Breaking News from Pod Save America - BREAKING: SCOTUS (Barely) Hands Trump LOSS in Birthright Citizenship Ruling

Episode Date: June 30, 2026

Jon and Dan react to the Supreme Court’s final three decisions on trans athletes, campaign finance and birthright citizenship. Try ShipStation free for sixty days with Full access to all features, No credit card needed! Go to http://shipstation.com/ and use code RANK for sixty days for free! Sixty days gives you plenty of time to see exactly how much time and money you're saving on every shipment. Learn more about your ad choices. Visit megaphone.fm/adchoices

All right, Dan, the Supreme Court just handed down its final three decisions today, some of the biggest on trans athletes, campaign finance, and birthright citizenship, per usual, mostly bad news, with a little good news sprinkled on top. A tiny, tiny, tiny. Okay, okay. We'll talk about it. We'll get to it. I got a real dark side of the moon take for it.

Let's take the three in chronological order on trans rights, two trans women challenged laws in West Virginia and Idaho, barring their participation on women's teams, the court had to decide whether these bans, and by extension bans in more than 20 states violate Title IX and or the Constitution's Equal Protection Clause. Interestingly, the justices were unanimous in finding that the bans do not violate Title IX, but were split in the usual 6-3 lineup on the equal protection question. Would you make of the decision and the impact this one will have? It was unfortunately quite expected.

The hearing was sent a real clear signal about where the justices were on this. It's horrifying what is going to happen here. This opens the gateway to states all across the country passing this. It creates an opportunity for states to use Title IX as a weapon against trans people in all sorts of ways that is problematic. And then the equal protection findings are quite concerning as well. I did notice the Kavanaugh's opinion at one point did say that if there were co-ed teams that were then banning transgender individuals, that would not qualify. Like that could be subject to discrimination in Tena 9. So they're basing the whole thing on biological sex and biological differences and not, which is why the Title IX thing kind of failed and was 09.

That's right. And the larger question involved, and this is why Kavanaugh's opinion matters against this. to 4-5, not 5-4. But the question, the bigger and broader and much, and not that the, the bigger, broader and very important question is about how the equal protection clause applies to trans people and are the, and it's very clear that there is a significant portion of Supreme Court who would like to simply use, erase trans people from existence and how they, under the law, and maybe even in other ways.

And so I think like this is, this is an area to watch very, very carefully because it is very, the ruling itself on a narrow but important issue has real concerns on a broader set of issues going forward. Yeah, I was going to say this is a, it is a bad decision, but not necessarily the most frightening decision they could make with regard to trans rights. Yeah, that's right. The second decision to come down was on campaign finance.

The court struck down an existing campaign finance law limiting how much political parties can spend on campaigns in coordination with the candidate, with the conservative majority saying, that limit violates the First Amendment. Challenge was brought by the NRC and the NRC, the Republicans' congressional campaign arms, from then-Senate candidate, J.D. Vance. So we've also talked about this one a bit on the show.

Can you walk us through the impact on the midterms, future elections, and what Dems need to do differently as a result? Sure. Let me just explain how things worked before today. there are legal limits on what parties and party committees, that's the RNC, the DNC, the DCC, etc, can spend in direct coordination with campaigns, where the campaigns can talk, the campaign the party can talk and say, we need money for this. And those contributions are quite small. It is like $65,000 in a congressional race. And in Senate races, there is a formula based on population size, but it gets up to a total of $4 million in California, which is, less than a week of ads in some market, and a couple of markets statewide. And so it's very little they can spend.

And so what the campaign, the party communities have been doing for years is setting up what are called independent expenditure committees who spend money, but they have to build a wall. They legal wall, not an actual wall, and they cannot talk to the campaigns. And this causes, there are lots of gray areas and ways to get around this that are kind of sketchy,

but probably legal. It's a real pain in the ass. What happens now is that wall has come down. And why that matters is a couple of reasons. One of the last remaining things that are kind of good about our campaign finance system is that there are contribution limits on what individuals can give to campaigns. So whether you are a regular person in America or Elon Musk, you can only give about $7,000 directly to a campaign per cycle, $3,500 in the primary, $3,500 in the general.

You can give a lot more money to parties and party committees. And the Brennan Center is estimated that if you spread your money around and you give, as a couple, you give to the NRCC, state parties, all that, you can end up giving $6 million as a couple to those committees. And by doing that, it gives more power to rich people, less power to regular people. And you really have to think about a campaign contribution, a coordinated spending is a cash contribution to the campaign. Because you can do, like they say, we need you to hire 50 organizers to go work in this place.

or I need you to run ads about X. And in fact, under the law, the campaigns consultant could write the ad for the RNC or the DNC to do it. So this is a huge shift. It's going to allow the rich people to have more influence. This is going to advantage the Republicans in two ways. One, Republicans to just have more people willing to write seven figure checks to party committees and to any entity than Democrats do. It's going to shift a bunch of funding that's already in super PACs into the RNC, which they can now spend directly. And then in the short term, at least, the NRCC and the D-Triple C,

the Democratic and Republican congressional can make, so we have about the same amount of money, same as for the Senate committees. The RNC is dwarfing the DNC, which currently has negative money because of debts they have. And so just in the short term, fantastic management over at the DNC. Well, it's like there's two issues here. One, the RNC has this financial advantage that they are currently that they're going to be able to leverage to maximize. effectiveness this cycle. And then the reason the DNC has struggled with money is because under Ken Martin's leadership, they have struggled to raise money from large donors who have been skeptical

of his leadership, mad about the all types of the host of things. A question is, is it possible? Like, right now, the DNC has to change their entire fundraising strategy. They have to go to a bunch of donors and say, give a bunch of money to us instead of priorities or future forward or whatever else or addition to priorities to future forward. can they do that? Are there, will Democratic donors change their mind about Ken Martin's DNC? We'll see. I'm skeptical of that, but this will have a big impact in this election at least. Can I ask? It's also bad for democracy. I would say, well, that's so citizens united, but here we are.

Can I ask, like, don't you think that this decision was likely? Like anyone who would listen to oral arguments, even before oral arguments, you know, you could look at this court and say they were going to make the decision. So you would imagine that the deal. DNC and Ken Martin, their pitch to donors to big donors for the last year has been, this decision is coming down and you should donate to us because this is going to happen. I think that's a harder, that's a hard theoretical thing. I think that I imagine right now, I'm sure that they have prepared for this. The DNC does have very good lawyers. They knew what was going to happen here. Yeah. So, but I imagine right now, hopefully Ken Martin and the DNC people are on the phone with donors saying now the best way in which you can impact these elections with your

money is to give it to the DNC and that they will be able to. raise money at a pace at which they've been unable to do so before. So I don't know. Thank God we're at a moment where trust in the DNC has never been higher. Yeah, I mean, this is people are going to have to probably swallow it. And the good news is the money will be spent at the direction of the campaign. Right. Essentially.

So, yeah, how does that work? But the campaign will go to the DNC. And I mean, like, but they still have to do, this is what the tricky part is, right? It's like they're still, they're the single entity. So if Tala Rico's campaign and then Plattner's campaign and then whoever else's campaign go and say like, hey, we need money, the DNC still has to decide who's getting what money. Yes, yes. As they did back in the old days when they were spending money on the other side of the wall, the independent expenditure way, they have to, they have a priority of how they would spend the money. Like this is the most, we would budget X amount for this race because this is the top one.

We'd spend Y amount for this race. So yeah, you still have to trust them to make that decision. But how the money is actually spent, if it's done right, would. be done at the exact, essentially the exact direction of the campaign. But so if you're a big donor, you still have to trust that the DNC will give to the campaigns that are, that either you support or the campaigns that are most competitive or the race, you know, like that there's still that element of donating to the DNC versus the campaign itself. Yes, I would certainly hope that they would just follow.

The DCC. Yeah. And like everyone, everyone has access to the Cook Report, right? The Cook Book Report, they can look at the races. We can figure out what it is. Right. And now the DSCC. the D-Trible C and the DNC can sit at a table and say, I have X money.

Right, right, right, right. And they can divide the races up in that way too. So that's good. Okay, best for last. Birthright citizenship is upheld. The court ruled that the 14th Amendment language on birthright citizenship applies to all children born in the U.S., with the only exception being children of foreign diplomats, meaning that Trump's first day executive order purporting to limit birthright citizenship is invalid.

Roberts, Connie Barrett, and Kavanaugh joined the liberals. The Kavanaugh's reasoning was different. He basically ruled that banning birthright citizenship could be constitutional, but is currently illegal because of a law passed by Congress decades ago. Mike Johnson was holding a press conference when the decision came down. Take a listen. As a constitutional lawyer, I got lots of opinions on this. Okay, understand what the framers did.

And when we added this to our constitutional order, I understood what the intent was. I do think, I think anybody who looks at this, oh dear, what they rule. Here we go. Children born in the United States, parents unlawfully or temporarily present are subject to the jurisdiction of the United States and our citizens at birth under the 14th Amendment citizenship clause. What's your reaction to that? Well, Trump said nothing at all for a couple hours and then finally posted on truth social that really this is no biggie and no amendment is needed. Congress can just write a new law. That seems not true because even if Kavanaugh.

If they passed into law that Kavanaugh liked, it would still be down one. And of course, the fact is there were at least two justices, Alito and Thomas, that would basically just end birthright citizenship as we know it. Gorsuch had won a weird concurrence where he was like, it seems as though Gorsuch would only get rid of birthright citizenship for people who are temporary visitors. passing through. What is the time limit on that? No one knows. But it seems like what people expected, which was Alito and Thomas to be the most extreme, were in fact the most extreme,

which also means, you know, we're a couple of justices away from, you know, gutting birthright citizenship. I think Kavanaugh is actually the most extreme here. Really? And Gorset seems to agree with Kavanaugh. That's the thing, because the temporary passing through is related to the way, as I understand it, and I got a full briefing on this from the Sunday podcast. from Leah Lippman. I heard. I heard. And there's two things here.

One, when it was upheld in the 1898 case about a woman born to this one non-citizen, Wong-Ark cases, she was born to in the United States, lived a life in the United States, but her parents were not citizens. They were Chinese because you could not get citizenship back then. She left the country. They wouldn't let her back in. She sued. They said she could come in.

And there were a question in the interpretation of that case was whether people who are permanently domiciled here was one of the criteria by which they argue that the court ruled that she was a citizen. And that has been interpreted. And that is the, I'm totally fucking this up because I did not go to law school. But the basic argument is that that Kavanaugh is making. And I think Gorsuch is implying he agrees with with this permanently domicile not passing through is that the holding of that. case is what is embedded in the two law in the 1940 in the U.S. Nationality and Citizens Act in 1952 is basically what they're implying is you could rewrite that law to say if you are passing through, that does not count, right? They can codify what permanently domiciled

means or they can put restrictions on what it would be to actually be here to address something, right? Like, so they're implying and Trump is jumping on the idea of that you could fix this with a law. And what happens if can you get to five for with that? Like our Alito and Thomas were going to say like, nope, because they already believe it's constitutional begin with and you could already do it. So you can, you may, you're maybe still short one justice, but you're off, you're much, we are much closer to a Supreme Court that just, uh, ignores exactly what the Constitution says, then I think we should feel particularly comfortable about. No, we shouldn't. Um, yeah, I don't know that Kavanaugh's gets rid.

even the, I don't think the law that you could pass in Kavanaugh's version completely gets rid of birthright citizenship, but it could limit it more. It's exactly. It limits who it, who it applies to. The more, the fairest version is the Thomas Alito, which takes the sworn allegiance to the United States line from the original, from the original constitution to interpret it because the original idea being, if you invaded the United States. Yeah.

And then had children here, we would, we would. would not count your children as citizens. And so, like, they have a totally different representation. Either way, it's all bad. Liberal Tears is brought to you by ShipStation. When your company is growing fast or fulfillment can make or break your success. Shipstation's intelligence-driven platform brings order management, rate shopping, inventory and returns, warehouse systems, and all comprehensive analytics into one place, saving customers 15 hours per week on fulfillment. With ShipStation, everything you need to manage getting orders to customers is in one place. Connect to over 200 sales channels instead of five to seven disconnected tools.

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I will say that, yeah, Robert had a what is a very sensible and obvious rejoinder to Alito and Thomas, who have decided to come up with a new standard, which is domiciled should mean whoever the parents are the parents domiciles should be the you know what you base citizenship on and so to basically say that like if you know if people are here illegally and have a child then really they're subject to the jurisdiction of their permanent domicile which is their home country and Roberts is like well I don't think anyone would say that foreign nationals who are here as permanent legal residents and live here and have lived here forever

are still subject to some laws in their original country either if they're dual citizens or even if they're citizens sometimes and you're just going to something, you're still subject to some tax laws in your old country. And we wouldn't say that

for nationals who are here legally and have a child here, then that child is not American. So what the hell is your standard? Which, yes, of course. And then, you know, Lido and Thomas though, I guess would throw that out as well. Yeah, I feel obligated here.

You are not doing this, so this is not about you. But Leah, very... I know, I heard you guys. Duly pointed out the order of this would go as we would do citizenship last. Citizens Roberts would be on the right side of citizenship. The order would be struck down and everyone would go around saying how reasonable. Can I just... Would you were not, you were not saying that?

Yeah, no, but I was listening to that and here's my... I get that from a... How annoying are people doing that, right? Very annoying. I was trying to think of, like, what the impact of that is. Because to me, the duo of this is not like, should we praise or not praise Roberts or should we praise or not praise the majority? Like, who the fuck cares? I don't need to praise them for anything.

But I think the question is like, what are the implications of this? And the implications of this is like, we're going to talk about this in a second. But like, you could have, you know, Alito and Thomas are both very old. And they could easily be replaced with two more Kavanaugh's or two more Alito and Thomas is more likely. who are even more extreme, who were like in their 30s, their 40s, and then we'd have them for another, then we'd have a horrible court for another 50, 60 years. You could basically now, do you agree with birthright citizenship

is going to be a litmus test for any nominee that comes to the Supreme Court as long as Republicans are in power? So where my mind goes is to the Senate and how unbelievably important it is for Democrats to figure out a way to keep a Senate majority because otherwise, like, Yes, maybe Roberts is sensible on this case. Yes, maybe Amy Coney-Barrid is, but justices are getting old, and we have no idea what this court could look like with Republicans being able to appoint and nominate and confirm really crazy justices in the mold of Alito and Thomas. I think, all fair. I think there's two arguments against giving John Roberts undue praise. One, which is the one that I think Leah is most concerned about is, and I agree.

with, although it has no immediate impact, is, like, how is Roberts judged in history? And he should be judged quite harshly for the... Assuming we have history books. Yeah, I mean, we may not, thanks to some of his rulings. But if we pretend, how will future LLMs describe John Roberts's tenure and the answer? And it should be judged quite harshly, even if they're not fighting drone wars. Yes. Again, this is all, these are all questions.

that seem like at the bottom of the list for me. But would you put aside all the Trump stuff, just the complete destruction of both our campaign finance system and are in the Voting Rights Act, that's on Roberts. The second issue, which I think is more immediate is, if you are someone who believes in the urgent need to reform the courts, whether that's term limits, whether that's court expansion,

whether that's code of ethics or anything else, I do think that this view we take that is like this national exhale, right, of relief whenever Roberts does something that is not terrible has a potential to undermine that idea. And so those are those would be the two arguments against it. I think the guy just generally sucks. And I think people who generally suck should be called out for it. So that's where I'm on it. But I think that's her argument. So I just like, oh, great, congratulations. You read the Constitution. Like, you were a great chief justice. Like, I think that You shouldn't get a ton of praise for that.

Here's my thinking on the dynamics around pushing for court reform. And we really haven't talked about this as much. But I think for me, the question is what kind of reforms could you put in place that are actually going to hold? Because I'm fine with adding more justices to the court for sure. But I also know that the Senate is hangs on a pretty tight margin and we're having a hard time getting majority in the Senate. And clearly we're having a tricky time electing Democratic presidents. So what I really want us to add like two liberal justices to the court and then two years later we lose the Senate and the White House. And then suddenly they add three more Alitoes to the court.

And now we're just in an arms race on this. Like that doesn't seem like it would solve any of our problems. And so the question, then I think about term limits and then I was like, okay, well, if we wanted to do term limits on the court, is like John Roberts being somewhat reasonable or being perceived as somewhat reasonable by some opinion writers who are, you know, to establishment. Is that like a real problem? Yeah, I don't know. It's all, it's all on the margins. It's all in the margins. For sure. But just in general. But I have been thinking about that on the court reforming court packing. Because like, I don't, it's not like, oh, we shouldn't do that because of the sanctity of the court. But I'm like, I don't want to do something like a year later. they're just going to be like, ha ha, fuck you, four more elitos. I mean, term limits would be better. Doesn't, wouldn't solve our problem in the short term, but it would make the court more responsive to the public because you just wouldn't live in this. Fifth, like we're, we have these assholes for 40 years or something.

Well, it's just like the, the entire direction of the country is determined by which justices die during which period. The fact that there were three openings when Donald Trump, a man who lost the popular vote, was president for four years is like, well, is one of the most consequential things happen. And it's not like he did anything to achieve any of that. It just happened to happen on his term. And then you all have presidents who could win 70% of the vote and no justice dies or retires on their term. And the court stays exactly the same. And that's crazy way to run a rodeo.

Yeah. All right. Last thing here on this note, just after 8 a.m. our time, NPR's Nina Totenberg, who she knows, she's the Supreme Court Whisperer, broke the story that Samuel Alito would be retiring after this term. Five minutes later, though, the story had been taken down and replaced by an editor's note saying it had been withdrawn. I want to read you what the full statement from NPR is before we talk about what happened and what you think it means. This is from Editor-in-Chief Tommy Evans at NPR. Due to a misunderstanding, NPR's Supreme Court

and Legal Affairs correspondent, Nina Totenberg, incorrectly reported that Justice Samuel Alito had retired. Neither Justice Alito nor the Supreme Court Public Information Office has announced his retirement. As soon as the error was realized, the story was retracted and removed from the website, blah, blah, blah. We regret the error in any confusion this may have caused.

This afternoon, Mrs. Totenberg will appear on all things considered to explain what happened. She has reached out to Justice Alito to apologize. What do you think? Do you think that means that it was completely wrong or do you think that means

that she broke an embargo or what? The way this typically happens and we've seen this happen before is news outlets write things in advance for fear it could happen. This is the famous Joel Ford has died

SNL skit to be prepared because it's very possible he could have announced today that he was retiring and so sometimes they rewrite it like in, do you remember the AP?

before the 24 election sent out a story saying Kamala Harris had won. And it was the test they had written to prepare for that outcome. And there was a Trump version too. And when that happens, the news outlet typically says that's exactly what happened. NPR did not say that. I read this as Nina Totenberg knows that Samuel Lito was retiring. She has it on an embargoed basis to be announced at another point in the future. And now I cannot verify this, but I did learn it from Leo.

Litman's Blue Sky account today where she was she she I don't re-seeked it something I don't know what you do over there but um someone went in and looked at the metadata of the story and that it was supposed to go on Friday oh wow so I do not know if that's true but it if it is true it does the way MPRs respond this and by the time you hear this maybe Neanderberg will have been on all things considered but it does suggest the very real possibility that he is he has to retire, he's going to announce that retirement, and someone hit send too soon on a story. Yeah, that's sort of what I thought. Also, you can see why it's too early because the last couple times, I believe justices have retired or announced their retirement. It's not on the day

that the last decision comes down. Because I remember, I don't know who it was, but I remember breathing a sigh of relief when the day ended of a term and we hadn't heard about a retirement. And then it came like the next day or the day after. It was Kennedy. You and I were, I can, I can picture it. We were still my San Francisco apartment and we were it came out like 30 minutes before we, uh, podcasted in the very early days of Pot Save America. Yes, that's what it was then. I mean, it was so long ago that I used to do the podcast on the phone. Yes, we have it. We have a little thing here, a little momento of that says Dan Pfeiffer on the phone and it has your picture. Yes, yes, yes. It's like we were living in the 1900s.

Yes. Um, anyway, so that would, so quick thoughts. Let's pretend that that. Let's pretend that. But, or let's imagine that this is correct and he retires. What does that look like? What does that confirmation battle look like ahead of November? Because you need 51 votes. And you've got. You need 50 votes.

50 votes. Right. Sorry. You need 50 votes. And you got Collins in a tight race, Dan Sullivan, and John Hustit. Houston. Houston. I don't know what the fuck his name is.

In Ohio. And so you can't let all three those go. and and then also you got Lisa Murkowski who's a wild card and you've got like the you know who knows but the Tom Tillis is and the in the Cassidy's who are pissed at Trump and you've got you could imagine getting through a John Roberts quite easily um in that even in that scenario but an Alito a Thomas or whoever the like an Eileen Cannon whoever the fucking nominates a Bill Pulte so what do you how do how does this go So you have to count Fetterman in here because Fetterman will probably end up being a yes. Yeah. So he's very possible. He's been very good on judges, I will say. Yes.

Although he did just let a blue slip go on a judge. He's the first Democrat to do that. Not a good sign. Maybe he does it, maybe. But that's something you have to think about. It's the only Democrat you have to worry about. I think they let Collins. Sullivan probably won't walk.

They let Collins walk. And maybe that's it. One of the things we've learned on judges over time is this is the, this is something much bigger than Trump or the holy grail. This is the holy grail of conservative policy and legal priorities. And is Tom Tillis really not going to, or John Cornyn is definitely voting for this? Is Tom Tillis really not going to do that? Yeah.

I don't know. I don't know. It's going to be, the politics will be very interesting. It'll be particularly uncomfortable for Collins, although she will probably get a chance to vote against it, which might be good for her. And the hope for the Republicans is that it'll gin up turnout and enthusiasm in the Senate races, which is why I've always thought this was in the card, so that either Thomas or Lito would announce their retirement and that we'd have a fall confirmation battle.

Democrats can do nothing to stop it. They have no, you know, and they have to manage expectations on that. Does it help gin up the base for us? Our base could not be more chined up. They were like through the roof. I mean, did you look at the enthusiasm numbers? Diminishing marginal utility on that one. I do now. Now I worry about the Collins thing because that is the classic Susan Collins move

to try to eke out re-election in Maine. And honestly, the crazier person that Trump nominates, the easier it is for Collins to say no. And then she can go and say, see, I'm still independent. Not to give free advice to the Platner campaign, but where the way to make this helpful is that in the New York Times, Portland Press Herald poll, 54% of Mainers think that, want Democrats being controlled the Senate. And this is a way to make this race be all about control of the Senate, which would be very good for Plattner. I think I would, just off the top of my head, I would also say, like, yeah, we know that Susan Collins is a fucking snake.

And also, she voted for Brett Kavanaugh before when she had a chance to do this kind of thing. And Alito's not the only old one that you reelect Susan Collins, even if we've already nominated the new Alito or confirmed the new Alito, and then she'll definitely vote for the next Thomas. Yeah. Yeah. This is, if you don't want Trump confirming Supreme Court justices, don't ever

versus in college. Right. And it'll be fresh in people's mind because we'll have just had this confirmation fight. So I guess she probably wants it not to happen as be my guess. I was going to say, yeah, I think that's probably right, but we'll see. All right. Well, we went for a good long time here, but everyone please subscribe to our YouTube channel. It's free. Just hit the subscribe button on YouTube and so you can get all kinds of analysis like this and help the algorithm not give you garbage. So thanks everyone.