Trump v. CASA, Inc.

CTRL+F for “birthright citizenship” in this majority opinion, and you only get two hits. That’s because Amy Coney Barrett spends thousands of words telling you that the President's evisceration of birthright citizenship from the Constitution isn’t really about birthright citizenship, it’s about nationwide injunctions. If you're not a 5-4 Premium member, you're not hearing every episode! To hear this and other Premium-only episodes, access to our Slack community, and more, join at fivefourpod.com/support http://fivefourpod.com/support. 5-4 is presented by Prologue Projects. This episode was produced by Dustin DeSoto. Leon Neyfakh provides editorial support. Our website was designed by Peter Murphy. Our artwork is by Teddy Blanks at Chips NY, and our theme song is by Spatial Relations. Transcriptions of each episode are available at fivefourpod.com http://fivefourpod.com Follow the show at @fivefourpod on most platforms. On BlueSky, find Peter @notalawyer.bsky.social, Michael @fleerultra.bsky.social, and Rhiannon @aywarhiannon.bsky.social. Our Sponsors: * Check out Mint Mobile and use my code mintmobile.com/fivefour for a great deal: https://www.mintmobile.com * Check out Quince and use my code FIVEFOUR for a great deal: https://www.quince.com Advertising Inquiries: https://redcircle.com/brands

Speaker names marked ? are inferred from speaking time and the show’s known hosts — they are not voice-verified.

• 0:00Speaker 00

  We will hear argument this morning in case 24A884, Trump versus Casa Incorporated, and the consolidated cases.

• 0:11Speaker 01

  Hey, everyone. This is Leon from Prologue Projects. On this episode of Five to Four, Peter, Rhiannon, and Michael are talking about Trump v. Casa. This is a recent case about birthright citizenship and whether lower district courts can issue nationwide injunctions. Trump v. Casa stems from Donald Trump's executive order purporting to end birthright citizenship for children born in the United States to undocumented parents. The order, which plainly violates the 14th Amendment, was successfully challenged in lower federal courts, leading to a nationwide injunction that stopped it from being enforced. The Trump administration challenged the injunction, claiming that the lower courts

• 0:53Speaker 01

  overstepped their authority and should not be able to issue nationwide injunctions that apply beyond the parties in a given case. The Supreme Court ruled in Trump's favor.

• 1:04Speaker 02

  Now, this ruling limits the power of federal judges to issue sweeping orders that have prevented certain policies by both Republican and Democratic administrations.

• 1:14Speaker 01

  This is Five to Four, a podcast about how much the Supreme Court sucks.

• 1:21Peter Shamshiri?

  Welcome to Five to Four, where we dissect and analyze the Supreme Court cases that have stripped away our civil rights like Republicans stripping away rural hospitals. I'm Peter. I'm here with Michael.

• 1:32Michael Liroff?

  Hey, everybody.

• 1:33Peter Shamshiri?

  And Rhiannon.

• 1:34Speaker 05

  Hi. Is that in the big, beautiful bill?

• 1:36Michael Liroff?

  Oh, it sure is.

• 1:38Peter Shamshiri?

  Yeah.

• 1:39Michael Liroff?

  Sure is.

• 1:40Peter Shamshiri?

  Actually, you know what? Let's play a game. Since you're not really up on the news cycle here, Ree.

• 1:44Speaker 05

  Yeah.

• 1:45Peter Shamshiri?

  Name a negative thing, and we'll tell you whether it's in the bill.

• 1:48Speaker 05

  Let's see. Funding for ICE.

• 1:51Michael Liroff?

  Yes.

• 1:52Peter Shamshiri?

  Way up.

• 1:53Speaker 05

  Can only imagine.

• 1:54Peter Shamshiri?

  Way up.

• 1:55Michael Liroff?

  Massive. Unreal. Like, double the size of the federal detention system.

• 1:58Speaker 05

  Great.

• 1:59Peter Shamshiri?

  Well, when you factor in the savings that we're getting from no more rural hospitals.

• 2:05Michael Liroff?

  Yes.

• 2:06Peter Shamshiri?

  It makes sense.

• 2:07Michael Liroff?

  Gutting Medicaid, that's in there. Tax cuts for the wealthy, that's in there.

• 2:11Speaker 05

  Yeah. What about kids? Stuff for kids?

• 2:14Michael Liroff?

  They're fucked.

• 2:15Speaker 05

  Yeah. It tracks. Listen, it tracks.

• 2:19Michael Liroff?

  Yeah, no, snap. I think snap is cut in this, right? That gets.

• 2:22Speaker 05

  Great.

• 2:22Peter Shamshiri?

  Snap's getting cut.

• 2:23Michael Liroff?

  So, there you go.

• 2:25Peter Shamshiri?

  Nothing good for podcasters, as far as I could tell. I was looking for a silver lining.

• 2:29Speaker 05

  Damn.

• 2:30Peter Shamshiri?

  Did some Ctrl F for podcasters. Came up empty.

• 2:35Speaker 05

  Discreet insular minority yet again.

• 2:38Peter Shamshiri?

  So, today's case, folks, Trump v. Casa. This is a case about birthright citizenship. Although, more specifically, it is about nationwide injunctions.

• 2:51Michael Liroff?

  Yeah, but then even more specifically, it's about birthright citizenship.

• 2:55Peter Shamshiri?

  That's right.

• 2:56Speaker 05

  Yeah, yeah, a sort of inception dynamic thing happening here.

• 3:03Peter Shamshiri?

  So, Donald Trump handed down an executive order purporting to end birthright citizenship. Right? The idea that with a handful of narrow exceptions, anyone born in the United States is a citizen. The executive order was challenged in court and lower federal courts halted the implementation of the order nationwide. And this case, six months later, is not actually about the constitutionality of birthright citizenship itself, but about the scope of those lower court injunctions. Right? So, a lower court here issued an injunction preventing the government from enforcing the executive order across the country.

• 3:48Peter Shamshiri?

  And the Trump administration challenged that. They said courts don't have the power to halt the implementation nationwide. They only have the power to halt the implementation as it pertains to the plaintiffs that brought the case.

• 4:02Michael Liroff?

  Right.

• 4:03Peter Shamshiri?

  And the Supreme Court, in a six to three decision, basically agreed. They said, that's right.

• 4:09Speaker 05

  Yeah, this isn't technically a merits case, what's called like a case that reaches the merits. Because, like Peter said, it doesn't reach the actual like constitutional question of whether this executive order is illegal or not. But let's talk about the constitutional issue at the center here. Because, remember, for as much as they're going to talk about procedure and injunctions in this case, what we're really talking about, birthright citizenship, it's on the chopping block. So, birthright citizenship is enshrined in the Constitution in the 14th Amendment. Talked about this before, the 14th Amendment literally starts, begins with the citizenship clause.

• 4:50Speaker 05

  All persons, the 14th Amendment starts, all persons born in the United States and subject to the United States jurisdiction are citizens of the United States. So of course, the 14th Amendment is a Reconstruction Amendment, meaning like it's not in the first 10 amendments that are the Bill of Rights that were drafted at the founding, but birthright citizenship even before the 14th Amendment was still the general rule at the founding in the US. And in fact, was the general rule in England at the time that the United States was founded. This was the common law understanding of kind of citizenship and how the sovereign relates to people in its jurisdiction. This is a longstanding legal concept.

• 5:33Peter Shamshiri?

  And worth noting, this is a Reconstruction Amendment, was put into the Constitution in large part to ensure that there were no shenanigans vis a vis the citizenship of former slaves.

• 5:47Speaker 05

  Yeah, let's talk about it. The Supreme Court tried to fuck with birthright citizenship in Dred Scott, a case in 1857, widely agreed to be the worst Supreme Court decision in history. That ruling held that black people are not citizens of the United States. This was a Supreme Court decision that dramatically escalated tensions that led to the Civil War. There was a civil war over slavery and citizenship. And so Dred Scott is overturned, kind of nullified that that Supreme Court decision by the Reconstruction Amendments. The Reconstruction Congress was passing more constitutional amendments to abolish slavery,

• 6:30Speaker 05

  to ensure that people born in the United States were considered and treated as citizens of the United States, et cetera. So this first clause of the 14th Amendment written in, it directly addresses, directly nullifies the Dred Scott decision. All persons born in the United States are citizens regardless of their ancestry. Since then, that's been the rule. But enter, of course, Donald Trump, who signed Executive Order 14160 on inauguration day.

• 7:01Speaker 05

  But six months ago, which redefines American citizenship. It says that US citizenship does not apply to people who are born to a mother who is unlawfully present in the US or lawfully present only on a temporary basis and a father who is not a citizen or a permanent resident of the United States.

• 7:21Peter Shamshiri?

  Right, which is sort of a confusing formulation, but basically just means that one parent or the other needs to be a citizen or a permanent resident.

• 7:30Speaker 05

  Yeah. So many people, organizations and states sued to stop implementation of this executive order and to challenge its constitutionality. For this case, CASA, the case at the Supreme Court that we're talking about, three groups of plaintiffs kind of came together to sue. The first is a group of pregnant women whose children would not be US citizens under the terms of the executive order. The second group is a group of immigrant rights organizations who have thousands of members, hundreds of whom were pregnant, expecting children who would also be denied citizenship under the executive order. And then finally, there's a group of states, this is 22 states plus DC plus the city of

• 8:13Speaker 05

  San Francisco, all coming together to sue. And they're saying that should that executive order go into effect, it would basically cause them to lose like millions of dollars in federal funding and also incur millions of dollars in additional like administrative costs. Each of these groups is harmed in a different way by this executive order, so they are suing. And their big argument, of course, is that the executive order violates the 14th Amendment. But as an initial step in lawsuits like this, the plaintiffs ask for a preliminary injunction. So this is the issue that takes over here and the issue that the Supreme Court takes up. We've talked before about injunctions, and injunction is like a request that while a

• 8:58Speaker 05

  case makes its way through the court system, the court orders that the behavior that is alleged to be harmful or illegal, that that behavior be put on pause. It's saying like, we are already, we, the plaintiffs who are suing, we're already being harmed by this, or we're about to be harmed by this if this behavior is allowed. So please pause it so that the harm doesn't continue while you decide over the course of the case, whether this is ultimately illegal. So they're asking the court to order that the Trump administration pause enforcement of the executive order. The case will make its way through the courts and the courts will decide eventually, if the executive order does in fact violate the 14th amendment. So in order to get a preliminary injunction, the plaintiffs have to show that like,

• 9:44Speaker 05

  without the injunction, they would face irreparable harm. They would have harm before them that can't be fixed, that the executive order itself is likely to be found unlawful in the end, that they have a pretty good legal case. And that considering equities, basically fairness, if the court is considering equities and fairness, like that cuts in the plaintiff's favor. It seems that all of the issues are building up so that ultimately the plaintiffs will succeed in this case. That is helpful in getting a preliminary injunction. So remember, it's three groups suing in three different federal courts, all three of them asking for a preliminary injunction.

• 10:27Speaker 05

  Those three federal district courts, each of them, where these lawsuits were filed, agreed with the plaintiffs and they issued preliminary injunctions. Meaning each of those courts, like they ruled that the plaintiffs would suffer irreparable harm if the executive order was allowed to be enforced, that the executive order itself is likely to be found unconstitutional at the end of the day, and that those equities, the public interests, it falls on the side of the plaintiffs here. Okay, importantly, issue here, these courts issued what are called universal injunctions. These are injunctions that apply nationwide to everyone. Meaning the Trump administration.

• 11:07Speaker 05

  Can't carry out the executive order as to anyone, anywhere in the country, not just the plaintiffs. So the executive order completely paused by these preliminary injunctions. And the government responded, Trump's administration, the DOJ, those Trump lawyers in court, they responded by filing motions to stay the injunctions, to block the injunctions. They're basically appealing those injunction decisions. And at this stage, they didn't even argue whether the executive order would like eventually pass constitutional muster. They're not saying like, actually, no, the executive order does pass the 14th amendment. We should be able to do this. They just said that the universality of the injunctions is at issue.

• 11:51Speaker 05

  That's what they're appealing, that the injunctions ordered them to pause enforcement of the executive order as to anyone, anywhere in the US. That's an overreach by the courts, that the injunction should only apply to the people and the organizations and the states who sued and no one else. So this is the narrow quote unquote issue that's in front of the Supreme Court. But remember always, what the bigger issue is, behind all this procedural bullshit, we are talking about birthright citizenship.

• 12:21Peter Shamshiri?

  Yeah, right. So let's talk about the law here. Some background on nationwide injunction debates. By the way, sometimes we'll say nationwide injunction, sometimes universal injunction, same thing.

• 12:33Speaker 05

  Yeah.

• 12:34Peter Shamshiri?

  So the issue of nationwide injunctions has been percolating for a bit. An injunction, of course, just a court order telling someone, in this case, the executive branch, to stop doing something. So this case is about an injunction ordering Trump not to enforce his executive order. But there's a problem here, which is that in many cases, a single federal judge can put a halt to a policy nationwide, which means that often litigators can search the country for a favorable judge and then get a policy that they don't like halted all across the country. So under Trump, you might like that, but under Biden, you probably did not. You had right wing judges like Matthew Casmeric unilaterally putting a halt to the availability

• 13:18Peter Shamshiri?

  of Mifapristone, for example, all sorts of nonsense is going on, the student loan cases.

• 13:24Speaker 05

  Yeah.

• 13:25Peter Shamshiri?

  So sort of a tricky issue. So the majority here, written by Amy Coney Barrett, creates a new rule. They say that generally speaking, there can be no nationwide injunctions unless there is a law expressly authorizing them. So the court roots this in the principle that legal cases should generally be limited to the party in that particular case. So if in this situation, a pregnant woman wants to sue and say, hey, I want an injunction against the application of this executive order to me and my child, a court can grant her that injunction, but it cannot grant an injunction that protects all pregnant people in the same manner, right?

• 14:08Peter Shamshiri?

  Because they are not parties to the lawsuit. So the term the majority uses is complete relief. Courts have the inherent power to grant complete relief to the parties in a case. In some situations, that might result in what is functionally a nationwide injunction, like if the parties are maybe a state or a large association with many members.

• 14:36Michael Liroff?

  Yeah, like, you know, the Sierra Club or the NAACP, one of these massive organizations that has members in every state.

• 14:43Peter Shamshiri?

  Right. But in most situations, it won't. Now, part of the analysis that Amy Coney Barrett does here is looking at the Judiciary Act of 1789, the law that created the federal court system, to see if the court thinks that it authorized nationwide injunctions. She does the originalist history and tradition thing, asking whether nationwide injunctions comport with the history and tradition of that law. And I found this part pretty boring, I have to say.

• 15:13Michael Liroff?

  Hmm, three pages on bills of peace and courts of chancery.

• 15:17Peter Shamshiri?

  Yeah, there's some dispute about how willing old timey courts were to grant relief to non-parties, people who are not parties to the case. The plaintiffs pointed to bills of peace, which were a way that old English courts consolidated different cases. They said, "Well, look, this means that courts in this era were willing to grant relief to non-parties," right? And the majority basically says, "Yeah, but that's not really the same thing as a nationwide injunction."

• 15:44Michael Liroff?

  Right.

• 15:45Peter Shamshiri?

  Now, I don't care about this dispute because I think originalism is stupid. The majority is right that those bills of peace were not analogous to nationwide injunctions, really. But the plaintiffs are right that bills of peace seem to show that courts back then were willing to give relief to non-parties. So the majority's sort of foundational principle doesn't really seem to hold, you know?

• 16:09Michael Liroff?

  Right.

• 16:09Speaker 05

  Yeah, I also think Sotomayor has a good and very compelling response to this originalist argument and like what was happening at the time of the founding in like how courts considered these issues.

• 16:20Michael Liroff?

  Yeah, I think Jackson also has a good one. I'm excited to talk about her response to this.

• 16:25Peter Shamshiri?

  So, so we can leave that exact question for the dissents, but my real takeaway here is just, are we doing history and tradition for everything now?

• 16:35Speaker 05

  Yeah.

• 16:36Peter Shamshiri?

  Because a few years ago, the courts started doing it for constitutional rights, right? Like in Dobbs, basically implementing this originalist test where the Constitution only protects rights that there's a history and tradition of protecting. But now we're also using this test for analyzing statutes. When will this end? When will I be free from this curse? Surely there are situations where we don't have to do history and tradition. And also, why do we not seem to be doing the same analysis for executive power? Because my guess...

• 17:10Peter Shamshiri?

  Because my guess is that if you tried to find the history and tradition of outlawing birthright citizenship, of functionally nullifying Section 1 of the 14th Amendment, you would not find that history and tradition. But apparently, that's not part of the question here.

• 17:26Speaker 05

  No.

• 17:26Peter Shamshiri?

  Another little tortured bit of analysis that the majority does is that the government has to argue that it will be irreparably harmed if it cannot enforce the executive order.

• 17:38Speaker 05

  Yeah.

• 17:38Peter Shamshiri?

  And Barrett says, "Yeah, anytime the government is being prevented from implementing its own policies, it inherently suffers irreparable harm," right?

• 17:49Speaker 05

  This is wild to assert.

• 17:51Peter Shamshiri?

  Which first of all, means that the government always passes the irreparable harm test, a little, maybe a legal nerd note, but I'm a little bit confused by it. But then also...

• 18:01Michael Liroff?

  Didn't seem to occur to them during the Biden administration, that it's just inherently irreparably harmed.

• 18:06Peter Shamshiri?

  Right. And then also, in this particular case, it feels basically outrageous because the harm the government is claiming is not being able to single-handedly nullify Section 1 of the 14th Amendment.

• 18:20Michael Liroff?

  Right.

• 18:21Peter Shamshiri?

  Like, how can not being able to enforce an unconstitutional order ever be a valid irreparable harm?

• 18:29Speaker 05

  It's crazy.

• 18:29Michael Liroff?

  It's insane.

• 18:30Peter Shamshiri?

  We really want to enforce this unconstitutional order, and this court order is not letting us, so you have to lift it because you're harming us?

• 18:38Speaker 05

  This temporary court order, which will just prevent us from implementing it for another few months, which is to say, the status of the 14th Amendment and birthright citizenship for the past couple centuries will just continue. How is it irreparable harm to not be able to change that for a few months?

• 18:57Michael Liroff?

  There's so many different ways that the majority, like, avoiding the merits in this discussion was ridiculous, but it's like, here is where it drove me insane. Like, how can you not talk about the executive order itself, what it's aiming to do, and its likely constitutionality, when assuming...

• 19:16Michael Liroff?

  The federal government's being irreparably harmed by being enjoined from this behavior. It's nuts. It's absolutely nuts. Mm hmm. I was like, losing my shit, reading this.

• 19:26Peter Shamshiri?

  So there are still paths to getting a nationwide injunction in different circumstances, right? We should talk about that. The most obvious one is that if there is a law, a statute, saying you can get a nationwide injunction, then you can't. The Administrative Procedure Act, which governs agency actions, would be a big source of those. You also have class actions, which are allowed by statute. And then you have a couple of gray areas. If states are plaintiffs, like here, Amy Coney Barrett seemed open to the possibility that you could get nationwide standing in certain circumstances. And then if you have big associations, like I mentioned, that might also lead to nationwide standing.

• 20:10Michael Liroff?

  And so, sorry, I'm just gonna butt in, in case you're curious, like, how the argument might run. Like, a state like New Jersey is probably going to argue that it needs a nationwide injunction for complete relief, because if there's a different citizenship regime in, say, Texas, then New Jersey residents are at risk when they travel to other states of being stripped of citizenship and deported, and New Jersey's harmed by that. And so they need a nationwide citizenship regime. That makes sense. Maybe courts will buy it, maybe they won't. But that's what the argument will look like. It's like, our residents need to be able to travel throughout the 50 states without worrying about being stripped of citizenship and deported.

• 20:54Peter Shamshiri?

  Right.

• 20:54Michael Liroff?

  Like...

• 20:55Peter Shamshiri?

  So, because nationwide injunctions were already a little bit controversial, and because there are still some avenues for getting them, you actually had a lot of moderate and liberal legal media types saying that this is not so bad.

• 21:10Michael Liroff?

  Mm hmm.

• 21:11Peter Shamshiri?

  Noah Feldman, Harvard Law professor, writing for Bloomberg, put out a piece titled "The Birthright Citizenship Ruling Is Being Overhyped." Ian Milheiser, supposed lib over at Vox, wrote one titled "The Supreme Court's Birthright Citizenship Decision Isn't As Devastating As You Think." Professor Nicholas Bagley, writing for The Atlantic, wrote one titled "The Supreme Court Put Nationwide Injunctions to the Torch," subtitle, "That Isn't the Disaster for Birthright Citizenship That Some Fear." So you might be wondering, why do we care? If all of these absolutely charmless losers think that this is no big deal? Why do we care?

• 21:54Peter Shamshiri?

  And I think it's a good question. Why do we think that this is such a bad case? I think the answer is not entirely the substance of the decision in a vacuum as much as the timing and the context. So first, the timing. The issue of nationwide injunctions came up repeatedly during the Biden administration. In fact, the administration raised it to the Supreme Court at least nine times, and the court either ignored or punted on the issue each time. But now nationwide injunctions hurt the Trump administration, and the court addresses it immediately. So, given that context, does it make more sense to say that this case reflects the court's

• 22:39Peter Shamshiri?

  position on nationwide injunctions, or their position on Republicans versus Democrats? Yeah. And then you have the legal context here. Donald Trump puts out an executive order saying, hey, no birthright citizenship. Direct attack on the 14th Amendment of the Constitution, which has been understood for well over a century to enshrine birthright citizenship into our law. There was a Supreme Court case saying as much from the late 1800s. The Supreme Court could have said, hey, forget this injunction bullshit. We're going to tackle the underlying question of whether this is constitutional. I'm not the first person to point out that if a president put out an executive order

• 23:20Peter Shamshiri?

  saying, hey, we don't think the Second Amendment applies to personal gun ownership, we think that D.C. v. Heller is incorrect, and we'll be confiscating guns, right? You wouldn't catch the Supreme Court dragging their feet for six months. Talking about the scope of injunctions.

• 23:37Michael Liroff?

  Yeah, right.

• 23:38Peter Shamshiri?

  They would have stepped in immediately. They would have issued their own nationwide injunction. Clarence Thomas would have brought a gun to oral argument, and they would have struck the executive order down within days. Right. Guaranteed, guaranteed. All of this to say that the takeaway from this case isn't so much that the court is creating a rule as much as it's sending a signal, right? They will be operating to facilitate the actions of the Trump administration. They will be limiting the power of anyone who attempts to stand in the administration's way. That is the message and the functional holding of this case. It's not about fucking nationwide injunctions.

• 24:15Michael Liroff?

  Yeah, a friend of the pod, Sam Bagenstoss, wrote a nice piece about this case, and he talked about how his belief that even this Supreme Court right now is not at the point where they would rule on the merits for the Trump administration on birthright citizenship. And he and I had a little back and forth about this on Blue Sky where he said, you know, he's less confident in that now than he was earlier, but he still thinks it's more likely than not that they would rule against Trump at this moment in time. But his take was, you know, but nonetheless, they wanted to hand Trump win, right?

• 24:57Michael Liroff?

  Like, this is the sort of, the best case scenario is that this is a profound act of cowardice from the six conservative justices who know that what Trump is doing is unconstitutional and wrong and should be stopped, but don't want to be responsible, don't want to be the ones who say to Trump, "You can't do this." That's the best case scenario. The worst case scenario is something more like they're dragging this out and waiting for the political conditions to change so that it's easier for them to rule in his favor.

• 25:37Peter Shamshiri?

  Should we talk concurrences, folks? There's only, uh, there's only-

• 25:39Michael Liroff?

  Eight.

• 25:41Peter Shamshiri?

  Three concurrences and two dissents.

• 25:43Michael Liroff?

  So Kavanaugh has a concurrence and like, you know, the majority wants to frame this as like, look, we're just looking at the history of the judiciary act and we are pining on the limits of the power of district courts and blah, blah, blah. And it's very technical and it's not political and it's not ideological and it's, you know, not about the president, who's the president or whatever. But Kavanaugh's concurrence is just sort of giving the game away, you know? He's, he's so intent on explaining himself and sounding smart that he's like just tearing apart the entire facade. He's like, look, everybody needs to calm down. This isn't

• 26:23Michael Liroff?

  that big a deal. There's still all these methods for, you know, enjoining executive action uniformly across the nation when it's absolutely necessary, when there's big social change coming, when there's big policies being implemented. And his point is like, it's just that we are the ones who decide it. We at the Supreme Court, not the district courts. He's like, we're taking this power from the district courts. And they're still going to decide sometimes that there needs to be a nationwide rule and it's still going to be reviewed by the appellate courts. But this is really like, this is about us deciding. And I think that's right. I think that's, this case is just about them putting the

• 27:07Michael Liroff?

  district courts in their place. In the last six months, Trump has been losing at a very high rate in the district appellate courts and he's been winning at a very high rate at the Supreme Court. And they're saying, hey, pay attention. We're telling you to rule in favor of Trump and we're the deciders. We're in charge of this branch of government.

• 27:30Peter Shamshiri?

  And Michael, you're underselling it a little bit because the statistic that we saw a few weeks ago, now outdated, but was that it's something like 95% win rate for Trump's opponents in the district courts, 95% win rate for Trump at the Supreme Court, a complete flip, a 90, like. A flip of 90%. That is wild.

• 27:58Michael Liroff?

  Yeah, yeah. And so they're telling them, like, get with the program. If you can't be trusted to roll over for Trump, we're just going to start taking power from you. Right? This is, this is what Kavanaugh's concurrence is saying. In an effort to sound sophisticated and, and tell everybody to calm down, it's not a big deal. There'll still be nationwide injunctions. He's just sort of admitting, he's like giving the game away. Like, look, we're in charge, we decide. And that's why I like the Bagley piece especially like bothers me. That you mentioned Peters, it's like so myopic. I like Bagley, he's good on gerrymandering, he's a decent academic as far as they go. But it's just so myopic, it's not understanding the political context.

• 28:42Michael Liroff?

  When this case is all about the political context, right? Like you did, the, the, the political context explains 99% of this case. So if you're ignoring the political context, you're ignoring everything that's important about this case.

• 28:56Peter Shamshiri?

  Yeah. So Thomas and Alito both file concurrences, basically looking to frame the majority as like even more conservative than it already is. Thomas is joined by Gorsuch. He says, hey, I agree with the majority, but also the majority says that courts have the power to grant complete relief to a plaintiff. And Thomas emphasizes that that's a ceiling, not a floor, meaning that courts don't have to grant complete relief if they determine that it's too burdensome to the defendant. And in these cases, the defendant will generally be the government, will generally be the Trump administration. So the opinion is really just saying, hey, not only can you not really do nationwide injunctions,

• 29:36Peter Shamshiri?

  but you should be cautious not to burden the government too much with, even with a narrower injunction, right? Just remember to be nice to Donald Trump.

• 29:46Michael Liroff?

  Right. And, and complete relief is a term, I don't, I don't want to say that it was invented for this opinion, but it feels very much like, at the very least, it wasn't a big, important legal concept to my understanding before this opinion. They're hanging a lot on this idea that essentially the plaintiff can get essentially everything they need to remedy their harm. So. You know, if you are concerned that your child being born here won't get citizenship, everything you need to remedy that harm is an assurance that your child will be granted citizenship and then that child being granted citizenship, right? And that's complete relief and it doesn't matter to you, according to the court, whether

• 30:31Michael Liroff?

  some other person in some other state also has their child's granted citizenship.

• 30:36Peter Shamshiri?

  Right. And on, if you want to sort of expand it, right? Let's use the idea I've touched on a couple of times of associational standing. So let's say like, I don't know, let's say a nationwide organization that represents people of Mexican descent.

• 30:53Speaker 05

  Mm hmm.

• 30:54Peter Shamshiri?

  Brings a lawsuit, right? And they say, hey, we need a nationwide injunction because we have members and we represent communities all across the country. So you basically have to do this nationwide. Thomas seems to be hinting at saying like, well, you don't have to.

• 31:08Speaker 05

  Yeah.

• 31:09Peter Shamshiri?

  You don't have to do complete relief. So be careful, right? That's what Thomas is trying to get. He's trying to sort of, and the same thing with Alito here, we'll talk about this in a second, but trying to close some of the doors that might still be open after you read the majority, right?

• 31:23Speaker 05

  Yeah. Each person doesn't have to get the complete relief that could be afforded to them and the group itself and the scope of the injunction and who that applies to doesn't have to be the complete group that this harm could fall upon.

• 31:37Peter Shamshiri?

  Right. So then Alito, joined only by Thomas, says a couple of sort of similar things. Again, the majority leaves some doors open to nationwide injunctions, right? And Alito's saying, hey, let's close those doors, right? So the majority says maybe states could in some circumstances get nationwide injunctions when they sue on behalf of their citizens. And Alito says, yeah, well, fine, but we should look into narrowing the circumstances for when we actually allow that.

• 32:08Michael Liroff?

  Right.

• 32:09Peter Shamshiri?

  And then the majority also says some class actions should get nationwide injunctions, right? Because they represent a whole class. And Alito's like, yeah, okay, but we should be more careful about certifying nationwide classes, right?

• 32:22Michael Liroff?

  Right.

• 32:23Peter Shamshiri?

  He's just trying to clamp down on every remaining avenue and being like, yeah, it might seem like these doors are still open, but like, watch me, watch me, watch me when you try to bring the case.

• 32:35Michael Liroff?

  Yeah. Maybe now's a good time for a break.

• 32:39Speaker 05

  We are back. Okay, Sotomayor comes in at this point with a dissent. It's a long dissent. This is 43 pages compared to, you know, Alito's toilet paper concurrents at four pages. Sotomayor is coming in, I think it's a powerful dissent. A lot of it, she does spend on refuting these claims about the history and tradition of equitable remedies, of nationwide injunctions, and that kind of thing that really is sort of like the foundation of the majority opinion. I do, I think, like, want to talk a little bit about the history that Sotomayor relies on because I think it actually is compelling because it shows not only that the 14th Amendment,

• 33:20Speaker 05

  that birthright citizenship have long been relied upon and interpreted in this way to actually ensure actual birthright citizenship, right? But even the way that courts have treated nationwide injunctions and what are called equitable remedies, which we'll get into in a little bit, that is longstanding precedent as well. That is longstanding understandings of how courts are supposed to function when remedies should apply to large groups of people, basically, right? So she goes through the test for issuing a preliminary injunction and also how the government would argue or challenge a preliminary injunction. And she says, "The government

• 34:03Speaker 05

  fails here, right? This executive order is patently unconstitutional. It is patently unfair to the people who would be harmed by it. And the government has not and cannot show that it would suffer irreparable harm as a result of not being able to execute this executive order." While the plaintiffs, on the other hand, have demonstrated those things, they have demonstrated that they would suffer irreparable harm and manifest unconstitutionality and unfairness in this executive order. We already talked about it. Like, what on earth, Sotomayor? Basically says, what on earth is the irreparable harm that the government would suffer here? A few months of applying the same citizenship rule that we've had for centuries? That's not harmful.

• 34:48Speaker 05

  I'm sorry.

• 34:49Peter Shamshiri?

  Right.

• 34:49Speaker 05

  Right? They're going to be harmed by not being able to violate people's rights.

• 34:52Peter Shamshiri?

  Well, every baby that gets born to an immigrant is a free illegal vote for Democrats. And that's what they're worried about.

• 35:01Speaker 05

  That's the irreparable harm. Yeah, it's unsaid, but it's in the background here. Sotomayor says, like, if the executive order banned women from receiving unemployment benefits or banned black people, black citizens from voting, would the government be irreparably harmed by that being universally enjoined? This irreparable harm point is absolutely ridiculous.

• 35:23Peter Shamshiri?

  And to be clear, Amy Coney Barrett is saying, yeah.

• 35:26Speaker 05

  Yeah.

• 35:27Peter Shamshiri?

  Because the the implementation of any policy being halted is irreparable harm automatically by her analysis.

• 35:34Michael Liroff?

  Which is why when I'm president, I'm issuing an executive order disenfranchising all registered Republicans. That's step one.

• 35:44Speaker 05

  It's allowed now.

• 35:45Michael Liroff?

  It's allowed.

• 35:47Speaker 05

  It's allowed now, and no court can stop you.

• 35:49Michael Liroff?

  That's right.

• 35:50Speaker 05

  Sotomayor goes into the like, the point and the importance of equitable remedies.

• 35:55Peter Shamshiri?

  By the way, folks, when we say like equitable or equitable remedies in a legal context, all that is, is like, you have statutes, that's one sort of source of law, and then you have equity, which is basically just courts doing fairness.

• 36:12Speaker 05

  Yeah. Fairness, justice considerations. Yeah.

• 36:15Michael Liroff?

  Right.

• 36:16Peter Shamshiri?

  Right. So you'll often hear things like the balance of the equities, right, in this legal context? So there are things that courts have the power to do because they derive that power from a law, and there are things that courts do because they derive that power from equities, from the, basically, the history of courts weighing in on certain issues to ensure that outcomes are fair and just.

• 36:40Speaker 05

  Yeah, exactly, exactly. And so Sotomayor talks in the dissent at length about the importance of courts being able to do equitable remedy, to be able to balance equities. In any given case, especially in a case where it is alleged that constitutional rights are being violated. She says, "The point of equitable remedy is empowering courts to do, quote, 'complete justice' and to give courts flexibility in deciding what appropriate remedies will be." Like, how do we repair harm? Courts should have some flexibility in determining that because specific laws might not always be adequate in repairing harm. So, you know, this is so that there's an avenue for relief, for legal relief,

• 37:23Speaker 05

  where like a narrow legal remedy isn't available and an avenue where the public interest or the rights of people who aren't specific parties in a lawsuit can be taken into account. So equity courts, which were like historically different kinds of courts than courts that ruled on remedies like at law or remedies that come from statutes or written law. Equity courts is like where the basic concept of like a class action lawsuit comes from, for example. A plaintiff representing, or a group of plaintiffs, representing an even larger group. This idea of legal equity is where these concepts come from. And so, "history and tradition," Sotomayor says, "in American courts, like, it contemplated these principles as well."

• 38:07Speaker 05

  Like, taxpayer suits were allowed where courts could universally enjoin the enforcement of a challenged tax implementation. And that could be brought by one taxpayer. And, you know, there's literal decades of precedent where the federal courts issue universal injunctions and the Supreme Court affirms them as appropriate, says that, yes, this was the correct remedy at that point in whatever litigation, you know? Like we said earlier, in a really boring part of the majority opinion, Amy Coney Barrett goes on at length about bills of peace, which were like a way that courts used to decide cases or give remedies to people who weren't necessarily parties in a lawsuit

• 38:52Speaker 05

  and how universal injunctions are different from those. You know, the majority says that bills of peace were typically applied to like small cohesive groups that were representative in nature. And like, they know this is wrong because there are a bunch of examples where bills of peace were applied to different kinds of groups. But Sotomayor says, "Wait a minute." What does small cohesive and representative as a group mean? Aren't the people that would be harmed by this executive order? A small and cohesive and representative group? It's a small subset of newborn children in the United States. Children born to a mother unlawfully or temporarily present? And with a father who isn't a citizen or permanent resident? That's cohesive. It's representative. It's quite small.

• 39:38Speaker 05

  And Sotomayor adds, we don't need like exact history examples. Like, we don't need the clear, exact case in history? Or the exact action taken by a court 200 years ago?

• 39:50Peter Shamshiri?

  See, that's, that's where you're wrong, Sonia.

• 39:53Speaker 05

  Yeah, right. We don't need that. Like, historical analogues, she says, are no doubt instructive and provide important guidance. But requiring an exact historical match for every equitable remedy defies equity's purpose. The Judiciary Act itself says equity is flexible. It's explicitly stated in the Judiciary Act. This is the heart. It's at the heart of equitable remedies, right? A built in flexibility.

• 40:18Peter Shamshiri?

  That's what she gets backwards. Because the point of the originalist analysis is to provide flexibility to the conservatives on the court.

• 40:27Speaker 05

  That's right.

• 40:28Peter Shamshiri?

  To interpret these laws and constitutional provisions in whatever way they want. By just sort of cherry picking historical analogues? Drawing whatever distinctions they feel like drawing? And generally humiliating themselves despite the fact that they don't really understand anything about history. Right.

• 40:47Speaker 05

  Couple of final things on Sotomayor's dissent, which I think are most powerful. She talks about how the alternative injunctions that the majority opinion is mandating? How they are on their face unworkable? And she also goes back to this idea of irreparable harm? And the irreparable harm that's actually going to be faced by the plaintiffs? Without the universal injunction? So on the point of like these narrower injunctions and how unworkable they are? You know, consider like just the 22 states who filed the lawsuit, right? People move. Like they moved to other states. So if the injunction was issued only for the states that asked for it, those states that are plaintiffs in this lawsuit, that means the

• 41:29Speaker 05

  executive order would go into effect in all of the other states in the United States. The children who this executive order applies to, who were born in states where the executive order is in effect, would not get social security numbers, would be treated as non-citizens. Suppose they moved to a state where the injunction is in effect, a state where enforcement of the executive order is paused.

• 41:51Peter Shamshiri?

  I mean, it's just, it's just ridiculous. It's, it-

• 41:54Speaker 05

  How does that state treat those people?

• 41:56Peter Shamshiri?

  I, I feel like all this history shit just obfuscates this like very fundamental point. Can we actually have a world where you're a citizen if you're in one state and you're not if you're in another?

• 42:06Speaker 05

  But not in another, exactly?

• 42:08Peter Shamshiri?

  It's non-functional. It's ridiculous.

• 42:10Michael Liroff?

  We had a regime like that and we fought a civil war over it.

• 42:14Speaker 05

  Yes!

• 42:15Michael Liroff?

  That's what it used to be. You could be a free black man or a free black person in the North, but if you traveled South, you risked just being kidnapped into slavery, right? Like, that's, that's what fucking 12 years a slave is about, right? Like, that's like, the whole thing. Like, that's-

• 42:31Speaker 05

  It's also what Dred Scott is about. That is what Dred Scott is about.

• 42:34Michael Liroff?

  Yeah, it's what Dred Scott was, is what the Civil War was about. Like, we-

• 42:38Speaker 05

  It's what the Civil War was about.

• 42:39Peter Shamshiri?

  And maybe, you know, to modernize the concern, what prevents, under that regime, ICE, federally situated ICE, from stepping into a state like New Jersey, where someone is technically a citizen, snatching them, bringing them to a state where they're technically not a citizen, and then taking them into court and saying, well, we can deport you now, right? You're not a citizen when you're here.

• 43:02Speaker 05

  Exactly, exactly. And how does this leave the legal remedies for real people, right? So what am I always saying? Like, so every pregnant person who the executive order would apply to has to sue? Like, these are the practical realities that this majority opinion, like, ushers in. And then finally, on the point of irreparable harm, irreparable harm to the children born under this order. This creates an underclass of people in the United States, which is what we're getting at. It prevents them from full participation in society and democracy. These babies, these children, now denied public services, denied the ability to work lawfully, threatens to make some American-born children stateless.

• 43:44Speaker 05

  Stateless, you know, Sotomayor points this out, this causes a total destruction of an individual status in organized society to be deemed stateless. But believe me, coming from a people who have been deemed stateless. This is massive. This is, this is a massive barrier to the full political and social participation of masses of people. This threat, she says, the threat of creating a stateless class of people in the United States hangs like a guillotine over this litigation. It is on its face unconstitutional. This is just ridiculous.

• 44:24Michael Liroff?

  Yeah.

• 44:25Peter Shamshiri?

  Yeah.

• 44:26Michael Liroff?

  So Jackson has a dissent too, just for herself. Interesting. Neither Kagan nor Sotomayor join.

• 44:32Peter Shamshiri?

  Well, wouldn't want to burn those bridges.

• 44:34Michael Liroff?

  Right. I thought it was really good. I hinted at this earlier. She's very dismissive of the history and tradition test. I feel like this early paragraph of hers really gets to it. She says, "To hear the majority tell it, this suit raises a mind-numbingly technical query. Are universal injunctions sufficiently analogous to the relief issued by the High Court of Chancery in England at the time of the adoption of the Constitution and the enactment of the Original Judiciary Act to fall within the equitable authority Congress granted federal courts? But that legalese is a smokescreen. It obscures a far more basic question of enormous legal and practical significance. May a federal court in the United States of America order the executive to follow the law?"

• 45:19Speaker 05

  Period.

• 45:19Michael Liroff?

  And I think this is like the heart of it. This is what's so alarming about this case because again, look at the posture of this from a district court's point of view. The executive issues an executive order like we're ending birthright citizenship or we're seizing all the guns or we are disenfranchising anybody who's registered as a Republican or whatever. Someone brings suit and requests that this action be enjoined.

• 45:50Michael Liroff?

  As to them, the court does a preliminary analysis, which is part of the injunction. First, look at the merits to guess whether or not the plaintiff is going to win, whether or not they're going to prevail, whether or not this is likely unconstitutional, and determines, yes, this is likely unconstitutional. This is almost certainly unconstitutional. And so I'm enjoining it, but only as to you. As to everyone else in the country, the executive branch gets to continue to violate the Constitution.

• 46:22Speaker 05

  To do illegal shit.

• 46:24Michael Liroff?

  It gets to continue to violate the 14th Amendment, or the Second Amendment, or whatever amendment, right? Like, that is what this case is demanding. That's the regime they're implementing, is they're telling lower courts that even when the executive branch is blatantly violating the Constitution, at the very least, you need to be very, very careful about ordering them comply with it. Only in the rarest of circumstances should you be ordering them to comply with it universally.

• 46:56Speaker 05

  I mean, meanwhile, Noah Feldman and his fucking ilk are saying this is actually a moderate stance, and thank God the Supreme Court finally came up with a rule for nationwide injunctions.

• 47:08Peter Shamshiri?

  Right. And one thing worth circling back to that I touched on, they could have resolved this on the merits.

• 47:15Speaker 05

  Yeah.

• 47:15Peter Shamshiri?

  They could have said, hey, we need to expedite the fundamental question of whether this is constitutional. Let's see some briefing, oral argument, bang, bang, bang. We're going to do it real fast, right? They could have done that. I think it was a couple of months ago, we actually talked about nationwide injunctions. It might have been on a premium episode, but one of the things that we said was, part of the way you solve the problem is by having the Supreme Court actually step in to resolve these cases.

• 47:41Michael Liroff?

  Right.

• 47:41Peter Shamshiri?

  The problem here is of the Supreme Court's design.

• 47:45Michael Liroff?

  Right.

• 47:45Peter Shamshiri?

  If they were actually intervening quickly and resolving these cases.

• 47:50Peter Shamshiri?

  Maybe this problem goes away.

• 47:52Michael Liroff?

  No, I think that's right, Peter. And I think like, a lot of Jackson's frustration with the majority in this dissent stems from her acknowledging their pattern of behavior here, right? Like, there's something very realist about this opinion, about this dissent, where she's talking about, like, she's openly saying, look, the executive branch has been very disrespectful of lower courts, and even the Supreme Court, unlikely to follow laws, saying in oral argument that if they follow circuit court precedent, it's really at their discretion whether or not to do that. So she's saying, in the context of the Trump administration,

• 48:34Michael Liroff?

  and their disdain for courts, and their disdain for the rule of law, this is a profoundly irresponsible approach to the question of nationwide injunctions. I did enjoy how dismissive she was of originalism. At one point, she just says, she says, "Focusing on inapt comparisons to impotent English tribunals, the majority ignores the judiciary's foundational duty to uphold the constitutional laws of the United States." She's like, what are we even doing here? Like, who gives a shit?

• 49:06Speaker 05

  Why do we need court? We don't have currently, we don't have courts, like, we had courts in the 1780s, or whatever. It's so stupid.

• 49:14Michael Liroff?

  Right.

• 49:15Peter Shamshiri?

  I feel like we're sort of taking back something that the conservatives had for a while, like Scalia used to do if there were like citations to old common law, where now we're the ones being like, who cares about that gay English bullshit?

• 49:31Peter Shamshiri?

  We don't give a shit about, we don't give a shit about those dainty little Englishmen from the 1700s. Average height, five foot two? I don't think so. Wearing wigs and shit in the courtroom? Absolutely not.

• 49:45Michael Liroff?

  She makes a more jurisprudential point as well that like.

• 49:50Speaker 05

  She's gonna make a finer point on that. Yeah.

• 49:54Michael Liroff?

  The Chancery Courts, that was very much about the relationship between the courts and the king. And part of the, the whole point of setting up our constitution was to devolve power from the king into the coordinated branches. So like, maybe the Chancery Courts aren't the model for our courts. Like, the precedent is less powerful than the king. So what are we doing here?

• 50:17Speaker 05

  It's supposed to be.

• 50:19Michael Liroff?

  Yeah. But, but I, I think she's very good in this dissent. I do not get why Sotomayor, at the very least, didn't join it. I do think like, yeah, she's exasperated by the political reality here. This is obvious gammanship, right? Like, the court obviously thinks there's some political advantage to punting on this issue. So while everybody else is looking at the merits, all the lower courts, and the Courts of Appeals are looking at the merits. All of the people in this country are upset about the merits. The Supreme Court is dodging the merits, right?

• 50:59Michael Liroff?

  Like, they're doing it for a reason. They have the tools to reach the merits here if they want. Like, it's part of the preliminary injunction equitable and irreparable harm tests, right? You can look at the merits, but even beyond that, the court does have the power to change the question presented, request extra briefing, you know, grant cert before judgment. They have all these tools they could have used here. So the fact that they didn't tells us something. What the precise political calculation the court is making here is not 100% clear, but they obviously see some advantage to punting this issue.

• 51:37Michael Liroff?

  I think you would hope that, that it's to put off the uncomfortable, you know, decision to tell Trump no, that they're just, they don't, they don't want that smoke right now. But I don't know, I see $180 billion appropriated to ICE for the next 10 years. I see the building of concentration camps, you know, in Florida and Texas and elsewhere. I see Trump talking about denaturalizing and deporting the Democratic mayoral candidate in New York. I see him talking about denaturalizing citizens. If you were born here, not just naturalized citizens. And I worry that the political conditions are moving the other way. That in a year's time, in 18 months' time,

• 52:22Michael Liroff?

  the court is going to be even less well-positioned to tell Trump no. And if this case is any indication, they have no stomach to tell him no.

• 52:33Speaker 05

  Yeah, I think that's exactly right. I think also like shifting political and social conditions in a year's time or in 18 months' time, even setting that aside, this case is the court signaling to the conservative legal movement to come up with, to circulate arguments about why birthright citizenship can be limited in exactly these ways. Arguments that were unheard of before six months ago continue to be blatantly unconstitutional and the court just giving, giving this fascist movement more time to sort of consolidate the legal arguments about this.

• 53:09Michael Liroff?

  Yeah, right, yeah.

• 53:11Speaker 05

  And in doing that, and in ruling in general in this way on this case, like what I see from this is an activist court posturing as a court that is exercising judicial restraint. This is really, really big. This is still a major framework that is taught in constitutional law in law school right now. This dichotomy or this spectrum between judicial activism versus judicial restraint and that conservatives purport to value judicial restraint, which is not interfering in, in executive and legislative action supposedly. Now, this Supreme Court and, and says that what it's doing is deferring to the executive branch where judicial

• 53:56Speaker 05

  action would be overreach, right? And where courts are not authorized to act. But take half a step back and what you see is a court that's actually incredibly active right now in setting policy.

• 54:15Speaker 05

  In putting its thumb on the scale of how this country is run, incredibly active in reshaping, reforming, not just federal law, not just constitutional law, but the role of the executive itself. How the president can act, what the president can do. The Supreme Court right now is incredibly actively involved in these kinds of questions and in deciding these questions for all of us. This is not a restrained Supreme Court. I just keep thinking about like John Roberts in another context and these conservative dipshits in another context, which is like federal agency activity and the administrative

• 54:56Speaker 05

  state under an administration that they don't agree with, coming up with some bullshit about major questions. Major questions doctrine, when there's a major question, the Supreme Court has to step in and intervene. Here, birthright citizenship isn't a major question. We're hands off there, but don't let them lie to you and tell you that that's restraint that they're holding back. This is them actively deciding very important, major questions.

• 55:28Peter Shamshiri?

  Yeah, you know, I want to flesh out a point I made earlier about what to take away from this case and what the legal media gets wrong. I think a lot of legal media types, including some purported liberals, they get this tunnel vision around these cases. So if you ask them what the rule created by this case is, they would say something like, no nationwide injunctions unless provided by statute or where necessary to get complete relief to a plaintiff, something like that, right? But is that the actual rule? Because if you take a step back, if you knew nothing else about this and I told you

• 56:11Peter Shamshiri?

  that nine straight times, the issue of nationwide injunctions came to the court and nine straight times, they allowed those injunctions to proceed, and then the 10th time, they said it was forbidden. Would you say that the rule is that these types of nationwide injunctions are forbidden? Of course not, right? You couldn't tell me what the rule is if I told you that. It's all unclear what's happening. But if I told you that the first nine times a Democrat was in office, and then the 10th time a Republican was in office, now can you tell me what the rule is? Yes. Right? The real rule here is that the court is clamping down on nationwide injunctions against Republican administrations.

• 56:56Peter Shamshiri?

  I assure you that if a Democrat returns to the Oval Office under this court, they will find a way to allow for every nationwide injunction that comes their way. Right? Yes. And that's why if you're in the media and you're just regurgitating the holding of this case to your readers, you are doing them a massive disservice. You are not actually explaining what's going on. You have to peel back these layers of legalistic bullshit a little bit and look at what's underneath. But most of these guys can't do that because their only expertise is the legalistic bullshit.

• 57:31Speaker 05

  Yes.

• 57:32Peter Shamshiri?

  So you end up like constantly relentlessly missing the forest for the trees.

• 57:37Speaker 05

  Yeah, and the effect of like this, let's call it like lawyerly analysis, like imposing just like that the lawyer brain on interpreting these cases. We talked about it with, you know, the legal commentators and legal academia, you know, like forcing this argument that actually this is moderate decision of some sort, or, you know, you shouldn't, you shouldn't be blowing it up, or it's not the death knell to, you know, constitutional rights that you think it is. What all that serves to do is really tell people, especially who aren't lawyers, that they shouldn't have opinions, thoughts, feelings.

• 58:16Speaker 05

  They shouldn't bring their values to Supreme Court decisions and react from that basis. Right? It tells people like, ah. Yeah, I mean, a birthright citizenship being on the chopping block, that's scary, right? But in this case, you just don't understand nationwide injunctions. You don't understand bills of peace. You don't understand the history and tradition of a court's consideration of legal irreparable harm. And what all this does is like pacifies everybody into, you know, oh, I guess I'm just supposed to accept this again. I, I, I guess they're just the smartest lawyers in the land. I guess this is just, this is just how the law works.

• 59:00Speaker 05

  And, you know, my, my thoughts and my feelings and my values, my morals around how birthright citizenship should be protected, how people should be protected, how our society should operate, how a democracy should operate. I, I guess that doesn't have a place in figuring out legal cases. And so there's a real abdication of media and commentators' responsibility, not just to like accurately be telling us what's happening in these cases, but also an abdication of, of their responsibility to, to meaningfully empower people, the public at large, like the discourse and, and the like knowledge tools to engage with these things fully

• 59:42Speaker 05

  in the way that people already have a base sort of instinct to, to do so. And you take all of that energy away from them by being like, no, actually this is okay. And let me talk about complicated court rules from 200 years ago.

• 59:57Michael Liroff?

  Yeah, it's like, there's like a sad irony to like left-leaning law profs saying, look, there's still all these tools for getting nationwide relief. That's why this isn't so bad. When it's like, yeah, those are the tools that RAGA, the Republican Attorneys General Association, is going to use in the Northern District of Texas to block any potential future Democratic. Administration, but those tools aren't going to be available to us by and large on the left. Like, who are you kidding? Like, what are you talking about? It's possible, it's possible that birthright citizenship is the one issue where that actually

• 1:00:40Michael Liroff?

  plays out, right? Where birthright citizenship itself ends up being protected under this new regime, maybe, that remains to be seen. But in their effort to hand Trump a win here while avoiding the merits, they have given him a tool to go on rampant, just rampant lawbreaking, right? Like to, to go wild and challenge people to drag them into court to make them stop. So it's going to be very bad. This opinion, I think, is bad for birthright citizenship, not necessarily the death knell, and we can talk about that in a second. But I think it's just very bad in general for the idea that the courts will impose any

• 1:01:25Michael Liroff?

  meaningful check on Donald Trump. I think that's the message that you need to be taking away from this, is that they're not, right? They're very conspicuously telling us they're not going to provide a big check on him.

• 1:01:42Peter Shamshiri?

  Next week, premium episode, we are one Supreme Court term in to Donald Trump's second administration. And so we're going to do a little look back. What have we learned about how the court is operating under Trump 2.0? How is John Roberts, our moderate institutionalist king, operating under Trump 2.0? Follow us on social media at 54pod, subscribe to our Patreon, patreon.com/54pod, all spelled out for access to premium and ad-free episodes, special events, our Slack, all sorts of shit. We'll see you next week.

• 1:02:21Michael Liroff?

  Bye, everybody.

• 1:02:22Speaker 06

  Bye, y'all. Sayonara.

• 1:02:29Michael Liroff?

  Five to Four is presented by Prolog Projects. This episode was produced by Dustin DeSoto. Leon Nefok provides editorial support. Our website was designed by Peter Murphy. Our artwork is by Teddy Blanks at Chips NY, and our theme song is by Spatial Relations. If you're not a Patreon member, you're not hearing every episode. To get exclusive Patreon-only episodes, discounts on merch, access to our Slack community, and more, join at patreon.com/54pod.