Supreme Court Opinions

**Brigitte Bergen** (0:10)
It's The Brian Lehrer Show on WNYC. Good morning, everybody. I'm Brigitte Bergen filling in for Brian today.
The Supreme Court term has ended. The final opinions are out. And as you've undoubtedly heard this morning, the Supreme Court struck down President Trump's executive order that sought to end birthright citizenship. They also issued rulings on trans athletes and campaign finance.
So to dig into these rulings and their implications going forward, I'm joined once more by Emily Bazelon, staff writer for The New York Times Magazine and a co-host of Slate's Political Gabfest podcast. She's also a senior research scholar in law at Yale Law School and the author of Charged, The New Movement to Transform American Prosecution and End Mass Incarceration. Emily, welcome back.

**Emily Bazelon** (0:59)
Thanks for having me.

**Brigitte Bergen** (1:00)
All right, let's start with the most anticipated case, birthright citizenship. It was the last one announced and the majority of justices said President Trump's executive order was struck down. Chief Justice Roberts wrote the majority opinion.
Tell us who joined him.

**Emily Bazelon** (1:19)
Justice Barrett joined him, a fellow conservative, and so did the court's three liberals, Justice Jackson, Justice Sotomayor, and Justice Kagan.
Brett Kavanaugh concurred in the judgment, so he agreed with the overall result. But he did not agree with the majority that the Constitution protects birthright citizenship. He based his opinion on a law that Congress passed in 1940

**Brigitte Bergen** (1:45)
Interesting. Listeners, do you have a question for Emily Bazelon on the cases announced today, or do you want to weigh in on this now concluded term? You can call us or text us at 212-433-WNYC. That's 212-433-9692.
Emily, I think from what I understand in some of our preview conversation certainly yesterday, this was expected based on oral arguments, but I can say from our first segment where we were talking about another Supreme Court decision that related to TPS, there's certainly a relief for many people who felt that this would be a decision that would affect millions of people for individuals who felt that their citizenship could have been threatened, even though the executive order would have only applied going forward. Is that right?

**Emily Bazelon** (2:41)
Yeah, I think also it felt like a kind of core aspect of the country's identity was at stake.
Birthright citizenship has been foundational to how I think we think about America, the idea of accepting anybody who's born here without any ifs, ands, or buts, and all of that seemed up for grabs. Then I think also there was this question of whether a president with the stroke of the pen could unsettle this historical understanding based on language that Congress put into the 14th Amendment way back in 1868 So I think that explains why it felt so high stakes.

**Brigitte Bergen** (3:21)
As you mentioned, in this 6-3 decision against the president, Justice Kavanaugh's dissent seemed to leave room for Congress to be able to change the law, in which case this would be 5-4 upholding a constitutional right to citizenship if you were born here?

**Emily Bazelon** (3:38)
Yes, that's correct. I mean, the statute is important. It gets you to the same result, but it's a lot easier to change a law than it is to amend the Constitution. And so the distinction that Justice Kavanaugh is making is important. His basis for birthright citizenship is a lot shakier than the one that Justice Roberts put into law for the majority.

**Brigitte Bergen** (3:57)
Okay. So then can you talk about what were some of the reasons given in the dissenting opinions?

**Emily Bazelon** (4:04)
Yeah. The dissents are picking up on a kind of revisionist line of scholarship that has been arguing that citizenship turns on domicile. And domicile is having a permanent home in the country. In other words, if you come here and you're here legally and you have permanent status as parents, then yes, your children receive citizenship. But if you're here illegally or, you know, temporarily, then it doesn't apply.
And this is all a reading of these five words in the 14th Amendment, subject to the jurisdiction thereof.
This question of what that means. And I think what the majority really shows is that, you know, almost entirely the examples have been, you know, that for an exception to birthright citizenship, okay, if you're the kid of a diplomat who has diplomatic immunity, then you're not subject to the United States laws. Or if you're the child of a hostile invader, then you wouldn't be subject to the nation's laws. But everybody else is subject to the nation's laws. So that was why the majority, I think, stuck with the traditional understanding of birthright citizenship. But the dissents argue that there's some evidence in the record, and I would say that it's thin, but some evidence that actually there was a more limited understanding all along.