Trump Loses as SCOTUS Affirms Birthright Citizenship

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1:46David Super:This is Bloomberg Law with June Grosso from Bloomberg Radio. Today, the Supreme Court upheld the long-held principle of birthright citizenship, rejecting President Trump's attempt to redefine what it means to be an American. Trump's executive order would have restricted birthright citizenship to babies with at least one parent who's a U.S. citizen or a green card holder. But in a 6-3 decision, the court reaffirmed a ruling from 128 years ago that except for the children of ambassadors, the 14th Amendment guarantees that all people born in the United States are citizens. The Supreme Court decided this issue definitively in 1898 and again today reaffirmed that the 14th Amendment means that everyone born here is a citizen alike.

2:42That can only be changed by constitutional amendment and that effort will fail. The case was personal for Celia Wang, the ACLU attorney who argued it before the court. She was born in Oregon to parents from Taiwan who were not naturalized citizens at the time. In the majority opinion, Chief Justice John Roberts said that the framers of the 14th Amendment extended that promise of citizenship, quote, to every freeborn person in this land, and we keep that promise today. My guest is an expert in constitutional law, Professor David Super of Georgetown Law. How big a loss is this for President Trump?

3:25I mean, he has been using this as an issue for more than a decade. He even sat in on the oral arguments, part of them at least, and issued this executive order within hours of his inauguration.

3:39David Super:This is important for him symbolically, but I don't think it ever mattered very much substantively. And I'm sure his lawyers told him from the get-go that he had no chance. The court's decision and the dissents were almost 200 pages. Chief Justice Roberts wrote the majority opinion. Explain what he based the decision on. Yeah, the Chief Justice looked at the history of the language of the 14th Amendment and found that going far back into the English common law, someone who is born in a place is subject to the jurisdiction of that place. And when the 14th Amendment says that children that are born in the U.S., subject to the U.S.'s jurisdiction, are citizens, he said that that means they're just here, except in the very special circumstance of the kids of diplomats or perhaps people who are born during a foreign military operation.

4:42David Super:But with those very, very limited exceptions, he found that the framers of the 14th Amendment used well-known terms from the English common law, and we were bound by them. And he said there was scant evidence to support the Trump administration's dramatically revisionist view. And I remember during the oral arguments that Justice Elena Kagan pointed out to the Solicitor General that he was relying on obscure sources like an oration delivered at President Lincoln's funeral. They didn't have much law to back them up, did they? They really didn't. And again, they should have understood this. It's striking that what they effectively were trying to do is overrule a case from the 19th century called Womking Ark, which was handed down by almost the same Supreme Court that gave us separate but equal in Plessy v.

5:38David Super:Ferguson. One of the most reactionary courts in the history of the country found that birthright citizenship means what it says. And if President Trump is trying to get even farther to the right, even deeper into white supremacy than the Plessy v. Ferguson court, that's a challenge. Despite that, and I remember when Trump's executive order first came out, people were like, this is crazy. This is not going to fly. But yet you had three of the court's most conservative justices, Clarence Thomas, Samuel Alito, and Neil Gorsuch dissented. Now, Thomas and Alito are no surprise. They even dissented in the tariffs case.

6:21But how did they defend their dissents?

6:24David Super:In many respects, there are four dissents because Justice Kavanaugh agreed with the dissenters on the constitutional issue. So only a five to four majority said that the Constitution protects people's birthright citizenship. Three of them thought that the president can take it away himself, and the fourth thought that Congress could. And it's instructive that the dissenters really don't come up with a single coherent theory, nor really does the federal government. They're getting a scrap from here and a scrap from there and trying to weave it into something, and they have quite a number of different legal theories going on, but they seem to say, well, at some point the U.S.

7:12David Super:deviated from the English common law. Kind of remarkable from judges who on other occasions treat the common law as practically having been handed down on tablets to Moses. But apparently we deviated from the English common law, but no one's quite sure when or how. Maybe someone said something at someone's funeral, so maybe that's a big deal. But they say that we've gone off to a different theory. But he can't say where. He can't provide legal authority for that. And the legal theories they come up with don't make a great deal of sense. Taking some of them seriously, they would seem to mean that anyone born here to foreign parents, no matter how legal the parent status might be, is not a U.S.

8:04David Super:citizen. And if that's true, then why did they even bother putting that language into the 14th Amendment? Are they going more and more away from textual analysis then? It's strikingly unprincipled. And I mean, we've come to expect a lot of this from Justice Alito and Justice Kavanaugh. I had hoped that Justice Thomas would use this as a chance to make a strong pitch for originalism and say, I don't like this result, I do like this president, but originalism tells me that that's what this means. But he doesn't do that. He comes up with this very convoluted theory, which I think badly undercuts originalism.

8:49David Super:I was also disappointed, frankly, with Justice Gorsuch's position here, because I think he takes originalism seriously. And the case that they were trying to overrule, Wong Kim Ark, is a model of originalist reasoning, something that you would think they would want to emulate rather than try to pick apart. Speaking about Wong Kim Ark from 128 years ago, just yesterday, the court overruled Humphreys executor, a 90-year-old president. And today in the campaign finance case, they overruled a precedent from 2001. Does precedent have any effect on them anymore? Do they even feel like they have to follow it?

9:35David Super:I think precedent has stopped mattering very much. There are some respectable theories that say that we should follow the best reading of the Constitution, we should follow an originalist meaning, or we should follow a textual analysis or something like that. But they don't do that either. And in the case overruling Humphreys' executor, they create a bunch of exceptions because they think these are good public policy. They don't have a coherent originalist theory for these exceptions. Indeed, their theory for the whole slaughter case would seem to suggest that the Federal Reserve should be under the most presidential control.

10:18David Super:But for policy reasons, and because they don't want to be blamed for a recession, they create an exception. So precedent doesn't matter, but neither does a coherent theory. This is very policy-driven judging. I was going to say that, you know, you hear from Trump and others in the administration complaints about liberal activist judges. But it seems like the Supreme Court's conservative justices have become activists. They have become activists, activists in pursuit of what they think is good public policy, which is usually conservative, but sometimes has other wrinkles to it. they're making an exception to presidential power over the Federal Reserve is not really conservative.

11:08David Super:It's that they don't want to crash the economy. And I don't want to crash the economy either, so I'm glad the Federal Reserve is not under the president's thumb completely, but I don't think that's principle judging. So we're not a court of precedent, and we're not really originalist. We cite old stuff, but not usually definitive evidence of original public meaning, just sort of random old stuff. So we're really off on our own with this court doing what they think is best. Support for the show comes from public.com. If you're actively involved in your portfolio, you probably catch yourself repeating the same actions, buying the dip, manually sweeping idle cash, putting on a hedge.

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13:06David Super:Plus one conversation on the day's biggest developments all in just 15 minutes. Subscribe to Bloomberg Daybreak for a precise, thoughtful take on the stories that matter. Listen to Bloomberg Daybreak each morning on Apple, Spotify, or anywhere you listen. So this may have been an immigration loss for Trump, but in every other immigration case this term, the court has ruled against immigrants' rights and for the Trump administration. I mean, time after time. Just last week, you had the ending of TPS and And also that asylum seekers can be turned away at the border. So all in all, Trump has had a very good term on immigration with this court.

13:46David Super:He has. And some of those decisions are plausible. Some of them are weird. I mean, I didn't think that he would lose any of them, and he didn't. But they really had to bend themselves into pretzels for some of them. and it's kind of remarkable that they didn't even require him to make a finding consistent with the statute about temporary protective status. If he wants to make a finding that conditions have improved and thus in such a country, that might justify doing it. But of course saying conditions have improved in Haiti when the State Department is hopping up and down, don't go there, don't go there, if you go there you won't come back, and yet we are sending people there implicitly saying that things have improved but not making the president say it.

14:43David Super:This Supreme Court has said that we need openness and then let the voters decide. Here Congress has said you grant temporary protective status to people fleeing extremely unsafe places and you end it when the place becomes safe. And we aren't forcing the president to make that declaration, stand behind it and go to the voters to defend it. The chief justice, when he's in the majority, gets to assign the opinion. And Roberts assigned himself the majority opinion in this birthright citizenship case, which is one of the biggest of the term. And yesterday in two other very high profile cases, the ones involving Fed Governor Lisa Cook and former FTC Commissioner Rebecca Slaughter.

15:34And that's a pattern we've seen in other terms. Obviously, he has the right to do that. But what's your take on Robert saving the best for himself, essentially?

15:44David Super:He hasn't done that all the time, but he has certainly done it a great deal. And I think it's because he understands the scrutiny the court is under and believes that he can write an opinion that will be less vulnerable to public criticism than some of his colleagues would. He's a very hard worker. He's got impressive skills. And I think he believes he will produce the most Teflon opinions. And history suggests that he may be right. How did other chief justices handle the assignment of the majority opinion? It really varies a great deal. There are some very important Warren court decisions that Chief Justice Warren assigned to himself, most obviously Brown v.

16:36David Super:Board of Education. He was trying to get a unanimous court, which he succeeded in doing, and felt that having personal control of the opinion as he was negotiating with the holdouts would allow him to make the kinds of modifications that would unify the court. Chief Justice Berger assigned himself opinions that seemed interesting and important. Chief Justice Berger's skills were probably not on the level of either Chief Justice Ward or Chief Justice Roberts, and some of those opinions that he assigned himself have puzzled people ever since. My sense of Chief Justice Rehnquist is that he did not particularly abuse the privilege of assigning opinions.

17:18David Super:He certainly took some important ones for himself, but left as many for his colleagues. So it's a matter of different style. I think we've never had a Chief Justice since John Marshall, who cared as much about the court's public image as the current Chief Justice does. And I think he correctly sees the tone of these opinions as being very important to persuading the public that the court is, in fact, pursuing a legal agenda rather than an ideological one. Speaking of that, of the 17 cases announced in the last two weeks of the term, 11 were split six to three down ideological lines. And that involves some of the cases that we've been talking about, immigration, presidential power, gun rights, human rights, etc.

18:07What does that tell you on a court that now is the liberals are all Democratic appointees and the conservatives are all Republican appointees?

18:17David Super:Well, one thing that tells us is something I think we've known for a while is that both parties are polarizing. The last really moderate Republican appointee was David Souter. President George H.W. Bush was harshly criticized for that and was defeated for reelection. I think you could make an argument that both Justice Stephen Breyer and Justice Elena Kagan were fairly moderate Democratic appointees. I'm not sure that a president today could make similar appointees without getting pretty harshly criticized by parts of the Democratic coalition. But the other point here is that because we've gotten rid of the filibuster for judicial confirmations, if a president controls the Senate, they can appoint whomever they want.

19:08David Super:And you end up with justices who are extremely ideologically reliable. You don't have to make the case that this is a distinguished jurist. You just have to make the case that they're going to vote for your party. Do you think that these, you know, six to three decisions, do you think that that's part of the reason why it seems like the justices nerves are frayed? I mean, we have, you know, Justice Sotomayor involved in that criticism of Justice Kavanaugh. You have Justice Sotomayor reading from her dissent and Justice Alito saying, you know, he was surprised by it. I mean, it seems like things are frayed.

19:48David Super:They are. Things can sometimes get a little chippy at the end of the term when people have strong emotional feelings about things. But I think the problem that the liberal justices have at this point is that they don't see a coherent judicial philosophy of the conservatives. It's one thing if we're going all in with originalism, even if you aren't an originalist, you say, okay, that gives us something predictable and lets us know where the law is going to be. It's one thing if we're going to be strong on upholding precedent. But what we have here is a court that chucks precedent fairly casually, without a lot of reason, without going through the steps that have been adhered to previously, that they cite reasons and then immediately ignore those reasons in literally the next case.

20:40David Super:And so I think the sense is that this is a very political process rather than an adjudicatory one. And that's not what they signed up for. They signed up to be judges on the highest court in the land, not political overlords. Justice Alito and Justice Gorsuch didn't even appear on the bench today. Is that an indication of something or am I just reading too much into it? They had something to do. I don't know. On the one hand, the court's public release of opinions is a bit anachronistic. Most of us don't tune into that, but get the opinions off of the court's website and start reading there instead.

21:24David Super:Very, very few courts do public announcements of opinions. A few district judges do. Most lawyers, I think, find that annoying. So I don't put a lot of truck in the ceremony, and if they ended the ceremony, I wouldn't be terribly disturbed. But if they're having it, it says something about how much respect for your institution you have if you can't bother to show up. If you can't change your plane reservations or whatever it is to your South Sea getaway, long would have to sit for the last day of opinion. Yeah, and it's nice to be on vacation for three months. Thanks so much, David, for all your analysis of the Supreme Court decisions this term.

22:11That's Georgetown Law Professor David Super. And that's it for this edition of the Bloomberg Law Show. Remember, you can always get the latest legal news on our Bloomberg Law podcast. You can find them on Apple Podcasts, Spotify, and at www.bloomberg.com slash podcast slash law. And remember to tune into the Bloomberg Law Show every weeknight at 10 p.m. Wall Street time. I'm June Grosso, and you're listening to Bloomberg.

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