Preview: A Blowout for Birthright Citizenship at SCOTUS

This is Amicus, Slate's podcast about the courts, the law, and the Supreme Court. I'm Mark Joseph Stern. Welcome to an extra episode of Amicus Plus that we're bringing to you as the dust settles on historic Supreme Court arguments in Trumpy Barbara, the birthright citizenship case. If you credit the government's theory, the citizenship of millions of Americans past, present, and future could be called into question. We're in a new world now, just to lead a point now to where eight billion people are one playing right away from having a child as a U.S. citizen. Well, it's a new world. It's the same Constitution. Before we get into the details, let's just start with the top line. This case is a challenge to Trump's executive order denying birthright citizenship to children who are born in the United States to parents who are undocumented immigrants and temporary visa holders. The pre-lower court has found that it violates the 14th Amendment Citizenship Clause, which states, all persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the state wherein they reside. Last term, the court had a chance to consider the executive order, but instead decided to roll back nationwide injunctions. We don't need to revisit that trauma because on Wednesday, the justices squarely addressed the merits. They did so with Trump in the room because he decided to become the first sitting president to attend Supreme Court arguments in person, though he reportedly left after Solicitor General John Sauer wrapped up. Joining me to discuss Wednesday mornings highs and lows is Evan Bernick, a professor at Northern Illinois University College of Law and co-author of Birthright Citizenship and the Dunning School of Unoriginal Meanings. He also co-authored a significant amicus brief in this case and was listening to the arguments as they happened. Evan, welcome. Thanks, Mark. Glad to be here. Just to put my cards on the table, my view is that these arguments went very poorly for Trump with only maybe two justices seriously entertaining the idea of upholding Trump's order. Do you agree? I agree. I would say literally two justices are seriously considering upholding Trump's order and the other seven justices are firmly in agreeance with the lower courts that unanimously rejected the order as unconstitutional. At least a couple of the justices appointed by Trump were outright hostile to the Solicitor General's arguments and it became increasingly obvious over time and those were justices Barrett and Gorsuch. We can just name and shame the two who might be open to upholding the order. No one will be surprised. It was justices Clarence Thomas and Samuel Alito and we will get to them later. Before we dive into the individual justices' questions, you co-authored a fantastic Law Review article exploring the original meaning of the 14th Amendment and just based on what you heard Wednesday across the board, do you think that a critical mass of the justices basically get it and weren't swayed by all of the revisionist pseudo-scholarship that was cooked up in the last year or so to support Trump? I would say that and I would say that even though the Solicitor General led with an appeal to original public meaning, he quickly found himself in a great deal of difficulty trying to toggle between two very different revisionist accounts of the citizenship clause that were worked up over the course of the last year to support the executive order. One of those theories said that the 14th Amendment incorporates British common law, but British common law includes a requirement of allegiance that caches out in loyalty, that caches out in some kind of domicile requirements. The other theory holds that actually we deliberately departed from British common law to incorporate a domicile requirement. He couldn't choose between those two theories. He tried to toggle between them and the justices who were intelligent enough to follow the tenor of an originalist sounding arguments leapt at him very quickly and were not buying it. Slate Plus members can access our conversation in full right now. You can subscribe to Slate Plus directly from the Amicus Show page on Apple Podcasts and Spotify, or visit Slate.com slash Amicus Plus to get access wherever you listen. By joining, you'll unlock a vast array of member benefits, including weekly bonus episodes from us at Amicus, ad-free listening across Slate Podcasts, early lessons of cool new stuff we're cooking up, and unlimited reading at Slate.com. Most importantly, you'll be supporting our work and we are so grateful for that. That's Slate.com slash Amicus Plus to get access. Dahlia will be with me for your regularly scheduled Amicus episode on Saturday morning. We'll see you then.