Was it Worth it, Pam?

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This episode is presented by Planned Parenthood Federation of America. Many of the most important legal fights in this country come down to a basic question. Who gets to make decisions about our bodies and our health care? That question isn't theoretical. It's playing out right now. The Trump administration's backers in Congress are trying to permanently defund Planned Parenthood, an effort to shut down health centers and block patients' care, especially from those with low incomes. Together, we have the power to protect and expand affordable care. Visit plannedparenthood.org slash defend and make a gift today. This is Amicus Slate's podcast about the courts and the law and the Supreme Court. I'm Dahlia Lithwick. You sit here and you attack. The president, and I am not going to have it. I'm not going to put up with it. When you're in politics, it looks no matter. I look at Pam, I would never say she's beautiful because it's going to be the end of my political career. Sorry. President, your first 100 days has far exceeded that of any other presidency in this country, ever, ever. Never seen anything like it. Thank you. The Dow, the Dow right now is over, the Dow is over $50,000. I don't know why you're laughing. You're a great stock trader, as I hear Jamie Raskin.

There's a metaphor somewhere. In the fact that for the first time in U.S. history, a sitting president ambled into the Supreme Court to listen in on oral arguments. This was in the case challenging the 14th Amendment's grant of birthright citizenship, where he got bored when he realized, I guess, that he was losing, ambled out shortly after Cecilia Wong, the ACLU lawyer, arguing for the plaintiffs, began to speak. and then posted something petulant on truth social about it. Maybe he's just an emperor with increasingly thin robes, no real juice, blinking in the face of seven justices who perhaps want to get off this particular stretch of the roller coaster. Mark Joseph Stern popped up Wednesday immediately following the birthright citizenship arguments with Professor Evan Bernick to dive deep into the text and the history and the truly bad history and the internally conflicting history brought forth by Solicitor General John Sauer in order to try to say that the 14th Amendment doesn't mean what it says and doesn't in fact do what it was designed to do and that all the case law and the statutes recognizing those facts can be read. said upside down on one foot in the light of a full moon to build arguments against birthright citizenship. Mark and Evan explained respectfully why even such convoluted wishcasting in originalist clothing does not constitute real scholarship. Subscribe to Slate Plus to hear their entire conversation. Now, just down the road from one first street over at Maine Justice, newly former Attorney General Pam Bondi has been packing up her things, headed, as her former boss, the president has put it, to a, quote, much needed and important new job in the private sector. She is ousted in favor of, at least for now, his former personal lawyer, Todd Blanche. Proof, if needed, that things can indeed always... get a little bit worse. Now, Mark is back in the amicus hot seat with me for a Pam Bondi exit interview of sorts and to discuss the optics and the substance of the birthright citizenship case. What it means for a flailing, failing president to attempt to intimidate his justices in what is arguably sorry tariff people, the most consequential case of this term. So welcome back, Mark. It's been a busy week for justice. Hi, Dahlia. Yes, a week for the books, but more good than bad. And I think we've decided we always have to celebrate those kind of weeks and block out the bad for just a second, right? Well, that's a good segue because Pam Bondi is out. And depending on who you read, that's either good or bad. The decision tree is entirely freighted up by speculation about how bad but effective but loyal the successor is. We've got now Deputy Attorney General Todd Blanche climbing another rung on the greasy pole. He's going to represent her as an interim attorney general while we figure out who the next one is.

I think before we talk about whether Pam Bondi for Todd Blanche is good or bad and who comes next, maybe let's just pause to talk about what the books will say about Pam Bondi. I would speculate the worst attorney general in history. And someone who kind of makes Jeff Sessions look like a stellar. Attorney General just a few short years ago. Well, first, I have to say I deeply resent you for making me envision Todd Blanche on a greasy pole. Like, that was entirely unwarranted, and it'll never leave my mind now. But I think this is more good than bad because Pam Bondi's legacy, it was so atrocious day in and day out, even though she'll be replaced by someone who is similarly evil. It is always welcome to see someone so... profoundly malicious leave the government, uh, get booted out, it seems, because she wasn't evil enough, which we'll talk about, right, obviously there are wrinkles here. What comes next is not going to be good either. But like, this was the woman who. completely abolished the Justice Department's traditional independence from the White House, declared that this was just an arm of the White House, of Trump's own agenda, and that she would be doing the president's bidding directly. I know it's easy to forget this because, like, it's been 15 long months or so, but that is not how the Justice Department has traditionally operated, even under Trump's first presidency, even under George W. Bush, right? Like, there was a buffer between DOJ. And the presidency and Pam Bondi came in and immediately took that away. And that led to some of the worst misconduct and abuse of the law that we've ever seen from DOJ. I mean, I won't run down the complete list. But of course, there was the attempt to prosecute Trump's political opponents, something she apparently didn't do well enough to satisfy Trump. There was the endless violation of court orders followed by the slandering of judges who called out those violations. I'm thinking back to the unlawful deportations of Venezuelan migrants all the way through to the continued detention and transfer of ICE detainees in direct violation of so, so many court rulings. There's the Epstein files and her egregious mish handling of that, which really began in earnest when she claimed that she had them sitting on her desk. and that she was like ready to reveal all the Epstein clients and then illegally withheld vast troves of materials from those files after Congress passed a law, which Trump signed demanding the release of all of that key information. Her performance in front of Congress, her absolute snide hostility toward. a co-equal branch of government refusing to directly answer questions, pointing lawmakers toward the Dow, which had reached 50,000 that day, which has slumped considerably since then. You know, there's the attack on journalists, raiding a journalist home. Her enforcement of Trump's heinous anti-transgender policies, his heinous anti-DEI policies, persecution of law firms and universities. I mean, again, the list goes on. This stuff is all.

absolutely appalling. And I just think we do need to take a beat and celebrate the fact that the woman behind it is going to be out the door soon. That's just to me an unqualified good. It's an unqualified good. I could add to your list. It is extensive. I think I would say two things. I'm not the first or the thousandth to point out that the first casualties of these firings are women. And women, you know, including Kristi Noem, who are just so... pathetically loyal, such just unrepented butt-kissing loyalists. And the male butt-kissing loyalists keep failing up, right? Think Pete Hegseth, think Kash Patel. So there is a gender valence here that is unmissable. It is interesting that, you know, women can't evidently suck up hard enough to please the president. And men evidently can. So sit with that for a moment. The other thing I've been reflecting on, Mark, and you mentioned this, but I think in addition to the sort of seriatim sins of, you know, malicious prosecutions and just disrespectful going after judges, going after, you know, members of Congress. contemptuous behavior. We also have to just note structural systemic, you know, damage to the Justice Department, people quitting in droves, people being fired or reassigned in droves. You know, this stuff doesn't get fixed in a day. And I'm old enough to remember you and I having conversations about Bill Barr coming in to DOJ and saying, oh, you know, he's a lawyer's lawyer. You know, at least he'll care about the Institute. Exactly. That cackling laughter, right? Like, he also had no regard for what he was doing to the Justice Department. Again, though, looks magisterial in comparison to A.Pam Bondi. So I think in addition to the really structural damage that she has wrought at the Justice Department and among personnel there, And reputational harms and, you know, the presumption of regularity where judges are now just saying like, yeah, I just assume you lie all the time. That stuff isn't coming back on the watch of whoever her successor is or, you know, whoever is the next non-ridiculous AG who's appointed. The other thing I just want to note, because I was thinking about this with the news that Pam Bondi was fired, was I remember taking my then five-year-old to visit the Supreme Court for the first time.

And in addition to being charmed by the basketball court, the highest court in the land, I remember him talking to a law clerk because he was allowed to talk to law clerks. They did not. Talk to me. But I remember him telling her that what he really just wanted was for her to put as a law clerk a kid in his preschool in prison. And I remember patiently explaining that like neither law clerks nor justices of the Supreme Court get to just, you know, sua sponte, imprisoned people. And I was thinking about this with the firing of Pam Bondi and Candelanian's good reporting from MS now about. The extent to which her cardinal sin was just not putting enough of the toddler enemies into prison. Like that was the failure, right? Despite efforts to go after Letitia James and efforts to go after everyone that Trump wanted to see imprisoned. Like in the end of the day, she just wasn't good at the small, more vindictive, hate-filled, this is all Trump wanted from his AG. He wanted his friends pardoned. done, and he wanted his enemies sent to jail whether or not there was cause. And to me, it's just so emblematic of the smallness of Donald Trump's vision of what justice is and what the law is. And I just keep thinking, I think in order to actually fish his wish and get the kind of attorney general he would want, he might literally have to tap a five-year-old. Well, yes, but even the most competent five-year-old would still run into the same problems that Pam Bondi did, like a doogie-houser type AG, is going to crash straight into the separation of powers and the Fifth and Sixth Amendments, which are really ultimately, I guess, what led to Pam Bondi's downfall, right? Like, she did try to go after his political opponents. I'm not saying you've got to hand it to her, but like she understood the mission. As you said, Dahlia, she went after these people, but she kept crashing into the the same barriers. Like she wanted this government to run in a kind of Soviet way where like there's the executive branch and it's the only branch that matters. And if the executive branch wants to indict someone, they're indicted, if they want to convict someone, they're convicted, if they want to imprison someone, they're imprisoned. Like that was her vision. And the problem was we still have an independent judiciary, at least in, you know, D.C. federal courts, which was mostly where she was flopping and trying to litigate this stuff. We still have grand juries, which at least in D.C. were doing their jobs and tossing out these attempts to indict political foes. We still have a right to trial by jury, a right to counsel, due process, all of these basic protections that sometimes seem like, oh, of course we don't need to remember how important those are. They're enshrined. Everybody gets it. You know, we're all working for the same playbook. This Justice Department was not working from that playbook. It did not believe, for instance, in the legitimacy of grand juries, right? We saw Pam Bondi's Justice Department. repeatedly slander grand juries for refusing to return indictments, slander juries on criminal trials for refusing to convict individuals accused of crimes against this administration that they obviously did not commit. All of this to the administration was an inconvenience to be surmounted, and Pam Bondi embodied that spirit. And I get it because she needed to explain to...

Trump, her audience at the end of the day, why she wasn't able to accomplish his agenda. But I think the next AG and the next AG after that are going to crash into the same problems, at least. Unless and until Trump is truly able to corrupt the entire judiciary, and we're not writing that off entirely, right? But until that happens, there are still going to be meaningful citizen input into the criminal justice process. There's still going to be a series of opportunities for the people to short circuit these attempted abuses of the Justice Department's massive prosecutorial authority. And so long as that remains the case, I just don't see Letitia James going to jail. I just don't see Adam Schiff getting locked up. I don't think that these barriers are going to be surmountable. And so Trump is setting himself up for a series of failed AGs, if that is truly his litmus test. Yeah, it's interesting. It's the sort of where's my Roy Cohn, right? Like that's the entire vision of how this thing is going to work. It slightly goes to something Ian Bassin from Protect Democracy said last week on the show where you can have complete failures with no talents. If and only if every single instrument of government is captured. But if they aren't captured, then just being an abject failure isn't adequate. And as you say, there's just too many pieces of the system that are still working. I do want to do one more beat on Pam Bondi. You mentioned Mark the truly bone-chilling testimony that she gave before the house with the Epstein survivors sitting directly behind. her and just the utter contempt with which she treated them and the entire investigation. But that investigation still lingers. And so while, as you noted, she failed to bury it, failed to make it go away, doesn't she have to show up an answer for a subpoena? Doesn't she have to testify? Yeah, she still absolutely does. She doesn't get out of that just because she's no longer AG. And in fact, she might still be AG because apparently she's winding down over the next few weeks, although we all know that Trump in secret hates firing people. And so he's tried to make this look like her own transition. So even though she's still packing up, I think she might still be Attorney General Pam Bondi at that point. But even if she isn't, she's going to have to go and face the wrath of the lawmakers who she so recently spurned. And it's going to be very, very ugly, especially since she no longer has the administration support behind her, right? Last time it was a one-woman show to...

prove to the president that she was entirely loyal, that she would throw these survivors under the bus, that she would act with total contempt for Congress and its investigation and just go to bat for Trump's denialism over the Epstein controversy. And she knew that Trump would, you know, appreciate it and back her up. That's gone now. So I think this could really be a bloodbath for her. We will see maybe Republicans will go easy on her because she doesn't really matter anymore. But she will need to be there under oath. And perhaps she should remember that when Democrats take the House in 2026, they'll have contempt power, they'll have power to investigate perjury, so she might not want to lie as freely as she'll be inclined to. We'll be right back after these messages. How do you keep up with AI? The competition is only moving faster. Fortunately, there's NetSuite Next. NetSuite is the AI-powered business management suite that securely connects all of your data. It's a unified suite that brings your financials, inventory, commerce, HR, and CRM into a single source of truth, and it's trusted by over 43,000 customers. NetSuite Next is the next huge leap in how business gets done, because AI is built into everything you do. AI agents work alongside you to solve problems and handle routine work. And anytime you have a question about anything, just ask, just like you're having a conversation with a colleague. NetSuite is customized for a wide range of industries, so it supports the way your business truly works. Whether your company earns millions or even hundreds of millions, it's time for NetSuite next, where your business meets AI. For the first time ever, you can try NetSuite Next for free. If your revenues are at least in the seven figures, go to netsuite.aI slash amicus. Built for every industry, ready for every boardroom. NetSuite.aI slash amicus. This episode is brought to you by Quince. The very best summer pieces are the ones you end up wearing on repeat, comfortable, versatile, and somehow right for almost every occasion. And that's why I love Quince. Their elevated essentials use premium materials like European linen, organic cotton, and washable silk without the traditional retail markup. Quince's 100% European linen pants, dresses and tops are the pieces you will reach for all summer long. Everything at Quince is priced 50 to 80% less than similar brands. They work directly with ethical factories and cut out the middlemen, so you're paying for exceptional quality, not brand markup. I just received their featherweight cashmere silk-fraid-edged scarf in the coolest stage. The scarf is as light as a cloud. It's silky soft, and it will be a summer staple for me for all the wedding. all the plane travel, and all the chilly evenings. Make your summer wardrobe feel easier. Go to quince.com slash amicus for free shipping on your order and 365-day returns. Now available in Canada, too, that's Q-U-I-N-C-E dot com slash amicus for free shipping and 365-day returns, quince.com slash amicus.

NPR understands your curiosity is boundless, but your time isn't. That's why they make up first, the three biggest news stories of the day, with the reporting and analysis to understand them in under 15 minutes. Up First's distillation of President Trump's claims of election fraud in California was a super useful preview of what we can expect in the midterms. There's no shortage of news right now. Up First doesn't just give you the headlines. It gives you the context. Recent episodes covered how American citizens are getting caught in ISIS-growing surveillance web, what the Iran war means for the U.S. economy, and why Attorney General Pam Bondi's exit is bigger than it looks. Up First does something most daily news shows don't. It asks better questions to get better answers. Not just what happened, but how it came about, why it's a big deal and what happens next. That's the difference between knowing the news and understanding it. Follow NPR's Up First podcast so you can understand what matters and what happens next. It's hard news through a human lens. Let's return to my conversation with Amicus co-host Mark Joseph Stern. We should do one more beat on Todd Blanche. He was, as we all may recall, very much in the driver's seat for the extremely strange proffer with Ghislaine Maxwell and the easing of her conditions of detention. Todd Blanche, Mark, I guess this guy, Trump's former personal lawyer, arguably, again, this is the speculation I worried about at the very top of the show. Could be worse. Could be better. Could be more competent at being completely craven and shameless. Could be a better suck up. Who knows? Better or worse? I think about the same. But in some ways, even more pugnacious and unprofessional in the lines he's willing to cross, which is really saying something. This is the guy who said that he was at war with federal judges, right? That he was at war with state bars, that he thinks one of his missions here is to somehow like defeat or topple these so-called rogue judges who are daring to rule against the Trump administration and force it to follow the Constitution. He's always out there, out front, just defaming the judiciary in a way that I kind of think maybe the Supreme Court's not going to like, but it's hard to tell. with these guys. They have a high tolerance level for defamation of their colleagues on the lower courts. He was in some ways one of the faces of the Epstein files catastrophe, right? He helped to conceal the files after the law was passed that ordered them to be released. He had the infamous quote, The American people need to understand that it isn't a crime to party with Mr. Epstein. That could go on his gravestone. He was Trump's former defense attorney before this. So. We all know what his mission will be. But again, I just have to say, like, that was Pam Bondi's mission, to defend Trump, to implement every single one of Trump's wishes, even if he tried to DM them to her late at night and accidentally posted them on truth social. Like, he's going to try to do the same stuff she did. And I think he's going to run into the exact same problems and fall out of favor pretty quick.

So, Mark, I do want to talk, if you can remember all the way back to Wednesday morning, arguably, I think the biggest case of the term, maybe of several terms, the birthright citizenship challenge. I think the thing that's really been, even before we get to the merits, the question that's really been keeping me awake at night since it was announced that President Trump would be the first president in history to just show up. at an argument live and in person at one first street, why didn't John Sauer or Pam Bondi, I guess Pam and he were probably not speaking by then, but why didn't anyone say to him, Mr. President, this would be just a colossal failure of optics and appearances for you to sit there and glare at the justices. Like, did nobody say to him, this will just look bad? Well, I think it's representative of the broader problem that nobody at DOJ, including leadership, is willing to... tell him anything he doesn't want to hear. And to say, like, this isn't a good idea or this isn't possible or this is going to backfire. He has stacked the agency with these yes men and women. And so he's not able to get, like, good counsel. He wants his Roy Cohn. But I think even once in a while, Roy Cohn was willing to say, hey, that's probably not a good idea. And here, like, that was never going to happen. And so there he went first sitting president to attend Supreme Court arguments. You know, his name is in the county. It's Trump v. Barbara. I suspect he wanted to stare down the justices, remind them at least three of them who appointed them and got them there because he still seems to think that they care deeply about that. And in fairness, I think Brett Kavanaugh does, but the other two clearly don't. And it just seemed like a really outrageous and calamitous miscalculation if that was his goal because six or seven of them just laid into John Sauer's arguments. And I think a few of them probably probably including Neil Gorsuch and maybe even Amy Coney Barrett, were harsher than they would have been to make a point. Obviously, that's speculative. I can't prove a counterfactual. But it really seemed like these justices wanted to remind the president, hey, at the end of the day, we're actually even more powerful than you are. I've read in the reporting, like, People weren't told to stand when Trump entered the courtroom. He was seated in the public section. But then, of course, everyone had to stand when the justices came in. They're up on that raised platform behind the bench, right? They're literally higher than he is. I think that it probably sent the message that Chief John Roberts would have wanted to be sent that, like, at the end of the day, we're the deciders and you aren't. And that is not going to make any of them more inclined to rule for him in this case. It's interesting. I kept having the visual in my head of those times when he would have to sit in court in his various trials and have the same thing happen, you know, have to like be quiet when a judge told him to be quiet, have to stop interrupting, like to consistently just be called out and spanked.

and to be forced to mutter under his breath and roll his eyes. The idea that he'd be like, but this time it'll work because they love me, my justices. I guess I did sort of parenthetically wonder if any of the justices modified their behavior. You're saying you think maybe a little bit, maybe just feeling jammed, allowed some of them to brush him back, even a tiny bit in ways that, you know, we didn't see, for instance, at the State of the Union. It's interesting, Mark, because for me, again, You know, I'm on the metaphor train this week and I'm riding it. But it is fascinating to me that you and I keep having the conversation about how could these justices who conferred sweeping immunity on this president not understand what happened directly across the street from their house, you know, not understand what happened on January 6th, not care about what happened, you know, to Mike Pence. It's fascinating to see. the way in which when he comes actually across the street, like when he comes into their house. maybe things are different. I don't know. I would like to believe that maybe a few of them were thinking back to the immunity decision and regretting it as they stared at him, staring at them. I doubt it. I mean, I think that like one of the traits of being especially a conservative Supreme Court justice today is never having to say you're sorry, never looking back in anger, never questioning whether you might have gotten something a little bit wrong. They all these days follow the Clarence Thomas model of like, I am correct. Anyone who questions me is a fool. And everything I've ever said is obviously and perpetually the truth, capital T. So I doubt that that... was going through their heads. I would like to believe that it was. But, you know, forward we march now. So my only hope is that as we go ahead here with birthright citizenship, with some of these other cases like the attempt to fire Lisa Cook from the Federal Reserve case that I think he's going to lose, that they do establish this independence from him, that he reacts, as we all know he's going to react, as he always does on truth social, sometimes at press conferences lashing out. And there's maybe a little bit less of a kind of inclination. among the six to just automatically rule in his favor and more of a desire to say, oh, wait, this guy doesn't accept our legitimacy as a separate branch. Let's remind him. Let's do what we can to show him that we really are. So, Mark, you and Evan Bernick did yeoman's work this week in the pop-up episode after the birthright citizenship arguments describing the conclusion that I think most of us came to, which is, yeah, Trump is going to lose that. He may lose. big, he may lose really big. With the exceptions of justices Samuel Alito and Clarence Thomas, it just does not look like anyone was picking up what John Sauer kept putting down. And I guess it would be useful because John Sauer...

A lot of folks have noted just seemed like he wasn't prepared for some really easy questions. And he's a smart guy. And it felt like, and you noted this in the show and in your piece, he just kept sort of stumbling into minefields. And seemingly he'd never thought about some of this material before. literally had never thought about the question of birthright citizenship for native people under his theory, which is obviously something Neil Gorsuch is going to ask you. And he was like, oh, I'd never actually thought about that. It's a good question. insane, but I do think more broadly the issue was that his arguments were incoherent and that his historical claims were either nonsensical or like deeply contorted and twisted in ways that were bound to trip him up because you really can't spend more than 30 seconds trying to work through his theory without suddenly seeing all of these giant flaws just open up. It just doesn't make sense. It doesn't cohere. I think the justices were annoyed by that and they kept pressing on. the weak spots in his argument. I'll note, by the way, like, they also pressed on some kind of arguably weak spots of Cecilia Wong's argument. Like, this wasn't an entirely one-sided blowout. Neither were the tariffs arguments. And it's easy in these cases to think, like, oh, it's going to be a close call. Maybe the justices are really undecided. But there was a different tone and a different kind of, like, approach. to John Sauer's arguments versus Wong's. With John Sauer, they were like, are you kidding me with this? This doesn't make sense. This doesn't check out. If this is really your claim, then how could this work? Like, they were just trashing his arguments. With Wong, it was more like they were thinking about how to write this opinion, right? To write it against the Trump administration. And they wanted to figure out what the possible issues would be there, what the weak spots would be, and address them in advance so that they could just tackle it head on. And so I do. feel like at the end of the day, this proved to be something of a blowout for the Trump administration. And Sowers' stumbling wasn't because he's a fool. He's not a fool. He sounded like a fool because the arguments that he made were fundamentally foolish. Yeah, it was interesting. I noted in your piece, you put scholarship in quotation marks, right, talking about the really, like, appallingly bad originalism that he was leaning into. But I think you're making another point. You and I talk about quite a lot, which is... This John Sauer seems to be the same John Sauer of a year ago who is so persuaded that he has six justices in his back pocket that he doesn't think he has to make plausible arguments. And they're, you know, that was true. Actually, like we've seen cases in which John Sauer has made demonstrably silly claims. And the justices have been like, yep, sure, okay.

Good. Sounds good to me. Yep. Criminal immunity for the precedent? Why not? I don't know that he's modulated either the substance of the arguments. Like, don't say dumb stuff. But also when he's caught saying dumb stuff, he often doubles down. And there's this weird, for lack of a better word, sort of arrogance in his presentation where he's like, I'm just going to say, you know, a bunch of crap that I don't think I believe. And then when I. visibly lose the chief justice. I visibly irk Neil Gorsuch or Amy Coney Barrett. I just shrug my shoulders because I'm convinced I'm going to win. And it is a very strange, very low EQ behavior for somebody who you would think that the Solicitor General has one job, which is read the room, right? And as you say, know what Neil Gorsuch is going to ask and be prepared to answer it. But more, I think. deeply to know when you are losing someone and try to correct for it. And I see so little of that in his advocacy style. And it completely mimics Donald Trump's style of talking, which is like, I'm just right. And if I lose you and I get this wrong, it's because you're idiots. And I just don't have an analog in an SG that refusal to sort of moderate when you're losing. And I think as you say, He was losing justices. And I wonder if just to pick up... On what you were saying about the questions that were asked to the ACLU's Wong, what they were searching for in the colloquies with her, and by they I now mean John Roberts and Amy Coney Barrett and Neil Gorsuch, and maybe to a lesser degree, Brett Kavanaugh, was something that was workable, right? Something that wasn't just history for the sake of doing history, a la Samuel Alito or Thomas, but history as applied to... a problem that needs fixing. And in that sense, I was reminded of poor malign Justice Breyer's, like constitutional touchstone, which was workability. Remember when we used to chuckle? But it really felt as though the difference between what they were trying to ferret out in talking to Wong and talking to sour is, how do I make this apply? in 2026. Yeah. I mean, I think John Sauer found himself in a bit of the same bind that Pam Bondi was in, right? Like no amount of loyalty can actually make a legal argument for you, at least not a winning one. That came out maybe most clearly in the colloquy with Amy Coney Barrett that Evan and I talked about on Wednesday's show, where John Sauer argued this is the core of his claim, that the citizenship clause doesn't actually mean what it says because in order to have birthright citizenship, your parents must have legal domicile in the United States, like they permanently live here lawfully, and they must not have allegiance to any foreign power. They could only have allegiance to the United States. And so Amy Coney Barrett asked, well, look, a lot of...

enslaved people were brought here illegally, right? After the international slave trade was banned, still many slavers brought people over here illegally. And presumably a lot of those people did not feel allegiance to the United States. They still felt allegiance to another country that they were kidnapped from and wanted to return to that country if and when they ever could. So those people didn't have permanent domicile. They weren't lawfully here, right? They were unlawfully transported into this country. And they didn't have allegiance to the United States. It's certainly not. sole allegiance, right? So under your theory, Doesn't that mean that many, many enslaved people and their children wouldn't get birthright citizenship, even though everyone agrees that the number one point, the number one purpose of the 14th Amendment, first and foremost, was to ensure that the newly freed slaves and their children had citizenship. And John Sauer could not produce a remotely coherent answer, right? He said, oh, well, that's not a problem because we know from the congressional debates over the 14th Amendment that they wanted to ensure that the newly freed slaves and their children had citizenship. And Amy Coney Barrett had to say, okay, okay, but that's not an answer to my question. I know that. My question is, doesn't that show that your argument has to fail on its own terms? And they just kept going around in circles this way that I think was really, really damning to John Sauer's case. And then you compare that to the way that Amy Coney Barrett and Neil Gorsuch and some of the others press Cecilia Wong of the ACLU, right? So they were asking like, Who really is exempted from birthright citizenship? There's this set of people who we know were because they were not subject to the jurisdiction of the United States. Children of diplomats and ambassadors, the children of invading armies, and also certain tribal Indians, quote unquote, who were literally not subject to federal jurisdiction at that time. They were separate nations. They were understood not to be under the United States power. And so the justices kept asking, well, is that a closed set? Are those three? Exceptions forever sort of frozen in amber. Could Congress ever expand that set? Are there modern analogies that sort of fit that set? I think they were asking because they want to write an opinion that's coherent on this point so that they can say, here are the people who really were exempt. And here's why today's undocumented immigrants and temporary visitors don't analogize to those people. Here's why that set cannot be expanded to them. And those were productive questions, whereas the questions to John Sauer were just like, here's why you're wrong. We're going to take a short break. Summer always reminds me how quickly dehydration can catch up with me. Between warmer weather, travel, and long days with two kids under three, I can feel when water alone isn't enough. That's why I keep drip drop on hand. It's an easy way to stay ahead of dehydration before I start feeling tired. drip drop is proven fast hydration that's built to hydrate you faster and more effectively than water alone. It uses science-based formulas for rapid hydration, so you feel results fast while getting three times the electrolytes of leading sports drinks. And it's trusted by over 90% of top college and pro sports teams, because hydration isn't just something you do when you're behind. It's how you stay ahead. Drip drop zero sugar plus is a breakthrough fast absorbing formula with an advanced blend of six key electrolytes, 15 essential

vitamins and nutrients and no sugar or artificial sweeteners. There are 16 original flavors and 8 zero sugar plus options, including my preferred choice after a long day outside with the kids, zero sugar passion fruit. Right now, drip drop is offering podcast listeners 20% off your first order. Go to dripdrop.com and use the promo code amicus. That's dripdrop.com promo code amicus for 20% off. Stock now at dripdrop.com and use promo code amicus, AMICUS. 98 of the top 100 U.S. accounting firms trust Bill to handle bill pay processes. Why? Because our tools are built on over a trillion dollars of secure payments. We're not just moving money. We're powering financial workflows for half a million customers. That's a level of expertise. You just can't fake. Ready to talk with an expert? Visit bill.com slash proven to get started and grab a $150 gift card as a thank you. Terms and conditions apply. See Offer Page for details. And now, back to the show. Before we leave birthright citizenship, Justice Brett Kavanaugh was, as he does, looking for a compromise. There is a sort of statutory safety hatch. He was flinging himself against, you know, reserve the big constitutional question for another day, another better president. Anyone but Brett Kavanaugh hungry for this way out? Not really. I mean, Neil Gorsuch kind of flirted with it, but he didn't seem infatuated the way Brett Kavanaugh did. So Brett Kavanaugh's basic argument, and I think this is correct, by the way, was that Congress has codified birthright citizenship into statute in both 1940 and

Regardless of what people thought in 1868, when the 14th Amendment was ratified, when these laws were passed, there was a three-branch understanding that birthright citizenship applied to the children of immigrants, including undocumented immigrants, right? Wong Kim Arc was in 1898. The Supreme Court had said immigrants kids get birthright citizenship. This had been the law of the land for a very long time. And so Brett Kavanaugh's argument was, look, if it's a narrower decision to just decide this on the basis of a statute, shouldn't we maybe just do that? instead of going big and definitively resolving the constitutional question. And that seemed to appeal to him because he thought the constitutional question was maybe harder than some of the other justices did. And also, he seemed to maybe want to leave room open for a future Congress to revisit this. He seemed interested in leaving wiggle room for Congress to come back and expand the set of people who don't get birthright citizenship beyond the historical exceptions. So he was interested in that. I don't think that that will win the day. I think maybe what happens is you have a six justice majority saying this is unconstitutional and a one justice concurrence by Brett Kavanaugh saying, well, we don't need to decide that. It just violates a statute. And then you have Thomas and Samuel Alito off on their crazy train doing whatever they want in dissent. So, Mark, we have spent a lot of time and we could have done more time. There was an executive order purporting to control mail-in ballots. There is the Justice Department saying, you know, we're crossing out the Presidential Records Act. Like, I file all of this under stuff, you know, I'll pay attention to if and when a court says it's okay. But, you know, until then, it's just wishcasting. But I do think we have talked a lot. about the ways in which the bloom is off the stinky rose. President Trump's legal authority is definitely feeling like it's... wobbling. And the sense that we had a year ago that his takeover of all the levers of power were inevitable and irreversible just isn't the vibe anymore. And we've talked about a bunch of examples of that today. But I think it behooves us to talk about the way that Scotus... For reasons you said earlier, sits on a dais way up high and looks down on the president and is going to be there for a very, very long time and long after the midterms and long after a 2028 presidential election, may it happen flawlessly and decisively. Long after all this gets resolved, we still have a Supreme Court that is still reeking. unbelievable harms on real people. And so I think we have to end on the Supreme Court that doesn't change and that is the decider mark, as you said. Charles versus Salazar did come down at the beginning of this week. This is the realization of a very long standing project to emiserate children who seek guidance and help, professional help on matters of sexual orientation, gender identity.

This is also, I think, the realization and the materialization of a conversation you and I have been having for a very long time and have been covering for years now, which is the First Amendment deployed as a sword to protect forms of speech, favored forms of speech, particularly religiously inflected speech in a lot of cases, in the face of what are supposed to be shields that protect people, like civil rights protections or professional obligations. or fact-based health care. And this is very much another in a long string of those quote-unquote wins for one side only. And this was a really devastating outcome. Yeah, it's brutal for LGBTQ youth all across the country who were protected by these laws in about half the states, actually. And a lot of them passed with bipartisan support. And yet in this case, the Supreme Court technically held that laws that restrict or prohibit professional counselors from trying to convert LGBTQ youth are subject to strict scrutiny under the First Amendment and are presumptively unconstitutional. The court did not take the final step of striking down the Colorado law and by extension all these other laws, but it led the lower courts to that point. It basically instructed the lower courts, at least as far as these laws apply to talk therapy to what the court termed expression or pure speech, they cannot stand under the First Amendment. And that's going to take a huge bite out of these conversion therapy bans for youth because most practitioners today aren't doing the kind of direct physical abuse that we see. on yesteryear, electroshock therapy, these aversive therapies where children were told to think about homosexuality and then induce vomiting. Like, that's not happening as much. We're seeing this deeply harmful and abusive... talk therapy in which kids are told that their identities are wrong and sinful and outrageous and their parents are going to reject them and God reject them and they have to, you know, pray away the gay, right? Or pray away the trans. And the Supreme Court has just granted that speech the highest form of constitutional protection. specifically when it occurs in the context of paid professional therapy. And I just want to like hold this out for a second. These are professional licensure regulations, right? Like this is not a free-floating ban on trying to say the LGBTQ identities are wrong or even trying to convert kids. If you are a parent, a faith counselor, even a professional therapist who's working off the clock, you can still tell a gay kid you should be straight. This only applies when therapists are getting paid for their services. on the clock. And it's a modest licensure rule that basically finds them if they are found to have tried to convert a child. And the Supreme Court now says that's extraordinarily protected speech. It's presumptively unconstitutional for any state to try to restrict it. And even justices Sonia Sotomayor and Elena Kagan joined.

deeply unwise decision in my respectful view because it lends even further legitimacy to what you described, Dahlia, which is this ongoing project of wielding the First Amendment as a deregulatory sword and as a sort of religious supremacist principle that gives these heightened, really special, almost insurmountable protections to religious speech, especially anti-LGB religious speech, and leaves a lot of people to suffer abuse and harm and also leaves a lot of other kinds of disfavored speech out in the cold. In the fallout of Childs, the conversation was, you know, how broadly to read this or how limited the holding really is. As you note, it was an eight to one decision. Ketanji Brown Jackson writes in her lone dissent that a vast range of health care regulations actually currently restrict medical professional speech on the basis of viewpoint, just like the Colorado law does in Childs. And then she wondered if the court was going to strike all of those laws down too. And I guess just to your point, Mark, is the best case scenario here. And best case scenario is in quotation marks and italics. The one that does the least damage to American health care going to be that the court is just going to buck it off. speech that is hostile to pro-LGBQ protections and is going to leave those other laws that regulate professional speech intact? That's the dream scenario here, because that's very, very terrifying. It's really bleak, but I do think that is the dream scenario. Because what Ketanji Brown Jackson lays out is that, like, the court says this is almost certainly unconstitutional because it restricts speech on the basis of viewpoint. But like... All medical speech that takes the form of advice and counseling to patients expresses a certain viewpoint. Like that is actually how standards of care work. The standard of care compels a doctor to provide a certain viewpoint about medical treatment to a patient. And if it is now true that... every single law that regulates that has to be subject to the strictest of strict scrutiny, then we are not going to have real health care in this country anymore, right? She gives some examples that I think perfectly prove this point. A licensed dietitian or nutritionist in many states is not allowed to tell an anorexic patient, you should eat less. Let's say a dietitian thinks, you know, the real way to do this is to encourage them to hit rock bottom and only then are they going to recover from their eating disorder. So my viewpoint, is that I should be telling my anorexic patients, go ahead, eat as little as you want. Only when you reach rock bottom will you realize your problem and recover from it. That would be illegal.

in many states, right? That would be unlawful advice that could be punished by the state and also subject to a medical malpractice lawsuit. But it expresses a viewpoint. And for some people, maybe that viewpoint is infused with religion. Maybe there are people who think God will guide this patient out of their eating disorder and I shouldn't attempt to intervene by telling her to eat less. And so if the majority is correct, then those laws presumably have to fall because the state is enforcing its orthodoxy, right, as Neil Gorsuch calls it, that orthodoxy is that patients with eating disorders should try to eat more. Well, That's not a decision for the state to make, right? We need to let these free speech practitioners say what they want and express the views they prefer. The same is true of smoking, right? Like there are laws that prohibit doctors from telling patients, go ahead, continue smoking. Go ahead. Start smoking. Why not? Those laws actually require doctors to tell their patients, you should stop smoking. You must stop smoking. You have to because this is killing you. That is a viewpoint. Express. by the state in these laws that is enforced against doctors who can be punished if they fail to follow it. Are those laws like now suspect? And the answer probably is no, because you can't take the majority seriously. You just can't. It can't be true that doctors can no longer be compelled to express a viewpoint that adheres to the best standards of care. What's really going on, as you said, Dahlia, is that the majority hates pro-LGB protections. The majority wants to strike down. laws that protect LGBTQ people, especially youth. And so the majority just hives off this particular application of this law and says, this can't be done. And LGBTQ youth are left out in the cold. But other laws are... in my view, maybe my like optimistic view, are not going to be as imperiled as Ketanji Brown Jackson worries because you can't take this at face value. And who knows, maybe that's what Elena Kagan and Sonia Sotomayor are thinking as well. Elena Kagan has this cryptic concurrence where she suggests that like, Content-based medical speech restrictions can still survive. She's already looking at the next battle. I'm not entirely sure she's correct, but let's all hope that she is because otherwise there are no more standards of care in American healthcare. Doctors can just do whatever they want. This was a test case, an engineered test case by Alliance Defending Freedom with a plaintiff who had not actually been subject to Colorado's law and might never have been because she wouldn't come out and say that she wanted to convert LGBTQ kids. It was a political... lawsuit that was attacking Colorado for daring to try to protect LGBTQ children. It was not a response to any active, quote, censorship by the state of Colorado. It was just another engineered case by Alliance Defending Freedom to say we don't think that LGBTQ people deserve protections and we're going to cook up whatever fake cases we need to to have them struck down by unelected judges.

Well, and also really pointedly, it's a way of saying like, oh, all of these laws like exist to chill our speech, right? It's a way of framing it as, you know, the big bullies, you know, who try to regulate speech are keeping me from doing my like fullest, truest job. And it's it's a way of constantly posturing that like nobody dares say a word because the woke police are coming after them. So maybe let's end on this note of legal realism, Mark, because like you, I was really struck by, again, this is an eight to one decision. And so then the, you know, word goes out. This is just a speech case. And yay, you know, more speech protection is always good. And, you know, clearly justice is Sotomayor and Elena Kagan are being mindful of the fact that. it's always going to be better in the world to have more speech protection. And someday this will redound to the benefit of LGBTQ plus kids, right? Those vulnerable kids will actually have better, more protective speech from people who want to advise them in ways that will help them. And again, I can remember each and every one of these cases that come up. You and I are like, well, maybe it will. redound to the benefit to the people who aren't on Samuel Alito's and Neil Gorsuch's team. But damn, it never really does, does it? No, and I think the best example here is that like under controlling Supreme Court precedent, states can still force abortion providers to speak. and provide anti-abortion propaganda to their patients before they terminate a pregnancy. And that is just quintessential viewpoint-based discrimination. The state is forcing doctors to express an anti-abortion viewpoint through speech. And Nobody seriously thinks that that is undermined by this decision because everybody knows that abortion is special and this court hates it. And there's a distortion of any doctrine that applies to abortion at this court because the majority is always going to support anti-abortion laws. And Ketanji Brown Jackson also makes this point in her dissent. And she's like, why are they different? Why is it that an abortion provider can still be centered on the basis of viewpoint, but now a counselor cannot, right? And there's no really good answer. The answer is that this court. applies its First Amendment doctrine very unevenly and winds up treating like progressive coded speech with a much more jaundiced and hostile eye than it does other kinds of speech. And so look, I'm not like. castigating justices Sotomayor and Elena Kagan for joining this opinion. I see what they're doing. I get the argument. And, you know, maybe let's hold out a little bit of hope. Maybe one day this decision will somehow be used to protect an LGBTQ kid. I don't really see how because there are not, in fact, sort of mirror image red state laws that bar counselors from affirming gay or transgender children. Like those laws don't really exist. So this is not going to be used to protect kids in red states. It's a hard.

position that they're in. I get it. But I still really struggle to believe that these votes were worth whatever. They might just get out of them in the future. It's interesting, Mark. I guess as we wrap up, I'm really mindful of the fact that sometimes you and I are accused of being a little lawyer-brained. Because all we see is the next lawsuit, like maybe the immunity decision is really good for future president Kamala Harris. It simply doesn't seem to work that way. And I think sometimes, sometimes we have to sort of back away from the, you know, when all you have is a hammer, everything looks like a lawyer brain problem and say, this is our Supreme Court. And this is going to be how cases get decided for a very, very long time. Not a reason. Not to vote. Not a reason not to think seriously about Supreme Court reform, but a reason to sort of say that while we take our victory lap about the Emperor Donald Trump wearing increasingly, increasingly thin clothes, the Supreme Court is still really cloaked in Velvet and Irman, in it. You started with Todd Blanche on a greasy poll and you close with Donald Trump in increasingly thin clothes, Dahlia. You are... putting the cursed images straight into my brain today. I apologize. Thank you, Mark. It is always, always, always. Great to have you on the show. And really truly, thank you for the deep dive this week on birthright citizenship. This was really complicated historical material and you really helped make it clear. Thank you. Thanks, Dahlia. That is all for this episode. Thank you so much for listening. And thank you so much for your letters and your questions and your comments. Keep them coming. We are reachable by email at amicus.com. You can always find us at facebook.com slash amicus podcast. You can also leave a comment if you're listening on Spotify or on YouTube or you can rate us and review us on Apple Podcasts. Amicus Plus members, if you haven't yet, make sure you listen to Wednesday's bonus episode where Mark Joseph Stern and Evan Bernick will take you through the birthright citizenship arguments with a keen eye on history and fake history and truly dodgy scholarship. And if you're not yet a Slate Plus member, visit slate.com slash amicusplus to join Slate Plus. Not only support the work that we do for which we are truly. truly eternally grateful. They also get bonus episodes, early listens, and ad-free listening. And that's not all, Slate Plus members never, ever hit a paywall at Slate.com. Again, visit slate.com slash amicusplus to join. You can also subscribe to Slate Plus directly from the Amicus Show page on Apple Podcasts and Spotify. Sarah Burningham is Anicus's supervising producer. Our producer is Sophie Summergrad. Hillary Fry is Slate's editor and Chief Susan Matthews as executive editor. Mia Lobel is executive producer of Slate Podcasts. And Ben Richmond is our senior director of operations. We will be back with another episode of Amicus next week. Until then, take good care. Hang on in there. This episode is presented by Planned Parenthood Federation of America.

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