Breaking News from Pod Save America - Trump’s Supreme Court Issues EXTREME Ruling — What Does It Mean?

Episode Date: June 28, 2025

Jon Lovett talks to Strict Scrutiny's Leah Litman and Melissa Murray about Trump's Supreme Court and their insane new ruling on birthright citizenship. Learn more about your ad choices. Visit megaphone.fm/adchoices

All right, hey, everybody. I'm here with Leah Littman and Melissa Murray, the host of strict scrutiny, our legal experts. We had a big ruling out of the Supreme Court. We were talking about this before we recorded that we're feeling the breeze of a world with fewer protections from the judiciary because of this ruling. But it was a 6-3 ruling by the conservatives. Leo, why don't you kick us off? What do they find in this? It was this is in the birthright citizenship case. So what they found is that after years of Democratic administrations being subject to nationwide injunctions, that all of a sudden, five months into the Trump administration, nationwide injunctions they discovered are very problematic and actually not authorized by statute

and generally shouldn't be used. So nationwide injunctions are aware when a plaintiff successfully convinces a court that a policy is illegal, the court blocks the policy on a nationwide basis. and the Supreme Court said that's generally not okay when a private plaintiff files a suit. So, Melissa, this has been something that the Trump people have been hammering, that there's judicial tyranny. These lower courts are exceeding their authority because they're doing these nationwide injunctions. I thought what that meant was, I'm naive, was, hey, a judge in, say, Maryland that oversees a district on the East Coast can't make rules about what happens in, say, California. that a judge in that district has to be in charge of what happens in the region it's in charge of. But that's not what they found.

They said that a federal judge can't stop anything beyond what is affecting the people standing in front of them, right? Yeah, that's a good, I mean, again, John, it's very clear that you did very well on the LSAT. So I can tell you once again. Never get out of it. You did a great summary here. So in this decision that was written by Justice Barrett, she held that not only, you know, as Leah said, does the court not have the authority to issue a nationwide injunction? They are restricted to providing relief only to the litigants who are before them, even in circumstances

where the litigants' claims might also be the claims of other people, like, for example, an undocumented person who had a baby in this country. Yes, we can resolve the question as to her and her baby, but obviously the resolution has import for a lot of other people who, may be undocumented and having children in the United States. And the court says it won't reach to them. Instead, there are other legal avenues that you might pursue, for example, a class action where you can just go out and find all of the other undocumented ladies having babies and get them all together. Find yourself a lawyer. But don't go to the law firms that have struck deals with this president because they won't help you. Find some other lawyer who's willing to help an undocumented person

trying to sue the government. And then get them to make a class action and have a court. receive that class action and then you may proceed. So if you were getting what I'm pitching, this administration has just, sorry, that was a 40-year-slip. This court has made it much easier for this administration to continue its campaign of utter lawlessness and flouting the Constitution and given lower court judges very little recourse to check it. These guys are the best lawyers. This administration never had. It's unbelievable. So just for people that aren't, you know, constitutional scholars like the three of us. So when the Supreme Court rules, so somebody says, the government denied my ability to get married because I'm gay. The Supreme Court rules that that

was unconstitutional. Everybody that's gay now knows that they can get married because they're in the same situation as those plaintiffs. And other and, you know, attorneys, general states, they have to oblige by that, they have to abide by that ruling. And you can say, well, because of this ruling, it also applies to me. But what this is saying is that lower courts can't do that anymore. So that would mean that if let's say under this birthright citizenship order that Trump is issued, they pick up some kid and they're going to deport that kid, even though their parents, even though that child was born in America, they have great lawyers. They sue. They get it stopped. And the court rules that it was unconstitutional.

The Trump administration can just keep picking up other kits. In other places. Right. Yeah. Like the Supreme Court is basically saying babies get a fucking lawyer, all of you. Yeah. All the babies, all the districts go everywhere. You're going to have to litigate this everywhere throughout the country because no lower court judge is going to be able to say, hi, I just read the 14th Amendment. It seems pretty clear to me that anyone born in the United States is a citizen of the United States unless their parent is literally part of an invasion or otherwise a diplomat. And therefore, I'm going to make this apply broadly in a nationwide injunction. The court says can't do that anymore.

That means either have to have these huge class actions, which are going to be very unwieldy and very hard to mount. Or alternatively, you are going to have to litigate every single district in the United States in order to stop the administration. And again, I want to emphasize the import of this is not just about birthright citizenship, although I understand that listeners will be justifiably concerned about that. These nationwide injunctions have been the way that lower courts have stayed this administration or joined this administration from stopping funding to hospitals and universities.

It's been the way that they have limited these deportations that are unlawful. Without the nationwide injunction as a judicial remedy, there's going to be very little recourse for stopping this administration when it does something unlawful. which is to say for stopping this administration. It might be that at the end of the day, this case ends up being one of the rare ones where the Supreme Court held out the possibility that nationwide injunction would be appropriate. But immediately after the court issued this ruling, the administration held a press conference and indicated, we are now going to go to court, we Trump administration, and ask courts to lift

the nationwide injunctions against a slew of policies that have been a tax on funding for different schools. or funding for different hospitals that deign to offer care to LGBT people, no, policies that would and refugee resettlement and funding for sanctuary cities. And all of those decisions are now vulnerable to all of a sudden not being controlling in the entire country. So let's talk about some of the ways in which the actual implications of this ruling were being debated among the justices themselves. So there was a Kavanaugh, a concurring opinion. I believe that's called a BuzzFeed listicle because he just kind of lists things in his concurrences. So, well, one of the points he makes, right, is there are still.

Points, air quotes, is bullet points. Is that there are still ways of getting the equivalent of a nationwide injunction because of class action. lawsuits. And I've seen some people saying that a class action lawsuit could basically, in some cases, leave you in the exact same place because the class could be big enough to include everybody that would have been covered by an injunction. Is that is that sanguine? Is that too hopeful? This is like when Cinderella's stepmother said, if you finish the chores, you get to go to the ball. This is like the Supreme Court saying, if you can get a class action, well, then maybe you can get a nationwide relief. This is Brett Kavanaugh's sanewashing what the court has done. It's true that if you convince courts to allow you to proceed as a class action on behalf of everyone in the country who is similarly situated to you, then they could award nationwide relief.

But the reality is the Republican justices have narrowed the availability of class actions. The Trump administration, in this case, indicated they would fight efforts to litigate this case as a class action on behalf of everyone potentially implicated by or subject to this order. And you have a separate writing by Sam Alito that says, I'm not going to allow anyone to evade this ruling by getting to go through class actions. And so that is a possibility. We have no way of knowing how real that possibility is going to be in this case or others. And it depends on getting courts. like the Fifth Circuit to allow you to proceed as a class action. I would not hold my breath. Leah is talking about some of the legal consequences, legal issues around trying to form a large-scale

class action of that sort. Let me just sort of highlight some of the practicalities of doing that. Most of the lawyers who bring class action suits are kind of like guys who are looking for big payoff cases. It's not likely that a case involving undocumented persons who have given birth in the United States is going to be the kind of big ticket item that's going to wet their appetites to bring and front massively expensive class action litigation. Secondarily, we are living in a timeline where this administration has effectively forced certain law forms off the table as providers and purveyors of pro bono assistance to communities like the undocumented community that would be litigants here. So they have shrunk the available pool of resources for lawyers who

could bring a class action or bring multiple actions in various districts across the country. So as a practical matter, it's just very unlikely that a class action would succeed. Although we be very clear, Casa, who is one of the litigants here, has already refiled their claim against the administration as a class action. And we wish them, Godspeed. But the idea that class actions would be the way that we get together and try and fight this administration is really fanciful. And they know that. So there's a pretty, there was some, there was some salty language by the conservatives aimed at Katanji Brown Jackson who, who basically described this as. Who had the audacity to accurately describe what they did. Right. As undermining the rule of law in a fundamental way,

basically saying that she's worried about an imperial presidency. They're worried about an imperial judiciary. you may wish that the federal courts can do nationwide injunctions, but the law doesn't allow it. Is there any truth to that at all? Are we wishing that the federal courts could provide a service? We need them to do to protect us, but that actually isn't in the law. Think Verizon is expensive? Think again. Anyone can bring their AT&T or T-Mobile bill to a Verizon store today and we'll give you a better deal.

So bring us your bill. Walk in, run in, hogo stick in, telemarking. support if you can. Ride on the back of a rollerblading yak or flying on the wings of a majestic falcon. Any way you can, bring your AT&T or T-Mobile bill to a Verizon store today, and we'll give you a better deal on the best network. Based on Root Metrics, Best Overall Mobile Network Performance, U.S. second half, 2025, all right preserved, must provide very recent postpaid consumer mobile bill in the name of the person redeeming the deal. Additional terms, conditions and restrictions apply. Bitch please know two things. One is, you know, Milis Dihoni, who is a professor at Stanford

law school has, I think, pretty persuasively established that nationwide injunctions have been around for now a century and have their roots in powers of equity to afford parties complete relief in order to remedy all of the harms available to them. The reason why nationwide injunctions weren't around before then is because news flash, you know, after the Civil War, our federal government expanded its powers and started to do more things, particularly with the rise of the administrative state. So I don't think Justice Barrett persuasively demonstrates that there is no historical origins or antecedent for nationwide injunctions. I mean, it's true, she says, they weren't in the Bill of Peace. And it's like, okay, fine, who cares? Because there are parallels

that suggests courts actually have the authority to award them. And then second is the idea that the Republican justices are so worried about the imperial judiciary. Rich. Just. Really, rip. Stop it. Right. Like, these are the justices who blocked Joe Biden's student debt relief plan because that was the definition of tyranny. The clean power plan, the test and vaccination policy. These are the justices who overruled Roe. These are the justices who just announced that religious and social conservatives basically have the right to control what is taught in public schools because they are so terrified of story books, of trans books, of story books with LGBT characters. that that is a real threat. These are the justices who say the Second Amendment prevents states from adopting sensible gun control regulation. I mean, come the fuck on. You're concerned about the imperial judiciary?

Come on. Don't clap yet. We've got more here. We should also note that we have a whole book. We've got a whole podcast library. We've been doing this for six years now. We should also note that the universal injunction, the nationwide injunction, the Biden administration was complaining about this when the courts struck down the student loan plan.

in the lower courts and issued a nationwide injunction. And they asked the court to do something about it. And this court was like, don't feel like it. Not right now, but five months into the Trump administration, suddenly the universal injunction is a big fucking deal. We have to deal with it right now. And, oh, we have to do it in such a way that this administration literally is unfettered to do all of its lawlessness. And there's no lower court that can even check them. Chef's Kiss. Great work, guys. You're doing great, sweetie. All right. So let's talk about where we go from here. One avenue that even the conservatives identified as being possible is that states may still be able to seek nationwide relief. And then I'm so curious what you think about that. And then just what, how is this ruling caused you to

adjust your priors about how low this court will go, whether it's on the actual substance of birthright citizenship or any of the other controversial cases that are yet to come? So where does start here. One is, I think we should understand the exception for states to obtain nationwide injunctions where that is necessary to address the harms to them as the exception for the state of Texas to sue Democratic presidents when Republicans don't like what Democratic presidents are doing because the court has created this, I think, manipulable and unclear legal standard that invites them to ultimately determine when nationwide relief is necessary to afford states, the relief they get? The legal term for this is the tech section, right?

The texception. That's what we're calling this. It's only available for Texas. It's the only state that can get any relief. And it's only when there's a Democratic president. So again, I think it's absolutely fanciful, as Leah points out, to think that states are suddenly going to be in a position to get nationwide injunctions. They're going to figure out all kinds of ways to get around this. As to how low this court will go, I would just say, after listening to the oral argument, I said this was coming. This court is so entirely willing to sign off on the Trump administration's lawlessness. Like, in a series of legal doctrines, they just discover that actually the law means the Trump administration gets to violate the law. And Donald Trump gets to violate the law and

face no consequence for doing so. Last term, they were all telling us that, oh, by the way, states can enforce section three of the 14th Amendment, which prohibits oath breaking in insurrectionists from holding office. States don't get to enforce that. In that case, the Democratic justices warned us that these guys were in the bag for Donald Trump telling us that this court is trying to insulate the petitioner Donald Trump from consequence. Then they release their immunity decision, saying, yep, Donald Trump, he is above the law when it comes to trying to overturn the results of an election. Also, now they just say, oh, also, like, you can't really use the most effective tool that lower courts have been deploying to actually check this administration's lawlessness and attempt to enforce section one

of the 14th Amendment against them. It is mind-blowing when you add it all up and utterly galling and shameless. Well, thank you both for walking us through it. Jesus Christ, let's all. Are you okay? I'm trying to figure how to get us out of this without people unsubscribing and in driving off into the woods. But the, how about I promote my book? We can, yes, all right. And you should. And everyone should get the book.

Can we end on it? Can we end on an up note? Sure. Okay. So, yes, this court is a bunch of goblins enabling and facilitating this administration of lawlessness. But it doesn't have to be this way. This pendulum has swung back and forth over time.

And we have seen that public pressure really does work. the fact that people are going out there and saying, like, not on our watch or even people who voted for this administration saying, like, I didn't mean this. That's really meaningful. And that stuff, I think, continues to happen and should continue to happen. We've also seen that stepping out and saying, you know what, I don't like the way this court has emotional support billionaires. I think this court ought to adhere to the basic rules that other government officials abide by has also had really important consequences. This term, Justice Barrett, actually recused herself in a case where one of her friends,

was advising the litigants. And I think that's because so many people have raised the alarm about the cozy relationships between certain litigants and this court that she recognized. If she were to stay in this case, she would get a rash of crap from the public. And she, I think, rightly and appropriately recused herself. So our voices do actually matter. And they matter so much that that is why this administration is trying to silence the prospect of dissent. That just means we should dissent more. I want to say two additional things since I realize I was the one that brought us on a down note. One is it was in part because people demanded Democratic administrations pay attention to the courts that we now have an associate justice like Justice Katanji Brown Jackson on the court issuing. Doing black girl magic every single day.

Issuing these clarion calls laying plain what the Republican justices in the majority are doing. Second is, I believe, as Melissa says, the way to ensure the president is not above the law, right, to ensure our president isn't a king is to do the sort of no king's protests that we saw. Because what that does is it invites Democratic politicians to actually stand up and stand against the Trump administration. It signals that's what the public wants them to do. And it illustrates they do not have this mandate to do all of the crazy ass shit they have been trying. And I'll, and I'll just say, no longer will these Republicans be able to blame left wing, woke judges for standing in their way. This court owns what the Trump administration does because they declared themselves the only people who now get to arbitrate what they do and whether or not it's constitutional. And no longer will Trump be protected by some of his most unpopular and disastrous policies being stopped by a liberal judge here or a moderate judge there, they are going to own the consequences of what they do. And there's some, I think, hope in people seeing

just how dangerous this really is unprotected by lower courts. So Melissa, Leah, thank you so much for taking the time and, you know, see it, see you out there. See out there in the free-flowing breeze of an unprotected constitutional order. Terrific. See ya. And if you want, if you want what Lovett called the perfect beach read for the shores of hell, we find ourselves in. May I recommend lawless how the Supreme Court runs on conservative grievance, fringe theories, and bad vibes every day. Those jerks prove me more and more right. And also, Leavitt, we're looking forward to having you join us this summer for a special episode where you're going to cosplay some more. Oh, man. You know what? Honestly, no spoilers. No spoilers. No spoil.

but I embody a character and I can feel that you hate me for it. And it really, it stinks. It stinks. It stinks. It's like you judge me. It's like, oh, he's a little too good at this. That speaks to some flaw of character that I have. It's your method acting.

You're just so good at it. We can't help but hate. Thank you, Leah. Thank you, Melissa, for joining us. Everybody, do us a favor. Subscribe to this channel. It really helps us build this progressive media company, combat some of this right-wing noise and misinformation.

So it helps us get this in front of more people. And while you're at it, subscribe to strict scrutiny by Leah's book. You know, and see the movies, I guess.