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Speaker A: This is Amicus Slate’s podcast about the courts and the law and the Supreme Court. I’m Dalia Lithwick.

Speaker B: You sit here and you attack the president, and I am not going to have it. I’m not going to put up with it.

Speaker C: When you’re in politics, looks no matter.

Speaker A: I look at Pam, I would never say she’s beautiful because it’s got to be the end of my political career.

Speaker B: President, your first 100 days has far exceeded that of any other presidency in this country ever. Ever. Never seen anything like it. Thank you.

Speaker C: The Dow.

Speaker B: The Dow right now is over. The dow is over $50,000. I don’t know why you’re laughing. You’re a great stock trader, as I hear. Raskin.

Speaker A: There’s a metaphor somewhere in the fact that for the first time in US History, a sitting president ambled into the Supreme Court to listen in on oral arguments. This was in the case challenging the 14th Amendment’s grant of birthright citizenship, where he got bored when he realized a guess that he was losing and ambled out. Shortly after, Cecilia Wang, the ACLU lawyer arguing for the plaintiffs, began to speak and then posted something petulant on Truth Social about it. Maybe he’s just an emperor with increasingly thin robes, no real juice, blinking in the face of seven justices who perhaps want to get off this particular stretch of the roller coaster. Mark Joseph Stern popped up Wednesday, immediately following the birthright citizenship arguments with Professor Evan Bernank to dive deep into the text and the history and the truly bad history and the internally conflicting history brought forth by Solicitor General John Sauer in order to try to say that the 14th Amendment doesn’t mean what it says and doesn’t in fact do what it was designed to do, and that all the case law and the statutes recognizing those facts can be read upside down on one foot in the light of a full moon moon to build arguments against birthright citizenship. Mark and Evan explained respectfully why even such convoluted wish casting in originalist clothing does not constitute real scholarship. Subscribe to Slate plus to hear their entire conversation. Now, just down the road from 1 First street over at Main justice newly former Attorney General Pamela Joe Bondi has been packing up her things headed as her former boss, the president, has put it to a quote, much needed an important new job in the private sector. She is ousted in favor of, at least for now, his former personal lawyer, Todd Blanche, proof, if needed, that things can indeed always get a little bit worse Now Mark is back in the amicus hot seat with me for a Pam Bondi exit interview of sorts, and to discuss the optics and the substance of the birthright citizenship case. What it means for a flailing, failing president to attempt to intimidate his justices in what is arguably. Sorry, tariff people. The most consequential case of this term. So welcome back, Mark. It’s been a busy week for Justice.

Speaker C: Hi, Dalia. Yes, a week for the books, but more good than bad. And I think we’ve decided we always have to celebrate those kind of weeks and block out the bad for just a second. Right.

Speaker A: Well, that’s a good segue because Pam Bondi is out, and depending on who you read, that’s either good or bad. The decision tree is entirely freighted up by speculation about how bad but effective but loyal the successor is. We’ve got now Deputy Attorney General Todd Blanche climbing another rung on the greasy pole. He’s gonna represent her as an interim attorney general while we figure out who the next one is. I think before we talk about whether for Blanche is good or bad and who comes next, maybe let’s just pause to talk about what the books will say about Pam Bondi. I would speculate the worst attorney general in history and someone who kind of makes Jeff Sessions look like a stellar attorney general just a few short years ago.

Speaker C: Well, first, I have to say I deeply resent you for making me envision Todd Blanche on a greasy pole. Like that was entirely unwarran, and it’ll never leave my mind now. But I think this is more good than bad, because Bondi’s legacy, it was so atrocious day in and day out, even though she’ll be replaced by someone who is similarly evil. It is always welcome to see someone so profoundly malicious leave the government, get booted out, it seems, because she wasn’t evil enough. Which we’ll talk about. Right. Obviously, there are wrinkles here. What comes next is not gonna be good either. But, like, this was the woman who completely, completely abolished the Justice Department’s traditional independence from the White House, declared that this was just an arm of the White House, of Trump’s own agenda, and that she would be doing the president’s bidding directly. I know it’s easy to forget this, cuz, like, it’s been 15 long months or so, but that is not how the Justice Department has traditionally operated, even under Trump’s first presidency, even under George W. Bush. Right. Like there was a buffer between DOJ and the presidency. And Bondi came in and immediately Took that away. And that led to some of the worst misconduct and abuse of the law that we’ve ever seen from doj. I mean, I won’t run down the complete list, but of course there was the attempt to prosecute Trump’s political opponents, something she apparently didn’t do well enough to satisfy Trump. There was the endless violation of court orders, followed by the slandering of judges who called out those violations. I’m thinking back to the unlawful deportations of Venezuelan migrants all the way through to the continued detention and transfer of ICE detainees in direct violation of so, so many court rulings. There’s the Epstein files and her egregious mishandling of that, which really began in earnest when she claimed that she had them sitting on her desk and that she was like, ready to reveal all the Epstein clients and then illegally withheld vast troves of materials from those files after Congress passed a law which Trump signed, demanding the release of all of that information. Her, her performance in front of Congress, her absolute snide hostility toward a co equal branch of government, refusing to directly answer questions, pointing lawmakers toward the Dow, which had reached 50,000 that day, which has slumped considerably since then. You know, there’s the attack on journalists raiding a journalist’s home, her enforcement of Trump’s heinous anti transgender policies, his heinous anti DEI policies, persecution of law firms and universities. I mean, again, the. This stuff is all absolutely appalling and I just think we do need to take a beat and celebrate the fact that the woman behind it is going to be out the door soon. That’s just, to me, an unqualified good.

Speaker A: It’s an unqualified good. I could add to your list. It is extensive. I think I would say two things. I’m not the first or the thousandth to point out that the first casualties of these firings are women and women, you know, including Noam, who are just so pathetically loyal, such just unrepentant b*** kissing loyalists. And the male b*** kissing loyalists keep failing up, right? Think Pete Hegseth. Think Kash Patel. So there is a gender valence here that is unmissable. It is interesting that, you know, women can’t evidently suck up hard enough to please the president and men evidently can. So sit with that for a moment. The other thing I’ve been reflecting on, Mark, and you mentioned this, but I think in addition to the sort of seriatim sins of, you know, malicious prosecutions and just disrespectful going after judges, going after, you know, members of Congress, contemptuous behavior. We also have to just note structural, systemic, you know, damage to the Justice Department, people quitting in droves, people being fired or reassigned in droves. You know, this stuff doesn’t get fixed in a day. And I’m old enough to remember you and I having conversations about Bill Barr coming in to DOJ and saying, oh, you know, he’s a lawyer’s lawyer, you know, at least he’ll care about the Institute. Exactly that. Cackling laughter Right. Like he also had no regard for what he was doing to the Justice Department. Again though, looks magisterial in comparison to AG Bondi. So I think in addition to the really structural damage that she has wrought at the Justice Department and among personnel there and reputational harms and you know, the presumption of regularity where judges are now just saying, like, yeah, I just assume you lie all the time. That stuff isn’t coming back on the watch of whoever her successor is or, you know, whoever is the next non ridiculous AG who’s appointed. The other thing I just want to note, cause I was thinking about this with the news that Bondi was fired was I remember taking my then 5 year old to visit the Supreme Court for the first time. And in addition to being charmed by the basketball court, the highest court in the land, I remember him talking to a law clerk because he was allowed to talk to law clerks. They did not talk to me. But I remember him telling her that what he really just wanted was for her to put as a law clerk a kid in his preschool in prison. And I remember patiently explaining that like neither law clerks nor judges of the Supreme Court get to just, you know, sua sponte, imprison people. And I was thinking about this with the firing of Bondi and Candelanian’s good reporting from Ms. Now about the extent to which her cardinal sin was just not putting enough of the toddler enemies into prison. Like that was the failure. Right? Despite efforts to go after Tish James and efforts to go after everyone that Trump wanted to see imprisoned. Like in the end of the day, she just wasn’t good at the small bore, vindictive, hate filled. This is all Trump wanted from his ag. He wanted his friends pardoned, done, and he wanted his enemies sent to jail whether or not there was cause. And to me it’s just so emblematic of the smallness of Donald Trump’s vision of what justice is and what the law is. And I just keep thinking, I think in order to actually fish his Wish and get the kind of Attorney General he would want. Want. He might literally have to tap a five year old.

Speaker C: Well, yes, but even the most competent five year old would still run into the same problems that Bondi did. Like a Doogie Howser type. AG is going to crash straight into the separation of powers and the Fifth and Sixth Amendments, which are really ultimately, I guess, what led to Bondi’s downfall. Right. Like, she did try to go after his political opponents. I’m not saying you got to hand it to her, but, like, she understood the mission, as you said, Dalia, she went after these people, but she kept crashing into the same barriers. Like, she wanted this government to run in a kind of Soviet way where, like, there’s the executive branch and it’s the only branch that matters. And if the executive branch wants to indict someone, they’re indicted. If they want to convict someone, they’re convicted. If they want to imprison someone, they’re imprisoned. Like, that was her vision. And the problem was we still have an independent judiciary, at least in, you know, D.C. federal courts, which was mostly where she was flopping and trying to litigate this stuff. We still have grand juries, which, at least in D.C. were doing their jobs and tossing out these attempts to indict political foes. We still have a right to trial by jury, a right to counsel due process, all of these basic protections that sometimes seem like, oh, of course, we don’t need to remember how important those are. They’re enshrined. Everybody gets it. You know, we’re all working for the same playbook. This Justice Department was not working from that playbook. It did not believe, for instance, in the legitimacy of grand juries. Right. We saw Bondi’s Justice Department repeatedly slander grand juries for refusing to return indictments, slander juries on criminal trials for refusing to convict individuals accused of crimes against this administration that they obviously did not commit. All of this to the administration was inconvenience to be surmounted. And Bondi embodied that spirit. And I get it, because she needed to explain to Trump, her audience at the end of the day, why she wasn’t able to accomplish his agenda. But I think the next AG and the next AG after that are gonna crash into the same, at least unless and until Trump is truly able to corrupt the entire judiciary. And we’re not writing that off entirely. Right. But until that happens, there are still going to be meaningful citizen input into the criminal justice process. There’s still going to be a series of opportunities for the people to short circuit these attempted abuses of the Justice Department’s massive prosecutorial authority. And so long as that remains the case, I just don’t see Tish James going to jail. Like, I just don’t see Adam Schiff getting locked up. I don’t think that these barriers are going to be surmountable. And so Trump is setting himself up for a series of failed AGs. If that is truly his litmus test.

Speaker A: Yeah, it’s interesting. It’s the sort of where’s my Roy Cohn? Right? Like that’s the entire vision of how this thing is going to work. It slightly goes to something Ian Bassin from Protect Democracy said last week on the show where you can have complete failures with no talents if and only if every single instrument of government is captured. But if they aren’t captured, then just being an abject failure isn’t adequate. And as you say, there’s just too many pieces of the system that are still working. I do want to do one more beat on Pam Bondi. You mentioned, Mark, the truly bone chilling testimony that she gave before the house with the Epstein survivor sitting directly behind her and just the utter contempt with which she treated them and the entire investigation. But that investigation still lingers. And so while, as you noted, she failed to bury it, failed to make it go away, doesn’t she have to show up and answer for a subpoena? Doesn’t she have to testify?

Speaker C: Yeah, she still absolutely does. She doesn’t get out of that just cause she’s no longer ag. And in fact she might still be AG because apparently she’s winding down over the next few weeks. Although we all know that Trump in secret hates firing people and so he’s tried to make this look like her own transition. So even though she’s still packing up, I think she might still be Attorney General Bondi at that point. But even if she isn’t, she’s gonna have to go and face the wrath of the lawmakers who she so recently spurned. And it’s gonna be very, very ugly. Especially since she no longer has the administration support behind her. Right. Last time it was a one woman show to, to prove to the President that she was entirely loyal, that she would throw these survivors under the bus, that she would act with total contempt for Congress and its investigation and just go to bat for Trump’s denialism over the Epstein controversy. And she knew that Trump would, you know, appreciate it and back her up. That’s gone now. So I think this could really be a bloodbath. For her, we will see. Maybe Republicans will go easy on her cuz she doesn’t really matter anymore, but she will need to be there under oath. And perhaps she should remember that. Well, when Democrats take the house in 2026, they’ll have contempt power, they’ll have power to investigate perjury. So she might not want to lie as freely as she’ll be inclined to.

Speaker A: We should do one more beat on Todd Blanche. He was, as we all may recall, very much in the driver’s seat for the extremely strange proffer with Ghislaine Maxwell and the easing of her conditions of detention. Todd Blanche. Mark, I guess this guy Trump’s former personal lawyer, arguably. Again, this is the speculation I worried about at the very top of the show. Could be worse, could be better, could be more competent at being completely craven and shameless, could be a better suck up. Who knows? Better or worse?

Speaker C: I think about the same, but in some ways even more pugnacious and unprofessional in the lines he’s willing to cross, which is really saying something. This is the guy who said that he was at war with federal judges, right? That he was at war with state bars. That he thinks one of his missions here is to somehow like, defeat or topple these so called rogue judges who are daring to rule against the Trump administration and force it to follow the Constitution. He’s always out there out front, just defending, defaming the judiciary in a way that I kind of think maybe the Supreme Court’s not going to like. But it’s hard to tell with these guys. They have a high tolerance level for defamation of their colleagues on the lower courts. He was in some ways one of the faces of the Epstein files. Catastrophe, right? He helped to conceal the files after the law was passed that ordered them to be released. He had the infamous quote, the American people need to understand that it isn’t a crime to party with Mr. Epstein. That could go on his gravestone. He was Trump’s former defense attorney before this, so we all know what his mission will be. But again, I just have to say, like, that was Bondi’s mission to defend Trump, to implement every single one of Trump’s wishes, even if he tried to DM them to her late at night and accidentally posted them on Truth Social, like he’s gonna try to do the same stuff she did. And I think he’s gonna run into the exact same problems and fall out of favor pretty quick.

Speaker A: So, Mark, I do wanna talk, if you can remember all the way back to Wednesday morning, Arguably, I think, the biggest case of the term, maybe of several terms, the birthright citizenship challenge. I think the thing that’s really been. Even before we get to the merits, the question that’s really been keeping me awake at night since it was announced that President Trump would be the first president in history to just show up at an argument live and in person at 1 First Street. Why didn’t John Sauer or Pam Bondi. I guess Pam and he were probably not speaking by then, but why didn’t anyone say to him, Mr. President, this would be just a colossal failure of optics and appearances for you to sit there and glare at the justices like, did nobody say to him, this will just look bad?

Speaker C: Well, I think it’s representative of the broader problem that nobody at doj, including leadership, is willing to tell him anything he doesn’t wanna hear. And to say, like, this isn’t a good idea, or this isn’t possible, or this is gonna backfire. He has stacked the agency with these yes men and women, and so he’s not able to get, like, good counsel. He wants his Roy Cohn. But I think even once in a while, Roy Cohn was willing to say, hey, that’s probably not a good idea. And here, like, that was never gonna happen. And so there he went. First sitting president to attend Supreme Court arguments. You know his name is in the caption, right? It’s Trump v. Bar. I suspect he wanted to stare down the justices, remind them, at least three of them, who appointed them and got them there, because he still seems to think that they care deeply about that. And in fairness, I think Brett Kavanaugh does, but the other two clearly don’t. And it just seemed like a really outrageous and calamitous miscalculation if that was his goal. Because six or seven of them just laid into John Sauer’s arguments. And I think a few of them, probably including Gorsuch and maybe even Barrett, were harsher than they would have been to a point. Obviously, that’s speculative. I can’t prove it. Counterfactual. But it really seemed like these justices wanted to remind the president, hey, at the end of the day, we’re actually even more powerful than you are. I’ve read in the reporting, like, people weren’t told to stand. When Trump entered the courtroom, he was seated in the public section. But then, of course, everyone had to stand when the justices came in, they’re up on that raised platform behind the bench. Right? They’re literally higher than he is. I think that it probably set the message that Chief Justice Roberts would have wanted to be sent, that, like, at the end of the day, we’re the deciders and you aren’t. And that is not gonna make any of them more inclined to rule for him in this case.

Speaker A: It’s interesting. I kept having the visual in my head of those times when he would have to sit in court in his various trials and have the same thing happen. You know, have to, like, be quiet when a judge told him to be quiet, have to stop interrupting, like, to consistently just be called out and spanked and to be forced to mut under his breath and roll his eyes. The idea that he’d be like, but this time it’ll work. Cause they love me, my justices. I guess I did sort of parenthetically wonder if any of the justices modified their behavior. You’re saying you think maybe a little bit. Maybe just feeling jammed allowed some of them to brush him back even a tiny bit in ways that, you know, we didn’t see, for instance, at the State of the Union. It’s interesting, Mark, because for me, again, you know, I’m on the metaphor train this week, and I’m riding it, but it fascinating to me that you and I keep having the conversation about how could these justices who conferred sweeping immunity on this president, not understand what happened directly across the street from their house, you know, not understand what happened on January 6, not care about what happened, you know, to Mike Pence. It’s fascinating to see the way in which. Which when he comes actually across the street, like, when he comes into their house, maybe things are different. I don’t know.

Speaker C: I would like to believe that maybe a few of them were thinking back to the immunity decision and regretting it as they stared at him. Staring at them. I doubt it. I mean, I think that, like, one of the traits of being especially a conservative Supreme Court justice today is never having to say you’re sorry, never looking back in anger, never questioning whether you might have gotten something a little bit wrong all these days. Follow the Clarence Thomas model of like, I am correct. Anyone who questions me is a fool. And everything I’ve ever said is obviously and perpetually the truth. Capital T. So I doubt that that was going through their heads. I would like to believe that it was. But, you know, forward we march now. So my only hope is that as we go ahead here with birthright citizenship, with some of these other cases, like the attempt to fire Lisa Cook from the Federal Reserve case, that I think he’s gonna. That they do establish this independence from him that he reacts as we all know he’s gonna react as he always does on Truth Social, sometimes at press conferences, lashing out. And there’s maybe a little bit less of a kind of inclination among the six to just automatically rule in his favor and more of a desire to say, oh, wait, this guy doesn’t accept our legitimacy as a separate branch. Let’s remind him, let’s do what we can to show him that we really are.

Speaker A: So Mark, you and Evan, But Bernick did Yeoman’s work this week in the Pop up episode after the birthright citizenship arguments, describing the conclusion that I think most of us came to, which is, yeah, Trump is going to lose that. He may lose big. He may lose really big. With the exceptions of Justices Samuel Alito and Clarence Thomas, it just does not look like anyone was picking up what chance Sauer kept putting down. And I guess it would be useful because Sauer, a lot of folks have noted, just seemed like he wasn’t prepared for some really easy questions. And he’s a smart guy and it felt like, and you noted this in the show and in your piece, he just kept sort of stumbling into minefields and seemingly had never thought about some of this material before.

Speaker C: Like, literally had never thought about the question of birthright citizenship for native people under his theory, which is obviously something Neil Gordon Gorsuch is going to ask you. And he was like, oh, I’d never actually thought about that. It’s a good question. Insane. But I do think more broadly, the issue was that his arguments were incoherent and that his historical claims were either nonsensical or like deeply contorted and twisted in ways that were bound to trip him up. Because you really can’t spend more than 30 seconds trying to work through his theory without suddenly seeing all of these giant flaws just open up. It just doesn’t make sense. It doesn’t cohere. I think justices were annoyed by that and they kept pressing on the weak spots in his argument. I’ll note, by the way, like, they also pressed on some kind of arguably weak spots of Cecilia Wong’s argument. Like, this wasn’t an entirely one sided blowout. Neither were the tariffs arguments. And it’s easy in these cases to think like, oh, it’s going to be a close call. Maybe the justices are really undecided. But there was a different tone and different kind of like approach to Sauer’s arguments versus Wong’s. With Sauer, they were like, are you kidding me with this? This doesn’t make sense. This doesn’t check out. If this is really your claim, then how could this work? Like they were just trashing his arguments with Wong, it was more like they were thinking about how to write this opinion, right, to write it against the Trump administration. And they wanted to figure out what the possible issues would be there, what the weak spots would be, and address them in advance so that they could just tackle it head on. And so I do feel like at the end of the day, this prov to be something of a blowout for the Trump administration. And Sauer’s stumbling wasn’t because he’s a fool. He’s not a fool. He sounded like a fool because the arguments that he made were fundamentally foolish.

Speaker A: Yeah, it was interesting. I noted in your piece you put scholarship in quotation marks, right? Talking about the really, like, appallingly bad originalism that he was leaning into. But I think you’re making another point. You and I talk about quite a lot, which is this John Sauer seems to be the same John Sauer of a year ago who is so persuaded that he has six justices in his back pocket that he doesn’t think he has to make plausible arguments. And there, you know, that was true, actually. Like, we’ve seen cases in which John Sauer has made demonstrably silly claims and the justices have been like, yep, sure, okay, good. Sounds good to me.

Speaker C: Yep. Criminal immunity for the President? Why not?

Speaker A: I don’t know that he’s modulated either the substance of the arguments, like don’t say dumb stuff, but also when he’s caught saying dumb stuff, he often doubles down and there’s this weird, for lack of a better word, sort of arrogance in his presentation where he’s like, I’m just gonna say, you know, a bunch of crap that I don’t think I believe. And then when I visibly lose the Chief Justice, I visibly irk Justice Gorsuch or Justice Barrett, I just shrug my shoulders cuz I’m convinced I’m gonna win. And it is strange, very low EQ behavior for somebody who you would think that the Solicitor General has one job, which is read the room, right? And as you say, know what Gorsuch is going to ask and be prepared to answer it. But more, I think deeply to know when you are losing someone and try to correct for it. And I see so little of that in his advocacy style. And it completely mimics Donald Trump’s right style of talking, which is like, I’m just right and if I lose you and I get this wrong, it’s because you’re idiots. And I just don’t have an analog in an sg, that refusal to sort of moderate when you’re losing. And I think, as you say, he was losing justices. And I wonder if, just to pick up on what you were saying about the questions that were asked to the ACLU’s Wong, what they were searching for in the colloquies with her. And by they, I now mean Robertson, Barrett and Gorsuch and maybe to a lesser degree, Kavanaugh was something that was workable. Right. Something that wasn’t just history for the sake of doing history a la Alito or Thomas, but history as applied to a problem that needs fixing. And in that sense, I was reminded of poor, malign Justice Breyer’s like constitutional touchstone, which was workability, remember? And we used to chuckle, but it really felt as though the difference between what they were trying to ferret out in talking to Wang and talking to Sauer is how do I make this apply in 2026?

Speaker C: Yeah, I mean, I think Sauer found himself in a bit of the same bind that Bondi was in. Right. Like no amount of loyalty can actually make a legal argument for you, at least not a winning argument. One that came out maybe most clearly in the colloquy with Justice Barrett that Evan and I talked about on Wednesday’s show, where Sauer argued this is the core of his claim that the citizenship clause doesn’t actually mean what it says, because in order to have birthright citizenship, your parents must have legal domicile in the United States. Like they permanently live here lawfully, and they must not have allegiance to any foreign power. They could only have allegiance to the United States. And so Barrett asked, well, look, a lot of enslaved people were brought here illegally right after the international slave trade was banned. Still, many slavers brought people over here illegally. And presumably a lot of those people did not feel allegiance to the United States. They still felt allegiance to another country that they were kidnapped from and wanted to return to that country if and when they ever could. So those people didn’t have permanent domicile. They weren’t lawfully here. Right. They were unlawfully transported into this country, and they didn’t have allegiance to the United States. It’s certainly not sole allegiance. Right? So under your theory, doesn’t that mean that many, many enslaved people and their children wouldn’t get birthright citizenship, even though everyone agrees that the number one point, the number one purpose of the 14th Amendment, first and foremost, was to ensure that the newly freed slaves and their children had citizenship. And Sauer could not produce a remotely coherent answer. Right. He said, oh, well, that’s not a problem, because we know from the congressional debates over the 14th Amendment that they wanted to ensure that the newly freed slaves in children had citizenship. And Barrett had to say, okay, but that’s not an answer to my question. I know that. My question is, doesn’t that show that your argument has to fail on its own terms? And they just kept going around in circles this way that I think was really, really damning to Sauer’s case. And then you compare that to the way that Barrett and Gorsuch and some of the others pressed Cecilia Wong of the aclu, Right. So they were asking, like, who really is exempted from birthright citizenship? There’s this set of people who we know were, because they were not subject to the jurisdiction of the children of diplomats and ambassadors, the children of invading armies, and also certain tribal Indians, quote, unquote, who were literally not subject to federal jurisdiction at that time. They were separate nations. They were understood not to be under the United States power. And so the justices kept asking, well, is that a closed set? Are those three exceptions forever sort of frozen in amber? Could Congress ever expand that set? Are there modern analogies that sort of fit that set? I think they were asking because they want to write an opinion that’s coherent on this point so that they can say, here are the people who really were exempt, and here’s why today’s undocumented immigrants and temporary visitors don’t analogize to those people. Here’s why that set cannot be expanded to them.

Speaker A: And those were productive questions, whereas the questions to Sauer were just like, here’s why you’re wrong before we leave birthright citizenship. Justice Brett Kavanaugh was, as he does, looking for a compromise. There is a sort of statutory safety hatch he was flinging himself against. You know, reserve the big constitutional question for another day, another better president. Anyone but Kavanaugh hungry for this way out?

Speaker C: Not really. I mean, Gorsuch kind of flirted with it, but he didn’t seem infatuated the way Kavanaugh did. So Kavanaugh’s basic argument, and I think this is correct, by the way, was that Congress has codified birthright citizenship into statute in both 1940 and 1952. And at that point point, regardless of what people thought in 1868, when the 14th Amendment was ratified, when these laws were passed, there was a three branch understanding that birthright citizenship applied to the children of immigrants, including undocumented immigrants. Right. Wong Kim ark was in 1898 the Supreme Court had said immigrants, kids get birthright citizenship. This had been the law of the land for a very long time. And so Kavanaugh’s argument was, look, if it’s a narrower decision to just assume decide this on the basis of a statute, shouldn’t we maybe just do that instead of going big and definitively resolving the constitutional question? And that seemed to appeal to him because he thought the constitutional question was maybe harder than some of the other justices did. And also he seemed to maybe want to leave room open for a future Congress to revisit this. He seemed interested in leaving wiggle room for Congress to come back and expand the set of people who don’t get birthright citizenship beyond the historical exceptions. So he was interested in that. I don’t think that that will win the day. I think may what happens is you have a 6 justice majority saying this is unconstitutional and a 1 justice concurrence by Kavanaugh saying, well we don’t need to decide that. It just violates a statute. And then you have Thomas and Alito off on their crazy train doing whatever they want in dissent.

Speaker A: So Mark, we have spent a lot of time and we could have done more time. There was an executive order purporting to control mail in ballots. There is the Justice Department saying, you know, we’re crossing out the Presidential Records act. Like I file all of this under stuff you know, I’ll pay attention to if and when a court says it’s okay. But you know, until then it’s just wishcasting. But I do think we have talked a lot about the ways in which the bloom is off the stinky rose. President Trump’s legal authority is definitely feeling like it’s wobbling. And the sense that we had a year ago that his takeover of all the levers of power were inevitable and irreversible just isn’t the vibe anymore. And we’ve talked about a bunch of examples of that today. But I think it behooves us to talk about the way that scotus, for reasons you said earlier, sits on a dais way up high and looks down on the president and is going to be there for a very, very long time. And long after the midter terms and long after a 2028 presidential election, May it happen flawlessly and decisively. Long after all this gets resolved, we still have a Supreme Court that is still wreaking unbelievable harms on real people. And so I think we have to end on The Supreme Court, that doesn’t change. And that is the decider. Mark, as you said, Chiles vs Sal is are did come down at the beginning of this week. This is the realization of a very long standing project to immiserate children who seek guidance and help, professional help, on matters of sexual orientation, gender identity. This is also, I think, the realization and the materialization of a conversation you and I have been having for a very long time and have been covering for years now, which is the First Amendment, deplorable as a sword to protect forms of speech, favored forms of speech, particularly religiously inflected speech in a lot of cases, in the face of what are supposed to be shields that protect people, like civil rights protections or professional obligations or fact based healthcare. And this is very much another in a long string of those, quote, unquote, wins for one side only. And this was a really devastating outcome.

Speaker C: Yeah, it’s brutal for LGBTQ youth all across the country who were protected by these laws in about half the states, actually, and a lot of them passed with bipartisan support. And yet in this case, the Supreme Court technically held that laws that restrict or prohibit professional counselors from trying to convert LGBTQ youth are subject to strict scrutiny under the First Amendment and are presumptively unconstitutional. The Court did not take the final step of striking down the Colorado law and by extension, all these other laws, but it. It led the lower courts to that point. It basically instructed the lower courts, at least as far as these laws apply to talk therapy, to what the Court termed expression or pure speech, they cannot stand under the First Amendment. And that’s going to take a huge bite out of these conversion therapy bans for youth, because most practitioners today aren’t doing the kind of direct physical abuse that we saw in yesteryear, electroshock therap aversive therapies, where children were told to think about homosexuality and then induce vomiting. Like, that’s not happening as much. We’re seeing this deeply harmful and abusive talk therapy in which kids are told that their identities are wrong and sinful and outrageous and their parents are going to reject them and God rejects them and they have to, you know, pray away the gay right or pray away the trans. And the Supreme Court has just granted that speech the highest form of constitutional principles, protection, specifically when it occurs in the context of paid professional therapy. And I just want to, like, hold this out for a second. These are professional licensure regulations, right? Like, this is not a free floating ban on trying to say that LGBTQ identities are wrong. Or even trying to convert kids. If you are a parent, a faith counselor, even a professional therapist who’s working off the clock, you can still tell a gay kid you should be straight. This only applies when therapists are getting paid for their services on the clock. And it’s a modest licensure rule that basically fines them if they are found to have tried to convert a child. And the Supreme Court now says that’s extraordinarily protected speech. It’s presumptively unconstitutional for any state to try to restrict it. And even Justices Sonia Sotomayor and Elena Kagan joined. A deeply unwise decision, in my respectful view, because it lends even further legitimacy to what you described, Dalia, which is this ongoing project of wielding the First Amendment as a deregulatory sword and as a sort of religious supremacist principle that gives these heightened, really special, almost insurmountable protections to religious speech, especially anti LGBTQ religious speech, and leaves a lot of people to suffer abuse and harm and also leaves a lot of other kinds of disfavored speech out in the cold.

Speaker A: In the fallout of Chiles, the conversation was, you know, how broadly to read this or how limited the holding really is. As you note, it was an 8 to 1 decision. Justice Jackson writes in her lone dissent that a vast range of healthcare regulations actually currently restrict medical professional speech on the basis of viewpoint, just like the Colorado law does in Childs. And then she wondered if the Court was gonna strike all of those laws down, too. And I guess just to your point, Mark, is the best case scenario here, and best case scenario is in quotation, quotation marks and italics, the one that does the least damage to American health care going to be that the Court is just going to bucket off speech that is hostile to pro LGBTQ protections and is gonna leave those other laws that regulate professional speech intact. That’s the dream scenario here, because that’s very, very terrifying.

Speaker C: It’s really bleak. But I do think that is the dream scenario, because what Justice Jackson lays out is that, like the Court said, says this is almost certainly unconstitutional because it restricts speech on the basis of viewpoint. But like all medical speech that takes the form of advice and counseling to patients expresses a certain viewpoint. Like that is actually how standards of care work. The standard of care compels a doctor to provide a certain viewpoint about medical treatment to a patient. And if it is now treatment true that every single law that regulates that has to be subject to the strictest of strict scrutiny, then we are not going to have real healthcare in this country anymore. Right. She gives some examples that I think perfectly prove this point. A licensed dietitian or nutritionist in many states is not allowed to tell an anorexic patient, you should eat less. Let’s say a dietitian thinks, you know, the real way to do this is to encourage them to hit rock bottom, and only then are they gonna recover from their eating disorder. So my viewpoint is that I should. My anorexic patients, go ahead, eat as little as you want. Only when you reach rock bottom will you realize your problem and recover from it. That would be illegal in many states. Right. That would be unlawful advice that could be punished by the state and also subject to a medical malpractice lawsuit. But it expresses a viewpoint, and for some people, maybe that viewpoint is infused with religion. Maybe there are people who think God will guide this patient out of their eating disorder, and I shouldn’t attempt to intervene by telling her to eat less. And so if majority is correct, then those laws presumably have to fall because the state is enforcing its orthodoxy. Right? As Justice Gorsuch calls it, that orthodoxy is that patients with eating disorders should try to eat more. Well, that. That’s not a decision for the state to make. Right. We need to let these free speech practitioners say what they want and express the views they prefer. The same is true of smoking, right? Like, there are laws that prohibit doctors from telling patients, go ahead, continue smoking. Go ahead, start smoking. Not. Those laws actually require doctors to tell their patients, you should stop smoking. You must stop smoking. You have to, because this is killing you. That is a viewpoint expressed by the state in these laws that is enforced against doctors who can be punished if they fail to follow it. Are those laws, like, now suspect? And the answer probably is no, because you can’t take the majority seriously. You just can’t. It can’t be true that doctors can no longer be compelled to express a viewpoint that adheres to the best standards of care. What’s really going on, as you said, Dalia, is that the majority hates pro LGBTQ protections. The majority wants to strike down laws that protect LGBTQ people, especially youth. And so the majority just hives off this particular application of this law and says this can’t be done. And LGBTQ youth are left out in the cold. But other laws are, in my view, maybe my, like, optimistic view, are not going to be as imperiled as Justice Jackson worries, because you can’t take this at face value. And who knows? Maybe that’s what Justice Kagan and Justice Sotomayor are thinking as well. Justice Kagan has this cryptic concurrence where she suggests that, like, content based medical speech restrictions can still survive. She’s already looking at the next battle. I’m not entirely sure she’s correct, but let’s all hope that she is, because otherwise, there are no more standards of care in American healthcare. Doctors can just do whatever they want. This was a test case, an engineered test case by Alliance Defending Freedom with a plaintiff who had not actually been subject to Colorado’s law and might never have been because she wouldn’t come out and say that she wanted to convert LGBTQ kids. It was a political lawsuit that was attacking Colorado for daring to try to protect LGBTQ children. It was not a response to any active, quote, censorship by the state of Colorado. It was just another engineered case by Alliance Defending Freedom to say, we don’t think that LGBTQ people deserve protections and we’re going to cook up whatever fake cases we need to to have them struck down by unelected judges.

Speaker A: Well, and also really pointedly, it’s a way of saying, like, oh, all of these laws, like ex to chill our speech, right? It’s a way of framing it as, you know, the big bullies who try to regulate speech are keeping me from doing my fullest, truest job. And it’s a way of constantly posturing that nobody dares say a word because the woke police are coming after them. So maybe let’s end on this note of legal realism, Mark, because, because like you, I was really struck by, again, this is an 8 to 1 decision. And so then the, you know, word goes out. This is just a speech case. And yay, you know, more speech protection is always good. And, you know, clearly Justices Sotomayor and Kagan are being mindful of the fact that it’s always going to be better in the world to have more speech protection. And someday this will redound to the benefit of LGBTQ kids. Right? Those vulnerable kids will actually have better, more productive speech from people who want to advise them in ways that will help them. And again, I can remember each and every one of these cases that come up. You and I are like, well, maybe it will redound to the benefit to the people who aren’t on Sam Alitos and Neil Gorsuch’s team. But d***, it never really does, does it?

Speaker C: No. And, and I think the best example here is that, like, under controlling Supreme Court precedent, states can still force abortion providers to speak and provide anti abortion propaganda to their patients before they terminate a pregnancy. And that is just quintessential viewpoint based discrimination. The state is forcing doctors to express an anti abortion viewpoint through speech. Speech. And nobody seriously thinks that that is undermined by this decision because everybody knows that abortion is special and this court hates it. And there’s a distortion of any doctrine that applies to abortion at this court because the majority is always going to support anti abortion laws. And Justice Jackson also makes this point in her dissent, and she’s like, why are they different? Why is it that an abortion provider can still be censored on the basis of viewpoint, but now a counselor cannot? Right. And there’s no really good answer. The answer is that this court applies its First Amendment doctri very unevenly and winds up treating like progressive coded speech with a much more jaundiced and hostile eye than it does other kinds of speech. And so look, I. Look, I’m not like castigating Justices Sotomayor and Kagan for joining this, this opinion. I see what they’re doing. I get the argument. And, you know, maybe let’s hold out a little bit of hope. Maybe one day this decision will somehow be used to protect an LGBTQ kid. I don’t really see how because there are not, in fact sort of mirror image red state laws that bar counselors from affirming gay or transgender children. Like, those laws don’t really exist. So this is not going to be used to protect kids in red states. It’s a hard position that they’re in. I get it. But I still really struggle to believe that these votes were worth whatever they might just get out of them in the future.

Speaker A: It’s interesting, Mark, I guess as we wrap up, I’m really mindful of the first fact that sometimes you and I are accused of being a little lawyer brained because all we see is the next lawsuit. Like, maybe the immunity decision is really good for future President Kamala Harris. It simply doesn’t seem to work that way. And I think sometimes, sometimes we have to sort of back away from the. You know, when all you have is a hammer, everything looks like a lawyer brain problem. And say, this is our Supreme Court and this is gonna be how cases get decided for a very, very long time. Not a reason not to vote, not a reason not to think seriously about Supreme Court reform, but a reason to sort of say that while we take our victory lap about the emperor Donald Trump wearing increasingly, increasingly thin clothes, the Supreme Court is still really cloaked in velvet. Velvet and Ehrman in it.

Speaker C: You started with Todd Blanche on a greasy pole, and you close with Donald Trump in increasingly thin clothes. Dahlia, you are putting the cursed images straight into my brain today.

Speaker A: I apologize. Thank you Mark. It is always, always, always great to have you on the show. And really, truly thank you for the deep dive this week on Birthright Citizenship. This was really complicated historical material and you really helped make it clear clear. Thank you.

Speaker C: Thanks Dalia.

Speaker A: That is all for this episode. Thank you so much for listening. And thank you so much for your letters and your questions and your comments. Keep them coming. We are reachable by email@amicuslate.com you can always find us@facebook.com Amicus Podcast. You can also leave a comment if you’re listening on Spotify or on YouTube. Or you can rate us and review us on Apple Podcasts. Amicus plus members if you haven’t yet, make sure you listen to Wednesday’s bonus episode where Mark Joseph Stern and Evan Bernick will take you through the Birthright citizenship arguments with a keen eye on history and fake history and truly dodgy scholarship. And if you are not yet a Slate plus member, visit slate.comamicus plus to join Slate Plus. Plesketeers not only support the work that we do for which we are truly, eternally grateful, they also get bonus episodes, early listens and ad free listening. And that’s not all Slate plus members never ever hit a paywall@slate.com again. Visit slate.comamicus plus to join. You can also subscribe to Slate plus directly from the Amicus show page on Apple Podcasts and Spotify. Sarah Burningham is is Amicus’s Supervising producer. Our producer is Sophie Summer Grad, Hillary Fry is Slate’s Editor in Chief, Susan Matthews is Executive editor, Mia Lobel is Executive Producer of Slate Podcasts and Ben Richmond is our Senior Director of Operations. We will be back with another episode of Amicus next week. Until then, take good care. Hang on in there.