Advisory Opinions - Birthright Citizenship Oral Arguments

Episode Date: April 1, 2026

Sarah Isgur is joined by David French, Amanda Tyler, Akhil Amar, and SCOTUSblog’s Amy Howe to react to the oral arguments in Trump v. Barbara, Donald Trump’s challenge to birthright citizenship.Watch the livestream here. Learn more about your ad choices. Visit megaphone.fm/adchoices

Ready? I was born ready. To the live advisory opinions podcast after the Trump versus Barbara birthright citizenship argument. I'm Sarah Isger. That's David French. And we will have special guests throughout this podcast, starting with Professor Amanda Tyler. Now, Professor, I want to get to everything. You have filed a Namikus brief in this case.

You had a wonderful piece in the Atlantic. But first, let's do... big picture now that we have listened to the oral argument. David, we both went into this thinking that the administration had a tough road to hoe, to put it mildly, when you talk to law professors or advocates, you know, extreme court watchers. The big debate was whether it would be 8-1 or 9-0 against the administration. This argument was not, did not feel as lopsided as all of that. I'm curious if it's changed your opinion on the outcome or maybe the vote or maybe neither and it just, that's how oral arguments go.

They're always a little bit more fair, even-handed, tough questions for both sides than, you know, what you sort of feel from vibes in the briefs. Yeah. There were a couple of things about the argument that really stood out to me. And I think one of the reasons why the vibes might feel different than sort of the incoming commentary was how much time Justice Alito's spent talking in this opinion, I mean, in this argument. And he spent a lot of time talking. And Justice Alito was, in my mind, obviously the most sympathetic to the administration of the nine justices. And so if you have the one who's most sympathetic, doing much, if not most of the talking,

it's going to create sort of an impression. But I think the really most telling moment, there's a fascinating moment here, Sarah, something I never thought I would hear, see whatever in my life. And it was when the solicitor general for the Republican administration when asked a question about, okay, under your reading, would the children of Native Americans be citizens, said, yes, under kind of what was clearly a sort of living constitutionalism interpretation. And then when the same question is submitted to the advocate on the other side, who is the chief counsel, I believe, for the ACLU, and she says, no, we have to go with the original public meaning here. And I felt like I was in a bizarre world, but I think that that was exactly

the right answer that she gave. And I think that as I'm looking at it, my overall impression is still 8-1 to 7-2, but I think the vibe shift was, was that the one or two spent a lot of time speaking in the oral argument. Whereas I got the impression, it was very hard to count. I mean, if you strain, if you really squint, you know, Justice Gorsuch might be a little more sympathetic to the administration's position than I thought. But it's still very hard for me to count even above two right now for the administration's opinion or administration's position.

Okay. So this entire case is about the president's executive. executive order that he signed on the first day in office that would change how we have been assigning citizenship at birth. Instead of like, oh, hey, you're here. You are born a U.S. citizen. It would look at the citizenship of the parents. And unless your parents are U.S. citizens, one of your parents, or permanent residence, you would not automatically get U.S. citizenship. So anything except U.S. citizen or green card holders would not have automatic citizenship. Professor, when we had talked about this case beforehand, we had sort of said there were

multiple different ways for the administration to lose this case. They sort of had to bat a thousand here. One, you have the meaning of the 14th Amendment when it's ratified in 1868, all persons born in the United States and subject to the jurisdiction there of our citizens. So what does that subject to the jurisdiction thereof mean they have to win that? Second, Congress then puts this into statute in 1952. They have to win that statute. It's the exact same language, but now we're decades later where there's been birthright citizenship the whole time. So Congress is sort of, if it didn't like what the Supreme Court had said in Kim Wong-Ark, if it didn't like what the application of the 14th Amendment had been up to that point, it could have changed it in 1952. and it used the exact same language. And then the third bucket is the president did this by executive order only, right? He didn't do it by statute, which would be, for me, a more interesting question.

And as David and I talked in the last episode, he also didn't just do sort of what I think would have been the easiest facts. If you are here on a tourist visa for under six months and you have a child, that child is not a U.S. citizen. Instead, they tried to, you know, take the absolutist position. instead of having these incremental wins. All right. Given all of that, will you talk about your amicus brief in this case and then your

impressions of the oral argument? Which was awesome, by the way. It was an amazing amicus brief. Just want to say that. Thank you, David. That's very nice. I want to add one more point to your uphill battle list of reasons why the administration had such a difficult argument here.

and it's the fact that the executive order is prospective. And the administration, you know, when represented by the Solicitor General in the court, was asked about that. And the Solicitor General said, yes, it is only perspective. We're only asking for a prospective ruling. And now I'm forgetting which justice, I think it might have been Sotomayor or Kagan was asking about this, said, well, what if the next administration comes up and says, no, actually, we're going to make it retroactive.

then we're going to have to strip the citizenship from hundreds of thousands, if not millions of people under your interpretation. And the Solicitor General really didn't have a response to that. So we would have to go back to 1868, figure out everyone's citizenship then, then do lineages for everyone in the United States. So for instance, I'm not sure if I'm a U.S. citizen because my grandparents both came from Ireland and they never became citizens. and I don't know when my mother was number 10. So maybe by that point, one of them had a green card. I don't know. David Latt, we know, would not be a U.S. citizen.

His parents were both here on work visas as doctors in the United States when he was born. So like, but we're going to have to go back to grandparentage. And then what status would I have? Just none? David Latt and I are like little, I don't know, what are we? As a person who could be a member of the Mayflower Society if I so chose, That all sounds like a you problem, Sarah. Rude.

Wow. Well, you know, I think what is so interesting about that point and the reason why I do want to talk about my brief and I'm delighted to have the opportunity to do so. But I did want to make this point at the outset is because, one, the ramifications of retroactive application of the government's rule would be dramatic to say it mildly. And two, it is remarkable to me that a Republican administration is asking for a rule to be prospective only with respect to the Constitution, given that for decades, conservatives have railed on the Warren Court for its prospective constitutional rulings in criminal procedure cases like Miranda. So it just, it's another example, you know, to add to David's of the question about the Native Americans, American citizenship issue where we see sort of opposites in terms of the approach. I have been working on a book about the World War II mass incarceration of Japanese Americans

and specifically a book about the principal figure behind ex parte Endo, the woman Mitsuiye Endo Tsutsumi, who I think is an American hero of the stature of Rosa Parks and who has really been ignored. So that's the project I've been working on. And in the process of my research, I learned about a case called Regan v. King that was filed by the native sons of the Golden West during World War II, right as General DeWitt was rolling out the implementation of Executive Order 9066 that led to the mass incarceration of Japanese Americans on the West Coast, to over 100,000 Japanese Americans, including some 70,000 natural-born citizens, were incarcerated in camps by the government. And the native sons weren't happy with that. They wanted to go further.

They filed a lawsuit seeking to strip the citizenship of the native-born Japanese Americans, and they filed it right as General DeWitt was rolling out his orders. And what was fascinating to me about the case is that they made many arguments that were analogous to the arguments the government is making today, including going after this theory of dual allegiance. The argument was that Japanese Americans born here, especially those who were born before 1924, were automatically treated as citizens of Japan, of the Empire of Japan, because their parents were Japanese citizens. And so Japan, obviously followed the rule of blood citizenship. And the argument the native sons made was, for that reason, they are effectively still Japanese and should not enjoy the privileges of birthright

citizenship. Now, this argument was made by the native sons to the same judges, both at the district and the appellate level, who presided over Fred Korematsu's criminal prosecution, and convicted him at the district court level, sentenced him to, you know, a sentence. And then the Ninth Circuit affirmed, excuse me, his criminal conviction. So these are not judges who were necessarily amenable to arguments, civil rights arguments made by Japanese Americans during World War II. And yet the argument in the Reagan case to strip Japanese Americans of birthright citizenship, was literally laughed out of court in the Ninth Circuit. The Ninth Circuit judges sitting in bank

heard the argument and then said, we don't even need to hear from the other side. This is absurd. We are going to uphold birthright citizenship here. And then the Supreme Court didn't take the case. And a lot of people don't know about this. I didn't know about it until I was researching for my book. So I wanted to file a brief highlighting that this is not the first time these issues and these arguments have been before the court. Justice Alito talked a lot about this dual allegiance problem. The example he gave was an Iranian citizen, is here in the United States, an Iranian father, you know, on a work visa or student visa or something else. He has a son who is born here. And that son, because Iran follows blood citizenship, would be a citizen of Iran with a military,

allegiance to the country of Iran that we are at war with at the same time that we follow birthright citizenship. And so he would also be a citizen of the United States. And so isn't it absurd to read the language of the 14th Amendment, the subject to the jurisdiction thereof language in a way that would allow for that outcome? There was pushback on like, you know, from the chief, look, that may be bad policy, but the policy implications don't matter. And I think what Justice Alito and Solicitor General Sauer were saying is, yes, but it's a way of reading the text in context. Congress wouldn't pass an absurd statute. And I'm curious what you think about those arguments, Professor. Well, I mean, those same arguments would apply to Italian-born children to Italian

immigrants during World War II and Japanese-American children born to Japanese immigrants during World War II. And of course, well, maybe not, of course, to all your listeners, Japanese immigrants could not naturalize until 1952 under federal law. So every child born to a Japanese immigrant during World War II on American soil would fall into that example. And the Italian tradition. But to be clear, while their parents could not naturalize, every child born to them was a natural born U.S. citizen. and Congress did not change that and no court challenged that understanding. And during Korematsu, sorry, I'm using Korematsu here to mean the detainment of Japanese Americans, nobody said, oh, and obviously they're not children because look at that language

in the 14th Amendment. To the contrary, the Supreme Court multiple times in multiple cases, Endo and Korematsu at least, I haven't gone back and looked at here by Yashi and Yasui on this, but in both Korematsu and ex parte endo, the Supreme Court said and referred, including in the majority opinion by Justice Black in Korematsu, that these are citizens. And then you have a line in Justice Robert Jackson's famous Korematsu dissent, which is not challenged, in fact, is agreed upon by the majority saying Fred Korematsu was born on American soil, and that makes him an American citizen. All right. We have Amy Howe joining us from the steps of the Supreme Court. Amy, we have to start.

with the non-case-related story here today, the president was in the courtroom for the first time that anyone's aware of, a U.S. president attended oral argument at the Supreme Court. Someone, by the way, pointed out in the live blog that Chief Justice Taft was a president to attend an oral argument, but that's not quite right, not in this building. He was responsible for building the building, but actually died before the building opened. So even including Taft, I think this was the first time we had a U.S. president attend oral argument. Where did he sit? Did anyone care? Tell us everything. So the public information office really didn't confirm that Trump was going to be arriving,

although he had tweeted or truthed last night that he wanted to attend. And late last night, it was on the president's public schedule. But it was one of those things where we didn't believe it until we actually saw it. When I arrived at the court today, there was a much heavier than usual security presence, including people who had big vasson that said secret service. So that seemed to be a little bit of a tip-off. And right around 947, the president did arrive. He came in through one of the side doors to the courtroom, pretty much as far away from the press corps as you could be, which I'm sure was a total coincidence. He sat in the front row of the public section, sat down, and a couple of minutes later, moved to a seat that was a little bit still in the first row, still in the side section, a little bit closer to the center, maybe for a better view, not entirely clear.

There wasn't any fanfare when he arrived. He just came in and sat down, and he stayed until about 1120, a couple of minutes after John Sauer, his Solicitor General, sat down. He that, and Cecilia Wong, who represented the challengers in the case, was a few minutes into her argument. He stood up and left again without any fanfare. But yes, it was a highly unusual day at the court in more ways than one. It didn't seem to affect Solicitor General Sauer's argument style or any of the justices. We couldn't hear anything on the live audio. You know, there was no murmuring. We didn't hear him get up or move seats or leave.

Did it feel any different in the room? I mean, I will say I've seen John Sauer argue several times now. And, you know, maybe it was just this is something he feels very strongly about. Maybe because his boss was in the room, he did seem more animated than usual. He was really, you know, not just sort of gesturing, but also kind of seen sometimes like sort of bobbing and weaving with his body. There was a lot of body language going on. I'm speaking incredibly quickly. Sometimes I had a hard time understanding what he was saying.

So, you know, there was a little bit more sort of verve going on there from John Sauer than I'm used to seeing. Causation, correlation. I don't know. Give us your vibe check on the justices. For instance, Justice Alito, as David mentioned, talked a lot during the oral argument. We had several people in the live blog saying, boy, I wish we could see. see his body language. One person saying, channeling Amy Howe here, this is why we need cameras. I, of course, said that's absolutely incorrect, terrible idea. We'll put that fight aside that you

and I have. But what was the body language of the justices, anything meaningful? We're all pretty engaged. You know, there were several times where somebody would start to speak and another justice would start to speak. And Justice Jackson in particular had a hard time getting a word in several times. But as the most junior justice, the protocol is that if two justices start speaking at the same time, the junior justice is supposed to cede to the more senior justice who wants to speak. So she lost out on that battle several times. I mean, they were all engaged. The temperature actually was not particularly hot. It was definitely sort of more sort of medium. You know, Justice Alito had some tough questions, but he also had some questions

for Cecilia Wong that, you know, seemed almost to be trying to help her out a little bit. You know, so I don't know whether you all have talked about predictions yet, but, you know, I think going into the argument, I had thought it would be likely to be seven to two to strike down the order with Thomas and Alito dissenting. That's still possible, but it also could be eight to one. Alito, I think, was kind of on the, could be kind of on the bubble. Yeah, you know, the other difference in the vibe was that John Sauer, you know, got a pretty steady drip of questions from all of the justices. And we spent quite a lot of time in his round robin questioning. Everybody pretty much had questions for John Sauer. Cecilia Wong, you know, had questions, but they gave her more of a chance to speak.

There wasn't quite as much of a jockeying to ask her questions. And then there were fewer questions during the round robin questioning for sure. Which is usually a good indication of, you know, which side is having the tougher day. I know Professor Amar is there with you and that he filed an amicus brief as well. Let's let's have you guys talk for a few minutes. Terrific. Professor Amar, it is so great to have you here. And you were here in the courtroom as well.

I'd love to have you start by just giving us your sort of first 35,000 foot impressions of the oral argument. And such an honor to be here and thank you so much. I don't come to these very often. I think this is my third or fourth or fifth. And I agree with you that, so I think it went quite well for the ACLU team for the challengers to the law. I agree with you that Justice Jackson at the beginning didn't quite get her points in, but at the very end, when in She was the last one. She actually made some very important points about how even people who are here illegally, to even here temporarily owe a duty to obey American laws.

They're subject to American jurisdiction and their kids, because you can't equate the parents with the kids, if born on American soil, are permanently citizens and allegiance. So she made that point very well, more crisply, I think, than anyone else. So, you know, save the best for last. That was good. Several of the other justices, I thought, asked excellent questions that showed they really had followed the case very closely. I think if you follow the questions and the answers, Justice Kavanaugh has some really great questions about the relationship between the Civil Rights Act of 1866 and the 14th Amendment, which have different language. And if the language is different, while the 1866 Act may not be quite so good for the challengers.

but the language of the amendment is, and he hammered that point home, because that was a little bit iffy before he came in. He, in trial court parlance, he rehabilitated, you know, the witness. I'm looking at a great trial lawyer. Actually, he's also here with me, Chris Duggan, who actually had many shoutouts to his brilliant amicus brief, which is about framers of the 14th Amendment talking about the children of gypsies, talking about the children of Chinese. Chinese people in California, talking about the children of Irish folks. So Kavanaugh, I think, was really prepared. Justice Amy Coney-Barrant asked exquisitely good and technical arguments about how to think

about the law of the soil versus the law of the blood. And if it's about the law of the soil, these exceptions aren't really exceptions. They're just places where the soil runs out because the American soil and the American flag really don't govern occupying areas. if there's a military occupation or foreign embassies or a certain Native American enclaves that were territorially based. She was outstanding, Justice Gworsuch actually said,

well, you know, and several others said, it doesn't really say parent. Which was a point that you made in your amicus spring. Oh, thank you for noticing, Amy. I couldn't say it, but you can, okay? Modesty forbid, but I think if you're a number, original public meaning guy, a textualist, an originalist. Like, why wouldn't you start with the words? Not just what they say, but what they don't say. Parent, mother, father, allegiance.

They don't say any of those things. So Justice Gorsuch was on it. Justice Barrett was on it. Justice Jackson was on it. Justice Kavana was on it. That's on one side. I thought my friend Elena Kagan was very fair. She asked actually a tough question of Cecilia as well as a tough a question. I say she was my former student, so, you know, we go way back. But also a tough question to the government. John Roberts was rather quiet. You know more than I do, but I'm thinking, he's thinking he may end up writing the thing and he'll just, he's listening to his colleagues, but I'd be surprised if the challengers get all of those votes and don't get his. There were some harsh and not harsh, but good questions asked on the other side.

especially by Justice Alito, who remains one of the best questioners, maybe the single best questioner on the court. And he had actually a series of questions. And at first, Cecilia kind of, he let her down a path and maybe where she didn't want to go. She said, well, the 1866 statute means the same thing as the amendment. And 1866 statute says, this language

which isn't so good for you, okay? And then she says, well, eventually, when Kavanaugh came back, if there's a difference, go with the 14th Amendment. And by the way, under this other thing, this other theory, if you say, oh, if you're born to parents, even though it doesn't say parents who owe some foreign allegiance, that would be true of people who don't have green cards, you know, but they have allegiance until, even who do have green cards, excuse me, you know,

their allegiance to their home countries until they become citizens. So that can't be, you know, the right test to justify, and she did say that to Trump, justify Trump's executive order. The justices showed in Saab that they are prepared. They do their own work. This is not just sound bites. This is why we could have it on television. I'm with you on all of that. And you also have advocated that when they're releasing or,

they're releasing opinions, why can't, you know, we have at least, you know, oralized these. I didn't prepare this. For that, but, oh, I'm with you, my dear friend. But if America could see this branch in government, of government, I think they didn't generally be proud compared to that one. I like to say it's the least dysfunctional. That's exactly my phrase that I used to the least dysfunctional.

Our friend Sarah Isgar talks, you know, about this branch. Because of the three branches, I think if the framers could be brought back, you know, to life, they would be most impressed by this one. They say that's what we were hoping for. They sometimes disappoint me. They sometimes break my heart, but they do their own work. They sometimes cross party lines. They're really seriously taking the text seriously,

the precedence seriously. So God save this honorable court. All right, I want to ask you another question. So the justices had questions about the difference between the 1866 Civil Rights Act and the text of the 14th Amendment. They also had questions about the similarities between the 14th Amendment and 8 U.S.C. 1401A, which was a law that was enacted in 1940 and then reenacted. reenacted in 1952 that basically codifies birthright citizenship.

Yes. And there's been some suggestion that that could give that statute could give the Supreme Court basically an off ramp to affirm, to strike down the order, affirm the concept of birthright citizenship without having to rule on the Constitution. Do you have a sense of which way they might go? So she was asked, Cecilia was at the end, by Justice Kavanaugh, why can't you just win under the statute and she says well we'll take a win however we get it and that's ultimately up to the justices but I do think it's interesting that there was not

very much discussion of that and if you're gonna rule against the challengers against the ECLU you have to rule against them on both grounds and the fact that they weren't talking a lot about the statute means like like actually everyone concedes the statute is knocked down because even if the 14th Amendment means what John Sauer thinks it meant it means no one thought that in 1940 no one that in 1952 when these statutes were passed. No one thought that when the court is glossing the statutes in a case called Hintopoulos, which got a brief mention from Justice Sotomayor. So the answer to your question in part is audience members, if you want to know a little bit more

on the statute, oh, we've got some great Scotus blog pieces for you to actually read on that, two or three or four. And oh, I forgot to make it. Justice Barrett had a great question on foundlings about children. You don't know who their parents are, but they're American citizens. It doesn't matter who Mommy and Daddy are. And she's an adoptive parent. She pays attention to found the little baby Moses. Well, not only that she actually asked a question in the oral argument in Dobbs, you know, about foundlings. Safe Painted laws and baby Moses laws. And that is featured in an amicus free. It does. And it features actually in our most recent SCOTUS blog hosts at. actually, the last two on Skod's blog imagined 20 questions for Sauer, 15 questions and answers for Cecilia. And we talk about the founding issue in those as well. So, but you asked me the big question, might they go on the statute? I could imagine Justice Alito saying, you know,

I don't know about the amendment. It's complicated, 1866 Act, but maybe the statute is pretty clear and they didn't go into it but even though amy it's the same words it's not the same words the amendment talks about state residents and john sower tried to make a big point about how it says residents well if that's in the 14 that's not in section 1401 a and ah and it's it's a big deal that other statutes passed contemporaneously with the 14th amendment use the words parent a parent mother father and justice barred i'm like Like, which is it? The mother, father, maybe was Justice Gorsuch,

you know, like, which parent is it? But it's not just that Congress knew those words in 1860s in statutes. In the immigration law of 1952, those words appear in Section 1401, just not A, but B, C, D, E, F. It says, mother, father, they knew those words, they didn't put them in 1401A. So even if it was the same sentence,

it's not quite, it's alongside other sentences, that make that omission of which parent one both you know exactly there's a lot of who's your daddy the justices highlighted a lot of potential logistical questions well thank you so much for joining us i hope we can get you down here for another argument sometime soon and listen to our podcast as part of the scotas blog that way we've got we're really of umar brothers content on scotas blog you should check it out one final thing since not only is my partner podcast partner Andy Lipker here. Our scrivener on the brief, Chris Duggan is here. He wrote an amazing amicus brief that in effect was referenced eight times by the Justice League. Fantastic. All right,

thanks so much for joining us. Thanks. Thank you, Amy, for that excellent reporting from the sidelines. You're better than anything ESPN has to offer. I know you have lots of writing to get done this afternoon. So we will let you get to work and Amy will have her take on this oral argument. on SCOTUS blog soon. I mean, really, we expected any minute now. Like, wasn't she writing while she was doing that? Okay, David, that was really interesting because basically the people in the court

had a different sense of how the argument went than those who were just listening. And I'm more inclined to trust them than I am us. They seem to think we could still have like a 90 narrow decision, 81 narrow decision with, you know, yeah, a bunch of concurrency. on what the 14th Amendment means or all of these other issues. But that at the end of the day, they may just, we may have five votes that the 14th

Amendment doesn't mean that, nine votes that the statute doesn't mean that, maybe nine votes that a president can't do it without a statute. The fact that they thought Alito actually was not a solid vote on the other side. I know. Very different than what we felt like we heard. I was fascinated by that because exactly the reason you said. which, you know, when I think, as they were saying that, I was reprocessing my own interpretation. And I thought, oh, I think I could see, I could see a situation in which you have, say, a 9-0 on the result with the Lido on a concurrence is talking about sort of the constitutional issue is more complicated than just you're born here, you're a citizen.

But the statute, the statute is the controlling law right now. and the statute, you know, that this executive order doesn't trump the statute. And Professor Amar said something that I was thinking as well, which is, if you're really going to dive into, is this executive order constitutional and enforceable, you're going to spend a lot more time on the interplay between the statute and the EO. And they didn't. They spent very little time on that. It was 95% just the pure constitutional question.

which was kind of in a way, almost a reverse of what you would expect if they were going for the 9-0-narrow decision. They were talking about the big constitutional picture 95% of the time, and about 5% of the time they talked about the statute. But you don't uphold this EO without really wrestling with the statute as well. And the absence of that wrestling to me is an indicator that I think even the Justice who might think that there's a constitutional argument there around the 14th Amendment really don't see this EO as being an enforceable document at all. And so it was an interesting omission that I think is quite telling. Professor Tyler, you clerked for Justice Ruth Bader Ginsburg on the court. I want to just do some nuts and bolts with you. What happens after the justices left the bench today?

Right. So they will debate this in conference on Friday and issue their preliminary votes. And at that point, the opinions would be assigned. Assuming there is a majority opinion that speaks for a court that includes the chief justice, he'll make that assignment. And then if anyone wants to dissent the most senior justice in the dissenting group would assign that opinion and or individual justices obviously can write their own opinions. I think I tend to agree that it's likely we'll see an opinion from the chief in this case. He likes to write in the big cases, as it were. This is a pretty darn big case, about as big as I think the court has heard in a very long time, and obviously it's heard some very big ones recently. So I would be surprised. I'd be shocked if the chief didn't write. I do think that the lack of discussion of the statutory issue during the oral argument was something, I agree with David, was something that really stood out.

And it does suggest that the president's order is not going to survive. And I don't think I'm saying anything that anyone of you disagrees with. It's just a question of what the numbers are. And, you know, it is interesting, given the lack of discussion of the statutory issue, does that mean that the, statutory issues, plural, does that mean that the court is not going to go down that route? It's hard to say, you know, I do wonder a little bit about the president being in the audience, whether that did influence how the court members behave today, the questions they asked. All that being said, you know, it's always hard to predict exactly how the lineups will go.

I did hear Alito to be more sympathetic to the challengers than I expected he would be going into this. Perhaps that has to do with his own heritage. His father was an Italian immigrant. His mother, I think, was second generation Italian immigrant. The other exchange that I did want to highlight that I thought was really important. And also, I think that this will harken back to one of my prior appearances with the two of you, is we had really great questions from a former civil procedure professor. And I'm speaking specifically of questioning by Justice Barrett about how we would apply a domicile

rule. And her questions came from the civil procedure background because domicile is a rule in diversity jurisdiction that leads to trials over intent to remain in a particular jurisdiction, a particular state, when you're thinking about. and personal jurisdiction when you're thinking about the reach of state's laws and state domicile. And those trials are really tricky to undertake. And she was alluding to that fact. You know, the classic example is the New York's grandma snowbird who splits her time between New York and the summer and Florida and the winter. There had been countless trials trying to suss out which is her state of domicile.

And if we were to go down that route under the 14th Amendment in determining citizenship, it really would be chaos. And I took her to be making that point. So the justices right after this will go to lunch where they're not allowed to talk about work at all. The conference room, interestingly, I thought, has a portrait of John Marshall Harlan because he is the great dissenter in Plessy versus Ferguson, they all take their oath of office on the Harlan Bible. But he also has significance in this case as well. He's in the dissent for Kim Wong-Ark. And of course, his grandson is on the court for some of these other cases that we're talking about. What role, I mean, if we think of John Marshall Harlan as being the North Star for all of these justices and Justice Roger Tani as being the South Star.

if you will. Nobody wants to be tawny. Everyone wants to be Harlan and they're going to sit there and talk about this case for the first time together in this room where Harlan is looking over them. What role does he play in this, that he was in dissent in Kim Wong-Ark? What did that case have to do here? Like, how did you think it worked in oral argument for them? Well, what I think is interesting is that the oral argument highlighted his role significantly. So underscoring your points, he's so influential. but he after the fact gave a speech in which he made clear that a very absolute rule of birthright citizenship was the right interpretation of the Wong Kim Arc decision. And he also said, I was obviously wrong. Now, in the oral argument today, I think it was John Sauer said, well, maybe he was just being polite or being nice or something like that. It's hard to know unless again, you know, you could read the body language. and you were in the room, we only have the written transcript, but he, I will add,

Harlan didn't bat a thousand in my view. He dissented an ex parte young, which is a critically important case for ensuring government officer compliance with the constitution and for protecting civil rights. And he got that one wrong in my view. So he didn't bat a thousand, but even if you hold him as that North Star, he himself did. acknowledge that the correct interpretation of Wong Kim Arc is the one that the ACLU and the challengers adopt. David, you alluded to this earlier, but I want to dig into it now because we've talked about it on previous podcasts. A couple of things. The horseshoe theory of politics seems to have landed squarely in legal world these days. Yes. That we have sort of a flipping of textualism and

originalism that appears not just to be happening now randomly, but at pace, that it's picking up. And once again, I thought we saw an advocate this time for the ACLU who did not speak fluent legal conservative, did not speak originalism, textualism as a native language. And I thought struggled unnecessarily with some of the justices questions, including some of the questions from, for instance, Justice Sotomayor that we presume we're friendlier questions. Now, she's only argued once before at the court. I've said that I don't like the over professionalization of, you know, the justices, the clerks, and the advocates.

So maybe it's just that we're so used to hearing people who are there, you know, every month. Paul Clement, by the way, has argued nine times this term. He has one more left. I think it could be an overall record, although there's some question of whether some SFGs argued 10 times if you include consolidated cases or whatever. But without a doubt, it would be a record as a percentage because the court is taking fewer cases. So talk about the over professionalization of the repeat players. So, David, if you can put these thoughts together of the conservatives now being like living constitutionalism, love it. Who cares what the text says? And you've talked about this in the context of liberals now saying states should have more power vis-a-vis the federal government. We need to look at what that text really says, that it turns out the process arguments that had been dubbed conservative and liberal for the last 40 years really were no such thing.

Yeah. There's nothing inherently, in my view, and Professor Tyler may disagree with this, there's nothing inherently conservative in originalism. And I think that what you're seeing is that reality play out. So as people who are very smart, progressive-minded people are realizing these are the terms of the debate now. These are the lanes. The lanes are originalism. You can walk into court. And, you know, Professor Amars has demonstrated this for years and years.

You can make very powerful arguments that have what you might call liberal coded outcomes politically through originalism. And I think you saw that here. Now, I will totally agree with you, Sarah, that this was not a Paul Clement fluent originalism performance, but also, as you said, it's her second argument. And I'm just putting myself in her shoes. It's my second argument. every newspaper in the country is broadcasting me live. And for the first time in living memory, a president who hates me, it's five feet from me. You know, I mean, imagine the pressure of that moment, you know, just really on everybody.

I mean, you have Solicitor General Sauer and Amy was talking about how he seemed more animated. You know, there is just an absolute pressure here that I don't think any of, us can really quite comprehend. I've never been in that situation. And given that, I thought, you know, the argument I thought was very effective. I think the one part, and you guys help me if I'm misremembering this, because this was a kind of complicated back and forth, but there was a part where I think Alito was trying to help her, and she didn't pick up what he was laying down. And that when he was trying to help her was when he was talking about the Wong Kim Arc decision, And he said, well, why maybe they talked about domicile so much because the parents there couldn't actually become citizens.

In other words, there's just, there wasn't a normal path for them. And so the word domicile was doing a lot of work to just basically say, look, they live here. The parents live here. And I thought he was kind of giving that to her to sort of where you could make an analogy to an undocumented immigrant who's coming here and making a life here. They live here. They are domiciled here in a way that everyone would recognize they live here. And I felt like she didn't quite pick up what he was laying down there and kind of pushed back on that.

And I was a little bit surprised that she pushed back on that because that was my thought when I see the word domiciled there. It was just the court emphasizing this is a child of people who live here, not a child of people who are very transiently. And I think it would be, as we talked about it in earlier podcast, I think it would be very interesting if you had Congress pass a statute that said that prohibited birthright tourism and then as part of that policy and as part of that statute tried to indicate that under certain circumstances, factors that they created to determine that somebody who is

a who is born as parents who are coming in, giving birth and leaving, that they were never subject to the jurisdiction thereof. the numbers on those people, I mean, 20,000? I mean, it's very small in a nation of 350 million people. As I said before, it's like a rounding error. But when it comes to the actual population that Trump seems to be aiming at, which is the children of undocumented immigrants, which could be, you know, theoretically millions of people over time, the Alito line of questioning there seem to be really designed to help her out, in my view, that, look, this, the analogy here is really, that word domicile was just to say these folks live here. That's what it means. It's not a hyper-technical.

It just means these folks live here. We've talked about the hard road to hoe that the administration has had in this argument. But one of them is a textualism road in order to win they need to read into the 14th Amendment or the statute words like domicile. And then a very specific definition of domicile, which, as you said, would not be the layman's definition. If, people just use your domicile all the time in their cocktail conversations. But if you did, you would mean a place where someone lived quasi permanently. Parents, parentage, none of those things appear in any of these places. And as Professor Amar pointed out, they knew what those words were because they used them elsewhere in the statute, at least, mothers and fathers and who your

parents are for these purposes. But not when it comes to this. It's all about the kid and the text. And so for the administration to win, they have to overcome the text. And maybe we're going to see that tension that we've talked about in Bostock, for instance, where there's a tension between the text maybe and the original understanding at the time. I think that's what the administration's kind of going for here is an original public meaning that may be just different from the text. But let's focus on our swing justices with our time we have remaining. Professor, you've talked about Justice Barron.

she is in some ways the most difficult to read it oral argument because she's such a formalist. And so she's going into these highly technical questions to try to suss out some of these. If you were to sort of give her a score on where she is, where do you put her at this point? Well, she does do that sometime, but I read her in this case, and I could, of course, be wrong. But I took her to be pointing out the implementation problems with the government's position. I think she was laying the groundwork for basically saying to our colleagues in the back room, if we were to agree with the government, this would be an absurd set of circumstances that would result, where we would have trials over what the intent of the mother was in terms of staying or going from the United States.

So I think she's all in on the other side. I could be wrong. We're going to go in order. Justice Barrett last term was the third most likely justice to be in the majority. Let's go with number two, the chief. We didn't hear much from him. Where are you putting him, professor? So he's a harder read, but if I had to predict, I would see him writing a majority opinion. And if I'm really pressed, I think he will look for as a larger majority as he can get to coalesce around a position. position. But he may not be able to pull everyone. We'll see. So, you know, I think that's going to be the first line of decision making for him. How can I get the largest number of justices to speak with

one voice? Because this is one of those cases where the court really should try to speak with one voice. That being said, to the extent that the court goes narrowly and goes on statutory grounds, they may invite this case to come back, which they probably would not want to happen. So that is a reason that would nudge him in the direction of a constitutional decision. Okay. And then we have our swingiest of swing justices, the justice who was most likely to be in the majority. Since 1953, he is the justice at the highest percentage in the majority. That would be Justice Kavanaugh. Now, remember, He voted against the Trump administration in the National Guard case, whether the president could federalize the National Guard in Chicago. He voted for the administration in the tariffs case, which was another executive order.

He seemed quite keen on executive power in that dissent. So what about here? I think the arguments for independent executive authority here are really hard to make. I just, I don't see Kavanaugh grabbing onto that here. I would be very surprised, very surprised. David, differences, highlights. You know, look, I would say if there were, there were so many exchanges here that I thought were really fascinating. So I already highlighted one, which was, I'm going to say it again, the lawyer for the ACLU says,

no, we need to go with original public meaning. And that might have been the most effective part of our entire argument because she really caught the administration with a kind of living constitutionalism. And here's another exchange. And I think if you're going to have common good constitutionalism versus originalism in one exchange, it's this between Sauer and Roberts. And so Sauer says, we're in a new world where 8 billion people are one plane right away from having a child who's a U.S. citizen, John Roberts. It's a new world. It's the same constitution.

It's the same constitution. That was such a big moment. Yeah. We're going to be citing that for a long time to come. And I think the chief almost, he's known to be very clever and witty. But I don't know whether he had had that in his mind at some time beforehand because he was just on it with that line. And he seemed to deliver it knowing that it was a meaningful line, I felt. I thought it was a phenomenal line. It's exactly correct. And what that also tells you is, yeah, if it's a new world in the same constitution, what do you do? You change the constitution if you can. You don't change your reading of the constitution. And so right there, I thought was just a perfect encapsulation of, because I've long described the conservative majority of the court as these are, this is the last

vestige of pre-Trump conservatism in the American branches of government. And that was a, perfect encapsulation of the difference between Trump conservatism and pre-Trump conservatism in nine seconds. There it was, Sarah, right there. And I thought it was very effective. And I thought that that's that's the theme of his majority opinion right there. That's the theme of his majority opinion. I think that's right. Can I jump in? I just really think that's right. And I also think, going back to your earlier question to me, Sarah, that underscores the importance. of Kavanaugh having repeatedly tried to tease out the difference between policy and constitutional law. So I think they both were laying breadcrumbs along those lines.

Okay. So then the question is what happens from here? Let's assume that they do issue a constitutional decision that there's five votes for that at minimum. I think we've all counted here, and we can count to five on that. It doesn't mean they will necessarily do it, but it certainly appeared that there would be five votes into your point, Professor Tyler, they may not want us to come back. And so at least highlighting that there's five votes for that, you know, you could end up with one of those opinions where so-and-so joins part 2B, but not part 3C, but you still count to five on the constitutional question. What room does that leave the administration next? Could they, you know, to my point that I thought

they did this in a weird way, why not start with the EO about birthright tourism, for instance, and then build up incrementally. They started with the absolute position. They lose that, again, we're presuming at this point. Can they then try to do a birthright tourism EO, or do you think that will be foreclosed by this? It depends how the opinion is written, but my guess is the opinion is going to be written in a way that will foreclose that. I don't know if you all disagree, but I think it's going to be hard.

I think one of the challenges for the government's position from the outset has been how hard it is to draw a constitutional rule that distinguishes between that situation and some of the other incremental situations. And that's why I think that exchange between Alito and Wong was so important, where he was talking about, Wang Kim Ark and why Wang Kim Ark's terms are so important when you really parse that decision. One thing that she could have said in response to Justice Alito that I tried to make a point of highlighting both in my brief and in my Atlantic piece is that the court there emphasizes his parents, Wong Kim Ark's parents, had moved back to China and were subjects of China. They owed allegiance to China. The government's position to win all the way across the board and as presented is a position that says you can't effectively owe allegiance anywhere else.

And that is incredibly sweeping, but it's also really hard to defend because at its extremes, it reaches all dual citizens, the children of any immigrant who is not a sole U.S. citizen. It's quite sweeping. And so the question then becomes, is there a way to draw a line constitutionally that is narrower. And I think it's very, very hard to do that. And I doubt we'll see the court leave room for that. I could be wrong, of course, especially if we get a narrow opinion that is only on statutory grounds or that is even narrower in terms of limiting the president's power in some way. But even there, then for the president to come back and try to do it again through an executive order, he's going to face an uphill battle.

Can I jump in on that point real quick about the subject to the jurisdiction thereof and the citizenship of parents and allegiances? So if you are, let's suppose you're born and by blood, let's just suppose, you know, the Islamic Republic of Iran, it's by blood. And you are a citizen when you're born and you're subject as a citizen to Iranian conscription rules. In other words, you know, as an Iranian sit, but you are not, if you're in the United States and a U.S. citizen, the IRGC can't conscript you. You are outside the literal jurisdiction of the Islamic Republic of Iran, outside the IRGC's scope and reach.

You are inside the jurisdiction in the United States, subject to American law. And so that felt like to me something that, you know, in the Army, we had the statement, like it briefs well, which was something that it sounds good, but in real world application just sort of falls apart on any examination.

And I thought that hypo around Iran is one of those that briefs well in the sense that, oh, subject to conscription and to the Iranian army, how can they possibly be an American citizen? They're not. They're not really. They're here in America. They are not vulnerable to conscription in the Iranian army at all. They cannot reach them at all. But if we pass conscription, they're subject to conscription in the American army. I think the example is this person wants to serve in the Iranian army because they are a citizen of Iran because their parents were Iranian. And so they'd go back, serve in the Iranian army, but they're a U.S. citizens so they can get back into our country very easily and that would

raise national security concerns. But we have citizenship stripping provisions when you're talking about serving in a foreign military against the United States of America. Okay, last question to you both. President Trump has attacked the Supreme Court multiple times after his tariffs, tariffs were struck down. In advance of this oral argument, he said that several of the justices were, quote, unquote, dumb. Let's assume this decision will come out in late June and that he will not be happy with the outcome and that he once again attacks the justices of the Supreme Court. Professor Tyler, starting with you, is that helpful or harmful to the Chief Justice's project? on the one hand, it raises the temperature for the court. It puts more political focus on the court, certainly. We've seen the approval numbers of the court go down, mostly driven by Republicans who no longer approve of the court. Democrats already didn't. On the other hand, it kind of proves the independence of this third branch of government that they are not politically beholden to one side or the other. And isn't that what Chief Justice Roberts, you know, it's about the friends we've made along the way for him?

I think, sure, if the government, excuse me, if the court is handing down decisions that invoke the ire of the president, it certainly lends credence to the notion that the court is an independent institution, which, of course, was the very vision of the framers, Hamilton, all the way through. But there is no scenario where a president attacking the court is generally healthy, and particularly where a president does it in the way that Trump has done so. I would point out what was, there are so many things that were disturbing about his pre-argument post attacking the court. If I could be trivial for a moment, I would say one of the things that was disturbing

about it is that he was speaking almost like Yoda and I really didn't like that. Yoda's a good guy. Yoda's, don't joke is that to Yoda. Thank you. And the attacks on the court are just, they're bad no matter how you look at him when they're, when they're wielded in the way that he does so. David? Yeah, you know, I agree with that completely.

It isn't good. It is very bad. And it creates that sort of sense of, it falsely creates a sense of illegitimacy in the presidents, amongst the president's core supporters. And also, it's just not going to have the effect he wants it to have. He's not dealing with Republican members of Congress here. That is not who he's dealing with. This is not Mike Johnson.

These are different people. They have different responsibilities. They have life tenure. They're not going to be primaried. The culture of bullying judges historically, try that. Like, yeah, just try that. That does not work, right? And so I think judges almost constitutionally in their DNA,

and this is a good thing, have this anti-bullying, imperative. And so it's just not going to work, but at the same time, that doesn't mean that it's benign. It is bad. But let me also say flip this all the way to the other side of the spectrum. If the court rules, as we expect that it will here, and, you know, look, we've got to wait and see, there's always a chance that we're all wrong. But if it does rule the way, then I'm just going to be so completely over the argument that this court is illegitimate and in the hands of trial. Like at what point how much more of like Trump's signature close to his heart most important things? Federalizing the National Guard, tariffs and birthright citizenship all in one term.

And one term. And then don't forget the election in 2020. It doesn't get closer to the man's heart than that. And that's not to say that I agree with every court ruling that this court has, you know, I don't agree with the immunity ruling. I've said that. I'll shout that again from. from the mountain tops. But I think it's just fundamentally wrong to say that that was a Trump-centric ruling. I think that was an executive branch-centric ruling. Those are very different things. And so just sort of flipping it around to my friends on the left who really hate this court, what else do you want them to do other than just go ahead and rule all the ways you want at all times? And that's not the definition of legitimacy. I want to thank Amy Howe from Scotis blog, Professor Akeel Amar of Yale Law School, David French, my sometimes guest. And Professor Amanda Tyler of Stanford University, who has this wonderful piece in the Atlantic, you are running the

Boston Marathon in just three weeks. What number Marathon is this for you? 28. Oh my gosh. Eighth marathon. Well, thank you for taking a break from your training to join us today. And we'll make sure to put that Atlantic piece in the show notes. Thank you for joining And thank you all for joining us and for watching. We'll see you next time on advisory opinions.