America Has a King Now

Hello and welcome to the Slate Political Gab Fest. July 2, 26, the America has a king now edition. I'm David Plotz of CityCast in a sweltering Washington, D.C., from the New York Times Magazine in Yale University Law School and probably a sweltering New Haven. is Emily Bazelon. Indeed. Nice still, though. I love summer. You do like a swelter.

You're one of these people who would prefer to be extremely hot than cold. Well, that's true, if I have to choose. I don't love being extremely hot, but I do love summer. Introduce Ruth. I will. John Dickerson is on vacation. Although, how can you be on vacation when you don't have a job? Good question.

Let's ponder. That is really rude to say within not even a record. Oh, Ruth. We have been making fun of John and his joblessness for many months now. I know that. He's so busy. He's so busy. Also, that's why I can do it. It's like he's a man who has like seven jobs. His substack. He writes more for substack than, I don't know, than even you write, Ruth. We are joined. Thrilled in this Scotusie week to be joined by the New Yorker's brilliant legal writer Ruth Marcus. Hello, Ruth. How you doing? Hello. This week on the Gab Fest, it's all Supremes, top to bottom. It's just Diana Ross and the Supremes. First, the court video, we don't have video, but Emily was just doing her best. Dancing like one of the Supreme.

Yeah. The court wipes out the independent-ish agencies that have helped oversee key aspects of American government and American life and gives the president absolute power to fire basically anyone who works for the federal government. Then the court upholds birthright citizenship barely. And then the Supreme Court rules against transgender Americans again, this time in a pair of cases concerning girl sports. Plus, we'll have cocktail chatter, of course.

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in what some are calling the most significant expansion of presidential powers ever. The court this week overruled 91 years of American jurisprudence, tradition, law, the clear understanding of Congress to enshrine the unitary executive theory, an extreme vision of American government that embodies all decision-making about the entire federal government in a single person. In this case, the person is Donald Trump. So what Ruth Marcus is the Slaughter case? Why is it so consequential?

And tell us your connection to it, too. Yes. Well, Slaughter is named not for what the court did to. Congress's power, but for a woman named Rebecca Slaughter, who was a democratically nominated Federal Trade Commissioner, there are five on the Federal Trade Commission. This is a pretty standard way that independent agencies are set up. When there's a Republican president, the president gets to name the chair, would name a Republican. There would be three Republican appointees in a normal place and two Democratic appointees, Becca, I say Becca, because she is

not a friend of the pod, but a friend of the Marcus Leibowitz family for reasons I'll explain in a second, was summarily fired by President Trump shortly after he took office in contravention of, as you said, a 90-year-old case also involving the FTC and a case called Humphreys executor. We care about this case in our house for two reasons. One is we care about the separation of powers and I care about what the Supreme Court does. The second reason is my full disclosure reason. My husband was the chair of the Federal Trade Commission under President Obama and signed an amicus brief, filed an amicus brief in the case, trying to stop what was inevitable, which was what the court did, which was. over rolling Humphrey's executor. So how big a deal do you guys think this is? Here's the argument for this is like a huge deal. It's not just the Federal Trade Commission that's at issue here. It's all the agencies that have multi-member heads, right? Multi-member commissions. All of them, presumably now the president can just remove all of those agency commissioners for no reason other than just political

preference. And that is really a sea change in how American law has operated, right? I mean, we've had these agencies that have had fair amount of consistency in their interpretation of law and regulation of corporations to a large degree for low these many decades. The argument in favor of this is that it's better for democratic accountability. Every president comes in, he puts his or she someday maybe puts his people, in place. And then the policies change at the agency more rapidly and you know who's accountable and the voters can vote the president out if they don't like the result of that. And the argument in the other direction is that insulating these agencies from direct partisan influence in that way has been

better for the consistency of their rulings and for the quality of the work they're doing and has allowed this technocratic but also nonpartisan interpretation of statutes to really arise. in Washington and govern the country. David, what do you think about that choice and the like implications here? I'm a conservative, small C conservative, and as a small C conservative, I believe in predictability. I think people need predictability. They need to know what the rules will be from year to year. One of the greatest American strengths, I don't need to tell this to you guys who are both lawyers, has been really fierce and total clarity about the law and property rights. we're very consistent, and that's why people have been investing and building with confidence

in the United States. And this appears to me to be something which cuts exactly against it, which says that there is no, you know, consistency is not something we value. We value only democratic accountability. I also think it's quite tenuous to say, oh, well, if the president, you know, if the president has full control, then there's now democratic accountability, because that kind of assumes that the president is somehow the full embodiment of the people, which is very much a Trumpian idea, but I don't think it's an American idea. And actually, if you think of where democratic accountability lives in this country, it lives in Congress.

And Congress created these agencies. Congress formed these agencies to create a sort of level of technocratic separation from presidential power. That was the purpose that Congress did, made. That's the reason why they did this. And so the idea that we're somehow creating more accountability by taking away this thing that Congress designed seems tenuous to me. I'm going to mix this up a little bit because much to the displeasure of my husband, while I disagree with this decision, I think it's wrong. I think it's unnecessary and I think it will have bad consequences. I am not at high C worked up about it for a

variety of reasons. First of all, I think you slightly overstated David in your introduction. the scope of this ruling. It is conceivable that this unitary executive theory could be interpreted to reach down into the bowels of the federal civil service and to give the president untrammeled Article 2 power to fire anybody he wants in the civil service. Conservatives have argued that. I think Russ Vought at OMB would like to do that. That is not what this opinion says, though if you were trying to do that, you would find quotes in this opinion to do it. In fact, it's not even clear that the president under this opinion could fire inferior officers, that is, people who are not at the level of FTC commissioners or other Senate-confirmed people.

So the immediate impact is on these independent agencies. I completely agree with you about the court talks about it, about the consistency in terms and predictability in terms of reliance interests. Congress created these agencies. It wanted to set them up this way. It did it for a reason. They're theoretically technocratic, though, maybe a little bit more political in the current environment. And Congress should have the flexibility to do that. But since independent agencies have now been wiped out, let's think about how big a sea change that actually is. For one thing, when President Trump comes in, Lena Kahn, the chair of the FTC, who was very much on the left, is immediately

replaced by a choice of the president. And in fact, if the president is not happy with his choice for the chair of the FTC, he could have already, without this ruling, have replaced the chair. That's entirely up to him from one of the other commissioners. Number two, the composition of these commissions immediately changes on a change of administration from majority of one party to the majority of the party that's in power. And so think about the Federal Communications Commission under Brendan Carr. That is an independent agency. How, you know, does the president have more power of the FCC today than he did a week ago? Yes, in theory, but these agencies have been, you know, pretty, if not beholden to, attentive to what the president in power wants.

So while I think it's really unfortunate that we have this change, and it's very difficult to get this for Congress to get this power back, I mean, think about it, but Congress, I'll stop in one second, the Congress set up the Federal Election Commission intentionally to be divided three to three. That makes it functionally actually not very effective. Congress would not have set up a commission to run politics and campaign finance if it knew that it was going to be completely under the thrall of a president. How is Congress ever going to fix that? Not in our lifetimes. So this is unfortunate, but I am not in total hand-wringing about it.

Well, I'm going to do a little hand-wringing. First of all, you know, on the legal rationale front, I mean, basically the majority opinion by Chief Justice John Rock. John Roberts just makes up this idea that this structure, this century old structure from Congress is all a sudden a giant violation of the separation of powers. That is not the understanding of the separation of powers that we've ever had in this country. And as David said, it puts enormous power into the hands of one person, the president, in a way that seems totally at odds with what the founders wanted at Orwood's good for us. So I'm troubled by that. And then I think, you know, I, I take all your points, Ruth.

I also think, though, that there are implications of this that, like, I don't understand how it's all supposed to work. So Justice Gorsuch steps in. He acknowledges all the politicization that already exists that you're talking about. And he also says, like, look, guys, this is really only half a solution because we've given the president too much power now. Now, we, the court, need to step in and tell Congress that it cannot delegate all these powers to these executive branch agencies. It has to take back what he calls legislative and judicial

powers. So all the judges like on the tax courts, the immigration judges who are in the executive branch and do something else with them, put them into, I don't know what he's imagining. He talks about a legislative agency. I mean, we have like the congressional budget office, but that hardly does the work of these agencies. So I'm literally like, how is this going to work? And one example, that I saw people worrying about online and make sense to me to worry about is, so artificial intelligence, are we going to have some national agency, some way of regulating these enormously powerful companies that make AI? And now it seems like, no, we're not, because the only clear answer would be an agency in which the president can just summarily control everything.

and there isn't this insulation from partisan politics unless somehow Congress figures out how to put an agency like that inside of Congress, which I don't understand. Anyway, I don't know if you guys know enough transnational legal structure, but do other countries have this idea of a unitary executive? Do they have, are there other countries where the executive essentially has full authority over the government? my sense is that certainly in parliamentary systems, that is not the case. In parliamentary systems, you have a much more entrenched civil service with much more power for good and for bad. But is this a model that exists elsewhere outside of authoritarian nations with authoritarian executive structures? I don't want to say no, because it's always hard to say like there's no example, but you're totally right about parliamentary systems, right? European countries have an entrenched civil bureaucracy

and a ton of technocratic expertise that is running how the government's work. Though in some ways more ability of the prime minister, whoever, to change things. And if the prime minister loses power, as we seem to see every week in Britain, he's out. Another sort of more technical question I have for you, Ruth, which is sort of off point. But a lot of these commissions, agencies as they exist, require there to be members from multiple parties. Does this still, that requirement still exist? Or is it just that you have people from multiple parties, but the president can remove the ones he doesn't like from the other party as soon as he wants? Yeah, I am not clear on how the president's duty to see that the law is faithfully executed operates here.

The president has removed Democratic members, fired Democratic members from multiple commissions, some of which have actually quorum requirements and are incapable of operating. I think that's the situation at the Merit Systems Protection Board. And he seems in no hurry, to put it mildly, to be replacing these people. And I think would argue that he can't be required to replace them with Democratic members because they do not embody his philosophy. And so he is the boss of him and the rest and the boss of the rest of us. And so this is a really big conundrum going forward for Congress, which I guess has to say, well, we're taking back some power from the FTC. That's not going to happen.

Emily, Ruth sort of poohed my expansive view of the Unitary executive. This is not given the president the full dictatorial powers to pick and choose, like, you know, who is the fifth administrative assistant at the Department of Interior's, you know, Bureau. of reclamation and, you know, oil management. I don't know if I agree with that. I mean, it seems to me like the direction is all in the president, this is the president's government to run. And therefore the president effectively gets to choose who works there. And at some point, it doesn't even matter if he has the right to remove everybody, as long

as he has the right to make their lives miserable. and every policy decision, everyone who is in any way a manager understands that they are one minute away from being kicked out of their job, people will act to do his duty. So I don't know. You also think that actually civil service protections are fine and the federal government will be able to carry on their work, no problem. Well, first of all, they've already been emiserated, right? I mean, the whole Trump administration has been about emiserating federal workers. I think the next case, a next case, is going to be about whether civil service protections will be stripped from everyone and whether they can also be removed without cause. Currently, that's not the case. They still retain their civil service protections and the court did not reach that question. But as Rue said, there is material in this opinion that when that challenge is brought, the plaintiffs will cite and we don't know what the answer will be. Can I ask you guys about what you think about the big exception to this separation of powers rule the court created in its separate decision about

Lisa Cook on the board of the Federal Reserve. So same day, another case comes down. Trump has been trying to fire Lisa Cook from the Fed with cause, but the cause is a total like unproven pretext, right? He's accused her of mortgage fraud. Nobody's ever indicted her. There have been many months that have passed. We still have seen no real proof of this supposed quote crime. She committed. Okay. So the court says Trump, you didn't give her any notice or opportunity to respond. And so on procedural grounds, we're sending this back to the lower court. Like, you can try again, but you have to give her some due process. I don't think that trying again is going to work, though Trump seems excited to do it. The reason I don't think it's going to work is that I don't think he has any allegations. She actually

did anything. What really matters about this case, or maybe I should say another thing that matters, is that the court says, okay, the Fed is different from the FTC and all the other Alphabet Soup agencies. Reasons are, if you go back to the founding and you look at the first and second national bank, you can see that from the beginning, the founders were concerned about political interference in setting monetary policy. And they saw a real value in having independence. This case is five to four. It's a majority of John Roberts and Brett Kavanaugh and three liberals, they are saying that is paramount, making sure there's no political interference in the monetary policy. And so we're just going to like treat the Fed differently from everyone else.

And in my view, it's not a super persuasive distinction they're making. They say in this case, history supports this exception. In the other case, history supports a categorical rule in the other direction. Amy Coney Barrett kind of calls them out in her dissent. And in the Lisa Cook case and points out this inconsistency. From a policy point of view, it seems really good that the Fed maintains its independence. So I don't know how much like real quibbling is worth doing over this, but it does just show the conservatives on the court coming to very different answers depending on what they want the result to be, I think. You know, this is a case where you have a, I had a mixed reaction. The immediate reaction on the final vote was, well, first of all, not surprising

because we knew that this court, they had signaled before that the Fed is different because reasons, as you say, I assumed they were going to find a way to find for Lisa Cook. They took pains to release these two opinions, put them out on the website simultaneously, so as not to, the markets even for the 10 minutes that it took for the chief to finish explaining the result in slaughter and then get to the, but everybody calmed down on Wall Street part and Cook. So yes, good for all of us and good for our 401ks that the court protected Lisa Cook here, as it had signaled it was going to do in advance. By the way, Brett Kavanaugh's opinion basically said the 401K part out loud.

It just talked about. His reasons were because we don't want to royal the markets and destabilize the entire international economic system. So good. But the reasoning is so obviously motivated by policy and not motivated by actual distinctions that it's, you know, close to laughable. I will laugh. I will laugh. Thank you. They are close to laughable. But before we close on the subject, I'm interested in you two both speculating on how you think this court would have approached these same cases had it been President Harris who had fired the head of the FTC. Can I go first? Because I just want to say 100% the same. This court has been itching to make this move. When I say this court, I mean the six justice super conservative super majority that's been assembled since Amy Coney Barrett.

joined the court. It's been wanting to do this for years. Donald Trump teed it up for them, made it come maybe a little bit quicker, but it was going to come to them eventually in the form of a lawsuit by a private company that was aggrieved by an independent agency. And they are happy to do it. And they honestly would have been happy to do it in the unimaginable event that President Harris had fired, I don't know who. Yeah, agree. this is just a long-standing goal of the conservative legal movement unitary executive power

and they seized their chance and they took it. Actually, one last substantive question. How do our two friends, the unitary executive and its distant cousin, you know,

maybe it's dark coarse, dark black sheep cousin, the major questions doctrine. How do they coexist? Oh my gosh. They seem to me to be in kind of like mental contradiction with each other. Oh, that's a really interesting question. I think that the major questions doctrine is something that a lot reigns in, not the executive himself.

And I just keep saying him without the caveat, Emily, but though I share here. Continue on. Live in the world we live in. It reigns in more departments and agencies from roaming far afield, though I do, you know, independent or not independent. So I guess in the end they are exercising presidential power. But this court basically, it wants both presidential power, but also even more than that, it wants court power. And the major questions doctrine is a way actually, at least in practice, if not in intent of creating court.

power because it says, Congress, if you're not clear, then the executive branch can't do this. And Congress, you can't do it unless you're clear. So we, the court, get to tell you when that happens. Does that make sense to you, Emily? Yeah, I would say another tension is about the role of Congress, right? And the major questions doctrine says, Congress, do it again. Do it clear. Like, we will get out of your way as long as you're clear.

This unitary executive doctrine says, like, Congress, you were clear. you set up the FTC in this particular way. Tough. We don't care because of some. I mean, I think that's a good point. Congress did set up these agencies because it knew they were going to be dealing with a bunch of very difficult questions that are really beyond the capacity of Congresses to deal with and regulate on or to even contemplate. When the FTC was set up, we didn't have, you know, an internet. This episode is sponsored by ground news. I've been fascinated by the Reflecting Pool story in recent days. Just fascinated. I'm a Washingtonian. And this fight over the reflecting pool and President Trump's renovation of it or attempted renovation has just struck a chord with people in Washington and around the country. and there's been a huge amount of news coverage of it.

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Groundnews.com slash gab. Use my link so they know the Gab Fest sent you. This episode is sponsored by BetterHelp. We talk about mental health more openly now, but asking for help can still feel hard. Better Helps, 2026 state of stigma reports surveyed 2,000 Americans and found something interesting. 85% of Americans believe getting support is wise, but 74% say society discourages people from doing that. Maybe you're busy, maybe you're worried what others would think, or maybe you're telling yourself, you can handle it alone. But therapy can be a space to slow down, talk through what's been building, and better understand what kind of support might actually help you.

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people are listening to this on Friday night. Yeah. I don't know. 40, 60? Like, no. I think he probably won't, but the story of how NPR and Nita Totenberg screwed up with that.

It's so not persuasive that I'm like thinking. But then I don't know. Here's what I toggle back and forth. On the one hand, Nina Totenberg's rendition of like, oh, I had this pre-written and then I heard a snatch of someone talking about retirement. I asked a bystander in the hall.

way and then I put it out on NPR. That's how NPR works. That's how journalism works, guys. Yeah. I found that extremely, I was like, it made me very nervous for all of us. And it makes much more sense if she did have a leak that she thought Samuel Alito was going to resign. And then apparently there's some metadata on the post suggesting that it was supposed to post on Friday this Friday. So we will find out tomorrow.

On the other hand, it's possible she had a wrong scoop, right? And the idea that, like, Samuel Alito would deny it and the court would deny it when it was just like a little early also seems kind of implausible to me. I don't know. What do you think, Ruth? All the reporting that I've done, though I have not circled back to it in the post-Tottenberg world, suggested to me that Clarence Thomas is not going anywhere anytime voluntarily. And Samuel Alito is not going anywhere in the next. several days, you know, conceivably after the election if the Democrats take control of the Senate, but probably not then also. Since we're doing Kremlinology, I think it would have been,

he was not on the bench the last two days. I think it would be a very weird, though, perhaps semi-olito-ish way for him to leave the court without even like turning up for the final days of your tenure. So I don't think so, but this may be wishful thinking because boy, we'd have mess up all of our summers. Oh, my God. I know. I know. I know. I guess the other tea leaf I'll put out there, David, is there are reports that Samuel Alito has hired multiple clerks, which you're like not supposed to do if you're retiring because then you don't get to hang on to them. But we'll see, won't we? Time will tell. Okay. Let's turn now to big case number two. So many big cases, but perhaps the most consequential defeat that President Trump has taken during this

term, the birthright citizenship case. So, Emily, what was this case about? We've talked about a number of times. I think our listeners are probably pretty familiar with it, but just, you know, update us about subject to the jurisdiction thereof. President Trump signed an executive order on the first day of a second term, purporting to remove birthright citizenship from a large category of people whose kids are born here where the parents are either not here legally or don't have like permanent residency. And the decision was essentially was sort of six to three and sort of five to four, depending on how you count Brett Kavanaugh. The majority said, the 14th Amendment says birthright citizenship and this qualifying phrase subject to the

jurisdiction thereof has the same narrow exceptions in it that it always had, which is basically, are you the kid of a foreign diplomat or the kid of a hostile invading force? If you're not, then you get birthright citizenship and it does not matter if your parents entered the country illegally. Brett Kavanaugh said that he concurred in the result, but only because of a statute that Congress passed starting in 1940 and then again in 1952. And that would mean that Congress could just pass another statute and birthright citizenship. And then there are three dissenters who don't think there is birthright citizenship at all in the law, which is totally confounding to me. I don't get it.

I really don't get it. And it's a very well-joined dispute over text and over history in which it just seemed to me like the majority had a very strong argument and the dissent had a very weak argument. And Clarence Thomas, who wrote the principal dissent, just keeps going on about this idea of domicile, that you have to be domiciled in the United States. States to transmit citizenship to your kids. Domicile is not in the Constitution. As far as I know, it's just like not a constitutional concept. It's like from common law and equity, right? This idea of like, where's your residence, which, you know, matter sometimes like, I don't know, like where are you registered to vote, for example. But it's just like not part of the American conception of citizenship.

Was the court, Ruth, thinking at all, the majority, thinking all about the practical consequences of getting rid of birthright citizenship, which is this class of stateless people? They didn't mention it, but I think they were. And also the person who was most thinking about the consequences of this was our friend, Samuel Alito, who has, I would like to say somebody should take away his remote control because that man has. been watching way too much Fox News. He is so worked up over illegal immigration. He had a multi-page riff after he went through all the common law and domicile and framers and everything else and Wong Kim Arc and all of it just went on for pages and pages and pages about the scourge of illegal immigration and the problems that it was creating and the problems that the court was creating by allowing this to persist and this magnet to attract illegal aliens. I am saying

that in air quotes into this country. I was stunned by this decision, not stunned by the outcome, which I thought was never in serious doubt. I kept saying to people, don't please, you know, there's a lot of things to lose sleep about on this court. Birthright citizenship is not among them, but it turns out that I was just way overestimating this court once again. I was just stunned by the closeness of this decision, that the final, you know, tally was 6.3, but also that the court was divided 5 to 4 on the constitutional question. That is just way too close for comfort. Though I do have to say, while I thought the court was,

smart and right and crisp and clear in a, what was a, there were 194 pages of opinion, of which some 20-something were the majority opinion, which was, this is what the common law was, this is what the Constitution says, this is what the debate was, this is what the precedents say, go away. But the case was, there was a little bit more evidence amassed on the other side, I feel duty bound to say, then I think we had realized before we opened this, what had seemed to be an open and shut question. But I am very shaken by the closeness of the result. Was this an example? Because my understanding, and I did not read any of the 194 pages, except maybe like little paragraph quotes here and there.

But my understanding is that some of the dissent was making the case, well, the world has changed. the world of the founders didn't contemplate there'd be jet travel. Is this an example of the originalism for the, but not for me, but not for thee? Oh, thank you for teeing that up for me. Yes. I mean, suddenly everyone thinks the constitution evolve or that conditions evolve in such a way that leads to evolving constitutional interpretation. And, you know, suddenly everyone is open to looking all over the historical record for evidence

that supports their thesis. Like, I mean, this is so unsurprising, right? But I just want to go back when Justice, when Judge Bork and Justice Scalia came up with originalism, they were kind of in control of it for a while, right, along with Justice Thomas. And it seemed like you could at least purport to claim that it had some internal logic and consistency to it and that it, quote, tie judge's hands. It meant that they couldn't just impose their values and preference.

on the law. Now we have six of these conservatives on this court. Most of them say that they're originalists in some way or the other. And you can see that they do not stick to the plan. Like, there is no plan anymore. It's all up and down just like, oh, wait a second. In this case, we would like to do it a different way in which we acknowledge that, yes, there's jet travel now and everything's different. So the Constitution can't possibly mean what it meant in 1868 when we ratified the 14th Amendment. It just, I mean, right, it's like so unsurprising. I've been writing about it forever, but it's come to fruition in this way that is just like, it's like watching these huge blossoms on every tree in my yard. So what Emily said, I just want to take us back to this wonderful

moment at the oral argument in the case where the Solicitor General John Sauer said to the court, We live in a world where billions of people are an eight-hour plane ride away from being here. And the Chief Justice said to him, well, it's a new world, but it's the same old constitution, which was really the animating principle, I think, of the majority. And Brett Kavanaugh was busy talking in his concurrence slash dissent about how plane loads of people were just hours away from descending on our shores. Yeah, I mean, I'm fine with taking in modern context for lots of different things, right? Like, I don't like this whole history and tradition line. In so many of these cases, suddenly we're arguing about, like, how they did it in 1870. I don't care. It does not seem like

a fruitful path for judges to go down. But the lack of internal consistency about this is just, it's just a lot. And, you know, if Congress wanted to do something, I'm just going to continue on my quasi-conservative thread here. If Congress wanted to do something to limit birthright, what's called birthright tourism to prevent people, you know, mostly very wealthy people from countries like Russia or China, from coming here precisely for the purpose of giving birth, now there are, I'm not opposed to that. They could take away visas. They don't have, right?

Yeah, people shouldn't manipulate the system to achieve that. but the implications of allowing the Trump executive order to go into effect were so much broader than that. Absolutely. Emily, do you think this ruling ends the discussion about birthright citizenship? I mean, it finds it right in the constitution. Majority of justice has found it. Or is this an Overton window situation where now it will be a permanent obsession for the right and is in fact more precarious and it will become a target the way row was a target and that this will be a thing that conservatives will now be gunning after and it will

become a you know to pass to get your federalist society bona fides you're going to have to support the Samuel Alito thomas view yeah i mean my colleague david french has been worrying about this in the last few days and he is looking at you know the response from the maga right and seeing um people just absolutely furious particularly with um Amy Coney Barrett who was supposed to be one of the maga faithful and his proved perfidious in this case and a couple of others in their view. So, yeah, it does seem like this was all about opening the Overton window and perhaps turning this into a future litmus test, which is just like kind of heartbreaking, honestly. Yeah, I don't know.

I don't know. I want it to be settled. Yeah. But as a practical matter, I think it is going to be a Magarite litmus test for, candidates and, you know, possibly for, more than possibly for judicial nominees. But do we think that birthright citizenship is vulnerable in any way to a legislative fix? I don't see that. Well, not to a legislative fix to a, but the stare decisis is not what it used to be.

Yeah. Now you're talking about possibly, you have one vote. You change the, you know, you make it a seven to two court. And there is no birthright citizenship anymore. And that is going to seem tantalizing in a way that would not have if it had been seven to two even. I mean, what was Justice Gorsuch thinking about this one? I just don't get it. I would just like to end by noting that this, of course, is a, you know, a small defeat for President Trump,

but weighed against the vast power that the court has allotted him this term when it comes to setting immigration policy. It's pretty small beer. it's a pretty small setback. I mean, the TPS case, which is removing the legal residential rights of more than a million people who are living and working here, is just a gigantic, catastrophic sea change for a huge number of our neighbors. And that is just one of the decisions. There were others that also the asylum ruling that gave the president, you know, greater, more significant and more damaging power. or is around immigration than he had in his first term. Yeah.

I mean, if you think of this is all a big anti-immigration agenda, the short term has been huge wins for just the reasons you said. I mean, all the people they are going to be deporting because of the end of temporary protected status, like that is ripping people out of communities. That is going to be very tough for those people. And the other project, this birthright, is the long-term project. And, you know, look, maybe it'll never come to pass, but now there is some momentum and energy behind it.

And, you know, Ruth, you were talking about how there was a little more evidence than you thought. That's because a handful of conservative law professors who used to all recognize birthright citizenship have gone and dug around. And they're very explicit. This is their follow-up project to how they managed to convince everyone there was an individual right to bear arms in the Second Amendment. that was also seen as like outlandish off the wall in a yellow professor Jack Balkans terminology, and they put it on the wall. And they are mostly celebrating that they essentially got four votes for something that everybody thought was like whack-doodle five minutes ago. This episode is a lot.

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We have also talked previously in this gab, not in this gab, but in previous gaps, I should say, about the pair of cases challenging state bands on transgender girls participating in high school and college sports. And each time we have discussed these cases, we have discussed how obviously lost the cause was and how it was so clear they were going to lose, and hence they should not have brought these cases. And now the plaintiffs have indeed lost and comprehensively. So what are these cases, Ruth, these two cases, what were the plaintiffs challenging on what grounds do they lose? The plaintiffs in these cases were a middle school girl from West Virginia and a college student who were both trans girls, women, and wanted to be able

to play sports. They had two different claims. One was that Title IX, which was the landmark case that carved out space for women and girls in sports and required high schools and others and colleges to enable women's sports protected their right to play. And the other was that the equal protection clause of the 14th Amendment protected their right to play on teams. The court, by a vote of 9 to 0, rejected the Title IX claim, but by the very familiar vote of 6 to 3, rejected as well the equal protection claim. And Brett Kavanaugh wrote about both the importance of girls sports. He is famously the father of two daughters and famously has coached them and their friends in basketball. And he talked about the importance of girls and women's sports to girls and

women. He also quite in contrast, I have to say, to Clarence Thomas, who dissented separately, he spoke about trans girls, at least with some degree of respect. even though he did describe them as biological males. I want to, before we get into the totality of this, because it's really eating at me as I was reading it last night or rereading it last night, talk about the way Clarence Thomas used this language. He said,

men and boys with gender dysphoria are not women or girls, even if they believe that they are. A man does not have a legal right to compete against women just because he believes that he is a woman. And I just want to say this is wrong. These cases are very difficult, I think. They pit claims of rights that are both valid and valuable of, you know, girls and women who want to compete and feel that they're being not taken advantage of, but being hurt by having. people who were identified as male at birth, who may have physiological advantages,

able to come in there. And the claims, which I think are heartbreaking. When you read about this middle school student and how much she just wanted to run on a team that accepted everybody and was not terribly competitive, it's heartbreaking to think that she is not able to do her thing. And then to contrast this with the sort of just understanding. necessarily cruel way that Clarence Thomas talks about these girls and women is just, I just find it sickening.

I'll stop now, but the way the court talked about the equal protection claim, I thought, was super interesting because the dissenters were not, okay, absolutely these girls and women are entitled to special protection. It was more like, we need to. find out more about the facts in this case and figure out whether in particular trans girls who have never experienced the hormonal changes of puberty, who have taken puberty so that they haven't had the body changes that, at least as some physicians understand it, are the reason for the incredible physiological advantages that boys and men have over the

likes of us, Emily, in sports. The dissenters wanted to send this back to the lower courts to figure it out more. And I thought that was a very reasonable point. And I thought the way they addressed it really was understanding of the competing interests that were at stake here. Yeah. I mean, the real issues at stake are fairness and inclusion, right? And what the dissenters are saying, and it's a dissent by Justice Sotomayor that Elena Kagan and Jackson joined, they're saying, let's send this back to the lower course to see if this girl actually has any advantages given that she didn't go through male puberty. And the implication is also that this kind of case-by-case determination is something that schools could also do, rather than having these blanket bans,

which exclude trans girls who, you know, maybe don't have the same advantage. because they didn't go through male puberty. It's kind of crazy that we're having this big ruling without having courts really thoroughly flesh out that question, which seems pretty crucial. Do either of you think that this puts the marriage equality at risk that overfell is at risk, that states could ban it and the court might look favorably on it? Or is this trans sports a particularly vulnerable issue because sex discrimination is intrinsic to sports and therefore extending that discrimination or clarifying that. that discrimination seems understandable. And that there is a fairness, there is a fairness question that occurs around sports that is not really relevant in marriage.

Like it's not, you know, nobody, it's not fair. It's not unfair if some other person gets married. The second thing. Absolutely the second thing. More than actually I worried because even the majority opinion applies some version of what's called heightened scrutiny and says this is a sex discrimination claim, right? So, you know, there was a concern that like the court was going to. to fuzz up what sex discrimination mean and remove heightened scrutiny, this higher legal

standard when the government discriminates from sex discrimination claims. And that didn't happen. Instead, they're having an argument about what they were talking about as the fit for a sex discrimination claim. And so basically the dispute is the majority is saying, like, okay, we don't necessarily know that every trans girl is different from every cis girl, but we don't care. Like, state legislatures are equipped to, to make a determination on that and ban them. And it's fine if this kind of sex discrimination, i.e. sex segregated sports teams, it's fine as long as that applies to most people. We're not going to like go in and look at every case. And then Nizenne is saying, no, no, no, that's not good

enough. And every, we should make sure that it fits in every case. And it should not be up to states to ban transports. But that's, as you said, David, like very specifically about this particular domain in which, in addition to the fact that, you know, sex segregated sports discriminate, there's also Title IX, this federal law that, like, created, allowed sex segregated teams in order to facilitate fair competition and have women be able to win. And so in that context, that's different even not only from, like, equal protection, which is what comes up with same-sex marriage in Obergefell. It's also different from Title VII, the federal employment.

statute, which makes it different from Bostock, the court's decision that said that trans employees can't be fired because they're not conforming to sex stereotypes. So I agree with everything Emily said. I think that basically since Bostock, which was something of a surprise ruling that provided protection in the employment context, both for gays and lesbians and for trans people, it's been kind of all downhill. for trans individuals since then. This court is creeped out, I think is the technical term. By them, they want to allow states to stop families from distant parents from deciding

what's best for their children who are trans and to ban treatment. They're creeped out in a way and interested in, I think, intervening in a way that their their instinct in Obergefell and same-sex marriage is completely different. I think of Obergefell is in the same status. This is going to be a funny analogy as Lisa Cook. It's just too much baked into the cake of our society now. It would be too disruptive to undo it. Maybe it's a little bit more in that sense like birthright citizenship than it is like

Lisa Cook. I don't think that's a precedent that is vulnerable in any court that I can imagine unless, you know, a bus full of the three liberals gets run over tomorrow, God forbid, and Donald Trump gets three more appointees. I mean, it is something that no other justice sign Clarence Thomas's hateful concurrence. It is something. Does this only apply to trans girls who want to compete in girls' sports? Does it also apply to trans men who want to compete in boy sports?

Nobody thinks they have an unfair advantage. Well, but you can imagine gymnastics, for example. You could imagine. Body composition is different. And like, I guess my question is like literally does this apply? Is this only apply to girls sports or is this broadly across sports? I think that the opinion as written only applies to girls and women's sports, but someone could bring the next case. and the implication could be that it implies in both contexts. What do you think, Ruth?

Well, I think it probably depends on the precise way that the state law is written, but the reality is that there's not a big clamor for trans men to get in there. I think the next case that we need to worry about is not whether states may do this, but whether states must do this. and that is going to be a doozy. Yeah, and I think that case, there are cases like that percolating. There's one in the Second Circuit that I think comes from Connecticut. Yeah. Right. So about half, 27 states have these bans, and so the other states don't.

Right. And look, you know, of course the right-wing legal organizations are going to push this because it's a great political issue for them, right? Like, we're going to keep talking about this. And talking about this is bad for Democrats. Democratic candidate. So it's this overlap of law and politics that's irresistible to activists. Happens on both sides. Just to close this topic, one of the plaintiffs in the plaintiff in Idaho tried to withdraw and basically was not competing, not trying to compete, and therefore said this is not a live dispute.

Why didn't the court honor that? Usually. Did it really, really late. Okay. Really late. And I mean, let's talk about the procedural history here. But briefly, but briefly. But briefly. I'm sorry.

Yeah, she did it too late. The original cases, the trans girl and women here are the plaintiffs. Years ago, they did well in the lower courts. And so then the states defend their bans, and that's how these cases get to the Supreme Court. That was brief. Before we go to chatter, before we get to cocktail chatter, we have an invitation, a request, a favor, which is that we're going to do a listener question episode. Listener question episodes, by the way, is a secret way for us to take a vacation so we can tape something in advance.

And so you want us to take a vacation. Don't you want Emily to have a vacation? And for Emily to have a vacation, we need some great listener questions that we can do a show in advance about based on. And so please send us your questions. They could be political questions. They could, I guess, be conundrums. They could be questions about how to live well. They could be questions, legal questions that Emily could answer.

They could be historical questions that John can mull about. Whatever you would like us to answer, we would like to answer. So please send us your questions by emailing us at gabfest at slate.com. Email us any question you have that we can answer on a show, Gabfest at slate.com. And give us your name and tell us if we can say your name so we can congratulate you on your great question. Let us go to Cocktail Chatter. When you, Ruth Marcus and Mr. Marcus, are sitting there. there, Mr. Marcus is so annoyed that his amicus brief was not victorious. And so you're like,

we have to have a drink and talk about something else. I think it was cited. So he's good enough. Well, what will you be chattering? But after he talks endlessly about how he was cited, and you're like, oh my God, you've been talking about how you were cited for 45 minutes, John. Let's talk about something else. What are you going to talk to him about? I am going to talk about a HBO series that I just finished watching that actually ties into this last conversation. It's called Somebody Somewhere and it is the most favorite show. Oh my God. It is the most delightful. I'm as usual late to the party as you know, as is my want. But it's about a group of people in Manhattan, Kansas, who one is a overweight, single woman.

one is a dwee be gay man and one is a transgender man and their friends and family members. And they are the most magnificently cast and sweetest. And it's about friendship. It's about family. It's about loss. And I want to live in their world and not Clarence Thomas's world. And I had such a good time binging this as the court. term was coming to a close and just really want to commend it to the three listeners out there

who have not already found it. If you are listening to The Gap Fest and you have not tried the show, we really think you should. I think we both chat on a gun. I think we both chattered it too. Oh, no. Sorry, guys. No, that's great.

I think we did a whole play plus on it. We love this show as well. And it is a perfect tonic for this moment. You're right. We tried to get Bridget Everett to come on a guest on something. Bridgett, open invitation. Bridgett Everett, you are invited forever. It is really true.

Emily, what's your chatter? I want to chatter about the U.S. leading score in the World Cup and how lucky we are that we have birthright citizenship. Forlan Balagan, David, did I say that right? In some approximation, sure, fine. So he was born in Brooklyn. after his Nigerian parents who were living in London were visiting New York. His mom came here when she was around seven months pregnant. She wanted to go back home to the UK to have her baby.

But they wouldn't let her on the flight because her pregnancy was too far along. And so she gave birth here. And that is why our leading score is an American citizen and has eligibility to play soccer. I just like, I'm sure other people have noticed this. but the irony of this, of course, is that as the Department of Homeland Security was celebrating, the soccer team, it put up a tweet, defend the homeland, as if these facts were not at odds, right? Trump's own policy about birthright of citizenship would have, in fact, barred our leading scorer. And so it is not defending the homeland to celebrate him and his team. It is just part of the American tradition.

My chatter is also heartwarming in the Markusian way. It's a novel I've been reading, a newish novel, came out late 2025 town and country by Brian Schaefer. It's about a congressional race in a gentrifying town in upstate New York. It's Hudson. Basically, it must be Hudson, New York. It's a portrait of Hudson, New York. And it's about this town, which has been, you know, sort of a working class town, which in the previous decade has been gentrified heavily, largely by gay couples arriving.

And it's the tension between this sort of the new gay visitors who are increasingly putting down roots and the people who have been there a long time and some of whom are economically dependent on the new visitors. And it's just a really lovely book. Tom Perada, I love reading Tom Perada novels, but Tom Perada only writes a novel every couple of years. But Tom Barada novel is always about a heartwarming portrait of people in a community, sort of like, like somebody somewhere. And this book, Town and Country is very much like that. It's a very warm portrait of a community and the people

in it and they're basically human struggles in it. So nice novel town and country. Listeners, you have chatters. Please email them to us at gabfestislate.com, something that is fascinating or horrifying or delighting you.

And our listener chatter this week comes from Lauren. Hello, GabFestislate. I'm Lauren from Toronto, Canada, where my beautiful trumpet vine has succumbed to aphid infestation for the second year. With help from my chapbox garden partner, I discovered there is another insect accomplice, ants. In this reverse ant farm, ants cultivate aphids for their succulent excretion of honeydew. Ants farm aphids by hurting them to desirable spots, protecting them from predators like ladybugs, quarantining the fungal infested, and wintering eggs in sections of the nest called stables. To milk aphids, ants release a chemical to subdue and use antennae to stroke abdomens. This causes relaxation of the aphid sphincter, releasing honeydew for collection. They also bite off wings so aphids cannot fly away during the process. E.O. Wilson's Pulitzer Prize winning the ants, details the sophistication of ant society,

which makes me wonder if this relationship is truly symbiotic. Ants might keep aphid populations healthy, but their methods are questionable, and perhaps ants should look inside. themselves about the ethics of mass agriculture. As I tend to my vine with natural remedies, I know it will ultimately be up to the ants if I see orange flowers this spring. We're not the only Slate podcast this week, and we would be remiss. We would be just bad friends, bad colleagues if we didn't acknowledge and say goodbye to our friends on the Slate Culture Gab Fest.

We mentioned them last week, but this week, July 1st, was their last episode. It's a podcast that's run for 18 years. It was in a sibling podcast. We've done live shows with Dana and Steve and Julia over the years. And they are friends. And it's just like a bummer that we will be the last Gab Fest standing, at least for now. So listen to their final episode. Oh, man.

God, I'm going to miss those guys. Yes. I am going to miss listening to Steve and Dana and Julia and having that. as kind of our across the pond partners. I'm going to miss them very much. That's all for our episode this week. We also have a bonus episode in your feed. Should you go watch the Trump fireworks on the 4th of July if you're in Washington, the question of what kind of patriotism you should display at a time when you might be concerned about the government that represents you? Slate Plus members get lots of great stuff for their

subscriptions like these bonus episodes. You also never hit the paywall on the Slate site. and I would really encourage you to become a member. So if you are a member, thank you. If you're not a member, become a member. Subscribe to Slate Plus directly from the Political GabFest Show page on Apple Podcasts and Spotify or visit slate.com slash GabFest Plus to get access wherever you listen.

That's our show for today. A political GabFest is produced by Dan Forsuki. Our researcher is Emily Dido. Our theme music is by They Might Be Giants. Ben Richmond is Senior Director for Podcast Operations. Milo Bell, its executive producer of Slate podcast, Hillary Fry's, and her chief of Slate for Emily Bazelon. And always amazing, always delightful Ruth Marcus. I'm David Flaude.

Thanks for listening. I'll talk to you next week. Hi, this is Elise Huve from TED Talks Daily, and this episode is brought to you by Am Better Health. For many employers and brokers, group health insurance means unpredictable costs and plans that try to fit everyone but end up fitting no one. A model called ICRA is changing that. Employers set a fixed contribution. Employees pick the health plan that works for them, their family, their doctors, their budget. Predictable for the business, personal for the people. That's a better kind of coverage. Get coverage you control. Find out if an ICRA is right for you at ambetterhealth.com. Hey, this is Jonathan Fields, host of the Good Life Project. So summer smells like citrus in the sun, spontaneous road trips and warm backyard evenings that stretch on forever.

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