Whose rights just changed? Our SCOTUS debrief

This message comes from Amazon Health. Why do doctor visits always require paperwork? With your permission, Amazon Health AI can connect to your health history for personalized care fast. Amazon Health AI is here. Health care just got less painful. Hey, everyone. You're listening to Code Switch, the show about race and identity from NPR. I'm Bea Parker. And joining me is Code Switch producer Jess Kung. Hey, Jess. Hi, Parker. All right. What brings you to the mic? So I worked on most of Code Switch's coverage of the Supreme Court this term, and there was a lot that Skodis decided on that was specifically to do with marginalized groups, immigrants, black voters, trans athletes, and jeans on vacation. Fair. But now the decisions are out, it just seemed worth looking at this whole term in the rear view while we're keeping our eyes on the road, if I can belabor that metaphor. Hey, keep your hands at 10 and 2 while you're at it. I have a lot of regrets about this. Anyway, we know we're not court specialists, so find good work from folks like the NPR politics team about the expansion of executive power and unrestricted campaign spending and all that fun stuff. Yeah, and later I'm going to chat with Jimenez Bastillo, our colleague who covers immigration and DHS at NPR, to catch us up on what the Supreme Court did to temporary protected status and asylum. But before we do that, I'm going to walk us through our little key cases about voting rights, trans athletes, and birthright. This message comes from Synchrony Bank, who wants to inspire you to stay flexible, save smart, and keep dreaming big. But their high-yield savings account, you'll earn a great rate without monthly fees or minimums so you can reach your savings goals faster without the hassle. Open an account with a great rate in five minutes or less, and dream on. Go to Synchrony.com slash NPR. Member FDIC. This message comes from Alian's travel insurance. Everything changes with the seasons, including your travel plans. From Japan's cherry blossoms in the spring to Quebec's winter carnival, there's so much you're excited to see. An all-trips annual plan lets you embrace it all. With 365 days of travel protection that's ready when you are, you can enjoy every season of travel with peace of mind that's evergreen. Learn more at Alian's Travel Insurance.com.

This message comes from Granger. This is the story of the one. As a procurement manager for a hospital system, she keeps every facility in her network stocked and ready. That's why she counts on Granger to be her single source for thousands of products, from disinfectants to lighting, air filters, and more. And with fast, dependable delivery, Granger helps her keep every facility stocked, safe, and running smoothly. Call 1-800 Granger. Click Granger.com or just stop by. Granger, for the ones who get it done. Let's start with the voting rights case, which the Supreme Court ruled on back in April. Yeah, Gene spoke with our colleague Hansi Lo Wong about the court's ruling in Louisiana v. Calais. And Hansi laid out the impact of the decision pretty clearly. It's sending shockwaves through voting maps across the country. And not just for Congress. This is for every level of government. And it's going to make it much, much. harder to challenge voting maps with claims that they discriminate against voters of color. And it's likely going to lead to a decimation of representation of voters of color at all levels of government, especially in the South. To quickly recap the case, the issue was with a congressional district map drawn in Louisiana meant to comply with the Voting Rights Act. It created a second majority black district in the state. In Louisiana, to be clear. Yeah. So the Supreme Court ruled 6'3 that this new map was unconstitutional. And a pillar of the VRA has been to ensure that maps are representative of a state's racial and political makeup and that they don't, quote unquote, deny or abridge anyone's right to vote based on race. And now there's this new line of reasoning that undercuts this entire protection. And that's going to be a concern for a while, because even though this case was about redistricting in the state of Louisiana, there are lots of states like Texas and California that have been passing new congressional maps that are designed to favor one party or the other around this year's midterms. Yeah. Here's Hansi again on what's new here. The major change here is that, you know, the focus of Section 2 of the Voting Rights Act, the section at the heart of this case, the focus of it should be intentional racial discrimination. Intentional being the key word here. Hansi spoke to Gilda Daniels, a law professor at the University of Baltimore with a long resume on voting rights who broke it down like this. This court says that all the state has to say is we didn't do it because they were black. We did it because they were Democrats.

And if they say that, they say, well, then that's not racist discrimination. You know, it comes up on the show regularly that proving outright intent of racial discrimination in court is really difficult. As long as someone doesn't like send a text saying, I'm going to be racist now, the law really doesn't recognize it. It's also come up on the show a lot that voting rights have been under attack for decades. But. On the other hand, it wasn't voting right losses all around. There was some status quo that held. The court also upheld a Mississippi law that allows mail-in ballots to be counted up to five days after the election, as long as they're postmarked by election day. Which is apt, given that Trump has been going after mail-in ballots really hard. Mail-in ballots are corrupt. Mail-in ballots, you can never have... a real democracy with male imbalance. Exactly. He's made a point to allege corruption and voter fraud around vote by mail and, you know, all the other ways that voting is made more accessible. I'm remembering something Carol Anderson told us back when we talked about this Louisiana v. Kelly case back in October. She's a professor at Emory University and the author of One Person No Vote, how voter suppression is destroying our democracy. Particularly in the 2020 election, you had a massive increase in mail-in ballots from Democrats, from black folk, from brown folk because of the pandemic. And the power of those mail-in ballots, those absentee ballots, was essential in the wind of the Democrats in flipping Georgia blue. Jean also spoke with former state lawmaker and voting rights activist Stacey Abrams about why she thinks these attacks on voting rights are ramping up. In elections, race is the strongest predictor of political leanings, more than gender, more than geography, race is the strongest predictor. And therefore, we have in this country since 1965 been very intentional about saying that politicians cannot use your race against you. They cannot weaponize race as a means of denying you access to democracy. This has become an extraordinary issue because in 17 years, our country becomes majority minority. And every election cycle, every cycle that we face, every map that we draw between now and then is going to shift the balance of power to more and more people who do not hold to a singular. political vision. Abrams pointed towards changes to voter registration, efforts to pass stricter voter ID laws, and this redistricting chaos. And so what I want us to think about is that these aren't isolated moments. These are connected and they are intending a long-term strategy to deny communities of color, to deny disabled communities, to deny... marginalized communities, the ability to actually have a voice in our government. Gerrymandering is just the one we recognize because it's been happening so long.

To be in compliance with equal protection, the states should actually be looking into if this category of trans girl, who transition without going through male puberty, can compete fairly with cis girls rather than blanketing them as biological males. And getting access to that care got a lot harder last year when the Supreme Court allowed state bans on minors getting access to gender affirming care and puberty blockers. Right. Now, you can listen to our full episode with Amara Jay Jones about the case. But to remind you all here, the number of athletes we're talking about is also really small. When the president of the NCAA was questioned by the Senate in 2024, he said out of around half a million college athletes right now, fewer than 10. We're out as trans. And then, for what it's worth, the NCAA complied with the Trump executive order in 2025 and banned athletes assigned male at birth from participating in women's sports. But... These rulings have all ultimately been pretty narrow, primarily affecting state laws. There's not necessarily sweeping precedent about trans people and equal protection yet. But it's part of the broader assault on trans existence, and Amara says this ruling on athletes could set up what we're going to see next term when the court will be hearing more cases about trans people. That is the military ban against trans people and the trans passport ban as well. The ruling today could have been much more sweeping, but it sets up, it tees up some more substantial limitations and exclusions for trans people, which I think everyone should focus on and understand the vast implications of doing such. It's not just about sports, and it's not just about trans people. The last case we watched closely right ahead of decisions was about birthright citizenship. Right. This was about President Trump's executive order to withhold citizenship from people who were born to parents who had temporary or undocumented status in the U.S. The Supreme Court ruled it unconstitutional. Right. And the decision was like jarringly close. Right? Like I definitely would have expected a more unanimous call for a right that was written into the Constitution. Yeah. So the court ruled 6.3 to uphold birthright citizenship. But some people are kind of counting it as 5'4 because four justices say that the executive order is ultimately constitutional. Brett Kavanaugh took this half-and-half stance that the premise of denying citizenship like this doesn't violate the 14th Amendment, but it's like a technical foul to enact it through executive order. But if it went through Congress, it would be fine. Okay, then.

And I'll just say this set of opinions is notably long. The other cases we're talking about, the packets are like 50, 70, 90 pages. That's like everyone's opinions and dissents and concurrences. Well, how long is this? A hundred and ninety-four pages. And 91 of those pages is all Clarence Thomas's opinion. I mean, that sounds about right. What are they talking about? Well, most of them just set the stage for how we got to this decision. Most of them lay out the history of the 14th Amendment all the way back to Dred Scott in 1857, which we can also lay out that history quickly. Yeah, the Dred Scott case ruled that enslaved people and their descendants were not citizens. Now, it's widely considered the Supreme Court's worst decision and was a step towards the Civil War. And it made that claim of non-citizenship by saying that blood, not soil, determined citizenship. Basically... being born into slavery to the descendants of Africans makes you not of the U.S. But that made it a huge point of correction during reconstruction after the Civil War and led to the 14th Amendment in 1868. The justices, in these opinions, spent a lot of time with the first line of the 14th Amendment, which establishes birthright citizenship. This is soil, not blood. All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the state wherein they reside. And then in 1898, the Supreme Court ruled that people born in the U.S. to parents from other countries are U.S. citizens. Yeah, that's the case about Wang Kim Ark, a man born in San Francisco to Chinese parents who were prevented from becoming U.S. citizens under the Chinese Exclusion Act. granting him his citizenship allowed for more than a century of this precedent for U.S. birthright. So now four justices are poking at the 14th Amendment again. Gene recently interviewed Daisy Hernandez, the writer, editor and author of Citizenship, notes on an American myth about what's at stake when birthright is threatened. After the decision came down, she saw that between Justices Jackson and Thomas, you can see two very different interpretations of the 14th Amendment and its promises of citizenship. Clarence Thomas is saying Black Americans wanted citizenship for themselves. They were not thinking about immigrants. And Ketanji Brown Jackson is drawing from the work of historians to say Black Americans had a very expansive vision of birthright citizenship. And Ketanji Brown Jackson very carefully chronicles how black leaders and thinkers argued for a birthright citizenship that includes everyone who is born in this country. Okay, I'm going to head back behind the curtain, and NPR immigration correspondent Jimenez-Bastio is going to break down how the other immigration cases went this SCOTUS term. Thanks, Jess. Bye.

Hey, Jimenez. Hey. All right. There were other immigration-related decisions within the Supreme Court this term, and I wonder if you could break those down for us. Yeah, there were a few other significant immigration-related cases. One is related to a policy called metering that is related to asylum at the southern border. Now, it's important to kind of note that this policy is not currently in place because seeking asylum at the southern border is already really limited and virtual. non-existent. But this was litigation essentially resurfaced by the Trump administration over their ability to enact a policy. And the way that this one works is, you know, if someone comes to a port of entry at the southern border, they're standing on Mexican land before they enter and cross the physical border. And so this gives border patrol agents more power to turn people away should that policy be in place. But asylum was already really limited. So out of all the decisions this one has the least immediate impact. But there was a second case on temporary protected status, and that was particularly related to Haitian and Syrians. This has broader implications because the Supreme Court in another 630 decision said that they basically don't have jurisdiction over deciding whether or not a country is granted temporary protected status or not. And so although this case was particularly about determining of TPS status for Haitians and Syrians, it does broadly impact the terminations of about nine other countries that the Trump administration has moved forward with. And this definitely has the most immediate and largest, most physical impacts and effects on the communities. So, you know, if you lose your TPS designation, you lose your work permit, you lose your ability to live and be in the United States. and the administration is really hoping that hundreds of thousands of people will just pack up and leave. Now, when we talk about... Like what is TPS? Like what is temporary protection status? What does that mean? Yeah. So TPS is kind of like a label or a designation that the Secretary of Homeland Security will assign to a country. And it is assigned to that entire country. So different from asylum where, you know, someone might have an individual claim of persecution or reason to be fleeing. So this is more like an entire country label. And essentially that signifies that that country is not safe to return. So there could be natural disasters, war, political instability, just a slew of different reasons why a secretary might say it's just not safe to...

have people go back. Now, this has been a program since around 1990, and the DHS secretary can assign TPS from six to 18 months. And there are cases where this gets renewed and renewed and renewed spanning years. So El Salvador, for example, has had TPS specifically since about 2001, and it's just been renewed and renewed and renewed. But what this administration did that was a little bit unique is... Last year, every single time there was a TPS designation that was set to expire, they just terminated it. And that ultimately affected an estimated over 1 million people that, let's say, two years ago in 2024 did have work permits, did have legal status. Over the course of last year, they lost that. And that's where we saw a lot of these lawsuits, including the lawsuit regarding Haitians and Syrians. How are other countries aside from Syria and Haiti? being impacted with this decision? So there are, you know, about nine other countries that had a terminated TPS last year that are in various stages of litigation. And immigration attorneys that are fighting these cases tell me that, you know, a lot of the legal basis for those lawsuits might just be weaker now. And so they might not stand as strong in court after this decision. But we also know that there are four countries that have... a current not expired TPS, El Salvador, Sudan, Ukraine, and Lebanon. And they are set to expire in the fall of this year. And so it is possible that the administration could move forward with these terminations. And by the end of the year, no one technically has a TPS. So, like, how many people could potentially be affected across all of these TPS programs? Nearly two million people. I mean, we're talking about, you know, over... One million people that have already been impacted. We're talking about another 270,000 people that are impacted in the groups that are upcoming. And that's not even counting their families, you know, their spouses, their children, their employers, their coworkers. I think that... You know, this program is very specific, but because it was such a longstanding way for people to have a legal ability to be in the United States, it really has entrenched itself in different parts of the American society. You mentioned the asylum seekers case earlier being relatively symbolic. When it comes to seeking asylum, like how accessible was the process to begin with? Well, by the start of the Trump administration, it wasn't...

the most accessible. So towards the end of the Biden administration, there were already new policies that basically required that people come to a legal port of entry to claim asylum. And there was an app formerly known as CBP1 that was the way people could set up an appointment to fill out an application to request asylum to get what was called a credible fear assessment in order to kind of like weigh whether they're persecution was real or not. And then, you know, we saw during that very first few hours of the Trump administration that that app got shut down. So for the last year and a half, there have been very, very, very limited ways to claim asylum. Once you're in the country, you can only really claim asylum within a year of being here. So there were already, there was already a very significant narrowed scope of how to even request asylum and who could even ask for it. Okay. May I ask, what is the difference between a refugee and an asylum seeker? Because from the outside, they seem quite similar. Yeah, they do. And, you know, none of the Supreme Court decisions we've discussed impact refugees. And I think that... groups like TPS asylum refugees are all often used interchangeably and they're really not. So a refugee is a person who is living outside the United States that is seeking. access to the United States through the refugee program. And you basically have to apply for that. You are interviewed abroad. The State Department is very involved with that. Part of DHS known as the U.S. Citizenship and Immigration Services is very involved with that. And then once you're approved, the government gives you a plane ticket to come to the United States. They decide where you're going to live, where you're going to be placed, and you're paired up. with a resettlement organization that helps you for a few months to find a job, find housing. And there is a direct pathway to getting a green card after a year or two of being here. A part of that is you then apply for a green card. So you can't just have refugee status forever. Now. An asylum seeker is almost the opposite. An asylum seeker is already here. An asylum seeker is already in the country or comes to the country and then claims and requests asylum. And there's two ways to do that. One is through an application at USCIS. And the other one is, you know, you're in the immigration court system and you're trying to not get deported and you think you have a valid asylum claim. And asylum claims can be accepted or they can be rejected. And the government. has the right to do either and decide on either. You might be able to get a work permit while you're seeking asylum while your application is pending, but this administration has also made that a little bit more difficult. And so, you know, people who are seeking asylum may not have legal status to be here. They may not have a legal work permit to work here lawfully.

So we're talking about two completely different people that may have completely different rights and different ability to be in the United States. So, Jimena, what is the end goal for all of these decisions? Like, what is the big picture here? This is all a part of a broader effort to reduce the levels of immigration legal and illegal into the country. And we really saw that in the reaction to the asylum and the TPS decision from the court. There were officials at DHS that celebrated this, literally calling it additional tools to protect the U.S. borders. And so they do see this as helping their broader policy. Okay, but with these far-reaching court decisions, it still seems like there are exceptions this administration is making for immigration. Yeah, there are a few areas. So when you think about the refugee program, that has been significantly reduced. So we're accepting less refugees than we have before. But. an overwhelming number of those slots are particularly going to Afrikaners, which is white South Africans. And, you know, the State Department and DHS have been very clear that they really want to bring in people who can, quote, unquote, assimilate easier into the United States. So that's one example. Another example that I've been tracking closely is different forms of labor visas. So when you're thinking about agricultural visas or tech visas, a lot of those are continuing to function nearly as normal. If not, they continue to be in really high demand, particularly agricultural visas, continued to increase in their demand through fiscal year 2025. And so that just goes to show that there are some economic-based reasons to continue the flow of migration, even if, you know, the intent of these visas. isn't that people will stay forever, but there is an acknowledgement that there is a supply chain need, that there is a labor need for additional people to come into the country. Are there any future Supreme Court cases that you can see also having an impact? Yeah, we already know about a handful of immigration-related cases that the Supreme Court is slated to review next. And one that really sticks out to me involves the administration's mandatory detention policy. This is something that has been challenged over and over again in different courts that essentially says anyone who entered their... country illegally is subject to be detained, no matter how long they've been here, what their status or their claims are, who they are, how old they are, they need to be in detention while their cases play out in immigration court or other courts. And so we have seen this mandatory detention policy have some pretty significant effects on people.

We've seen more people be placed in detention. Over 2,000 people have been in detention for longer than a year. And so we will be really watching to see how this continues to play out. Amena, thank you. Thank you. And that's our show. We have a newsletter. It's great if I do say so myself. Gene's been writing it. You can subscribe to the Code Switch newsletter by going to NPR.org slash Code Switch newsletter. This episode was produced by Jess Kung. It was edited by Dahlia Mortata. And a big shout out to the rest of the Code Switch massive. Christina Kala, Xavier Lopez, Meyer Dangerfield, Leah Dinella, Barton Gurdwood, Yolanda Sanguini, and Gene Demby. I'm B.A. Parker. Hydrate. This message comes from Bombus. Tired, achy legs slowing you down. Bombas compression socks help keep legs fresh on travel days, work days, leg days, and more. That's all day relief with everyday style. Go to Bombas.com slash NPR and use code NPR for 20% off. This message comes from BetterHelp, whose survey found that while 85% of Americans believe getting mental health support is wise, 74% say society discourages it. Don't let stigma stand in the way. Visit betterhelp.com slash NPR. This message comes from Instacart. Instacart makes grocery shopping easier, and just because you're not doing the shopping yourself doesn't mean you don't care how it's done. With Instacart Shopper notes, you can add details about what you want right in the app, like Extra Crispy Rotisserie Chicken or lettuce you'd pick yourself. Just leave a note so your shopper can get it right without having to ask. Download the Instacart app and shop today.