Emily Bazelon: Hi, David.
You are a more upbeat and conservative person than I am, so I think you are going to have a more optimistic take on the Supreme Court’s final batch of decisions. I feel a mixture of relief — birthright citizenship remains the law of the land, and the Federal Reserve retains its independence — and foreboding.
I’ll start with the relief. The court’s ruling on birthright citizenship in Trump v. Barbara is a glass more than half full. Chief Justice John Roberts wrote a persuasive majority opinion about why the history of the 14th Amendment provides citizenship to almost everyone who is born here, regardless of whether their parents arrived legally or illegally. The narrow exceptions are the same as they always were, including the children of diplomats and of hostile invading forces. We can move on from the fabricated and destructive notion, signed into law by President Trump in an executive order on his first day in office this term, that birthright citizenship is up for grabs.
David French: Hi, Emily.
More on this in a moment, but I’m both relieved at the outcome and worried that we won’t move on from this debate. I’m concerned that the narrowness of the majority (there were only five justices who upheld birthright citizenship without reservations) will lead to a new Roe v. Wade-style litmus test for judges on the MAGA right. Will they try to nominate and confirm only those judges and justices who agree with Justice Clarence Thomas’s lengthy dissent?
Emily: Oh, no. That is a truly dismaying possibility. The United States has benefited from the open arms of birthright citizenship in so many ways. It’s the Statue of Liberty come to life. It helps immigrants integrate. Once you are born here, you are an American. The successive generations are an amazing engine of social mobility and accomplishment, in a way that other countries don’t match, because we have this rule. It prevents isolated enclaves of guest workers.
The majority kept this promise, to use Roberts’s phrase. But man, I also can’t believe there were only five votes for it — Roberts, Justice Amy Coney Barrett and the three liberals. Justice Brett Kavanaugh concurred in the judgment but only on the basis of a federal statute initially enacted in 1940, which any Congress could undo. I’m surprised. I thought this one should be 9 to 0 and would be 7 to 2, with only Justice Thomas and Justice Samuel Alito in dissent. The textual and historical arguments on the side of the majority are very strong, and the evidence on the other side is very weak, and I thought Justice Neil Gorsuch and Kavanaugh would care more about that. (At one point, Roberts said that the only support for a key aspect of the dissent’s theory is a funeral oration for Lincoln. LOL.)
What do you think of the split among the justices? Does it further stoke MAGA’s anger over people who come here to have babies, to which Alito referred when he called the majority ruling “a serious mistake”?
David: The issue is resolved, but not permanently. I’m very concerned, as I said, that the narrowness of the majority will lead MAGA to view this moment as the end of the beginning of the judicial debate — not just about this issue but also about how to interpret the Constitution more broadly.
Justice Roberts’s majority opinion was classical originalism in a very important sense: The ruling depended on interpreting text far more than it relied on the much more subjective effort of interpreting history. Complex historical analysis is unnecessary (and unwise) when the text itself is clear, and the key language in the 14th Amendment isn’t hard to understand. It grants citizenship to “all persons born or naturalized in the United States, and subject to the jurisdiction thereof.”
Unless you are in a very narrow category of people, such as the children of foreign diplomats, you are absolutely subject to our jurisdiction when you are born here. You are subject to our laws.
Justice Thomas’s dissenting opinion represents a kind of originalism that seems to use the text as little more than a launchpad for an often idiosyncratic and contestable analysis of our very complicated history. The problem with such an approach is that it can place the judge’s subjective interpretation of history above the text in the interpretive framework, and that compounds the normal human temptation to see what we want to see in American history.
For example, he spends much time talking about a concept, domicile, that does not appear in the text of the amendment. If limiting citizenship to those domiciled in America was what the authors of the 14th Amendment desired, they could have said so.
Emily: Yup, “domicile” — not there. Also, a word I’m not sure I’ve used maybe ever.
Trump made a big deal of his order to alter birthright citizenship, which makes the Supreme Court’s ruling against him, however legally obvious, a big deal as well. The court also blocked his bid to fire Lisa Cook from the board of the Federal Reserve. Trump said he will keep trying. But Cook has to receive notice and an opportunity to be heard, and Trump has to show that he is firing her because she is unfit for office rather than as a ploy “to secure a ‘more congenial’ replacement,” as the majority put it.
The allegations of mortgage fraud against Cook look like a pretext to me, so I think Trump will lose (though the hassle and reputational cost to her is real). I also welcome the majority’s reassurance that Congress limited the president’s power to remove governors of the Fed “for good reason” to preserve its independence and continue the “long tradition” of setting monetary policy without executive influence.
But I’m pretty gobsmacked by the inconsistency between the court’s decision in Cook’s case to respect the will of Congress to limit the president’s power to fire Fed governors but not the commissioners of the Federal Trade Commission, whom Congress also protected in establishing that agency. I’m talking about Trump v. Slaughter, the ruling on Monday that applies to a couple of dozen agencies and gives the president the power to reshape them.
This is not what Congress thought was happening when it created these agencies. Congress thought it was insulating them from partisan politics. That was, in fact, the point. The 1914 law establishing the F.T.C. says that no more than three of five commissioners can come from one political party, along with allowing the president to remove them only for cause (“inefficiency, neglect of duty or malfeasance in office”). The court has now dismantled that structure while leaving the agency’s powers intact. How is that going to work? Congress would need a veto-proof majority to take away the new power the Supreme Court granted the president if he did not agree with such a bill. I don’t see how it can set up an agency with independence from the president, either. That now appears to be a violation of the separation of powers, unless it’s in the legislative branch, and I don’t understand how that would work either. Which means goodbye to nonpartisan regulation of artificial intelligence, which seems very important!
David: I don’t have a problem with Congress establishing an agency with independence from the president, but the problem arises constitutionally when you establish an entity that limits oversight by any of the political branches. If you don’t want the president to exercise too much authority, create a legislative agency — in which the buck stops with Congress. The Congressional Budget Office is a legislative agency, for example.
But the buck has to stop with an elected official or elected officials. Our system of separation of powers doesn’t envision independent technocrats. That’s the bottom line. Not only is it antidemocratic to leave agencies — which possess enormous lawmaking and law-enforcement powers — in the hands of unelected bureaucrats who aren’t accountable to elected officials; we don’t even get the benefit of nonpartisan, technocratic expertise. As Justice Gorsuch explained in his concurring opinion, our “independent” agencies have been quite political since their inception.
When it comes to the Fed, however, I very much believe that it’s different from a standard executive agency, but I’m not sure the court fully explained why the Fed enjoys independence when executive agencies do not. I certainly understand that the Fed has a unique history and a very different structure, but I honestly believe this is one of the few cases where a particular legal interpretation has become so deeply embedded in American law (much less the global economy) that a legal concept called reliance means that it would be foolish to overturn current law, even in the face of an arguably contrary constitutional interpretation.
Emily: I think we have gotten the benefit of nonpartisan technocratic expertise, often in service of regulating corporations. Conservatives generally oppose that, and now we are headed to less of it.
The majority in Slaughter (this time the split was 6 to 3, conservatives versus liberals) made these hugely consequential changes, unsettling more than a century of practice and overturning a 90-year-old Supreme Court precedent, based on a made-up theory of separation of powers. This is not a relationship among the branches that we ever had. The majority swept aside Congress and a lot of careful scholarship to achieve the longstanding conservative goal of unitary executive theory.
I don’t see how the country is better off with the court giving the president “a power unknown even to the English crown against which the founders revolted,” as Justice Sonia Sotomayor wrote in dissent. I know you think the court’s ruling in Slaughter will increase democratic accountability. Voters will know that whoever is president is to blame for an F.T.C. policy they don’t like. Elections for president will have (even more) consequences. But presidential elections are a blunt instrument, and as I said, much of this will be difficult for Congress to address.
David: I have great respect for Justice Sotomayor, but this is an overstatement. The president still faces serious legal hurdles before he can bend the executive agencies to his will. In Biden’s term and Trump’s two terms, the Supreme Court has sharply limited the power of the executive agencies. They have less discretion to interpret the law. They have less power to write laws. The Administrative Procedure Act still applies, and it imposes considerable limitations on presidential powers.
Emily: You’re right about the Administrative Procedure Act. It will still slow presidents down to a degree.
Justice Gorsuch agreed with the critique of draining Congress of authority even as he voted with the majority. He thinks the next step is for the court to tell Congress it cannot delegate quasi-judicial or legislative powers to the executive branch. This is some version of checks and balances in which Congress can’t give away its authority. I will note that no one else signed on to Gorsuch’s concurrence, but I know you’re a fan. So tell me what you think and how it would work.
David: The Gorsuch model is already being built. If we compare the current state of the law with the extent of executive agency power that existed in 2015, we find that executive agencies (and, by extension, presidents) have been rather sharply limited. At the same time, the president’s authority over senior officials in the executive branch has been expanded. I think that’s the right balance. The executive branch should have much less power, and the president should be more directly accountable for everything the executive branch does.
At the same time, it’s a work in progress. I do not like the current balance of power and would like to amend the Constitution to address it. As I previously argued, we need to change the first sentence of Article II of the Constitution to make it abundantly clear that Congress makes the law and that the executive power is defined as the power to enforce laws passed by Congress and not much more than that.
But it’s up to the American people to change the Constitution; it’s not up to the Supreme Court.
Emily: I can think of some troubling agency actions in Trump’s second term that suggest they still have a great deal of power. The Federal Communications Commission threatened the licenses of broadcasters that Trump complained about. The Merit Systems Protection Board, which Congress established to protect federal workers from being fired unfairly, broke with decades of precedent to accept the White House’s argument that Trump has the power to dismiss federal employees without due process. Our colleagues reported that this came after a secret pressure campaign by the White House. If this is the model Gorsuch built, I’d like the next system update.
David: Interestingly enough, Justice Gorsuch used the example of Trump’s F.C.C. threatening ABC over Jimmy Kimmel’s remarks to show how the present system is already shot through with political bias. As for civil service employees: I do not believe the Slaughter case destroyed civil service protections for your average federal employee. It is, rather, much more limited to people in policymaking positions. If the court also knocks down civil service protections so that Trump can clear out as much of the federal work force as he wants, we’ll unite in our protest!
Emily: OK, good, except I hope that doesn’t happen. Can we talk about Barrett for a minute? She voted with Roberts and the liberals to preserve the constitutional protection for birthright citizenship. Last year she infuriated the MAGA right in a case about Trump’s use of the Alien Enemies Act to deport more than 100 Venezuelans to a maximum-security prison in El Salvador with no due process and in another about his effort to deny U.S.A.I.D. payments to foreign-aid contractors who had already done the work. And she offered a more limited (and less destructive) version of presidential immunity than the rest of the conservative majority in a concurrence in Trump v. United States in 2024.
David: The MAGA backlash against Barrett is out of control. The justices already face threats. She was apparently swatted at her home in May, but this new level of vitriol — including attacking her multiracial family (she has adopted children from Haiti) — is making me nervous.
In a word, MAGA has focused its fury on Barrett — some people even call her Amy “Commie” Barrett — and that can be very, very dangerous.
Emily: Yes, I’m glad you mentioned that. Barrett is a staunch conservative. But she has her own ideas. In her own way, she is as resolute about sticking to them as Justice Ketanji Brown Jackson, who writes a lot of solo opinions. (They clashed last year in Trump v. CASA Inc., the case about nationwide injunctions.)
This week Barrett wrote the majority opinion in Watson v. Republican National Committee, which allowed Mississippi (and roughly 30 other states) to continue to count mail-in ballots that are postmarked by Election Day but arrive later. Mississippi gives a grace period of five business days. This is another 5-to-4 ruling that really shouldn’t have been close, if you ask me. Let’s set aside whether it’s a good idea for states to accept ballots late. The legal basis for striking down Mississippi’s law was the words “Election Day” in a couple of 19th-century federal statutes that were enacted before modern mail-in voting existed. As Barrett said, these laws say when ballots must be cast but not when they must be received. So federal law does not pre-empt state law.
I say this was an easy case because of the text of the statutes at issue — or lack thereof. But there was enough historical practice on the side of an Election Day deadline for the dissent, by Alito, to accuse Barrett of brushing aside an “impressive historical record.” She is a much more faithful originalist than Alito, so I thought this was amusing. I wonder what you think of Barrett’s place on the court at this point.
I also wonder if you think that the country dodged a bullet with this ruling. It creates far less opportunity for mischief, in terms of challenges to the 2026 midterms, than a decision that called into question late-arriving ballots would have done, no?
David: Here we go again — another clash between traditional textualism and originalism versus what I think of as the new originalism, in which historical inquiry seems to matter more than text.
In the Mississippi case the text was clear on two counts. First, the Constitution states that state legislatures set the rules for congressional elections, unless Congress intervenes. As a result, if Congress is going to overrule state election laws, it should do so clearly and unequivocally.
Second, when Congress set a certain “Election Day,” it did not state that Election Day meant the day by which votes are both cast and received. It could have done so easily. As a result, this leaves considerable discretion to states, just as the Constitution contemplates.
There isn’t a need for yet another journey through the mysteries of history when you have plain words on the page. And yes, we absolutely dodged a bullet, especially with the election so close at hand. A contrary ruling would have caused chaos.
How do you assess the entire term? I’ve definitely got my concerns. I’m mainly concerned that the court’s voting rights jurisprudence fails to account for the persistence of racism in American gerrymandering. I’m also very concerned with the new “text, history and tradition” approach to originalism, which often devolves into “history, tradition and text.” As a general matter, however, I think the court has held the line on the most important questions of constitutional law. From birthright citizenship to global tariffs to the National Guard in American streets to the Federal Reserve, the court has blocked the president’s attempts to upend our constitutional republic.
At the same time, I think this term has highlighted the extent to which Congress is to blame for much of our national predicament. It spent decades granting enormous power to presidents — apparently trusting that presidents would be good people or, at the very least, would put the country’s interests first. That trust was, let’s say, misplaced.
Emily: Forgive me for banging on about this, but I don’t understand generally blaming Congress for giving the president too much power while approving of Trump v. Slaughter, which stopped Congress from limiting the president’s power.
The Voting Rights Act decision was a terrible blow, for the reasons you say and because it has already led to a gerrymandering race to the bottom, with fewer competitive House elections, when there were already way too few. Bad for American democracy. And I don’t understand why the court gets to substitute its judgment for that of Congress, which reauthorized the Voting Rights Act in 2006 by overwhelming margins in the House and Senate.
I think “history and tradition” means “law office history” — meaning, cherry-pick the facts you like and pretend the historical inquiry ties your hands when actually it’s another way to reach your preferred result. Text I still hold out hope for, but it, too, can be twisted, as you’ve shown.
I’m also wary of this week’s ruling striking down yet another campaign finance provision, this time to allow the political parties to coordinate spending with candidates. “A donor will be able to give a party as much as half a million dollars (as compared to the $7,000 he can give directly to the candidate) to cover the candidate’s bills,” Justice Elena Kagan wrote in dissent. “And the candidate can seek just such a donation.” Maybe the parties will just rake in some of the cash now going to unaccountable independent expenditure groups, but all this money in politics is also very bad for democracy, and I hate that the First Amendment has been misappropriated for this purpose.
David: I liked the campaign finance ruling. Its primary effect is to allow parties and candidates to coordinate their expenditures rather than play the stupid games they have been playing, in which they coordinate in public what they were not allowed to coordinate in private. It always struck me as wildly contrary to a First Amendment that’s designed to protect political speech that the state could limit coordination between political parties and their own candidates. If there is any kind of speech that the First Amendment protects, it’s political speech.
Emily: The First Amendment serves this purpose only if you accept that money equals speech. I don’t. There is way too much upside for rich people and corporations in that formulation.
To continue surveying the term: The ruling that allows Trump to end Temporary Protected Status for hundreds of thousands of people — while ignoring his overt racism in the case of Haitians — lets the Trump administration get away with lawlessness to an extent that the court did not allow in his first term. Many rulings on the emergency docket have had a similar effect.
David: I have profoundly mixed feelings about the T.P.S. ruling. I think Trump’s policy is cruel and indefensible on the merits. I think it was motivated by explicit, overt racism. For example, as Justice Kagan pointed out in her very effective dissent, Trump said that Haitians are “poisoning the blood” of our country. But also, Congress very foolishly wrote a law that said that revoking T.P.S. status is unreviewable by the courts.
I know there are arguments that courts should be able to review the process, and I think the majority gave short shrift to the overt racism directed at Haitian immigrants by Trump and his administration, but that statute is just dumb. A new president and Congress should fix that, along with a host of other laws that grant presidents a staggering amount of power. (Please, Congress, start with the Insurrection Act, I beg you.)
Emily: We agree on the dumbness of the T.P.S. statute. And the Insurrection Act.
The defeat of the claims of trans athletes who want to play girls’ and women’s sports is sad for individual athletes, especially kids. These cases reveal a dilemma about fairness. The conservative majority said state legislators and schools are equipped to decide who gets to compete on which teams. In partial dissent, Sotomayor, joined by Kagan and Jackson, argued for sending the sex discrimination claim, based on equal protection, back to the lower courts for more fact-finding about whether trans girls who haven’t experienced male puberty because they took puberty blockers are like cisgender girls — i.e., they don’t have a competitive advantage in sports.
I worry about what comes next on this issue — a suit arguing not that states can restrict participation by trans girls and women but that states must?
David: I don’t think many people are surprised by the outcome of the trans sports case. It was always incredibly aggressive to argue that Title IX, which prohibits sex discrimination in federally funded educational programs or activities, would require schools to permit trans girls to participate in girls’ sports — especially given the inherent biological differences between the sexes.
The next question, which the court may answer relatively soon, is whether Title IX permits any trans women to participate in women’s sports. To the extent that we gained any insight as to the outcome of that future case, I think it will turn a great deal on facts in the record regarding safety for girls and the competitive advantages for trans athletes, even when trans athletes have received puberty blockers or other treatments that might decrease natural physical gaps.
Emily: As we wind down, I’m realizing that the last time we talked you recommended “Widow’s Bay,” which is totally on my list, and I haven’t watched it yet. It’s summer. Time to lighten up! Like you, I really loved “Hacks” and its finale for its utter acing of the Bechdel test.
Are you doing anything worthy of July Fourth + 250th? I have been lazy, and someone invited us to a barbecue, and I’m grateful.
David: One of the great things about being in Chicago on July 4 is that the city brings all the plans to you. We’ll be with friends and family, and our apartment has a perfect perch to watch what promises to be the largest, longest fireworks display in Chicago history.
And when those fireworks go off, I’ll put aside my concerns about our present political crisis and celebrate without reservation the privilege of growing up in, to use Abraham Lincoln’s words, a country “conceived in liberty and dedicated to the proposition that all men are created equal.”
And then on Monday, I’ll get back to work, doing what I can to make sure that this “government of the people, by the people, for the people, shall not perish from the earth.”
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