[SPEAKER_03]: We will hear argument this morning in case of twenty-four, eight, eight, eight, four, Trump versus Casa Incorporated, and the consolidated cases.
[SPEAKER_03]: Hey everyone, this is Leon from Prologue Projects.
[SPEAKER_03]: On this episode of Five to Four, Peter, Reannon, and Michael are talking about Trump V. Casa.
[SPEAKER_03]: This is a recent case, but birthright citizenship, and whether lower district courts can issue nationwide injunctions.
[SPEAKER_03]: Trump fee costs are stems from Donald Trump's executive order, reporting to and birthright citizenship for children born in the United States to undocumented parents.
[SPEAKER_03]: The order, which plainly violates the Fourteenth Amendment, was successfully challenged in lower federal courts, leading to a nationwide injunction that stopped it from being enforced.
[SPEAKER_03]: The Trump administration challenged the injunction, claiming that the lower courts overstepped their authority and should not be able to issue nationwide injunctions that apply beyond the parties in a given case.
[SPEAKER_03]: The Supreme Court ruled in Trump's favor.
[SPEAKER_00]: Now this ruling limits the power of federal judges to issue sweeping orders that have prevented certain policies by both Republican and Democratic administrations.
[SPEAKER_07]: Welcome to Five to Four, where we dissect and analyze the Supreme Court cases that have stripped away our civil rights, like Republicans stripping away rural hospitals.
[SPEAKER_07]: I'm Peter.
[SPEAKER_07]: I'm here with Michael.
[SPEAKER_07]: Hey, everybody.
[SPEAKER_07]: And Reannon.
[SPEAKER_02]: Hi.
[SPEAKER_02]: Is that in a big beautiful bill?
[SPEAKER_07]: Oh, it sure is.
[SPEAKER_07]: Yeah.
[SPEAKER_07]: Sure.
[SPEAKER_07]: Actually, you know what?
[SPEAKER_07]: Let's play a game since you're not really up on the news cycle here.
[SPEAKER_07]: Yeah.
[SPEAKER_07]: Name a negative thing and we'll tell you whether it's in the bill.
[SPEAKER_01]: Let's see, funding for ice.
[SPEAKER_01]: Yes, way up.
[SPEAKER_01]: Can only imagine.
[SPEAKER_01]: Yes.
[SPEAKER_05]: Maths.
[SPEAKER_05]: Yeah.
[SPEAKER_05]: Unreal, like double the size of the federal detention system.
[SPEAKER_05]: Great.
[SPEAKER_07]: Well, when you factor in the savings that we're getting from no more rural hospitals, yes, it makes sense.
[SPEAKER_05]: Cutting Medicaid, that's in there.
[SPEAKER_05]: Um, tax cuts for the wealthy.
[SPEAKER_05]: That's in there.
[SPEAKER_01]: Yeah, about kids, stuff for kids.
[SPEAKER_05]: They're fucked.
[SPEAKER_05]: Yeah, yeah.
[SPEAKER_01]: That's right.
[SPEAKER_01]: Listen to trucks.
[SPEAKER_05]: Yeah, no snap.
[SPEAKER_05]: I think snap is cutting this, right?
[SPEAKER_05]: That gets great.
[SPEAKER_05]: Snap's getting cut.
[SPEAKER_05]: So there you go.
[SPEAKER_07]: Nothing good for podcasters as far as I could tell.
[SPEAKER_07]: I was looking for a silver lining.
[SPEAKER_07]: Dio did some control F for podcasters.
[SPEAKER_07]: Came up empty.
[SPEAKER_01]: Discrete insular minority yet again.
[SPEAKER_07]: So today's case folks, Trump, the Casa, this is a case about birthright citizenship, although more specifically, it is about nationwide injunctions.
[SPEAKER_05]: Yeah, but then even more specifically, it's about birthright citizenship.
[SPEAKER_07]: That's right.
[SPEAKER_01]: Yeah, a sort of inception, a dynamic thing happening here.
[SPEAKER_07]: So Donald Trump handed down an executive order, purporting to end birthright citizenship, right?
[SPEAKER_07]: The idea that with a handful of narrow exceptions, anyone born in the United States is a citizen.
[SPEAKER_07]: The executive order was challenged in court and lower federal courts halted the implementation of the order nationwide.
[SPEAKER_07]: In this case, six months later, is not actually about the constitutionality of birthright citizenship itself, but about the scope of those lower court injunctions.
[SPEAKER_07]: So a lower court here issued an injunction preventing the government from enforcing the executive order across the country.
[SPEAKER_07]: And the Trump administration challenged that.
[SPEAKER_07]: They said courts don't have the power to halt the implementation nationwide.
[SPEAKER_07]: They only have the power to halt the implementation as it pertains to the plaintiffs that brought the case.
[SPEAKER_07]: Right.
[SPEAKER_07]: And the Supreme Court in a six to three decision.
[SPEAKER_07]: basically agreed.
[SPEAKER_07]: You said that's right.
[SPEAKER_01]: Yeah.
[SPEAKER_01]: This isn't technically a merits case.
[SPEAKER_01]: What's called like a case that reaches the merits because like Peter said, it doesn't reach the actual like constitutional question of whether this executive order is illegal or not.
[SPEAKER_01]: But let's talk about the constitutional issue at the center here because remember, for as much as they're going to talk about procedure and injunctions in this case, what we're really talking about
[SPEAKER_01]: birth rates it is in ship.
[SPEAKER_01]: It's on the chopping block.
[SPEAKER_01]: So birth rate citizenship is enshrined in the constitution in the fourteenth amendment talked about this before the fourteenth amendment literally starts begins with the citizenship clause.
[SPEAKER_01]: All persons the fourteenth amendment starts
[SPEAKER_01]: All persons born in the United States and subject to the United States jurisdiction are citizens of the United States.
[SPEAKER_01]: So of course, the Fourteenth Amendment is a reconstruction amendment, meaning like it's not in the first ten amendments that are the Bill of Rights that were drafted at the founding, but birthright citizenship even before the Fourteenth Amendment was still the general rule at the founding in the U.S.
[SPEAKER_01]: And in fact, was the general rule in England
[SPEAKER_01]: at the time that the United States was founded.
[SPEAKER_01]: This was the common law understanding of kind of citizenship and how the sovereign relates to people in its jurisdiction.
[SPEAKER_01]: This is a long-standing legal concept.
[SPEAKER_07]: And worth noting this is a reconstruction amendment was put into the constitution in large part to ensure that there were no shenanigans vis-à-vis the citizenship of former slaves.
[SPEAKER_01]: Yeah, let's talk about it.
[SPEAKER_01]: The Supreme Court tried to fuck with birthred citizenship in dreads got a case in eighteen fifty seven widely agreed to be the worst Supreme Court decision in history that ruling held that black people are not citizens of the United States.
[SPEAKER_01]: This was a Supreme Court decision that dramatically escalated tensions.
[SPEAKER_01]: that led to the Civil War, there was a Civil War over slavery and citizenship.
[SPEAKER_01]: And so, Dred Scott is overturned kind of nullified that Supreme Court decision by the reconstruction amendments.
[SPEAKER_01]: The reconstruction Congress was passing more constitutional amendments to abolish slavery to ensure that
[SPEAKER_01]: people born in the United States were considered and treated as citizens of the United States, et cetera.
[SPEAKER_01]: So this first clause of the Fourteenth Amendment written in, it directly addresses directly nullifies the dread Scott decision.
[SPEAKER_01]: All persons born in the United States are citizens regardless of their ancestry.
[SPEAKER_01]: Since then, that's been the rule.
[SPEAKER_01]: But enter, of course, Donald Trump, who signed executive order, one, four, one, six, zero on inauguration day.
[SPEAKER_01]: But six months ago, which redefines American citizenship, it says that US citizenship does not apply to people who are born to a mother who is unlawfully present in the US, or lawfully present only on a temporary basis, and a father who is not a citizen or a permanent resident of the United States.
[SPEAKER_07]: Right, which is sort of a confusing formulation, but basically just means that one parent or the other needs to be a citizen or a permanent resident.
[SPEAKER_01]: Yeah.
[SPEAKER_01]: So many people, organizations and states sued to stop implementation of this executive order and to challenge its constitutionality.
[SPEAKER_01]: For this case, Casa, the case at the Supreme Court that we're talking about, three groups of plaintiffs kind of came together to sue.
[SPEAKER_01]: The first is a group of pregnant women whose children would not be US citizens under the terms of the executive order.
[SPEAKER_01]: The second group is a group of immigrant rights organizations who have thousands of members, hundreds of whom were pregnant expecting children who would also be denied citizenship under the executive order.
[SPEAKER_01]: And then finally, there's a group of states.
[SPEAKER_01]: This is twenty two states plus DC plus the city of San Francisco.
[SPEAKER_01]: all coming together to sue and they're saying that should that executive order go into effect, it would basically cause them to lose millions of dollars in federal funding and also incur millions of dollars in additional administrative costs.
[SPEAKER_01]: Each of these groups is harmed in a different way by this executive order so they are suing.
[SPEAKER_01]: And their big argument, of course, is that the executive order violates the Fourteenth Amendment.
[SPEAKER_01]: But as an initial step in lawsuits like this, the plaintiffs ask for a preliminary injunction.
[SPEAKER_01]: So this is the issue that takes over here and the issue that the Supreme Court takes up.
[SPEAKER_01]: We've talked before about injunctions and injunction is like a request
[SPEAKER_01]: that while a case makes its way through the court system, the court orders that the behavior that is alleged to be harmful or illegal that that behavior be put on pause.
[SPEAKER_01]: It's saying like we are already we the plaintiffs who are suing we're already being harmed by this or we're about to be harmed by this if this behavior is allowed.
[SPEAKER_01]: So please pause it so that the harm doesn't continue while you decide
[SPEAKER_01]: over the course of the case, whether this is ultimately illegal.
[SPEAKER_01]: So, they're asking the court to order that the Trump administration pause enforcement of the executive order.
[SPEAKER_01]: The case will make its way through the courts, and the courts will decide eventually if the executive order does, in fact, violate the Fourteenth Amendment.
[SPEAKER_01]: So in order to get a preliminary injunction, the plaintiffs have to show that, like, without the injunction, they would face irreparable harm.
[SPEAKER_01]: They would have harm before them that can't be fixed.
[SPEAKER_01]: That the executive order itself is likely to be found unlawful in the end, but they have a pretty good legal case.
[SPEAKER_01]: And that considering equities,
[SPEAKER_01]: basically fairness.
[SPEAKER_01]: If the court is considering equities and fairness, like that cuts in the plaintiff's favor.
[SPEAKER_01]: It seems that all of the issues are building up so that ultimately the plaintiffs will succeed in this case, that is helpful in getting a preliminary injunction.
[SPEAKER_01]: So, members, three groups, suing in three different federal courts, all three of them asking for a preliminary injunction.
[SPEAKER_01]: Those three federal district courts, each of them, where these lawsuits were filed, agreed with the plaintiffs and they issued preliminary injunctions, meaning each of those courts, like they ruled that the plaintiffs would suffer irreparable harm if the executive order was allowed to be enforced.
[SPEAKER_01]: that the executive order itself is likely to be found unconstitutional at the end of the day and that those equities, the public interest, it falls on the side of the plaintiffs here.
[SPEAKER_01]: Okay, importantly, at issue here, these courts issued what are called universal injunctions.
[SPEAKER_01]: These are injunctions that apply nationwide to everyone, meaning the Trump administration can't carry out the executive order as to anyone anywhere in the country, not just the plaintiffs.
[SPEAKER_01]: So the executive order completely paused by these preliminary injunctions.
[SPEAKER_01]: And the government responded, Trump's administration, a DOJ,
[SPEAKER_01]: those Trump lawyers in court, they responded by filing motions to stay the injunctions.
[SPEAKER_01]: So block the injunctions.
[SPEAKER_01]: They're basically appealing those injunctions decisions.
[SPEAKER_01]: And at this stage, they didn't even argue whether the executive order would like eventually pass constitutional mustard.
[SPEAKER_01]: They're not saying like, actually no, the executive order does pass the Fourteenth Amendment.
[SPEAKER_01]: We should be able to do this.
[SPEAKER_01]: They just said that the universality of the injunctions.
[SPEAKER_01]: is at issue.
[SPEAKER_01]: That's what they're appealing.
[SPEAKER_01]: That the injunctions ordered them to pause enforcement of the executive order asked to anyone anywhere in the US.
[SPEAKER_01]: That's an overreach by the courts that the injunctions should only apply to the people and the organizations and the states who sued and no one else.
[SPEAKER_01]: So this is the narrow quote unquote issue that's in front of the Supreme Court.
[SPEAKER_01]: I remember always with a bigger issue is behind all this procedural bullshit we are talking about birth rates in its engine.
[SPEAKER_07]: Right.
[SPEAKER_07]: So let's talk about the law here.
[SPEAKER_07]: Some background on nationwide injunction debates.
[SPEAKER_07]: By the way, sometimes we'll say nationwide injunction, sometimes universal injunction, same thing.
[SPEAKER_07]: Yeah.
[SPEAKER_07]: So the issue of nationwide injunctions has been percolating for a bit.
[SPEAKER_07]: An injunction, of course, just a court order telling someone in this case the executive branch to stop doing something.
[SPEAKER_07]: So this case is about an injunction ordering Trump not to enforce his executive order, but there's a problem here, which is that in many cases, a single federal judge can put a halt to a policy nationwide.
[SPEAKER_07]: which means that often litigators can search the country for a favorable judge, and then get a policy that they don't like halt it all across the country.
[SPEAKER_07]: So under Trump, you might like that, but under Biden, you probably did not.
[SPEAKER_07]: You had right-wing judges like Matthew Kasmarik, unilaterally putting a halt to the availability of Miffa Pristone, for example, all sorts of nonsense is going on.
[SPEAKER_07]: The student loan cases.
[SPEAKER_07]: Yeah.
[SPEAKER_07]: So sort of a tricky issue.
[SPEAKER_07]: So the majority here written by Amy Coney Barrett creates a new rule.
[SPEAKER_07]: They say that generally speaking, there can be no nationwide injunctions unless there is a law expressly authorizing them.
[SPEAKER_07]: So the court roots this in the principle that legal cases should generally be limited to the party in that particular case.
[SPEAKER_07]: So if in this situation, a pregnant woman wants to sue and say, hey, I want an injunction against the application of this executive order to me and my child, a court can grant her that injunction, but it cannot grant an injunction that protects all pregnant people in the same manner, right, because they are not parties to the lawsuit.
[SPEAKER_07]: So, the term the majority uses is complete relief.
[SPEAKER_07]: Courts have the inherent power to grant complete relief to the parties in a case.
[SPEAKER_07]: In some situations, that might result in what is functionally a nationwide injunction, like if the parties are maybe a state or a large association with many members.
[SPEAKER_05]: Yeah, like, you know, the CR club or the NAACP, one of these massive organizations that has members in every state, right?
[SPEAKER_07]: But in most situations, it won't.
[SPEAKER_07]: Now, part of the analysis that Amy Coney Barrett does here is looking at the Judiciary Act of seventeen eighty-nine, the law that created the federal court system, to see if the court thinks that it authorized nationwide injunctions.
[SPEAKER_07]: She does the originalist history and tradition thing, asking whether nationwide injunctions comport with the history and tradition of that law.
[SPEAKER_07]: And I found this part pretty boring, I have to say.
[SPEAKER_05]: Three pages on bills of peace and courts of chancellor.
[SPEAKER_07]: Yeah, there's some dispute about how willing old timey courts were to grant relief to non-parties, people who are not parties to the case.
[SPEAKER_07]: The plaintiffs pointed to bills of peace, which were a way that old English courts consolidated different cases.
[SPEAKER_07]: They said, well, look, this means that courts in this era were willing to grant relief to non-parties, right?
[SPEAKER_07]: And the majority basically says, yeah, but that's not really the same thing as a nationwide injunction.
[SPEAKER_07]: Now, I don't care about this dispute because I think originalism is stupid.
[SPEAKER_07]: The majority is right that those bills of peace were not analogous to nationwide injunctions really, but the plaintiffs are right that bills of peace seem to show that courts back then were willing to give relief to non-parties.
[SPEAKER_07]: the majority's sort of foundational principle doesn't really seem to hold, you know?
[SPEAKER_07]: Right.
[SPEAKER_01]: Yeah, I also think Sotomayor has a good and a very compelling response to this originalist argument and like what was happening at the time of the founding in like how how courts considered these issues.
[SPEAKER_05]: Yeah, I think Jackson also has a good one.
[SPEAKER_05]: I'm excited to talk about her response.
[SPEAKER_05]: Yes.
[SPEAKER_07]: So we can leave that exact question for the dissense, but my real takeaway here is just, are we doing history and tradition for everything now?
[SPEAKER_01]: Yeah.
[SPEAKER_07]: Because a few years ago, the courts started doing it for constitutional rights, right?
[SPEAKER_07]: Like in Dobbs, basically implementing this originalist test, where the Constitution only protects rights that there's a history and tradition of protecting.
[SPEAKER_07]: But now we're also using this test for analyzing statutes.
[SPEAKER_07]: When will this end?
[SPEAKER_07]: When will I be free from this curse?
[SPEAKER_07]: Surely there are situations where we don't have to do history and tradition, and also why do we not seem to be doing the same analysis for executive power?
[SPEAKER_07]: Because my guess.
[SPEAKER_07]: Because my guess is that if you tried to find a history in tradition of outlying birthright citizenship of functionally nullifying section one of the fourteenth amendment, you would not find that history in tradition.
[SPEAKER_07]: But apparently that's not part of the question here.
[SPEAKER_07]: Another little tortured bit of analysis that the majority does is that the government has to argue that it will be irreparably harmed if it cannot enforce the executive order.
[SPEAKER_07]: And Barrett says, yeah, any time the government is being prevented from implementing its own policies, it inherently suffers a reparable harm, right?
[SPEAKER_01]: This is wild to assert.
[SPEAKER_07]: Which first of all means that the government always passes the irreparable harm test, a little, yeah, maybe a legal nerd note, but I was, I'm a little bit confused by it, but then also didn't seem to occur to them during the Biden administration that just inherently irreparable harm.
[SPEAKER_07]: Right.
[SPEAKER_07]: And then also in this particular case, it feels basically outrageous because the harm the government is claiming is not being able to single-handedly nullify section one of fourteenth Amendment.
[SPEAKER_07]: Right.
[SPEAKER_07]: Like, how can not being able to enforce an unconstitutional order ever be a valid, irreparable harm?
[SPEAKER_07]: It's crazy.
[SPEAKER_07]: It's insane.
[SPEAKER_07]: We really want to enforce this unconstitutional order and this court order is not letting us so you have to lift it because you're harming us.
[SPEAKER_01]: This temporary court order, which will just prevent us from implementing it for another few months, which is to say the status of the Fourteenth Amendment and birthright citizenship for the past couple centuries will just continue.
[SPEAKER_01]: How is it irreparable harm to not be able to change that for a few months?
[SPEAKER_05]: There's so many different ways that the majority, like avoiding the merits and this discussion was ridiculous, but it's like here is where it drove me insane.
[SPEAKER_05]: Like how can you not talk about the executive order itself, what it's aiming to do, and it's likely constitutionality, when assuming the federal government's being irreparably harmed by being enjoying from this behavior, it's nuts.
[SPEAKER_05]: It's absolutely nuts.
[SPEAKER_05]: I was like losing my shit.
[SPEAKER_07]: reading this.
[SPEAKER_07]: So there are still paths to getting a nationwide injunction in different circumstances, right?
[SPEAKER_07]: We should talk about that.
[SPEAKER_07]: The most obvious one is that if there is a law, a statute saying you can get a nationwide injunction, then you can.
[SPEAKER_07]: The administrative procedure act, which governs agency actions would be a big source of those.
[SPEAKER_07]: You also have class actions, which are allowed by statute.
[SPEAKER_07]: And then you have a couple of gray areas.
[SPEAKER_07]: If states are plaintiffs like here, Amy Coney Barrett seemed open to the possibility that you could get nationwide standing in certain circumstances.
[SPEAKER_07]: And then if you have big associations, like I mentioned, that might also lead to nationwide standing.
[SPEAKER_05]: And so, sorry, I'm just going to, but in case you're curious, like how the argument might run, like a state like New Jersey is probably going to argue that it needs a nationwide introduction for complete relief because if there's a different citizenship regime in say, Texas, then New Jersey residents
[SPEAKER_05]: are at risk when they travel to other states of being stripped of citizenship and deported in New Jersey's harms by that.
[SPEAKER_05]: And so they need a nationwide citizenship regime.
[SPEAKER_05]: That makes sense.
[SPEAKER_05]: Maybe courts will buy it, maybe they won't.
[SPEAKER_05]: But that's what the argument will look like.
[SPEAKER_05]: It's like our residents need to be able to travel throughout the fifty states without worrying about being stripped of citizenship and deported.
[SPEAKER_07]: Right.
[SPEAKER_07]: So because nationwide injunctions were already a little bit controversial and because there are still some avenues for getting them, you actually had a lot of moderate and liberal legal media types saying that this is not so bad.
[SPEAKER_07]: No, a Feldman Harvard law professor writing for Bloomberg, put out a piece titled, the birthright citizenship ruling is being overhyped.
[SPEAKER_07]: Ian Milhizer, supposed to live over at Vox, wrote one titled, the Supreme Court's birthright citizenship decision isn't as devastating as you think.
[SPEAKER_07]: Professor Nicholas Bagley, writing for the Atlantic, wrote one titled, the Supreme Court put nationwide injunctions to the torch subtitle.
[SPEAKER_07]: That isn't the disaster for birthright citizenship that some fear.
[SPEAKER_07]: So you might be wondering, why do we care?
[SPEAKER_07]: If all of these absolutely harmless losers think that this is no big deal, why do we care?
[SPEAKER_07]: And I think
[SPEAKER_07]: It's a good question.
[SPEAKER_07]: Why do we think that this is such a bad case?
[SPEAKER_07]: I think the answer is not entirely the substance of the decision in a vacuum as much as the timing and the context.
[SPEAKER_07]: So first, the timing.
[SPEAKER_07]: The issue of nationwide injunctions came up repeatedly during the Biden administration.
[SPEAKER_07]: In fact, the administration raised it to the Supreme Court at least nine times.
[SPEAKER_07]: And the court either ignored or punted on the issue each time.
[SPEAKER_07]: But now, nationwide injunctions hurt the Trump administration and the court addresses it immediately.
[SPEAKER_07]: So given that context, does it make more sense to say that this case reflects the court's position on nationwide injunctions or their position on Republicans versus Democrats?
[SPEAKER_07]: Yeah.
[SPEAKER_07]: And then you have the legal context here.
[SPEAKER_07]: Donald Trump puts out an executive order saying, hey, no birthright citizenship direct attack on the Fourteenth Amendment of the Constitution, which has been understood for well over a century to enshrine birthright citizenship into our law.
[SPEAKER_07]: There is a Supreme Court case saying as much from the late eighteen hundreds.
[SPEAKER_04]: Yeah.
[SPEAKER_07]: The Supreme Court could have said, hey, forget this injunction bullshit.
[SPEAKER_07]: We're going to tackle the underlying question of whether this is constitutional.
[SPEAKER_07]: I'm not the first person to point out that if a president put out an executive order saying, hey, we don't think the second amendment applies to personal gun ownership.
[SPEAKER_07]: We think that DCV hellers incorrect.
[SPEAKER_07]: And we'll be confiscating guns, right?
[SPEAKER_07]: You wouldn't catch the Supreme Court dragging their feet for six months.
[SPEAKER_07]: talking about the scope of injunctions.
[SPEAKER_07]: They would have stepped in immediately.
[SPEAKER_07]: They would have issued their own nationwide injunctions.
[SPEAKER_07]: Clarence Thomas would have brought a gun to oral argument and they would have struck the executive order down within days.
[SPEAKER_02]: Right.
[SPEAKER_07]: Guaranteed.
[SPEAKER_07]: All of this to say that the takeaway from this case isn't so much that the court is creating a rule as much as it's sending a signal, right?
[SPEAKER_07]: They will be operating to facilitate the actions of the Trump administration.
[SPEAKER_07]: They will be limiting the power of anyone who attempts to stand in the administration's way.
[SPEAKER_07]: That is the message and the functional holding.
[SPEAKER_07]: of this case.
[SPEAKER_07]: It's not about fucking nationwide injunctions.
[SPEAKER_05]: Yeah, a friend of the pod, Sam Baggins, Ross wrote a nice piece about this case, and he talked about how his belief that even this Supreme Court right now is not at the point where they would rule on the merits for the Trump administration on birthright citizenship.
[SPEAKER_05]: And he and I had a little back and forth about this on Blue Sky where he said, you know, he's less confident in that now than he was earlier, but he still thinks it's more likely than not that they would rule against Trump at this moment in time.
[SPEAKER_05]: But his take was, you know,
[SPEAKER_05]: but nonetheless, they wanted to hand Trump win, right?
[SPEAKER_05]: Like this is the sort of the best case scenario is that this is a profound act of cowardice from the sixth conservative justices who know that what Trump is doing is unconstitutional and wrong and should be stopped
[SPEAKER_05]: But don't want to be responsible.
[SPEAKER_05]: Don't want to be the ones who say to Trump, you can't do this.
[SPEAKER_05]: That's the best case scenario.
[SPEAKER_05]: But worst case scenario is something more like they're dragging this out and waiting for the political conditions to change so that it's easier for them to rule in his favor.
[SPEAKER_07]: Shall we talk concurrences folks?
[SPEAKER_07]: There's only eight.
[SPEAKER_07]: Yeah, three concurrences in two to seven.
[SPEAKER_05]: So Kevin has a concurrence and like, you know, the majority wants to frame this as like, look, we're just looking at the history of the judiciary act and we are
[SPEAKER_05]: a pining on the limits of the power of district courts and blah, blah, blah, and it's very technical and it's not political and it's not ideological and it's, you know, not about the president who's the president or whatever.
[SPEAKER_05]: But Kevin also concurrence is just sort of giving the game away.
[SPEAKER_05]: You know, he's he's so intent on explaining himself and sounding smart that he's like just tearing apart the entire facade.
[SPEAKER_05]: He's like, look,
[SPEAKER_05]: Everybody needs to calm down.
[SPEAKER_05]: This isn't that big a deal.
[SPEAKER_05]: There's still all these methods for, you know, enjoying executive action, uniformly across the nation when it's absolutely necessary, when there's big social change coming, when there's big policies being implemented.
[SPEAKER_05]: And his point is like,
[SPEAKER_05]: It's just that we are the ones who decide it.
[SPEAKER_05]: We at the Supreme Court, not the district court.
[SPEAKER_05]: See, it's like we're taking this power from the district courts.
[SPEAKER_05]: And they're still going to decide sometimes that there needs to be a nationwide rule.
[SPEAKER_05]: And that's still going to be reviewed by the appellate courts.
[SPEAKER_05]: But this is really like this is about us deciding.
[SPEAKER_05]: And I think that's right.
[SPEAKER_05]: I think that's this case is just about them putting the district courts in their place.
[SPEAKER_05]: In the last six months, Trump has been losing at a very high rate in the district in Appellate courts.
[SPEAKER_05]: And he's been winning at a very high rate at the Supreme Court.
[SPEAKER_05]: And they're saying, hey, pay attention.
[SPEAKER_05]: We're telling you to rule in favor of Trump and we're the deciders.
[SPEAKER_05]: We're in charge of this branch of government.
[SPEAKER_07]: And Michael, you're underselling it a little bit because the statistic that we saw a few weeks ago, now outdated, but was that it's something like, ninety-five percent win rate for Trump's opponents in the district courts, ninety-five percent win rate for Trump at the Supreme Court.
[SPEAKER_07]: A complete flip, a flip of ninety percent.
[SPEAKER_07]: That is wild.
[SPEAKER_05]: Yeah.
[SPEAKER_05]: And so they're telling them, like, get with the program, if you can't be trusted to roll over for Trump, we're just going to start taking power from you.
[SPEAKER_05]: Right?
[SPEAKER_05]: This is, this is, this is what Kavanaugh's concurrence is saying in an effort to sound sophisticated and just tell everybody to calm down, it's not a big deal.
[SPEAKER_05]: It'll still be nationwide and junctions.
[SPEAKER_05]: He's just sort of admitting.
[SPEAKER_05]: He's like giving the game away.
[SPEAKER_05]: Like, look, we're in charge.
[SPEAKER_05]: We decide.
[SPEAKER_05]: And that's why like the bagley of peace, especially like bothers me.
[SPEAKER_05]: that you mentioned, Peter, it's like so myopic.
[SPEAKER_05]: I like Bagley.
[SPEAKER_05]: He's good on Jerry Mandarin, he's a decent academic as far as they go.
[SPEAKER_05]: But it's just so myopic, it's not understanding the political context when this case is all about the political context, right?
[SPEAKER_05]: Like the political context explains, ninety-nine percent of this case.
[SPEAKER_05]: So if you're ignoring the political context, you're ignoring everything that's important about this case.
[SPEAKER_07]: Yeah.
[SPEAKER_07]: So Thomas and Alito, both file concurrences, basically looking to frame the majority as like even more conservative than it already is.
[SPEAKER_07]: Thomas is joined by Gorsuch.
[SPEAKER_07]: He says, hey, I agree with the majority, but also the majority says that courts have the power to grant complete relief to a plaintiff.
[SPEAKER_07]: And Thomas emphasizes that that's a ceiling, not a floor, meaning that courts don't have to grant complete relief if they determine that it's too burdensome to the defendant.
[SPEAKER_07]: And in these cases, the defendant will generally be the government.
[SPEAKER_07]: Well, generally the Trump administration.
[SPEAKER_07]: So the opinion is really just saying, hey, not only can you not really do nationwide injunctions, but you should be cautious not to burden the government too much with even with a narrower injunction, right?
[SPEAKER_07]: Just remember to be nice to Donald Trump.
[SPEAKER_05]: Right.
[SPEAKER_05]: And complete relief is a term.
[SPEAKER_05]: I don't want to say that it was invented for this opinion, but it feels very much like at the very least it wasn't a big, important legal concept to my understanding before this opinion.
[SPEAKER_05]: They're hanging a lot on this idea that essentially the plaintiff can get essentially everything they need to remedy their harm.
[SPEAKER_05]: So, you know, if you are concerned that your child being born here won't get citizenship,
[SPEAKER_05]: Everything you need to remedy that harm is in assurance that your child will be granted citizenship and then that child being granted citizenship, right?
[SPEAKER_05]: And that's complete relief and it doesn't matter to you, according to the court, whether some other person in some other state also has their child's granted citizenship, right?
[SPEAKER_07]: And on if you want to sort of expand it, right?
[SPEAKER_07]: Let's use the idea.
[SPEAKER_07]: I've touched on a couple of times of associational standing.
[SPEAKER_07]: So let's say like, I don't know, let's say a nationwide organization that represents people of Mexican descent.
[SPEAKER_07]: brings a lawsuit, right?
[SPEAKER_07]: And they say, hey, we need a nationwide injunction because we have members and we represent communities all across the country.
[SPEAKER_07]: So you basically have to do this nationwide.
[SPEAKER_07]: Thomas seems to be hinting at saying, like, well, you don't have to.
[SPEAKER_07]: Yeah.
[SPEAKER_07]: You don't have to do complete relief.
[SPEAKER_07]: So be careful, right?
[SPEAKER_07]: That's what Thomas is trying to get.
[SPEAKER_07]: He's trying to sort of, in the same thing with a lead out here, we'll talk about this in a second.
[SPEAKER_07]: But trying to close some of the doors that might still be open after you read the majority, right?
[SPEAKER_01]: Yeah, each person doesn't have to get the complete relief that could be afforded to them.
[SPEAKER_01]: And the group itself and the scope of the injunction and who that applies to doesn't have to be the complete group that this harm could fall upon.
[SPEAKER_07]: Right.
[SPEAKER_07]: So then Alito joined only by Thomas says a couple of sort of similar things.
[SPEAKER_07]: Again, the majority leaves some doors open to nationwide injunctions.
[SPEAKER_07]: Right.
[SPEAKER_07]: And Alio saying, hey, let's close those doors.
[SPEAKER_07]: Right.
[SPEAKER_07]: So the majority says maybe states could in some circumstances get nationwide injunctions when they sue on behalf of their citizens.
[SPEAKER_07]: And Alito says, yeah, well fine, but we should look into narrowing the circumstances for when we actually allow that.
[SPEAKER_07]: And then the majority also says some class actions should get nationwide injunctions, right?
[SPEAKER_07]: Because they represent a whole class.
[SPEAKER_07]: And Alito's like, yeah, okay, but we should be more
[SPEAKER_07]: careful about certifying nationwide classes, right?
[SPEAKER_07]: He's just trying to clamp down on every remaining avenue and being like, yeah, it might seem like these doors are still open, but like, watch me watch me when you try to bring the case.
[SPEAKER_07]: Yeah.
[SPEAKER_05]: Maybe he knows a good time for a break.
[SPEAKER_01]: We are back.
[SPEAKER_01]: Okay, so to my or comes in at this point with a descent.
[SPEAKER_01]: It's a long descent.
[SPEAKER_01]: This is forty three pages compared to, you know, Elito's a toilet paper concurrence at four pages.
[SPEAKER_01]: So to my or is coming in, I think it's a powerful descent.
[SPEAKER_01]: A lot of it.
[SPEAKER_01]: She does spend on refuting these claims about the history and tradition of
[SPEAKER_01]: equitable remedies of nationwide injunctions and that kind of thing that really is sort of like the foundation of the majority opinion.
[SPEAKER_01]: I do I think like want to talk a little bit about the history that sort of my or relies on because I think it actually is compelling because it shows not only that the Fourteenth Amendment that birthright citizenship have long been relied upon and interpreted in this way to
[SPEAKER_01]: actually ensured actual birthright citizenship, right?
[SPEAKER_01]: But even the way that courts have treated nationwide injunctions and what are called equitable remedies, which we'll get into in a little bit, that is longstanding precedent as well.
[SPEAKER_01]: That is longstanding understandings of
[SPEAKER_01]: how courts are supposed to function when remedies should apply to large groups of people, basically.
[SPEAKER_01]: So she goes through the test for issuing a preliminary injunction and also how the government would argue or challenge a preliminary injunction.
[SPEAKER_01]: And she says the government fails here.
[SPEAKER_01]: This executive order is patently unconstitutional.
[SPEAKER_01]: It is patently unfair to the people who would be harmed by it.
[SPEAKER_01]: And the government has not and cannot show that it would suffer irreparable harm as a result of not being able to execute this executive order.
[SPEAKER_01]: While the plaintiffs on the other hand have demonstrated those things, they have demonstrated that they would suffer irreparable harm.
[SPEAKER_01]: and manifest on constitutionality and unfairness in this executive order.
[SPEAKER_01]: We already talked about it.
[SPEAKER_01]: What on earth, sort of my arm, basically says, what on earth is the irreparable harm that the government would suffer here?
[SPEAKER_01]: A few months of applying the same citizenship rule that we've had for centuries, that's not harmful.
[SPEAKER_01]: I'm sorry, right?
[SPEAKER_01]: They're going to be harmed by not being able to violate people's rights.
[SPEAKER_07]: Well, every baby that gets born to an immigrant is a free illegal vote for Democrats.
[SPEAKER_07]: And that's what they're worried about.
[SPEAKER_01]: That's your repertoire.
[SPEAKER_01]: Yeah, but it's unsaid, but uh, it's in the background here.
[SPEAKER_01]: So my horse says like if the executive order banned women from receiving unemployment benefits,
[SPEAKER_01]: or abandoned black people, black citizens from voting.
[SPEAKER_01]: Would the government be irreparably harmed by that being universally enjoyed?
[SPEAKER_01]: This irreparable harm point is absolutely ridiculous.
[SPEAKER_07]: And to be clear, Amy Coney Barrett is saying, yeah, because the implementation of any policy being halted is irreparable harm automatically by her analysis.
[SPEAKER_05]: Which is why when I'm president, I'm issuing an executive order disenfranchising all registered Republicans.
[SPEAKER_05]: That's step one.
[SPEAKER_01]: It's allowed now.
[SPEAKER_01]: No court can stop you.
[SPEAKER_05]: That's right.
[SPEAKER_01]: So tomorrow goes into like the point and the importance of equitable remedies.
[SPEAKER_07]: By the way, folks, when we say like equitable or equitable remedies and illegal context, all that is is like you have statutes.
[SPEAKER_07]: That's one sort of source of law.
[SPEAKER_07]: And then you have equity, which is basically just
[SPEAKER_01]: courts doing fairness, fairness, justice considerations, yeah.
[SPEAKER_07]: Right.
[SPEAKER_07]: So you'll often hear things like the balance of the equities, right, in this legal context.
[SPEAKER_07]: So there are things that courts have the power to do because they derive that power from a law.
[SPEAKER_07]: And there are things that courts do because they derive that power from equities, from the basically the history of courts weighing in on certain issues to ensure that outcomes are fair and
[SPEAKER_01]: Yeah, exactly exactly.
[SPEAKER_01]: And so sort of my or talks in the descent at length about the importance of courts being able to do equitable remedy to be able to balance equities in any given case, especially in a case where it is alleged that constitutional rights are being violated.
[SPEAKER_01]: She says the point of equitable remedy is empowering courts to do quote
[SPEAKER_01]: complete justice and to give courts flexibility in deciding what appropriate remedies will be.
[SPEAKER_01]: Like, how do we repair harm?
[SPEAKER_01]: Courts should have some flexibility in determining that because specific laws might not always be adequate in repairing harm.
[SPEAKER_01]: So, you know, this is so that there's an avenue for relief, for legal relief.
[SPEAKER_01]: where like a narrow legal remedy isn't available and an avenue where the public interest or the rights of people who aren't specific parties in a lawsuit can be taken into account.
[SPEAKER_01]: So equity courts, which were like historically a different kinds of courts, then courts that ruled on remedies like at law or remedies that come from statutes or written law,
[SPEAKER_01]: Equity courts is like where the basic concept of like a class action lawsuit comes from, for example, a plaintiff representing or a group of plaintiffs representing an even larger group.
[SPEAKER_01]: This idea of legal equity is where these concepts come from.
[SPEAKER_01]: And so history and tradition, sort of my or says, in American courts, like a contemplated these principles as well, like taxpayer suits.
[SPEAKER_01]: were allowed where courts could universally enjoy the enforcement of a challenged tax implementation.
[SPEAKER_01]: And that could be brought by one taxpayer.
[SPEAKER_01]: And there's literal decades of precedent where the federal courts issue universal injunctions and the Supreme Court affirms them as appropriate and says that, yes, this was the correct remedy at that point in whatever litigation.
[SPEAKER_01]: Like we said earlier, in a really boring part of the majority opinion, Amy Cooney Barrett goes on at length about bills of peace, which were like a way that courts used to decide cases or give remedies to people who weren't necessarily parties in a lawsuit and how universal injunctions are different from those.
[SPEAKER_01]: You know, the majority says that bills of peace were typically applied to like small
[SPEAKER_01]: cohesive groups that were representative in nature.
[SPEAKER_01]: And like they know this is wrong because there are a bunch of examples where it builds a piece where applied to different kinds of groups.
[SPEAKER_01]: But sort of my arse says wait a minute, what does small cohesive and representative as a group mean?
[SPEAKER_01]: Aren't the people that would be harmed by this executive order a small and cohesive and representative group?
[SPEAKER_01]: It's a small subset of newborn children in the United States.
[SPEAKER_01]: Children born to a mother unlawfully or temporarily present and with a father who isn't as citizen or permanent resident.
[SPEAKER_01]: That's cohesive.
[SPEAKER_01]: It's representative.
[SPEAKER_01]: It's quite small.
[SPEAKER_01]: And so do my words.
[SPEAKER_01]: We don't need like exact history examples.
[SPEAKER_01]: Like we don't need the clear exact case in history or the exact action taken by a court to a hundred years ago.
[SPEAKER_07]: That's where you're wrong, Sonia.
[SPEAKER_01]: Yeah, right.
[SPEAKER_01]: We don't need that.
[SPEAKER_01]: Like historical analogs, she says are no doubt instructive and provide important guidance, but requiring an exact historical match for every equitable remedy defies equities purpose.
[SPEAKER_01]: The judiciary act itself says equity is flexible.
[SPEAKER_01]: It's explicitly stated in the judiciary act.
[SPEAKER_01]: This is the heart.
[SPEAKER_01]: It's at the heart of equitable remedies, right, a built-in flexibility.
[SPEAKER_07]: That's what she gets backwards because the point of the originalist analysis is to provide flexibility to the conservatives on the court to interpret these laws and constitutional provisions in whatever way they want by just sort of cherry picking historical analogs drawing whatever distinctions they feel like drawing and generally humiliating themselves despite the fact that they don't really understand anything about history.
[SPEAKER_01]: A couple of final things on Sotomayor's descent, which I think are most powerful, she talks about how the alternative injunctions, the majority opinion is mandating, how they are on their face unworkable, and she also goes back to this idea of irreparable harm, and the irreparable harm that's actually going to be faced by the plaintiffs without the universal injunctions.
[SPEAKER_01]: So on the point of like these narrower injunctions and how unworkable they are, you know, consider like just the twenty two states who filed the lawsuit, right?
[SPEAKER_01]: People move like they move to other states.
[SPEAKER_01]: So if the injunction was issued only for the states that asked for it,
[SPEAKER_01]: those states that are plaintiffs in this lawsuit, that means the executive order would go into effect in all of the other states in the United States, the children who this executive order applies to, who were born in states where the executive order is in effect, would not get social security numbers, would be treated as non-citizens, suppose they move to a state where the injunction is in effect, a state where enforcement of the executive order is paused.
[SPEAKER_07]: I mean, it's just ridiculous.
[SPEAKER_01]: It's how does that state treat those people?
[SPEAKER_07]: I feel like all this history shit just obfuscates this like very fundamental point can we actually have a world where you're a citizen if you're in one state and you're not if you're in another but not in another exactly it's non-functional it's ridiculous we had a regime like that and we fought a civil war over it
[SPEAKER_05]: Yes.
[SPEAKER_05]: That's what you used to be.
[SPEAKER_05]: You could be a free black man or a free black person in the North.
[SPEAKER_05]: But if you traveled south, you risked just being kidnapped into slavery, right?
[SPEAKER_06]: Like that's what fucking twelve years of slavery is about, right?
[SPEAKER_06]: Like that's like the whole thing.
[SPEAKER_06]: Like that's.
[SPEAKER_06]: It's also what Dred Scott is about.
[SPEAKER_06]: That is what Dred Scott is about.
[SPEAKER_06]: Yeah, it's what Dred Scott was.
[SPEAKER_06]: It's what the civil war was about.
[SPEAKER_06]: Like we.
[SPEAKER_06]: It's what the civil war was about.
[SPEAKER_07]: And maybe to modernize the concern, what prevents under that regime, ice, federally situated ice from stepping into a state like New Jersey, where someone is technically a citizen, snatching them, bringing them to a state where they're technically not a citizen, and then taking them into court and saying, well, we can deport you, right?
[SPEAKER_07]: You're not a citizen when you're here.
[SPEAKER_01]: Exactly, exactly.
[SPEAKER_01]: And how does this leave the legal remedies for real people, right?
[SPEAKER_01]: So my words saying, like, so every pregnant person who the executive order would apply to has to sue, like these are the practical realities that this majority opinion, like usher's in.
[SPEAKER_01]: And then finally, on the point of irreparable harm, irreparable harm to the children born under this order.
[SPEAKER_01]: This creates an underclass of people in the United States, which is what we're getting at.
[SPEAKER_01]: It prevents them from full participation in society and democracy.
[SPEAKER_01]: These babies, these children, now denied public services, denied the ability to work lawfully to retains to make some American-born children stateless.
[SPEAKER_01]: stateless, you know, sort of my repoints this out, this causes a total destruction of an individual status and organized society to be deemed stateless, but believe me, coming from a people who have been deemed stateless, this is massive, this is a massive barrier.
[SPEAKER_01]: to the full political and social participation of masses of people.
[SPEAKER_01]: This threat, she says, the threat of creating a stateless class of people in the United States hangs like a guillotine over this litigation.
[SPEAKER_01]: It is on its face unconstitutional.
[SPEAKER_01]: This is just ridiculous.
[SPEAKER_05]: Yeah.
[SPEAKER_05]: So Jackson as a descent to just for herself, interesting, neither cake and nor set of my Lord join.
[SPEAKER_07]: I wouldn't want to burn those bridges.
[SPEAKER_07]: Right.
[SPEAKER_05]: I thought it was really good.
[SPEAKER_05]: I hinted at this earlier.
[SPEAKER_05]: She's very dismissive of the history and tradition test.
[SPEAKER_05]: I feel like this early paragraph of hers really gets to.
[SPEAKER_05]: She says, to hear the majority tell it, this suit raises a mind numbingly technical query.
[SPEAKER_05]: Our universal injunctions sufficiently analogous to the relief issued by the high court of chance and england at the time of the adoption of the constitution and the enactment of the original judiciary act to fall within the equitable authority Congress granted federal courts.
[SPEAKER_05]: But that legalese is a smoke screen.
[SPEAKER_05]: It obscures a far more basic question of enormous legal and practical significance.
[SPEAKER_05]: May a federal court in the United States of America order the executive to follow the law.
[SPEAKER_05]: And I think this is like the heart of it.
[SPEAKER_05]: This is what's so alarming about this case.
[SPEAKER_05]: Because again,
[SPEAKER_05]: Look at the posture of this from a district court's point of view, the executive issues and executive order like we're ending birthright citizenship or we're seizing all the guns or we are disenfranchising anybody whose register is a Republican or whatever.
[SPEAKER_05]: Someone brings suit and requests that this action be enjoyed.
[SPEAKER_05]: as to them.
[SPEAKER_05]: The court does a preliminary analysis, which is part of the injunction, first look at the merits to guess whether or not the plaintiff is going to win, whether or not they're going to prevail, whether or not this is likely unconstitutional.
[SPEAKER_05]: And determines, yes, this is likely unconstitutional.
[SPEAKER_05]: This is almost certainly unconstitutional.
[SPEAKER_05]: And so I'm enjoying it, but only as to you, as to everyone else in the country, the executive branch gets to continue to violate the constitution.
[SPEAKER_05]: You do illegal shit.
[SPEAKER_02]: Yeah.
[SPEAKER_05]: It's to continue to violate the Fourteenth Amendment, or the Second Amendment, or whatever amendment.
[SPEAKER_05]: Right?
[SPEAKER_05]: Like, that is what this case is demand.
[SPEAKER_05]: That's the regime they're implementing.
[SPEAKER_05]: Is they're telling lower courts that even when the executive branch is blatantly violating the constitution at the very least you need to be very, very careful about ordering them comply with it.
[SPEAKER_05]: Only in the rarest of circumstances should you be ordering them to comply with it universally.
[SPEAKER_01]: I mean, meanwhile, Noah Feldman and his fucking ilk are saying this is actually a moderate stance.
[SPEAKER_01]: And thank God this report finally came up with a rule for nationwide injunctions.
[SPEAKER_07]: Right.
[SPEAKER_07]: And one thing worth circling back to that I touched on, they could have resolved this on the merits.
[SPEAKER_07]: It could have said, hey, we need to expedite the fundamental question of whether this is constitutional.
[SPEAKER_07]: Let's see some briefing or a argument bang bang bang.
[SPEAKER_07]: We're going to do it real fast, right?
[SPEAKER_07]: They could have done that.
[SPEAKER_07]: I think it was a couple months ago, we actually talked about nationwide in junctions.
[SPEAKER_07]: It might have been on a premium episode, but one of the things that we said was, part of the way you solve the problem is by having the Supreme Court actually step in to resolve these cases.
[SPEAKER_07]: The problem here is of the Supreme Court's design.
[SPEAKER_07]: If they were actually intervening quickly and resolving these cases, maybe this problem goes away.
[SPEAKER_05]: No, I think that's right, Peter.
[SPEAKER_05]: And I think like a lot of Jackson's frustration with majority in this descent stems from her acknowledging their pattern of behavior here, right?
[SPEAKER_05]: Like, yeah, there's something very realistic about this descent where she's talking about, like,
[SPEAKER_05]: She's openly saying, look, the executive branch has been very disrespectful of lower courts than even its Supreme Court, unlikely to follow laws, saying it or argument that if they follow circuit court precedent, it's really at their discretion, whether or not to do that.
[SPEAKER_05]: So she's saying in the context of the Trump administration and their disdain for courts and their disdain for the rule of law,
[SPEAKER_05]: This is a profoundly irresponsible approach to the question of nationwide injunctions.
[SPEAKER_05]: I did enjoy how dismissive she was of originalism.
[SPEAKER_05]: At one point, she just says, focusing on in-app comparisons to impotent English tribunals, the majority ignores the judiciary's foundational duty to uphold the Constitution and laws of the United States.
[SPEAKER_05]: She's like, what are we even doing here?
[SPEAKER_05]: Who gives a shit?
[SPEAKER_01]: Why do we need court?
[SPEAKER_01]: We don't have currently.
[SPEAKER_01]: We don't have courts like we have courts in the seventeen eighties or whatever.
[SPEAKER_01]: It's so stupid.
[SPEAKER_01]: Right.
[SPEAKER_07]: I feel like we're sort of taking back something that the conservatives had for a while like Scalia used to do if there were like citations to old common law where now we're the ones being like who cares about that gay English bullshit.
[SPEAKER_07]: We don't give a shit about you don't give a shit about those dainty little English men from the seventeen hundred average height five foot two I don't think so wearing wigs in shit in in the courtroom absolutely not She makes a more jurors potential point as well that like
[SPEAKER_01]: Maybe she's going to make a finer point on that.
[SPEAKER_05]: Yeah.
[SPEAKER_05]: The chance to record, that was very much about the relationship between the courts and the king.
[SPEAKER_05]: And part of the whole point of setting up our constitution was to devolve power from the king into the court and the branches.
[SPEAKER_05]: So maybe the chance records aren't the model for our courts.
[SPEAKER_05]: Like the president is less powerful than the king.
[SPEAKER_02]: Yeah.
[SPEAKER_05]: So what are we doing here?
[SPEAKER_02]: Are you supposed to be?
[SPEAKER_05]: Yeah, but I think she's very good in this descent.
[SPEAKER_05]: I do not get why sort of my or at the very least didn't join it.
[SPEAKER_05]: I do think like, yeah, she's exasperated by the political reality here.
[SPEAKER_05]: This is obvious gamemanship, right?
[SPEAKER_05]: Like the court obviously thinks there's some political advantage to punting on this issue.
[SPEAKER_05]: So while everybody else is looking at the merits, all the lower courts and the courts of appeals are looking at the merits, all of the people in this country are upset about the merits, the Supreme Court is dodging the merits, right?
[SPEAKER_05]: Like they're doing it.
[SPEAKER_05]: for a reason.
[SPEAKER_05]: They have the tools to reach the merits here if they want.
[SPEAKER_05]: Like, it's part of the preliminary injunction, equitable and irreparable harm tests, right?
[SPEAKER_05]: You can look at the merits, but even beyond that, the court does have the power to change the question presented, request extra briefing, you know, grant cert before judgment.
[SPEAKER_05]: They have all these tools that could have used here.
[SPEAKER_05]: So the fact that they didn't tell us something.
[SPEAKER_05]: What the precise political calculation the court is making here is not a hundred percent clear, but they obviously see some advantage to punting this issue.
[SPEAKER_05]: I think you would hope that it's to put off the uncomfortable
[SPEAKER_05]: decision to tell Trump know that they don't want that smoke right now, but I don't know.
[SPEAKER_05]: I see a hundred eighty billion dollars appropriated to ICE for the next ten years.
[SPEAKER_05]: I see the building of concentration camps in Florida and Texas and elsewhere.
[SPEAKER_05]: I see Trump
[SPEAKER_05]: talking about denatializing and deporting the Democratic mayoral candidate in New York.
[SPEAKER_05]: I see him talking about denatializing citizens.
[SPEAKER_05]: If you were born here, not just naturalized citizens.
[SPEAKER_05]: And I worry that the political conditions are moving the other way.
[SPEAKER_05]: That
[SPEAKER_05]: In a years time, in eighteen months time, the court is going to be even less well positioned to tell Trump no.
[SPEAKER_05]: And if this case is any indication, they have no stomach to tell him no.
[SPEAKER_01]: Yeah, I think that's exactly right.
[SPEAKER_01]: I think also like shifting political and social conditions in a year's time or an eighteen months time, even setting that aside, this case is the court signaling to the conservative legal movement to come up with to circulate arguments about why birth rate citizenship can be limited in exactly these ways.
[SPEAKER_01]: arguments that were unheard of before six months ago continue to be blatantly unconstitutional and the court just giving this fascist movement more time to sort of consolidate the legal arguments about this.
[SPEAKER_07]: Yeah.
[SPEAKER_07]: Right.
[SPEAKER_07]: Yeah.
[SPEAKER_01]: And in doing that and in ruling in general in this way on this case, like what I see from this is an activist court.
[SPEAKER_01]: posturing as a court that is exercising judicial restraint.
[SPEAKER_01]: This is really, really big.
[SPEAKER_01]: This is still a major framework that is taught in constitutional law in law school right now.
[SPEAKER_01]: This dichotomy or this spectrum between judicial activism versus judicial restraint.
[SPEAKER_01]: and that conservatives purport to value judicial restraint, which is not intervening in executive and legislative action supposedly.
[SPEAKER_01]: Now, this Supreme Court and says that what it's doing is deferring to the executive branch where judicial action would be overreach, right?
[SPEAKER_01]: And where courts are not authorized to act, but
[SPEAKER_01]: take half a step back and what you see is a court that's actually incredibly active right now in setting policy in putting its thumb on the scale of how this country is run, incredibly active in reshaping, reforming, not just federal law, not just constitutional law, but the role of the executive itself, how the president can act, what the president can do.
[SPEAKER_01]: The Supreme Court right now is incredibly actively involved in these kinds of questions and in deciding these questions for all of us.
[SPEAKER_01]: This is not a restrained Supreme Court.
[SPEAKER_01]: I just keep thinking about like John Roberts in another context and these conservative dipshits in another context which is like federal agency activity and the administrative state under an administration that they don't agree with
[SPEAKER_01]: coming up with some bullshit about major questions, major questions doctrine.
[SPEAKER_01]: When there's a major question, the Supreme Court has to step in and intervene.
[SPEAKER_01]: Here, birthright citizenship isn't a major question.
[SPEAKER_01]: We're hands off there, but don't let them lie to you and tell you that that's restraint, that they're holding back.
[SPEAKER_01]: This is them actively deciding, very important major questions.
[SPEAKER_07]: Yeah, I want to flesh out a point I made earlier about what to take away from this case and what the legal media gets wrong.
[SPEAKER_07]: I think a lot of legal media types, including some purported liberals, they get this tunnel vision around these cases.
[SPEAKER_07]: So if you ask them what the rule created by this cases, they would say something like,
[SPEAKER_07]: no nationwide in junctions unless provided by statute or where necessary to get complete relief to a plaintiff something like that right but is that the actual rule because if you take a step back
[SPEAKER_07]: If you knew nothing else about this and I told you that nine straight times the issue of nationwide injunctions came to the court and nine straight times they allowed those injunctions to proceed and then the tenth time they said it was forbidden
[SPEAKER_07]: would you say that the rule is that these types of nationwide injunctions are forbidden?
[SPEAKER_07]: Of course not, right?
[SPEAKER_07]: You couldn't tell me what the rule is if I told you that.
[SPEAKER_07]: It's all unclear what's happening.
[SPEAKER_07]: But if I told you that the first nine times a Democrat was in office, and then the tenth time a Republican was in office,
[SPEAKER_07]: Now can you tell me what the rule is?
[SPEAKER_07]: The real rule here is that the court is clamping down on nationwide injunctions against Republican administrations.
[SPEAKER_07]: I assure you that if a Democrat returns to the oval office under this court, they will find a way to allow for every nationwide injunction that comes their way, right?
[SPEAKER_07]: Yes.
[SPEAKER_07]: And that's why if you're in the media and you're just regurgitating the holding of this case to your readers, you are doing them a massive disservice.
[SPEAKER_07]: You are not actually explaining what's going on.
[SPEAKER_07]: You have to peel back these layers of legalistic bullshit a little bit and look at what's underneath.
[SPEAKER_07]: But most of these guys can't do that because their only expertise is the legalistic bullshit.
[SPEAKER_07]: Yes.
[SPEAKER_07]: So you end up like constantly relentlessly missing the forest for the trees.
[SPEAKER_01]: Yeah, and the effect of like this, let's call it like lawyerly analysis like imposing just like the lawyer brain on interpreting these cases.
[SPEAKER_01]: We talked about it with you know the legal commentators and legal academia.
[SPEAKER_01]: you know like forcing this argument that actually this is moderate decision of some sort or you know you shouldn't you shouldn't be blowing it up or it's not the death now to you know constitutional rights that you think it is what all that serves to do is really
[SPEAKER_01]: Tell people, especially who aren't lawyers that they shouldn't have opinions, thoughts, feelings, they shouldn't bring their values to Supreme Court decisions and react from that basis, right?
[SPEAKER_01]: It tells people like,
[SPEAKER_01]: Yeah, I mean, a birth rate citizenship being on the chopping block that's scary, right?
[SPEAKER_01]: But in this case, you just don't understand nationwide injunctions.
[SPEAKER_01]: You don't understand bills of peace.
[SPEAKER_01]: You don't understand the history and tradition of courts consideration of legal irreparable harm.
[SPEAKER_01]: And what all this does is like pacifies
[SPEAKER_01]: everybody into, you know, oh, I guess I'm just supposed to accept this again.
[SPEAKER_01]: I guess they're just the smartest lawyers in the land.
[SPEAKER_01]: I guess this is just, this is just how the law works.
[SPEAKER_01]: And, you know, my thoughts and my feelings and my values
[SPEAKER_01]: My morals around how birthright citizenship should be protected, how people should be protected, how our society should operate, how a democracy should operate, I guess that doesn't have a place in figuring out legal cases.
[SPEAKER_01]: And so there's a real abdication of media and commentators' responsibility, not just to like accurately be telling us what's happening in these cases.
[SPEAKER_01]: but also an abdication of their responsibility to to meaningfully empower people, the public at large, like the discourse and the like knowledge tools to engage with these things fully, in the way that people already have a base sort of instinct to do so, and you take all of that energy away from them by being like, no, actually this is okay, and let me talk about complicated court rules from two hundred years ago.
[SPEAKER_05]: Yeah, it's like there's like a sad irony to like left leaning law props saying look, there's still all these tools for getting nationwide relief.
[SPEAKER_05]: That's why this isn't so bad when it's like, yeah, those are the tools.
[SPEAKER_05]: that Raga, the Republican attorney's general association is going to use in the Northern District of Texas to block any potential future Democratic administration.
[SPEAKER_05]: But those tools aren't going to be available to us by a large on the left.
[SPEAKER_05]: Who are you kidding?
[SPEAKER_05]: What are you talking about?
[SPEAKER_05]: It's possible that
[SPEAKER_05]: birthright citizenship is the one issue where that actually plays out, right?
[SPEAKER_05]: Where birthright citizenship itself ends up being protected under this new regime.
[SPEAKER_05]: Maybe that remains to be seen, but in their effort to hand Trump a win here while avoiding the merits, they have given him a tool
[SPEAKER_05]: to go on rampant, just rampant law breaking, right?
[SPEAKER_05]: Like to go wild and challenge people to drag them into court to make them stop.
[SPEAKER_05]: So it's going to be very bad.
[SPEAKER_05]: This opinion, I think is bad for birthright citizenship.
[SPEAKER_05]: And not necessarily the death now and we can talk about that in a second.
[SPEAKER_05]: But I think it's just very bad in general for the idea that the courts will impose any meaningful check on Donald Trump.
[SPEAKER_05]: I think that's the message that you need to be taking away from this is that they're not.
[SPEAKER_05]: They're very conspicuously telling us they're not going to provide a big check on him.
[SPEAKER_07]: Next week, premium episode, we are one Supreme Court term in to Donald Trump's second administration.
[SPEAKER_07]: And so we're going to do a little look back what have we learned about how the court is operating under Trump two point out.
[SPEAKER_07]: How is John Roberts, our moderate institutionalist king operating under Trump two point out?
[SPEAKER_07]: Follow us on socialmedia at five four pods.
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[SPEAKER_07]: We'll see you next week.
[SPEAKER_05]: Bye everybody.
[SPEAKER_02]: Bye y'all.
[SPEAKER_02]: Sayonara.
[SPEAKER_05]: But five to four is presented by Prologue Projects.
[SPEAKER_05]: This episode was produced by Dustin Disoto.
[SPEAKER_05]: Leon Nefak provides editorial support.
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