SCOTUS: Birthright Citizenship Decision Looms, Docket Loaded With Trump Cases

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0:23The Supreme Court has a stacked docket of high-profile cases to decide and only weeks left in its term. Some of the 20 remaining cases can have seismic effects for years to come. We're expecting decisions soon on immigration. The court is considering birthright citizenship, a nearly 160-year legal precedent that says those born in the U.S. are citizens. And a huge case that could have implications for the November elections. The court is deciding whether mail-in ballots should be counted if they arrive after Election Day. Also ahead are decisions about transgender athletes and the president's ability to fire the heads of independent agencies.

1:04I'm Naila Boodoo, in for Jen White. You're listening to the 1A Podcast. We'll be back with more after this short break. Stay with us.

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3:07Individual results may vary. Welcome back to the 1A podcast. We're talking about the Supreme Court. Joining us is Leah Littman, co-host of the podcast Strict Scrutiny and professor of law at the University of Michigan. She's also the author of Lawless, How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes. The paperback version comes out today with a new section. Leah, welcome back. Congratulations on the paperback. Thanks so much for having me. Also with us is Jeffrey Rosen, the CEO Emeritus of the National Constitution Center. He's also a law professor at George Washington University and host of the podcast, The Blessings of Liberty.

3:44Hi, Jeff. It's always great to have you with us as well. Great to be here. Jeff, let's start with the timing. We've got 20 decisions left. When are you expecting to get the next batches of decisions? When does the term typically end? The term typically ends around the end of June. Sometimes it goes into the first days of July. We could have new decisions any day, next week, but timing is impossible to predict. No one knows exactly when the term will end, so let's not try to game this out. On Monday, the court did announce they would agree to hear three more cases. Jeff, quickly, is there anything to note about those new cases?

4:25Yes, they are interesting in a couple of ways. Of course, they won't hear them until next year. But the first ones involve hearings for non-citizens in immigration detention, which is obviously relevant to some of the cases they're hearing this year. That's a case involving a green card holder from the Dominican Republic who's taken into custody. and the question is when someone's detained for a long time, do you have to have a hearing? Other cases involve the question of the constitutionality of six-person juries. The court has upheld them in the past, but they're being challenged now on the grounds that new decisions call them into question.

5:09And the final cases involve post-conviction relief for people who've been convicted and the degrees to which they can appeal their cases. So three important cases to be heard next year. Leah, anything to note from those three? I think that the big case is the one Jeff noted, namely the challenge to whether the federal government can continue to detain people for fairly prolonged periods of time without bond. That is determining whether there was a sufficient need to detain that individual. The court's earlier case that suggested the federal government could continue to detain people without bond was actually based on false statistics that the Department of Justice had submitted to the court, indicating that the detentions were often quite short, when in fact, later statistics revealed they were often lengthy.

5:58Leah, how unusual is it to leave so many big decisions with only weeks left of the term? How many years are we, at this point, at the end of summer term, anxiously awaiting what's going to happen? It's not unusual for everyone to be waiting until the end of June for the Supreme Court's biggest cases. that often drags out until the end of June, and they are packed in to the end of June. I do think that the court has held or we are waiting on a relatively large number of cases for the final potential two weeks of the term. The court has 20 cases left, perhaps 19 opinions in two weeks, and that's an awful lot of cases for us all to be waiting on.

6:38Before we get to all of those, Jeff, can I ask about two big decisions that's already been handed down by the court? one weakening the Voting Rights Act and the other striking down Trump's tariffs. In response, the president called out two justices by name in a social media post writing, quote, maybe Neil and Amy just had a really bad day, but our country can only handle so many decisions of that magnitude before it breaks down and cracks, end quote. Jeff, what did you learn from these decisions and how the court may be handling pressure from the president? Well, in calling out Justices Gorsuch and Barrett, the president was obviously referring to the tariffs case.

7:20He criticized the six justices in the majority, saying they should be absolutely ashamed. And he called, in particular, Justices Gorsuch and Barrett an embarrassment to their families and to one another. In fact, it was a great example of those justices being true to their principles. In Justice Gorsuch's case, his textualist principles, where he wrote a really interesting concurrence, which one of the most important concurrences about executive power that we've seen for a long time, suggesting that the president's power is at its lowest ebb when it's not supported by clear constitutional text.

7:57And Justice Barrett, too, who's proved to be quite pragmatic repeatedly, wrote an extremely thoughtful opinion. The voting rights case is very different. It was the culmination of a long-standing effort to gut the Voting Rights Act, which began with Shelby County, which struck down Section 5. And what was so significant about this decision, which essentially eviscerated Section 2 of the Voting Rights Act as amended in 1982, is it went directly contrary to the explicit intentions that Congress expressed. Congress in 1982 said our whole purpose in passing this amendment is not to require evidence of discriminatory intent before you can have a voting act violation, but instead to prohibit changes that have discriminatory effect.

8:48And the court essentially said we don't care about Congress's intent. We're going to construe this act to mean the opposite and to require intent. and some thought it was to avoid striking it down because some justices think you're not allowed to be race conscious at all. Huge effects both on our elections and on when and whether you're allowed to draw districts for the benefit of minorities. And for many people, that was the old Roberts Court as opposed to the tariffs case, which some hope will be the first of several cases, and we're about to discuss them, ruling against the president. So this really is the year where we're going to find out in the next two weeks whether that tariffs case was an anomaly or whether it was the beginning of a real willingness to challenge the president in important cases.

9:37I do want to—I know we're going to talk about birthright citizenship, and I see we have a lot of emails coming in about that. Please keep the emails coming to 1A at wamu.org. But let's just stick with voting rights for a minute, Leah. And just I wanted to also just add on to Jeff's point about going against the president. What have we seen with this court? We use the words unprecedented often to describe the Trump administration. But having the president show up, for example, in oral arguments, how have we seen the court respond to that as well as the personal attacks he's made against some justices?

10:09I think that the Supreme Court's posture toward the Trump administration has been unprecedented in several ways. Over the first 18 or so months, the administration had a near unbroken 20-some case winning streak on what is known as the Supreme Court's shadow docket. That is the set of cases that the court decides without oral argument or full briefing. And on the shadow docket, the court allowed the president and the administration to press forward with several significant policies that lower courts had concluded were illegal. That includes the attempted destruction of the Department of Education, the withholding of almost a billion dollars in research funds from the National Institutes of Health research grants.

10:51That includes firing the heads of several independent agencies, including the Federal Trade Commission, as well as the Equal Employment Opportunity Commission. That includes the practice of federal immigration officers allegedly using race when they are stopping, detaining, and questioning people during federal immigration enforcement. And the list goes on. So in many different cases, the court has allowed the administration to exercise what have been unprecedented and sweeping assertions of executive authority. One of the most anticipated cases on the Supreme Court's docket is birthright citizenship.

11:29As I mentioned, President Trump made history by being the first president to sit in on oral arguments. Even so, the court scheme seemed skeptical of the administration's case. Having said all that, you do agree that that has no impact on the legal analysis before us? I think it's, I'd quote what Justice Scalia said in his Hamdan dissent, where their interpretation has these implications that could not possibly have been approved by the 19th century framers of this amendment. And I think that shows that they've made a mess. Their interpretation has made a mess of the provision. Well, it certainly wasn't a problem in the 19th century.

12:06No, but of course, we're in a new world now, as Justice Alito pointed out to, where 8 billion people are one plane ride away from having a child who's a U.S. citizen. Well, it's a new world. It's the same Constitution. That was Chief Justice John Roberts and Solicitor General John Sauer in April. One listener emails, I'm shocked that the Supreme Court would even hear the Trump administration's request about birthright citizenship, despite that this is a right clearly enshrined by the 14th Amendment. When we come back, we're going to talk a little bit more about that. Jeff, Leah, I would love for you to start off the conversation by thinking about that listener question.

12:41Stay with us.

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13:25Call 1-800-GRAINGER, click grainger.com, or just stop by. Grainger, for the ones who get it done. This message comes from HIMS. Notice your hairline creeping back? HIMS makes it simple to do something about it. Get access to prescription treatments with finasteride and minoxidil, ingredients that can help stop hair loss and regrow hair. Visit hems.com slash NPR. Compounded drug products are not approved or evaluated for safety, effectiveness, or quality by the FDA. RX required. See website for full details and important safety information. Individual results may vary. This message comes from HomeServe.

14:04A burst pipe. A dead water heater. The AC calling it quits. Who do you call? HomeServe is an easy way to handle unexpected home repairs, with plans covering stuff basic homeowners insurance usually won't. Instead of scrambling for a contractor, you make one call to get the repair process started. Join the millions of customers who trust HomeServe right now. Go to homeserve.com slash podcast for 50 % less your first year. Savings compared to renewal price. Boyd in Florida. This message comes from BetterHelp. Summer can feel like a sprint. Kids home, trips to plan, routines flipped upside down. It's easy to slip into survival mode, just trying to get through it.

14:47Then suddenly, it's over. And you're wishing you enjoyed the days just a little bit more. Therapy can help you slow down and actually be present for the moments that matter. With BetterHelp, you can connect with a licensed therapist from anywhere, on your schedule. Don't just survive the summer. Thrive. Visit betterhelp.com slash NPR. Let's get back into our conversation. We're talking through the monumental cases on the Supreme Court's docket with only weeks left in its term. Leah, just before the break, we had a listener email in and ask why the Supreme Court is even hearing a request about birthright citizenship, because it's clearly enshrined to this listener by the 14th Amendment.

15:29Your response to why this case is even coming before the Supreme Court? I think it's very reasonable to be concerned that the Supreme Court is hearing this case and hearing it now. by drawing out the case and entertaining the arguments, I think that the Supreme Court has moved the overturn window in what sort of constitutional theories are more or less off the wall. Indeed, last year, when the court was deciding whether lower federal courts had the power to issue what are called nationwide injunctions, the plaintiffs in those cases asked the court, when they determined that issue, to also just say, look, this executive order that lower courts had enjoined, which was the birthright citizenship order, is obviously illegal.

16:12And so we can, Supreme Court, effectively block the policy nationwide. The court opted not to do so, again, returning the case to the lower federal courts and then having it back up on the docket. Now, I think that the Supreme Court effectively had to take this case, given that they pressed the Solicitor General during the oral arguments in the nationwide injunction case, whether the Solicitor General would in fact appeal any lower court rulings that ruled against the administration up to the Supreme Court so that the Supreme Court would have the opportunity to resolve the matter for the entire country after the court told lower courts that they didn't have the power to block policies on a nationwide basis.

16:55So I think it's fair to suggest that the court should have, could have resolved this issue earlier and in a more straightforward fashion that affirmed just how outlandish the administration's views are. But given what they did, they effectively had to take this case. Jeff, what did you gather from the oral arguments? We played a little bit of that audio before the break about how the court may be leaning here. The oral arguments suggested, most people think, that the court is likely overwhelmingly to reject the Trump administration's arguments, Whether the decision is unanimous or seven to two, because Justices Thomas and Alito seem the most skeptical, it looks like the president will lose.

17:39Basically, it's been accepted since the 19th century that that phrase in the 14th Amendment, all persons born or naturalized in the United States and subject to the jurisdiction thereof, has very few exceptions. Wong Kim Ark said that those exceptions included the kids of diplomats who were here, as well as Native Americans, who at the time were not subject to the jurisdiction of the United States, although that was changed by law in 1924. And as a result, it's been on question that citizenship in the United States comes from where you're born, not who your parents are. Now, the administration made a couple of unusual arguments.

18:26First, they really stressed the fact that Wong Kim Ark was a U.S. citizen and that the court had stressed that the ancient rule was that citizenship by birth within the territories requires allegiance and under the protection of the country. And the basic argument is that you have to have allegiance in order to receive protection and be considered a citizen. And if you're the kid of an undocumented alien, you don't have allegiance because you're not domiciled in the country. And a couple times in the argument, the question was, how important is it about domicile? Chief Justice Roberts stressed that the word appears frequently in the wonky mark decision.

19:10Justice Alito really stressed that too. But the really interesting action occurred in the briefs where many conservative scholars argued that it's unquestionable that as a matter of original public meaning, the people who framed and ratified the 14th Amendment thought that citizenship would go with soil rather than by birth. And the idea that jurisdiction depends on obedience and that the disobedience of a parent can be imputed to a child, scholars have argued, doesn't take account of the fact that former Confederate soldiers who were openly rejecting the authority of the United States nevertheless were considered citizens because allegiance is considered a duty of citizenship, not a condition of it, as well as enslaved people who came here illegally, as well as the kids of gypsies who didn't have permanent domicile.

20:07So the historical evidence is really overwhelming that the conventional understanding is correct. The counterargument comes from a previously secret, undiscovered letter to President Andrew Johnson from a senator who later on the floor repudiated his view. So it's an unconventional argument. This has been a consensus. And it sounds like also, Jeff, yeah, it's interesting to hear all of the historical analogies there in that context. I think that's really helpful. Leah, can I just ask your thoughts on what you're gathering as well, like what you're anticipating hearing from the courts on this? I also strongly believe that the court will invalidate the president's birthright citizenship order, which, as Jeff has explained, denies some people birthright citizenship even though they were born in the United States, which just straightforwardly flies in the face of the text, history, and precedent governing the 14th Amendment.

21:04But I think that if and when the Supreme Court does that, that is when they tell the president he cannot unilaterally nullify a provision of the 14th Amendment, people should keep in mind that earlier this term, indeed in the last two months, the Supreme Court effectively allowed states to nullify other parts of the 14th Amendment and the 15th Amendment. when they allowed states to move forward with using districting maps that lower courts had concluded intentionally discriminated against Black voters in violation of the clear terms of the 14th and 15th Amendments. So we should all feel a sense of relief when the Supreme Court doesn't allow the president to effectively read out a provision of the 14th Amendment, but we should also recognize that the court has been, I think, at best selective in its willingness to uphold the promises of the Reconstruction Amendments.

21:57Leah, we got an email sort of similar to this that I wanted to ask you about. Peter in Pennsylvania emails, I'm most interested in the court's ruling on birthright citizenship. If it accepts Trump's interpretation of the 14th Amendment, then what is it to stop them from ruling he can run for a third term under the 22nd Amendment? I mean, I think the short of it is nothing. If the court is so willing to ignore the plain text of the 14th Amendment, which again, straightforwardly guarantees that all persons born and naturalized in the United States and subject to the jurisdiction thereof are citizens, doesn't actually guarantee that people born in the United States are citizens, then we should be really concerned that the court would be willing to read out other provisions of the Constitution that the president also decides he's not interested in upholding.

22:45Let's go back to just the issue of birthright citizenship. Can I just ask Jeff this question we got from Greta in Arlington who said, birthright citizenship does have flaws which have become obvious in recent times. It encourages illegal immigration and birth tourism. These loophole problems could be reformed but not by the Supreme Court. It's clearly an issue to be addressed by Congress since it would require a constitutional amendment. It's a great question. It did come up in the oral arguments. Chief Justice Roberts, however, challenged the Trump administration's emphasis on birthright citizenship, asking how common it actually is.

23:24The Solicitor General acknowledged that no one knows for sure how widespread it is. Roberts says whether he agreed that there were problems that birthright tourism might pose would have no impact on the legal analysis before us. and birth tourism, Roberts noted, wasn't a problem when the 14th Amendment was ratified in the 19th century. And that was when we got that really interesting clip that we heard where Sowers said, we're living in a new world. And Roberts said, we may have a new world, we have the same constitution. That suggests that the birthright citizenship, or rather the birthright tourism question won't be central to the court's analysis.

24:01They are gonna focus on text history and tradition. And as the writer suggests, if it is a problem, and it's not even clear that it is based on the briefs, it's something for Congress to address. Right. Keep the emails coming to 1a at wamu.org. Of course, birthright citizenship isn't the only immigration case in front of the court right now. The justices are also deciding on the issue of temporary protected status. The Trump administration is attempting to end TPS for Syria and Haiti. Leah, what's at the heart of this issue? I think at the heart of this issue is whether the president is going to have to comply with the statutes that Congress has passed in order to regularize and routinize the procedures for temporary protected status and ending that program.

24:48In these cases, the president ended temporary protected status for Haitian nationals after we all saw and heard the frankly gross and horrifying things that the president and his allies said about Haitian nationals during the campaign, including the false smear that there were communities of Haitian nationals eating the dogs and eating the cats in Ohio. So what these cases are asking the court to do is essentially not to blind themselves to the reality of why the president was attempting to end these temporary protected status programs. The other program, which is for Syrian nationals, the administration might have a stronger case insofar as conditions on the ground have changed in Syria, and that might merit revisiting the temporary protected status program.

25:37The problem, however, is it doesn't seem like or look like the administration actually meaningfully considered the facts when it decided to end the program, given that the almost whole of the record that the administration submitted that described the process it had reportedly undertaken to consider ending TPS was essentially a single email. And so these cases are about whether courts will enforce the statutes that apply to the Temporary Protected Status Program or will instead say courts can't review whether the president has complied with the law. Jay emailed, I was a DHS immigration program official for nearly a decade and I'm very concerned about the upcoming Supreme Court immigration decisions.

26:25The decision about TPS includes about 300 ,000 Haitian immigrants. Trump is trying to force these U.S. residents to return to Haiti, although the U.S. State Department advises Americans to, quote, not travel to Haiti due to kidnapping, crime, terrorist activity, civil unrest, and limited health care. This is a sick, racist game on the administration's part. Trump wants to deport Black Haitians and others of color, but allow white South Africans to come here as refugees and have more immigrants from Norway. That's from Jay. Jeff, where do you think the Supreme Court's going to land on TPS? On that question of whether the court will take cognizance of racial animus, Chief Justice Roberts, whose vote could be important, was skeptical.

27:11The challengers had invoked a 2018 decision, Trump v. Haiti, where they held that restrictions on immigrations from eight countries, which were predominantly Muslim, were grounded in racial animus. Here, however, Chief Justice Roberts suggested that the termination of Haiti's designation is plausibly related to the national interest in foreign policy justifications the secretary provided. The big question in the oral argument, and it was not clear after the argument which way the court was going to rule, was whether or not the government had to abide by appropriate procedures. The law professor representing the Syrian challenger said the secretary can terminate TPS, but he has to turn square corners and follow the rules Congress set.