Listen to this episode

Speaker A: This is Amicus Slate’s podcast about the courts, the law, and the Supreme Court. I’m Mark Joseph Stern. Welcome to an extra episode of Amicus that we’re bringing to you as the dust settles on historic Supreme Court arguments in Trump v. The birthright citizenship case.

Speaker B: If you credit the government’s theory, the citizenship of millions of Americans, past, present and future could be called into question.

Speaker C: We’re in a new world now, as Justice Alito pointed out to, where 8 billion people, people are one plane ride away from having a child who’s a U.S. citizen.

Speaker D: Well, it’s a new world. It’s the same Constitution.

Speaker A: Before we get into the details, let’s just start with the top line. This case is a challenge to Trump’s executive order denying birthright citizenship to children who are born in the United States, to parents who are undocumented immigrants and temporary visa holders. Every lower court has found that it violates the 14th Amendment citizenship clause, which states all persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the state wherein they reside. Last term, the court had a chance to consider the executive order, but instead decided to roll back nationwide injunctions. We don’t need to revisit that trauma because on Wednesday, the justices squarely addressed the merits. They did so with Trump in the room because he decided to become the first sitting president to attend Supreme Court arguments in person, though he reportedly left after Solicitor General John Sauer wrapp up. Joining me to discuss Wednesday morning’s highs and lows is Evan Bernick, a professor at Northern Illinois University College of Law and co author of Birthright Citizenship and the Dunning School of Unoriginal Meanings. He also co authored a significant amicus brief in this case and was listening to the arguments as they happened. Evan, welcome.

Speaker B: Thanks, Mark. Glad to be here.

Speaker A: Just to put my cards on the table, my view is that these arguments went very poorly for Trump, with only maybe two justices seriously entertaining the idea of upholding Trump’s order. Do you agree?

Speaker B: I agree. I would say literally two justices are seriously considering upholding Trump’s order, and the other seven justices are firmly in agreeance with the lower courts that unanimously rejected the order as unconstitutional. At least a couple of the justices appointed by Trump were outright hostile to the Solicitor General’s arguments, and it became increasingly obvious over time. And those were Justices Barrett and Gorsuch.

Speaker A: And we can just name and shame the two who might be open to upholding the order. No one will be surprised. It was Justices Clarence Thomas and Samuel Alito. And we will get to them later. But before we dive into the individual Justices questions, you co authored a fantastic law review article exploring the original meaning of the 14th Amendment. And just based on what you heard Wednesday across the board, do you think that a critical mass of the Justices basically get it and like, weren’t swayed by all of the revisionist pseudo scholarship that was cooked up in the last year or so to support Trump?

Speaker B: I would say that. And I would say that even though the Solicitor General led with an appeal to original public meaning, he quickly found himself in a great deal of difficulty trying to toggle between two very different revisionist accounts of the citizenship clause that were worked up over the course of the last year to support the Executive Order. One of those theor said that the 14th Amendment incorporates British common law, but British common law includes a requirement of allegiance that cashes out in loyalty, that cashes out in some kind of domicile requirements. The other theory holds that actually we deliberately departed from British common law to incorporate a domicile requirement. He couldn’t choose between those two theories. He tried to toggle between them and the Justices who were intelligent enough to follow the tenor. An original sounding arguments leapt at him very quickly and we’re not buying it.

Speaker A: Can you talk a little bit about the foreign allegiance argument that Sauer kept making? I think this was confusing in a lot of respects, but he seemed to be saying that immigrants, or at least some immigrants, owe an allegiance to a foreign power. So their children presumptively owe that allegiance to the foreign power and can’t be American citizens. But like none of those words appear in the 14th amendment or are implied by them. I think.

Speaker B: No, they don’t. So his move was to reach back to the Civil Rights act of 1866, which there’s some disagreement about it, but there’s a general consensus that the Civil Rights act of 1866, which confers citizenship on all persons born in the United States and subject to no foreign power, somehow informs the meaning of the 14th Amendment, which says that all persons born or naturalized in the United States and subject to the jurisdiction thereof, that is the United States, are citizens of the United States. And he said, well, if the CRA informs the 14A and the CRA refers to foreign power, therefore the children of people who are foreign nationals, there’s some reason to question their citizenship. The problem is that Wong Kim art involved a child of a foreign national. So it can’t be the case that subject to a foreign power just means being the child of a parent who is a foreign national. So he tried to find some way around this problem, but it. It ended just being an insuperable one. Justice Alito may have been convinced, but nobody else I think, was.

Speaker A: Possibly not even Justice Thomas and Wong Kim Ark came up over and over again. Can you just remind us what that case held?

Speaker B: Yes. Wong Kim Ark held that a child of Chinese nationals born in the United States was a citizen of the United States under the citizenship clause because the 14th Amendment incorporated a common law rule of birthright citizenship. And that rule, as Wong Kim Ark explained, did not have any exceptions built in for temporary visitors. The Court cited Lynch v. Clark, which was an antebellum decision involving temporary visitors who were citizens of France who had a child held in favor of that child’s citizenship. Wong Kim Ark cites it favorably. The Solicitor General tries to find a way to make use of repeated mentions of the fact that Wong Kim Ark was parents were domiciled in the United States to say, well, that’s part of the rule of law. But as Justice Jackson, I think, effectively pointed out, those references are best read as a form of public relations, saying that even if you are hostile to the children of Chinese nationals, these parents did it the right way. Now, that’s kind of crypto racist. However, it is nonetheless part of the Court’s opinion. The rule of law, however, says the 14th Amendment incorporates the common law. The common law doesn’t have any exceptions based on domicile. And therefore a faithful reading of the rule from Wong Kim Ark is that Wong Kim Ark, not only Wong Kim Ark, but all children born in and governed by the United States are citizens of the United States.

Speaker A: And Wong Kim Ark came down in 1898 when there was indeed a great deal of hostility toward Chinese immigrants. So it’s understandable that the Court want to assure people that the individuals at issue in this case did it the right way. I thought Justice Jackson neutralized that point. Well, we’re gonna come back to Wong Kimar probably over and over again, but I wanna start drilling down on the individual conservative who seem skeptical of the Trump administration, starting with Chief Justice Roberts, who right at the outset sort of accused the Solicitor General of making this move where the SG was trying to take these quirky exceptions to birthright citizenship that did exist the whole time and expand them way beyond their original scope to millions of people. Let’s listen.

Speaker D: You obviously put a lot of weight on subject to the jurisdiction thereof, but the examples you give to support that strike me as very quirky. You Know, children of ambassadors, children of enemies during a hostile invasion, children on warships. And then you expand it to a whole class of illegal aliens are here in the country. I’m not quite sure how you can get to that big group from such tiny and sort of idiosyncratic examples.

Speaker A: Evan, can you explain what those exceptions actually were and what do you think Roberts was trying to get at here?

Speaker B: So these exceptions were well defined and quite narrow. They were for the children of ambassadors and their staff, the children of diplomats, basically the. The children of foreign officials who were in the United States but partook of a kind of fiction of extraterritoriality thanks to immunities from various forms of civil and criminal law while they were in the United States. There was also an exception for members of occupying armies who had successfully, temporarily taken over American territory, as the British did with parts of the northeast United States. Temporarily. And the idea there is that you literally can’t subject those people to your jurisdiction because they’re occupying the country. And the other big one that continued to come up was the children of tribal citizens. These are members of sovereign native nations, as the Constitution refers them to Indian tribes who at the time that the 14th Amendment was framed and ratified, the United States regulated only through consent by treaty, with a couple of narrow exceptions involving criminal jurisdiction in cases involving Indian and non Indian interactions. So these are limited classes of people. There’s always another sovereign government that’s intermediating in some kind of way. And the most fundamental difference between this and the situation of temporary visitors and the children of unlawful entrance is that these people are not being governed day in and day out by the United States. And that’s what Justice Roberts is pointing to. You got like hundreds of people versus hundreds of thousands or millions of people that you’d now be adding to the set of people who are not citizens of the United States. And he says that doesn’t seem right. Even if we accept that we can somehow add to the sets. We’ll have to talk about this. Of people who are not subject to the jurisdiction of the United States. This new exception doesn’t look anything like those old exceptions.

Speaker A: And then Roberts also brought up the issue of birth tourism, sort of to give Sauer like a thwack at that, and didn’t seem convinced by what I took to be basically a policy argument from Sauer that, oh, well, we have airplanes now, so people can come here to give birth. And that means we have to reinterpret the 14th Amendment. Let’s listen.

Speaker C: We’re in a new world now, as Justice Alita pointed out, to where 8 billion people are one plane ride away from having a. A child who’s a U.S. citizen.

Speaker D: Well, it’s a new world. It’s the same Constitution.

Speaker A: That is not a good sign for the Trump administration. Right.

Speaker B: It’s devastating. He walked right into a trap. The trap was to emphasize just what a big policy problem that you thought this was. And Sauer couldn’t even confirm that it was a policy problem because he said he didn’t have the numbers regarding birth tourism. And then to say, well, you admit that this doesn’t matter legally.

Speaker A: Right, Right.

Speaker B: Sauer responds, well, it’s a new world. And Roberts responds, well, it’s the same Constitution. So I think it’s very clear that the chief is not on board with that. That’s one definite vote before we even talk about some of the other justices who responded negatively to Sauer’s arguments.

Speaker A: So let’s turn then to one of those justices, Neil Gorsuch, who kind of walked up to the point of calling Sauer a hack and kept kind of showing him that his alleged historical evidence doesn’t really amount to much and doesn’ stack up to the other side’s like mountain of historical materials in their favor.

Speaker D: I’m just working within your argument for a moment. Today you can point to laws against immigration that are much more restrictive than they were in 18. We really didn’t have laws like that we do today until maybe 1880. So if somebody showed up here in 1868 and established domicile, that was perfectly fine without respect to anything, any. Any immigration laws there they were. And so why wouldn’t we, even if we were to apply your own test, come to the conclusion that the fact that someone might be illegal is immaterial.

Speaker C: I would first cite Wong Kim Ark on that point because Wong Kamark says you’re. Well, I’m not sure how much you want to rely on Wong Kim Ark, but that state, there is a statement in there that says as so long as they are permitted to be here. So Wong Kim Ark, keep in mind that by the time they decide won k mark in 1890.

Speaker D: But that’s 1898. Now I’m looking at 1868, you’re telling me, is when I should look. And the test for domicile and the stuff you have about unlawfully present, it’s like Roman law sources you’re going to.

Speaker A: I kind of felt like Gorsuch was a cat with a mouse, like batting it around and each blow, like took a little Bit more life force out of him. What. What did you make of that first round of questions from Gorsuch where he was like, this is the best you’ve got?

Speaker B: Yeah. He made very clear that he understood the domicile requirement to be central to the government’s arguments for the executive order, and that he did not see in either the text or history of the fourteenth Amendment any evidence of a domicile requirements. He then went further than that and said that I actually don’t read Hwang Kim Ark to be limited by any domicile requirements because he said, I understand, definitely picking up on some briefing in the. In this regard that Justice Harlan, who was in dissent in Wong Kim Ark, later gave a speech in which he complains that Wong Kim Ark guaranteed citizenship to the children of temporary visitors. So even the justice who lost in Wong Kim Ark understood that his loss meant that the children of temporary visitors were citizens of the United States.

Speaker A: To your point about Gorsuch’s deep cut, that showed to me that he was actually really engaged with these materials. I mean, one of the questions I think you and I and everybody else had before this case was like, how much were the justices really gonna dive into all of the scholarship and research that was put forth to the court here, and how much were they gonna rest on their priors? And it sounded to me like Gorsuch made a really good faith effort to wrestle with it. And he asked tough questions to Cecilia Wong of the aclu, too, about some of this stuff. I mean, he seemed to be wrestling with it in the end. Clearly, to my mind, came out on the. But he was grappling with what the historical record showed us in the way that I think we believe all good originalists are supposed to do.

Speaker B: Yes. So I would say that he went out of his way, having, I think, showed his cards in his interaction with Solicitor General Sauer to then come back and ask of Cecilia Wang questions about why Wong Kim Ark refers to domicile as much as it does. I think that Justice Jackson ultimately provided the most plausible explanation that any of the justices were able to offer, probably more successful than Wang herself was able to offer. And that he wanted to show kind of. That even though he was committed in one position, he was still asking the right questions and trying to deal with the precedent.

Speaker A: And before we leave, Gorsuch, he did ask about Native people, which. That was on my bingo card. Probably on yours.

Speaker B: Yeah.

Speaker A: Obviously a topic of intense interest for Gorsuch. Can you tell us what he asked and, like, what you make of It. I found it a little bit cryptic, although maybe it didn’t amount to much because John Sauer couldn’t actually answer his question.

Speaker B: So I. I will say that the discussion of federal Indian law, of the. Of the law that. That regulates Native nations and peoples, and just the way that the Court talked about Native peoples was by far the worst aspect of this. Oral arguments. You get the sense that even Gorsuch is kind of talking about them in the past tense, as if they pose some distinct problem that we have to sort out constitutionally. But there was very little discussion of what any of this meant for Native peoples today. And at one remarkable point, when asked it was his position that Native peoples or the children of tribal citizens are birthright citizens, Solicitor General Sauer said that he couldn’t answer that question and hadn’t really even thought about it. I mean, that’s a staggering concession from the federal government. So I think that both Justice Gorsuch and Justice Barrett were trying to get at, in their distinctive ways, just how disanalogious the situation of Native tribes and tribal citizens were from really anything that the Executive Order here is doing. These are sovereign nations with their own legislative, executive and judicial branches, their own processes for making treaties with other nations and their own distinctive histories and to, you know, try to draw upon what are frankly, some of the most racist and anti tribal Supreme Court opinions from the early 1970s in support of this Executive Order struck Gorsuch and I thought Strzok Barrett, as well as kind of cherry picking and looking through history to find your friends. And by the way, one of those friends, one of the cases cited by Solicitor General Sauer, USV Rogers. Nobody really picked up on this, but I did.

Speaker A: It was written by Roger Bruhtani, author of Dred Scott, which took away birthright citizenship from people of color and which we kind of fought the Civil War over. So maybe not the most authoritative voice on the topic.

Speaker B: No, no, definitely not.

Speaker A: So you mentioned Justice Barrett. I want to stay with her. She had a lot of skeptical questions for the Solicitor General, too. She also had really interesting practical questions about how this policy would work in practice. We haven’t seen a whole lot about that. You know, ICE in nurseries interrogating new mothers about their citizenship papers. She also asked, like, how would the government know if immigrants intended to stay in the country if the Court adopted this domicile rule? How would the government know if immigrants are loyal to another foreign power? What if we don’t know who the child’s parents are? Right. She brought up Foundlings, which were familiar to the ratifiers of the 14th Amendment. You know, how do you decide if their parents had true allegiance or domicile with the United States? And when Sauer said the executive order addressed this, he was like, oh, it’s all there. Don’t worry about that. She was not satisfied. Let’s listen, okay.

Speaker E: And let’s talk about its applications. So, you know, there are some. I can imagine it being messy in some applications. So how. What would you do with what the common law called foundlings? You know, the thing about this is then you have to adjudicate if you’re looking at parents, and if you’re looking at parents, domicile, then you have to adjudicate both residents and intent to stay. What if you don’t know who the parents are?

Speaker C: I think there are marginal cases. That one, I think has the benefit of being addressed in 1401 F where it talks about.

Speaker E: Yeah, yeah, yeah, yeah. But what about the Constitution?

Speaker C: Under the Constitution, it’s. It’s done. I mean, look, domicile is a constitutional standard in all kinds of other situations.

Speaker A: How do you think she linked these sort of practical concerns to the constitutional concerns? Because she always, you know, reminds us that she’s not looking at exactly how her decisions will play out in the real world. She’s trying to apply the laws written here. There seemed to be kind of a fusion of those consequences and the law in a way that showed why this is just not going to work on the ground.

Speaker B: Yeah. So you. You see, Justice Gorsuch occasionally do this. It’s not enough for either of them to say that the history supports this understanding of the law. They’ve got explain why, actually, that’s. That’s good. This rule makes sense. I’m not in the history for the sake of history. There’s a latent wisdom to the rule that was incorporated into this history. And for Barrett, that is the rule of just solely this idea that if you’re born in a place and you’re governed by that place, you’re a citizen of that place. If you got that rule, you don’t have to worry about questions involving a domicile of people who are illegally trafficked or who are found or are the children of slaves. So she made very clear that she views the children of slaves through the lens of unlawful immigration. She thought that the situation of enslaved people’s children was not something that could be settled on the basis of any domicile requirement. Because she said, if we think about domicile as presence with intent to remain. Well, enslaved people didn’t intend to remain anywhere they were taken. They were forced into a place. So domicile can’t be the rule, because then you can’t unproblematically grant citizenship to the children of formerly enslaved people.

Speaker A: I mean, just to draw this out, because I think it’s worth dwelling on for a minute. Sauer’s argument was if people came here illegally, their children don’t get birthright citizenship. Barrett said, but many slaves were brought here illegally, and everyone acknowledges that. The whole point of the 14th Amendment was to, you know, first and foremost grant citizenship to newly freed slaves and their children. So it seemed like in that moment, Sauer just completely lost the case because he had to admit that his fundamental theory, like his. His chief argument, cannot be squared with what he himself acknowledges the 14th amendment was ratified to do.

Speaker B: Yeah, and I inferred another implication from what Barrett was saying is that if domicile is the rule, and domicile requires that you have the permanent intention to stay in a place, enslaved people who were forcibly imported into the country against their will did not have an intention to stay there. They had an intention to be where they were. So their children, if we’re going to tie the status of children to whether their parents are domiciled, would not, under Sauer’s own theory, explain why the children of formerly enslaved people would be citizens at all. It would not accomplish its most basic function. The citizenship clause would not of overruling Dred Scott. So I think that what’s going on with Barrett is that she’s read the briefs. She has a firm idea about a basic distinction between two different theories of citizenship. There’s just so Lee, based on soil and just sanguinis, which is based on dissents. The one is much less complicated than the other, and the framers had good reasons to use that one, and we would have good reasons to keep that one because it prevents all of these very complicated problems from subsequently arising.

Speaker A: Let’s turn now to Justice Kavanaugh, who I think was like the wobbliest of the three Trump appointees here. No surprise, given his vote for Trump in the Tariffs case. I found him to be somewhat more difficult to read at times. I don’t think he was sway by Sauer’s frontline arguments, especially about how European countries don’t usually grant birthright citizenship, so we shouldn’t either. He actually basically made fun of that. Let’s take a listen.

Speaker D: Why should we be thinking about.

Speaker B: Even though as a policy matter, I get the point.

Speaker D: Thinking about, gee, European countries don’t have this or most other countries, many other countries in the world don’t have this, doesn’t that. I guess I’m not seeing the right relevance as a legal, constitutional, interpretive matter necessarily, although I understand it’s a very good point as a policy matter.

Speaker A: At the same time, my read was that Kavanaugh sounded open to a narrower ruling against the Trump administration that would be based on a federal law rather than the 14th Amendment, and that would give a future Congress room to restrict birthright citizenship by statute. It just wouldn’t allow a president to do it unilaterally by executive order. Do you agree with that?

Speaker B: Yeah. So I think that this was probably the weakest moments for Cecelia Huang in responding to questioning the role of Congress and what it can do with respect to exceptions from birthright citizenship. She took the position that the set of exceptions to birthright citizenship is closed. Congress can’t create new exceptions to birthright citizenship, but you can get rid of old exceptions. And both Kavanaugh and I think, to an extent Barrett were unsatisfied with this, because even if they thought it sort of made sense, she didn’t really elaborate a theory about it that didn’t come off more, this is good policy, rather than I’ve got text and history on my side. That said, what Kavanaugh does say and gives Wong an opportunity to say and doesn’t rebut, is that Lynch B. Clark, the antebellum case recognizing the citizenship of temporary visitors was mentioned in debates the Civil Rights act of 1866, which Kavanaugh made clear he thought substantially informed the citizenship clause of the 14th Amendment. And he also totally dismissed the arguments about the practices of other countries and says, basically, I don’t. I don’t care about that at all.

Speaker A: So let’s talk about the consequences of Kavanaugh potentially prevailing with the narrower decision. I mean, he’s interested in Congress. He’s interested in what Congress can do. Do you think there’s a possibility that he could say, look, Congress has yet added new exceptions to the 14th amendment, and so, you know, Trump has to lose, like, these exceptions are what they are, but in the future, it could, and I’m not going to foreclose that possibility. Do you think that’s what he’s toying with doing?

Speaker B: Yes, I think he’s definitely toying with doing that. And I have to confess, I don’t totally understand why Wang did not concede that that would be a possibility. It was entirely within her ability to say knowing that Congress is actually never going to muster the requisite super majority in order to be able to do, to say, look, I’m not saying that we can’t do this legislatively. I’m saying that the executive can’t do it unilaterally and make that kind of separation of powers arguments. But instead she was very insistent that Congress can add, but it can’t subtract from the pool of people who are entitled to citizenship. I don’t think this actually makes much of a practical difference because of what I have just suggested, birthright citizenship. Nothing on birthright citizenship has ever risen to the level of congressional convergence for a Congress, let alone this Congress, to be able to do anything about one way or the other. So saying this is for Congress is in effect to say that it’s Wong Kim Ark is going to be the law of the land and continue to be so.

Speaker A: I like your optimism that Congress wouldn’t muster the votes to revisit this. I hope that is true. If Kavanaugh carries the day, I don’t think he will carry the day. I think he was staking out a possible concurrence. It seems like some five or six justices just want to kind of cut this off at the knees and issue a 14amendment holding, but that that threat would be lurking out there. If Kavanaugh carried the day, it would.

Speaker B: And Baird kind of did the same thing and she pressed even harder on this. She’s just like, I don’t understand where this closed set comes from, Professor. Mindset of Justice Barrett in particular, I think was triggered by, okay, but why?

Speaker A: Let’s go from professor to crackpot. We have to talk about Thomas and Alito, the only justices who seemed remotely open to upholding Trump’s order. And again, I just found some of their question unbearable. Let’s start by listening to Alito float a hypothetical about an Iranian sleeper agent who gets birthright citizenship.

Speaker B: A boy is born here to an Iranian father who has entered the country illegally. That boy is automatically an Iranian national at birth, and he has a duty to provide military service to the Iranian government. Is the, is he not subject to any foreign power?

Speaker A: Not within the meaning of the 1866 Act, Justice Alito, can you tell us why Justice Alito is floating this paranoid hypothetical?

Speaker B: Because he doesn’t think that the obvious and easy answer for Cecilia Wong is one that she will readily give because it would be politically unpalatable. So the idea behind saying, well, what if an Iranian sleeper cell agent comes to the United and has a kid Are they entitled to birthright citizenship is to establish that in some way the sleeper cell agent is operating on behalf of a foreign power, and the child is therefore subject to a foreign power through the Iranian sleeper cell agent. And because the 14th amendment is informed by this subject to a foreign power language, we should also conclude that a similarly situated person under the 14th amendment would also be exc. From citizenship. The simple answer to this question is that subject to a foreign power does not mean that you have a nationality in a foreign nation. It means that you are being governed by that foreign nation to the exclusion of the United States. So a child born to this hypothetical sleeper cell agent, the answer is just straightforwardly, they’re a single citizen. End of story. Let’s move on. I think that the lawyer eventually got there and also pointed out that if Alito was right about the fact that like, well, a child of a foreign national might owe military service to a foreign country, if that was the rule, then there were countless people who, including Wong Kim Ark himself, who owed obligations via their foreign nationality to another nation, and which the Supreme Court and Wong Kim Ark said, nonetheless, they’re citizens. That’s just not the correct. Like owing allegiance to a foreign power in some vague sense is not being subject to a foreign power or being subject to the jurisdiction of a foreign power. But the point of the Iranian sleeper cell agent, besides being, like, super racist, was to just kind of inflame the controversy by making everybody think, well, gee, that seems wrong. That’s a stupid rule, and that’s a policy argument.

Speaker A: He asked a lot of questions that seemed designed to inflame everybody’s sense of outrage here and make people mad at this about policy. You know, he kept expressing outrage that these various hypotheticals could come to pass under the 14th Amendment.

Speaker B: But the more he says that, the more that the justices who are suspicious about the legal arguments that the administration is making are going to feel like they’ve got to distance themselves from Justice Alina and by extension, the administration, because the policy of granting citizenship to a hypothetical child of a hypothetical Iranian sleeper cell agent is just not something that you are supposed to be thinking about when you’re thinking about the original meaning of the Constitution, which is what the Solicitor General centered in his initial address. He’s like, go with public meaning. Okay, then public meaning is not going to be informed by a wacky hypothetical involving an Iranian sleeper cell, a agent created by justice Alito in 2026.

Speaker A: And briefly, I found Justice Thomas a little harder to read, but he seemed to be leaning towards saying, oh this was just about the newly freed slaves and blocking out all other evidence that contradicted his vision of history as he so often does. Was that your read too?

Speaker B: Yes, that was my read. So he makes a reference to the fact that the citizenship clause guarantees citizenship to people who are born in the United States and subject to the jurisdiction are guaranteed national citizenship and they’ also guaranteed citizenship in the state where they reside. Now there’s a crankish theory according to which this if you are a national citizen, you are also a state citizen. Two step means that if you’re not the resident of a state because you can’t legally establish residence in that state because either you or your parents were here unlawfully, then the citizenship clause doesn’t apply to you. And I think that Thomas may have been alluding to something like that that but I frankly couldn’t tell. And I would still count Justice Thomas in the one of two votes to uphold the order. But like it wasn’t as obvious as it was with Alito. Like Alito is. Alito’s done like he, he’s voting with the administration.

Speaker A: Just to sum up, I think you and I land in the same place 7272 and we can iron out the details later, but this is a loser. This is a turkey for Trump.

Speaker B: Absolutely. I mean I, you know, I hate to hand it to Solicitor General Sauer and I’m going to just say I’m, I’m not doing that. What I will say however is that he responded to every question with alacrity and he had citations and he seemed to be ready for everything. I do have to point out though, and I haven’t seen the transcript to entirely confirm this, but sometimes he is just outright lying about what the source is. Sources say that’s not something you can check in real time. But he did mention USV Rogers, which is the Taney authored case which reflected a view of Indian law that the 14th Amendment framer certainly rejected. He cited the white supremacist who argued Plessy on behalf of Louisiana and In discussing a 1921 law review article, outright misrepresented what the law review article actually meant. Said he picks out a sentence in which the law review author says that it might be argued that Wong Kim Ark only applies to the children of domiciled non citizens. And then in the next sentence he goes on to say but the majority cited Lynch v. Clark, which reflects an understanding that’s consistent with the common law. And so that theory of Wong Kim Ark is foreclosed. So he’s taking an article as evidence of a public reception of Wong Kim Ark against birthright citizenship that in fact supports it.

Speaker A: So speaking of Sauer’s performance, I guess I just feel like however well he did in quotes there, yeah, it was still an outrage that he was up there making these arguments, even if he fabricated enough garbage history to. To try to back them up on the spot. And you know, it. It also seems to me that in some ways this was a good day. Like, clearly the Court’s not going to repeal the 14th Amendment. In other ways, it was a bad day because you had the Solicitor General of the United States mounting these terrible nativist arguments. You had the President presumably glowering at the Justices from the front row as they seriously engage with the possibility of upending the Constitution. And, you know, a win here for the 14th Amendment and a loss for Trump is gonna be painted as like a huge victory for the Roberts proof of the Roberts Court’s like, independence and non partisanship, which I am not going to agree with in full by any means. I feel like actually it won’t necessarily deserve that good publicity. And I guess I also feel like we all sort of lost something in the fact that this even had to be a question for the Supreme Court when it has been extraordinarily well settled law for more than a century and a half.

Speaker B: Let them think whatever they want if they’re following the Constitution and preventing untold children from being rendered stateless. The concern about the Court using this to shore up its own legitimacy, well, like, sure, but the alternative is that the Court reaches a decision that is as illegitimate as Dred Scott’s guts, the Constitution, and puts us in a position where we have to seriously considering just ignoring what the Supreme Court says about anything. As between those two alternatives, I’ll take a slight legitimacy gain for Chief Justice Roberts and the Court’s Republicans over, over the gutting of the Reconstruction Amendments. And I will also say that with respect to Sauer, like, I’ll just ask you, can one be a good bullshitter?

Speaker A: You know what, I don’t think that he even is. Honestly, I don’t get the sense that the Justices particularly respect him. I think that he talks with this kind of frantic pace that’s designed to gloss over any weaknesses and inconsistencies in his arguments. If there are good bullshitters out there, and I accept, I accept the premise there are, he just isn’t one of them.

Speaker B: Yeah, well, I would say the same thing about some of the scholars who tried to prop up this attack in the first place and are now in the position of digging through the record for references to themselves in a world historical losing cause.

Speaker A: And they shall remain nameless on this show because we won’t give them any more of the attention they so obviously crave. Evan Bernick, thank you so much for coming on Amicus.

Speaker B: Thank you for inviting me, Mark.

Speaker A: That’s a wrap for this exclusive Slate plus bonus episode. Plus members, thank you so much, not just for listening, but also for supporting our work. We love your letters and questions. Keep them coming. Email us@amicuslate.com Leave a Comment on our show page if you’re listening in Spotify or Apple. Or you can find us at facebook.com amicuspodcast Sara Burningham is Amicus’s supervising producer. Our producer is Sophie Summergrad, and special thanks to Patrick Fort for the assist this week. Mia Lobel is executive producer of Slate podcasts, Hilary Fry is Slate’s editor in chief, Susan Matthews is executive editor and Ben Richmond is our senior director of operations. Dalia will be with me for your regularly scheduled Amicus episode on Saturday morning. We’ll see you then.