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Speaker A: Jamelle Bouie, how are you doing after those Supreme Court arguments?

Speaker B: I am feeling a little better than I did going into it. I’ll say that that’s. That’s how I’m doing. I’m feeling better than I did going into the oral arguments.

Speaker A: New York Times columnist Jamelle Bouie has spent months thinking, writing, and worrying about the birthright citizenship case that just went in front of the Supreme Court. Jamal hates that this case got argued, which is why yesterday was such a relief. Most of the justices, it seems, feel the same way.

Speaker B: I mean, most of the justices, I would fairly say skeptical, but even a few were almost contemptuous of the argument. And that’s sort of what you want to hear in this particular case. You kind of don’t want them to be being all that respectful of the argument because the argument, frankly, isn’t worthy of respect.

Speaker A: They seem to be enjoying playing around a little bit to me. Like, Like. Like kittens with a ball or something.

Speaker B: Yes, yes, I think that’s. Kittens with a ball is exactly the right kind of amused, kind of somewhat predatory in the case of a few of the justices. But that, again, this is what you want to hear when it comes with this particular case. Because, you know, as I’ve been writing for a minute now, there’s just no there, there. There’s no real plausible argument for the government’s case.

Speaker A: The implausible argument here is that the 14th Amendment of the Constitution somehow does not guarantee citizenship to just about everyone who was born here. Until Trump’s second term, birthright citizenship was a universally acknowledged right, even among conservatives, meaning a win for the President was always going to be a tall ask. That might explain why Donald Trump decided to show up at the court himself on Wednesday. A presidential first. I gotta say, when I heard this, my big thought was he had threatened to do this for the Tariffs case. Do you remember that?

Speaker B: Yeah, I do remember that. Yeah.

Speaker A: And he lost that case. And I think Trump literally thought, I am the lucky rabbit’s foot for my Solicitor General. If I show up, we’re gonna win this time. Like, this is a. This is another one I deeply care about. So I’m going, what did you think?

Speaker B: No, that sounds right to me. The spectacle of the President showing up there, I’ll say, is troubling in that it’s a signal that the President does see the justices as almost like belonging to him. Right. That, like, you know, I put you there. And when I think about why the court may have taken this case, politically speaking, given how Straightforward. The law is, and the history is here. Politically speaking, it might have well just been to say, like a demonstration of the court to say, well, we don’t belong to Trump.

Speaker A: By the time Trump left, do you think he knew this case was not going to go his way? Probably.

Speaker B: I think if he was listening and could, like, understand and parse what was happening, which is not sure that’s the case. But if, if he was, if he’s able to do that much, then I have to imagine that any of the case is not going his way. I have to imagine that he does.

Speaker A: I have a sense that he knew going in that the case wasn’t going to go his way, which is why he tried his move. Do you mean it’s his one move, like, show up himself and look mean?

Speaker B: I do think that if he were popular, right. Like, if we’re, if you’re looking at a Trump administration where he’s like, at 51% approval or even like 45, 46 approval, which for Trump is like, quite, quite doing quite well. This is a very different situation.

Speaker A: Oh, you think, like, if he had the Riz, like the death stare could work?

Speaker B: I think so.

Speaker A: I think if he has, if he had the risk, he wouldn’t have even needed to be there today on the show, birthright citizenship went to the Supreme Court. So did the president. What happened after that was not pretty. I’m Mary Harris. You’re listening to what next. Stick around. Can we tell the story of this case? Like, on the first day of his second term, Trump is issues an executive order that would end birthright citizenship for babies born in the US if their parents are undocumented. But his sort of flirting with this idea goes back to 2018. So clearly this has been on Trump’s mind. And of course, this was immediately challenged by lower courts. But it didn’t take long for it to get all the way up to the Supremes. Right?

Speaker B: That’s right. I mean, this is a situation where the lower courts were all like, yeah, this is. This is nonsense. The 14th permit says what it says. The controlling precedent in Wong Kim Ark from 1898 says what it says. And besides, the president can’t change the Constitution by executive fiat, so there’s that, too. Right.

Speaker A: Let’s walk people through that. For folks who maybe don’t know the history, either with the courts or the history with the 14th amendment, just a quick refresher. Citizenship clause of the 14th amendment, it reads, all persons born or naturalized in the United States and subject to the jurisdiction thereof are Citizens of the United States and the state wherein they reside. The President has said this citizenship clause was written simply to guarantee citizenship to children of slaves post Civil War. But we know that’s not true, right?

Speaker B: Yeah.

Speaker A: So you’re like, let me sit down a second.

Speaker B: It’s. It’s true, but it’s not just that, right? I mean, what the President is saying, that it only did that. It was very narrowly that. But that’s not really the case. Prior to the Civil War, there was no. There’s nothing in the Constitution about citizenship. There’s not a lot of statutes about citizenship. There’s a naturalization act of, I think, 1790, something that says only white people can be naturalized. But there isn’t really a lot there on citizenship. It’s determined state by state. And many states, you know, denied that black Americans, free black Americans could be citizens of the state, and by kind of extension, the nation couldn’t reside there, couldn’t hold property, couldn’t serve on juries, that kind of thing. And then obviously, the enslaved had this kind of permanently subordinate status. So abolitionists, black activists, they’re all saying, no, that this is our only country. We’ve never known any other. We were born here. This is our country, and that being born here is what grants us our right to citizenship. This is the argument they’re making. This is an argument that really comes out of black American activism during the antebellum period after the Civil War. The Congress, which is led basically by. By radical Republicans who are very sympathetic to the abolitionists, some of them are abolitionists, this kind of thing. They passed the Civil Rights act of 1866, which is the first federal attempt to kind of state via birthright citizenship. It’s vetoed by Johnson. They overturned the veto, but there’s worried that it’s not constitutional. So they write the 14th amendment. The citizenship clause is based on the law in the 1866 law, but expanded out because also in all of this right, there is a desire to settle the question for good. They don’t want a future of Congress to revisit this. 800,000 people are dead, right? We just fought a war over this stuff. They don’t want this to come back up again. They don’t want future Congresses to deal with it. They want it a single rule, simple, easy to understand for posterity. After they write this, they write the citizenship clause, and it’s stating, there shall be national citizenship. It shall be based on birth. It shall contain all the privileges and immunities of citizenship.

Speaker A: Everywhere you say that Congress wanted to settle this. But like, by 1898, you are seeing this case in front of the Supreme Court, United States v. Wong Kim Ark. And you know, this is the case that really cements our current understanding of birthright citizenship. Right? What did Wong Kim Ark do to sort of hone in on what the 14th amendment meant here?

Speaker B: So some important background here is that during debates over the citizenship clause, it was openly raised this question of would this apply to Chinese immigrants? To quote gypsies, this is an open question on the table about who gets to be included. And throughout the debates, the Authors of the 14th Amendment are saying repeatedly, again and again and again, yeah, it applies to them too. Does it apply to the children of Chinese parents? Yes, it does. But in 1882, the country passes the Chinese Exclusion act, which forbids the naturalization of Chinese immigrants and strictly limits their ability to come to the country in the first place. Wong Kim Ark is a San Francisco born Chinese American. His parents Chinese immigrants, and he has left the country and he tries to come back in. And at port they’re like, well, you can’t come in, you’re Chinese. And he’s like, well, no, I’m an American citizen. I was born here. And that’s basically the case, right? Like, is he an American citizen despite the Chinese Exclusion Act? Is he an American citizen because he was born here? And it’s interesting to note that this case is the product of an organized movement to try to deny citizenship to Chinese Americans using leveraging the same arguments the Trump administration is leveraging now that the parents were under the dominion of a foreign sovereign, they hadn’t given allegiance, that they hadn’t established domicile, all these things.

Speaker A: In other words, we’ve been here before and it’s been decided and it was like more than a hundred years ago.

Speaker B: We’ve been here exactly before the exact same arguments. And the court in Wong Khe Mark says we have this English common law tradition which has this birthright rule. That is what was codified in the 14th amendment. That the 14th. The words of the 14th amendment are general, not specific. They don’t exclude anyone. That the drafters of the 14th Amendment were not excluding anyone. Like kind of exactly what I’m saying now. They were the court was saying in 1898.

Speaker A: And that’s notable because this court was not some like rainbows and like fairy dust court. This is the same court from Plessy v. Ferguson which paved the way for Jim Crow. So, like, these are not like, it’s not Frederick Douglass, like writing this opinion.

Speaker B: Right. These aren’t liberals. These aren’t progressives. Right. These are people who look at Jim for segregation and they say, hey, it doesn’t look like anything to us. Right, right.

Speaker A: Move on.

Speaker B: But I think this only emphasizes the clarity of the 14th Amendment. Even this court, even that court, rather, could not get past the clear meaning of the words.

Speaker A: So in this argument that the Trump administration is making, are they beating the allegations that they are essentially bringing up the same arguments that a bunch of racists did in the late 1800s?

Speaker B: No, that’s exactly what you’re doing. They’re very much bringing up the same arguments as a bunch of racists in the 1800s. I mean, I would go as far as to say that they are trying to treat the 14th Amendment as if it made Dred Scott the law of the land.

Speaker A: Ay, yay, yay.

Speaker B: Because think about what it means to say that your parenthood determines your citizenship. That that renders countless children stateless and renders them outside the protection of the law. It renders them kind of a permanent subordinate class. And that is. We get so. I mean, not caught up, but, like, when we teach Dred Scott, we teach Dred Scott in terms of. It didn’t. It didn’t allow African Americans to be citizens. But I think that’s too. That’s too narrow. The. The act. The holding in Dred Scott is about the nature of American society. And what it says is, this is a white man’s country, and if you are outside of that, you simply do not have a place and you will never be included.

Speaker A: Well, notably, the government is citing white supremacists in their documents here that they filed in front of the court. So it’s like, they’re just. They’re like, yeah, this is why we think X, Y, and Z. And there’s not much you can do with that. I also think it’s worth talking about. And I say this because the government raised like, look what happens in other countries, because not all countries have birthright citizenship. And I’m like, cool, you want to do that? Let’s do it. Like, yeah, you know, because birthright citizenship is a Western Hemisphere thing. These are places that were colonies. And so they put in place this idea that, like, okay, a whole bunch of people came here, and so that is part of our identity. Right? And, you know, you don’t have birthright citizenship in the same way in Europe, but, you know, where you also don’t have birthright citizenship in the uae. You know what I mean? And in the uae, you literally do have a permanent underclass of people.

Speaker B: Yes.

Speaker A: And it’s ugly as h***.

Speaker B: Yes.

Speaker A: And it’s like, is that what you’re saying you want? Like, if we’re going to talk about other international examples, like, let’s do it.

Speaker B: Right. That’s, that’s, that’s what it looks like. Yeah, that’s. That’s what it looks like. When you are a country that refuses to extend citizenship on the basis of parentage or race or nationality. It looks like, oh, I guess you just have a, have a slave underclass.

Speaker A: Yeah. I mean, to me, I look at the arguments that the government’s making here, and the goal seems to be the American elite essentially pulling up the ladder behind them and being like, okay, you know, no more room here. But it raises these questions, right? Like, are we a nation of immigrants? Which is what every politician has said for decades. Republican, Democrat, whatever, is the American dream real? Or like, can you come here with your family and build a life? Like, we’re essentially like, no.

Speaker B: Yeah, yeah.

Speaker A: And I don’t know. I want more people to understand it that way. You know what I’m saying?

Speaker B: Yeah, No, I think that’s right. I think that’s right. This is a case about whether or not anyone, you know, really can belong to this country if they don’t have the right heritage, if they don’t. If their parents didn’t come from the right place.

Speaker A: That is like, the one good promise this country makes.

Speaker B: Yeah, right, right. Most Americans cannot trace their heritage all that far back in this country’s history. Most Americans, it ends at, like, 1900. That’s when their family got here. The New York Times wrote a really great piece about the Supreme Court, and how many of those justices have parents who came here, who may not have came here under the most legal circumstances, whose grandparents or great grandparents were birthright citizens, who they themselves owe their citizenship to? The 14th Amendment. And this case is just about whether or not we’re going to continue to allow people that same opportunity, whether we’re going to have a country where 50 years down the line, we’ll have Supreme Court justices who can look back now and say, well, my parents maybe didn’t come here under the most legal circumstances. But look, look what, look at the life we’ve been able to build. Right. And Trump says, no, I want to, I want to get that out. But Trump says is, no, that if your last name is Gonzalez. Right. Then no. And I think, I think that’s something to reject.

Speaker A: After the break, what got said in court. Can we speedrun through what happened in court today and the highlights for each of us? First of all, there was a big focus on the word domicile, which is interesting to me because the word domicile is not, not in the 14th amendment. It is in, I believe, the decision for Won Kim Ark.

Speaker B: That’s right.

Speaker A: And so the argument was actually what the justices meant, what they ruled here was that you have to have a domicile in the United States and that that’s really what’s going on, and that kind of resets all of our expectations about what a birthright citizen can be. Am I getting that right?

Speaker B: I think that’s right. Yeah. And that’s. I mean, that’s wrong.

Speaker A: I mean, the justices didn’t seem to love this argument, but they did talk about it a lot. If you’re an originalist, does the domicile thing matter?

Speaker B: I don’t think it does. I mean, I think the justice talked about a lot because this raised a lot of practical questions. Like, if that’s going to be your standard, how do you establish domicile? Right. Like, what does that actually mean? If you’re an undocumented immigrant who’s lived here for 20 years, seems like you’ve established a domicile, but the government says, well, maybe you haven’t. Like, it raises a lot of complicated, just practical questions. I think in terms of originalism, in terms of looking back at the history, first of all, after the Civil War, you essentially had roaming bands of enslaved people who did not have homes. Were they domiciled? If they weren’t, were the children citizens? You kind of get back to this whole question of does this reading do with the amendment is supposed to do. The lawyer for Barbara, the ACLU lawyer, ACLU lawyer pointed out that in Wong Kim Ark, the use of domicile just refers mostly to the facts of the case, that Wong Kim Ark’s parents lived in the United States. So there’s not like her argument, which I think is right, that there’s nothing special about this. They’re just like, they’re not using that word in a very technical way. But that aside, it just, it’s not in the 14th Amendment. It’s not discussed in the writing of the 14th Amendment. The implications of making that your rule all of a sudden rule out probably rules out a bunch of the justice’s grandparents. Right. Like, it doesn’t make any sense.

Speaker A: The government’s case was laid out by Solicitor General John Sauer. He’s someone the justices hear from a lot but he didn’t have a great day. In fact, there were a bunch of moments that seemed like they were simply opportunities for the justices to stunt on Sauerkraut.

Speaker B: The two moments that stand. Stand out to me involve Gorsuch. The first is Gorsuch incredulously referring to Roman law when talking about, like, you know, jurisdiction allegiance. He’s like, roman law.

Speaker A: How often does that guy think of the Roman Empire?

Speaker B: Yeah. Why would you be citing a Roman law? You know? And the other thing is, when Gorsuch straight up asked Sauer, you know, would. Would under this Native Americans be a citizen?

Speaker A: And he was, like, stumped. He’s like, yes, maybe. What.

Speaker B: And if there’s anything to know about Justice Gorsuch is that he is probably the most knowledgeable justice right now serving on Indian law. And probably in, like, the past hundred years. Like, this is the one place where he is truly. He’s an expert. And he’s also, like, kind of woke up, right? Yes. It’s like the funny. I mean, the joke about Gorsuch is that it’s like, you know, maybe the. Maybe the Bible allows child labor, but also, I’m standing here on Piscataway land. Right. Like, that’s. That’s his vibe.

Speaker A: Yeah. He seemed to be, like, catching him. Like, that seemed to be the point of that question, to catch him. And Mark Joseph Stern commented. He was basically like, gorsuch is using his you are obviously bullshitting me voice, which Mark would know. I do not. But he seemed very that. Like, Gorsuch was like, no, no, not believing you. To John Sauer, the Solicitor General, was there another moment that stood out to you?

Speaker B: Those were the two that kind of really stood out to me. Just which. Which kind of speaks to. I mean, it speaks to the. The joke of the case the government’s brought. Like, if you can’t handle a question about Native Americans here, then, like, what are you even doing here?

Speaker A: From literally the guy who’s obviously going to ask you that question.

Speaker B: Right, right.

Speaker A: There was one point that stood out to me, which is that Justice Kavanaugh, when cecilia Wong, the ACLU’s attorney, was making her argument, he said this thing that I think is important, which he’s basically said, we could decide this case two ways. We could basically just say, hey, we’re like, sticking with Wong Kim Arc, and we could decide this statutorily, or we could decide it constitutionally. And obviously, Cecilia Wong prefers constitutionally. Like a statement that is like, the Constitution says this, and these justices agree that. Can we talk about the importance of how they decide this case, because it seems clear, like Marc Joseph Stern has said he thinks it’s going to be a 7:2 decision. Others have said maybe it could be, like, all of them rejecting the president here, but people seem certain that the president’s bid here is going to be rejected. But how it’s rejected does seem important to me. Right.

Speaker B: I think the difference is, are you foreclosing or opening up future possibilities if it’s decided constitutionally that that forecloses future possibilities?

Speaker A: Like, don’t come back here with your arguments.

Speaker B: Don’t come back here either from the executive branch or from Congress or the forecloses Congress’s ability to do anything here. If they decide it statutarily, then it’s like, oh, well, a Congress. And Kavanaugh was kind of hinting at this. Oh, maybe Congress could. Could. This could. Could by statute, determine a new meaning for subject to the jurisdiction. And that would control. I think in terms of rejecting the president, it doesn’t matter. But in terms of do you want this to be a live issue again in 15 years? It does matter.

Speaker A: Right. Like, is this a horror movie where, like, the bad guy’s, like, just gonna pop out again kind of thing?

Speaker B: Right.

Speaker A: Here’s what’s on my mind about this case, which is that this executive order on birthright citizenship has already done some things that observers have found troubling. Like my listeners might remember, this isn’t the first time this executive order came in front of the justices. It didn’t come on the merits before, but it came because states basically argued we need a nationwide injunction on this executive order while we decide it because it’s way too confusing for us to carry out. And in that case, the justices were like, oh, yeah, no more national injunctions.

Speaker B: Yeah.

Speaker A: So in some ways, I look at what’s happening now, and I’m like, it’s interesting because this executive order is already doing work that some people in the Republican Party might find useful. And just because it’s not about birthright citizenship doesn’t mean the case didn’t have other uses. And I think that’s important.

Speaker B: Yeah. Yeah. There’s a way where when something is a vehicle for the court’s conservatives to, I think, pursue their interests and they were hostile to nationwide injunctions, then they’ll do it. Right. It’s not. The court’s conservatives may not really have anything against citizenship. Right. Like, Roberts is a Bush conservative. Kavanaugh is to a certain extent as well. Gorsuch is like a weirdo libertarian Barrett is like a academic type. I mean, they’re not necessarily all.

Speaker A: I love. You’re laying them out like trading cards.

Speaker B: Yeah, yeah. They’re not all ideologically aligned with their conservatism. Alito, I’d say, is a MAGA conservative, and I would describe Thomas as straightforwardly a Republican Party apparatus. But the other four, you know, they’re varied, and so there’s not necessarily any unity when it comes to, okay, what they want to do about birthright citizenship, which. The worrying thing, right, is that you can imagine 25, 30 years hence, a bunch of Republican justices that are MAGA conservatives. And, you know, that’s why you kind of want to foreclose this now in a world where the court hasn’t been substantially reformed. Not hard to imagine a court with a bunch of MAGA conservatives who are like, oh, we’ve decided now that this actually means something else.

Speaker A: If this is constitutionally foreclosed, will that stop the larger project here that some Republicans are engaged with, which is. I mean, you wrote about this recently. Stephen Miller went to Texas, and he was sort of arguing in front of people, hey, let’s deny public schooling to children of immigrants who came here illegally. It feels like that project goes on no matter what.

Speaker B: To me, I think it probably does. I think this weakens the project, certainly. I mean, I think what this does is make. Make clear that this is what the project is and that what the. The project is weakening the 14th amendment. It’s like rendering it kind of a dead letter. And that’s where it was, I would say, for like, a big chunk of American history. They had a lot. You know, we had Jim Crow. We have these things. So if that’s the project, then I think the. The response can’t merely be legal. Tell me more about what you mean when you say that it has to be political. Right. There has to be an actual political movement to say the 14th Amendment stands for, like, a vision of equality, as is the 13th and the 15th. And we’re going to make sure that that’s substantive, that there’s substance to that. And you do that by winning political victories on that basis, like Trump. This is all happening because Donald Trump won political victories on the basis of exclusion, on the basis of we’re going to keep people out. The only way in a society like ours to beat that back is to win political victories on the basis of we’re an open society, let people in.

Speaker A: Jamel, I’m so grateful for your time. This was fantastic.

Speaker B: Thank you for having me, as always.

Speaker A: Jamelle Bouie is an opinion columnist over at the New York Times. And that’s the show. What Next is produced by Elena Schwartz, Rob Gunther, Anna Phillips and Madeline Ducharme. Paige Osborne is the senior supervising producer of what Next and what Next tbd. Mia Lobel is the executive producer of podcasts here at Slate. Ben Richmond is our senior director of podcast operations. And I’m Mary Harris. Go track me down on Blue sky. Say hey. I’m AryHarris. Thanks for listening. Catch you back here next time. It.