's entitled to some opportunity to be told why she was being fired and to contest that before she's fired because she's in this weird remaining category of like, you know, class of one agency where a four cause removal requirement is still valid.
- [24:54]
B
Okay. But why? Can I just. You said four reasons. What is. Did they give reasons for why the Fed is different? It's just too important. What, do they have a rationale for why it's different? I mean, the business community likes it. Is the rationale. Or like, what?
- [25:08]
A
So, you know, God bless Brett Kavanaugh because he said the quiet part out loud. So. So let's start with what the majority said. So the majority opinion by Chief Justice Roberts, and again, this was. I think I mentioned this before, but just to come back to it, this was a 54 majority in Cook. So it was Roberts, Kavanaugh, and the three Democratic appointees. And Roberts basically has this short discussion of how the Federal Reserve is the modern descendant of the first and second national banks. And the first and second national banks were totally different. And the kinds of power that the first and second national banks exercised wasn't understood at the time as executive power. Narrator insertion. That's true. But, like, 80 years and a whole lot of stuff happened right between the demise of the second national bank and the creation of the Federal Reserve. They are not the same. So there's this, like, effort, Sarah, in the majority opinion to make this weird historical, like, it was always understood to be different kind of argument, which is especially funny because Roberts made a version of this argument last summer. And then a whole bunch of law professors explain why it was nuts. And Roberts is like, nope, I'll make it again. Fortunately for all of us, right, we have Brett Kavanaugh, who has no trouble telling us what's really going on. And so if you'll. If you don't mind me quoting a bit from Kavanaugh's.
- [26:28]
B
Oh, please.
- [26:30]
A
So he says, right? Leaving this question open would create significant uncertainty about whether the Court might soon eliminate the Federal Reserve's independence and thereby expose the Federal Reserve to political influences and jeopardize the efficacy of US Monetary policy. Here's the line. Even temporary uncertainty about the status of the Federal Reserve could spark political upheaval, including confusion about whether the President could immediately remove multiple governors at will, as well as turmoil in the US and world economies. Right? So Kavanaugh saying, like, why is the Fed different? Because we don't want to mess with the central bank. And again, like, I get that. But then what the hell is the unitary executive theory?
- [27:15]
B
Yeah, I love this. This is, this is good. You're. I, I can, I can see this even more clearly now that you're setting this up, because I was basically like, okay, they're just, they, they're this is also them trying to save Trump from himself a little bit. Right. This is them being like, bro, if we give you this, you have no idea how much this is going to set off panic about the Fed and about international commerce and all of this stuff. Now Trump, like on one hand, yeah, maybe Trump's just going to put people in who are going to lower interest rates. But also that's means no stability in the Fed for forever. Right. Because then presidents can just go ahead and start putting people in willy nilly. Got it. Here's my separate question though. On the Slaughter piece. If you, if they say, okay, you can do this, the President can just go ahead and remove anybody at any agency, does that mean that like, let's say DOJ does, like a independent counsel, like with Jack Smith or Robert Mueller? Because remember, I remember I launched a back, back in the day, Republicans for the Rule of Law was one of the first organizations I built after Trump came in and it was specifically to protect Robert Mueller from political interference. Right. We have these independent counsels, but Trump was saber rattling, like he might fire him and that was going to be like a constitutional crisis situation. Now can Trump just tell the doj, like, get rid of the independent counsel that's investigating me and my friends and also SEC or ftc, get through every single deal that I want done, whether it's Netflix or Paramount or whatever I can, all my friends, I just, if you don't do what I say, I just replace you. Is that what just happened?
- [28:57]
A
Yes. And so it's kind of like, I mean, I was trying to, I've been trying to think of a metaphor all day for this. It's basically like letting your investment insurance lapse when there's a hurricane coming. Right. Because the court is basically, you know, there are academic defenses of the unitary executive theory. And I'm happy to talk about them because they're not incoherent, although they don't really explain the Fed. Right. But like Sarah, that the Supreme Court picked this moment and this President, you know, 15, 20 years ago, when the first rumblings of all of this started to come up, people like me would say, well, listen, let's talk about the parade of horribles that would happen if you ever adopted the unitary executive theory and you hypothesized what a president could do and no one came close to what Trump is actually doing. And so I think, you know, what's really striking about Slaughter is not just what the court said and it's not just how the court immediately contradicted itself. But that of all the moments in the, you know, 200 and gosh, what 37 years we've had a constitutional government in this country, they picked this one to say, who needs checks on the executive branch anyway? And I think that's the sort of the practical piece of this that I think goes alongside the maddening.