Weird Islands

[00:00:21] [Will Baude] Welcome to Divided Argument, an unscheduled, unpredictable Supreme Court podcast. I'm Will Baude.

[00:00:27] [Dan Epps] And I'm Dan Epps. So we got Justice Alito's retirement announcement, right? He's retiring.

[00:00:35] [Will] Fake news, Dan.

[00:00:36] [Dan] Oh, okay, sorry, I'm getting a correction. Nina Totenberg published a story around, I don't know, 11:30 or 11 Eastern this morning, announcing that Justice Alito had— the Supreme Court put out a statement that he was retiring. It appears that that was just a complete screw-up. Some people were speculating that maybe he really was retiring, but somehow the news was embargoed until Friday. I find that wholly implausible. So I think that this is a case where journalists pre-write the story and then someone accidentally hit publish when they shouldn't have.

[00:01:18] [Will] Do we know if it's that? Nina Totenberg accidentally ordered it to be published, or just, like, even more down the—

[00:01:24] [Dan] I saw something suggesting that that was the case, but I haven't seen— as of the time we are going to tape, so to speak, I have not seen something conclusive about what happened. But that added a little extra excitement to this morning.

[00:01:42] [Will] Sure.

[00:01:43] [Dan] And it was an exciting morning. We're recording this on Tuesday afternoon.

[00:01:47] [Will] One question about this. I did hear that Justice Alito was not at the Court today or yesterday. Do you know if this is true? His big opinions were all released, I think, last week.

[00:01:57] [Dan] I am not sure about that. Maybe he just started his vacation early.

[00:02:02] [Will] Yeah, smart man. Okay, go ahead.

[00:02:03] [Dan] I mean, we didn't talk last time about— there was a little bit of a dust-up on Friday when Justice Alito was reading his immigration decisions, and then Justice Sotomayor dissented from the bench, and he seemed to have been confused. He didn't know that that was coming. Even though he later— so initially he said something, he was like, "I would've said something differently if I'd known there was going to be a dissent." I don't remember exactly what he said.

[00:02:34] [Will] Yeah, Thursday, not Friday.

[00:02:36] [Dan] It was a Thursday. Okay. Then subsequently, he had to apologize because apparently he had been told there was going to be an oral dissent. So maybe he's just embarrassed about that.

[00:02:46] [Will] Well, we'll get to those cases. Yeah.

[00:02:48] [Dan] So not retiring. This would've been a real surprise because people who should know— Jan Crawford, very good sources— she had said he is not retiring. And that sort of lined up with various pieces of scuttlebutt I think you and I had heard in recent months.

[00:03:09] [Will] Yep. So what's going on, Dan?

[00:03:11] [Dan] Okay. This is the last day of— I guess formally not the last day of the term, but for court watchers' purposes, the last day of the term. The Court dumped its final opinions. So we got 3 opinions resolving 4 cases today, one of which we're going to talk about, and that one is Trump v. Barbara, the birthright citizenship case. Probably the most anticipated case of the term— although maybe you could put tariffs in that box. What do you think?

[00:03:41] [Will] Yeah, I think probably the most anticipated.

[00:03:43] [Dan] By people, not by you. I'm sure you were anticipating something else.

[00:03:48] [Will] I think this is the biggest case of the term, or the case everybody was waiting for.

[00:03:53] [Dan] It is the biggest case of the term at this moment. Whether we look back in 10 or 20 years and see it as the biggest case of the term, we don't know. Obviously, Slaughter is huge, maybe has more long-term consequences, but that's big. Okay, we'll talk about that in a moment. Then we got two opinions from Justice Kavanaugh. One, National Republican Senatorial Committee v. the FEC, which is a campaign finance case. That was a 6-3 classic conservative-liberal split where the Court struck down a provision in federal election law limiting expenditures by political parties in coordination with the candidate. We will talk about that. I think it's going to be a while. That one is on our second-tier list to get to probably after my vacation. Then West Virginia v. BPJ, which is one of the two trans sports cases that was linked up with Little v. Hecox, and that one opinion resolved both of those. Also a 6-3, also Kavanaugh, also classic conservative-liberal split, with the Court saying that schools are allowed to restrict participation in sports on the basis of biological sex, that neither the Equal Protection Clause nor Title IX require them to do otherwise or forbid them from doing that. So another one we will get to later. Do you have anything quick to say about either of those?

[00:05:26] [Will] Nope.

[00:05:27] [Dan] Yeah, and I would just say these are obviously big cases and we do want to talk about them, but we've got a lot and we're gonna try to give you as much content as possible, as soon as possible, but you might have to wait a little bit for some of these things. There's some grants going on. There's a really significant grant in a Second Amendment issue about possession of semi-automatic rifles. So this is an issue that had been floating around. I think it was Justice Kavanaugh had a statement respecting cert on this issue a while back, if that rings a bell, sort of saying this is something that we need to look at?

[00:06:07] [Will] I think he said more specifically, I think he said, "We shouldn't grant cert here, but we should grant cert soon, in a term or two."

[00:06:14] [Dan] Yes. So that is going to happen. I'm sure that's one that we will talk about, debate, perhaps disagree about. I have to say, without having dug into it, I don't love the idea that the Court may soon say that everybody has a constitutional right to possess an AR-15. But that seems quite possible that they will. You flagged an interesting GVR in light of the Landor case that we've talked about.

[00:06:43] [Will] That's right. I was just coming through the orders list, as every shadow docket scholar should, when I came across a GVR in light of Landor. Of course, after the Court decides a case, often they GVR a bunch of related cases that they've been holding in light of Landor v. Louisiana.

[00:07:05] [Dan] And the GVR, just for our listeners— it doesn't mean the Court clearly thinks the case should come out differently, but it thinks maybe, and it's going to give it back to the lower court, typically the federal circuit court of appeals, to take a look and be like, "We said this before. There's this new opinion. Does this change things?"

[00:07:28] [Will] Right. The narrow theory of the GVR is you should GVR a case because, like, the opinion is clearly wrong. You know, maybe a correct opinion could still be written, but the opinion that's written is clearly wrong because it didn't— like, just, you know, they didn't know this is relevant authority or something like that. The broader version would be you should GVR anytime it's not obviously pointless or irrelevant to GVR. And then there's a spectrum of practice in between.

[00:07:51] [Dan] Although I would think that if the majority of the Court thinks that the outcome is clearly still right, it doesn't make a ton of sense to GVR.

[00:08:01] [Will] Probably.

[00:08:01] [Dan] Just to clean up. I mean, the Court reviews judgments, not opinions, right?

[00:08:05] [Will] So they say. Sometimes they say that. Anyway, so I was a little puzzled just because it was a GVR, only it was a case called Lungohau v. United States, and it was a GVR in favor of Mr. Lungohau. I was like, "Well, that's weird," because Landor is a case where the plaintiff lost. So what could be this theory under which this spending clause decision somehow helps this person? Anyway, so then I pop it open, and the QP is whether Congress may federalize the arson of any property belonging to any organization that receives any amount of federal funding under the Spending Clause and the Necessary and Proper Clause. So it's a challenge to a federal arson prosecution, who is now represented by Paul Hughes at McDermott— I think has had several cases at the Court.

[00:08:56] [Dan] Oh yeah, friend of mine. Yeah.

[00:08:58] [Will] So anyway, the supplemental brief asks for a GVR in light of Landor, because the Court has now adopted a much narrower interpretation of the Spending Clause than the Necessary and Proper Clause. And the Court agreed to GVR.

[00:09:13] [Dan] And it sounds like maybe that case should come out differently.

[00:09:17] [Will] It does. Although it's a little— it goes to the— so we talked in Landor about this previous precedent, Sabri, where the Court upheld a bribery conviction for federally funded institutions. I think the lower court had relied on Sabri, and Landor purports not to overrule Sabri.

[00:09:35] [Dan] But I mean, the way it characterizes Sabri suggests a narrow reading of it is appropriate. Sabri is about protecting the actual money that the government funds. Presumably, this guy wasn't charged with arson for taking the money the federal government had provided and setting it on fire.

[00:09:54] [Will] Right. And there was a dissent in the lower court, in the Eighth Circuit opinion that this guy is appealing from, had criticized the majority for overruling Sabri in a way that would give Congress excessively broad power. So anyway, the Court, at least at the GVR level, which is always like an uncertain level of confidence or review, seems to be possibly okay with the proposition that Landor has now signaled that people were overreading Sabri.

[00:10:21] [Dan] Yeah. I wonder— let's say that is correct, right? Let's say that ultimately the result is that the prosecution cannot stand. Because the statute, at least understood broadly, is unconstitutional. How much of the rest of federal criminal law does Landor potentially upend? I mean, there's lots of federal criminal law that isn't tied to the Spending Clause, but maybe there's a lot that is. I don't really have a sense of how many prosecutions there are that fit into that box, but it could be a lot. I don't know.

[00:10:59] [Will] Yeah, we'll find out. While we're on Landor, by the way, I did get an email from a friend and maybe a friend of the show— at least she managed to listen to the show— Emma Kaufman at NYU, who heard us ask the question about why does RLUIPA— why prisoners?

[00:11:14] [Dan] Oh, we got an answer to that?

[00:11:16] [Will] She writes, "Fun fact, one big part of the reason that RLUIPA includes prisoners is that Chuck Colson of Watergate fame became very well-connected on the Hill and a passionate advocate for religious liberty in prison after his release. He testified at the hearings that led to RLUIPA, ensuring that prisoners got included." And she sent me his testimony.

[00:11:32] [Dan] That's interesting. Was there not something else that could have been lumped in? Or land use, I guess. Those two things, they just seem so random. Are there not other things?

[00:11:44] [Will] There's more to this story, Dan. We're learning one important character at a time.

[00:11:52] [Dan] Okay. What about— aren't there employers that get federal grants or something?

[00:11:56] [Will] Well, Title VII already bans a lot of religious discrimination.

[00:12:00] [Dan] Right, but it doesn't necessarily require affirmative accommodations that wouldn't have been required under the law.

[00:12:09] [Will] Well, sometimes it does. You have to let the employees wear headscarves.

[00:12:12] [Dan] Yeah.

[00:12:14] [Will] I mean, look, COVID restrictions hadn't been invented yet, so we could do vaccines if you want, but I don't know that we should. Anyway.

[00:12:23] [Dan] Yeah, we don't have an answer to that. Okay. So we also got the Justices' financial disclosures, a couple of them. Justices Jackson and Barrett have made a lot. Actually, Justice Gorsuch has made a lot, but not quite as much, in book royalties. Justice Sotomayor made a decent amount, but maybe we will dig into those in the summer doldrums after my vacation.

[00:12:45] [Will] Yeah, they're fun. I read them last night. I had some questions about them, but I don't want to talk about them now.

[00:12:49] [Dan] Okay. So, Barbara.

[00:12:52] [Will] Trump v. Barbara. Yeah.

[00:12:55] [Dan] So I guess the headline is this case is closer than the common wisdom expected.

[00:13:02] [Will] Well, the headline is birthright citizenship is required by the Constitution and the executive order is unconstitutional as a result.

[00:13:08] [Dan] Okay, but I mean the headline for people like us, people who are looking for the—

[00:13:13] [Will] The subhead can be Trump beats the spread.

[00:13:17] [Dan] Yes. But I mean, you had basically expressed almost total confidence that it was going to come out against the government, against Trump, right?

[00:13:25] [Will] Yes. I had total confidence in the outcome. I think you made me predict the spread, and I think I predicted 7-2. And it's 6-3, in one sense-ish. It's 6-3 on the judgment. And it's 5-4 on the constitutional question, which is interesting.

[00:13:43] [Dan] I mean, that is closer than you thought it would be, right?

[00:13:46] [Will] Sure. Although I also think one other theory pre-argument that I and many people had is it might be 9-0 with nobody opining on the constitutional question.

[00:13:55] [Dan] Just with the statutory issue. Yeah.

[00:13:57] [Will] You know, I think I talked to one conservative law professor who was like, 9-0 major questions doctrine. Just say immigration's a major question, and therefore the President loses. I think after argument, it was clear there was an appetite to talk about the constitutional issue, but always one of the things that's been striking about the executive order is that even if you thought the Constitution was ambiguous or gave this power, it's not clear what the President has to do with anything.

[00:14:25] [Dan] Well, we'll talk about the arguments for the statute.

[00:14:29] [Will] So yeah, close in that sense. Although of the dissenters, I think all 4 of them have different positions. And some of them— Justice Kavanaugh and Justice Gorsuch's positions— might actually be quite close to the majority in various respects. But yeah. Now, I think I also said things like this is the most unconstitutional thing the Trump administration has done, and that the arguments in defense of the executive order are not plausible. I still believe those things.

[00:15:04] [Dan] Some of the defenders of the President, particularly Ilan Wurman— I think your former student— I think maybe is not quite taking a victory lap, but close to a victory lap, is saying, "Look, everyone said this position was crazy. Look, it got 4 votes." Is that the right reaction?

[00:15:22] [Will] Well, there are a bunch of different questions. Is it crazy? Another is, is it implausible? Another is, is it wrong? Another is, should you be punished and drummed out of the profession for having dared to advocate it? Which I just saw some people, other law professors on social media sites, saying, we need to make sure there's accountability for the professors who dared to defend this. That must have been on Bluesky, right? Of course it was on Bluesky. In fact, from one of my former teachers who will remain nameless. And so I don't agree with that. I still don't think that there should be any punishment or repercussions for people who made these arguments that I think were wrong.

[00:15:58] [Dan] You don't think there should be for any arguments, right?

[00:16:01] [Will] Have I said that?

[00:16:02] [Dan] No, I think you can say things that are false, knowingly say things that are false. I think if you lie, there should be punishment for that. Yeah, I'm open to the view that if you say, I don't know, curse words or something, there should be punishments.

[00:16:15] [Will] What if someone, like, writes an article defending sovereign citizenship or just some frivolous legal theory?

[00:16:22] [Dan] Well, okay. So actually, even with the consequences— if somebody writes an article articulating a frivolous legal theory, we should all think less of you. We should all think you have some problem that causes you to believe bad of all things. I don't know that we need to do something further about that. It could come up in various contexts, I guess— if you were deciding whether to hire somebody, the fact that they sometimes act like a nitwit could be relevant, you know. But I don't know that we need like additional or extra— yeah, we don't need like legal scholarship police.

[00:17:00] [Will] But you don't think that the fact that it was as close as it was suggests it was an easier issue? Sorry, it suggests it was not as clear-cut of an issue?

[00:17:14] [Dan] I don't.

[00:17:15] [Will] But I guess this is the like— but maybe now you should believe me a little less. Like, I could be wrong, you know. I think I know the right answer to this. I think I know the right way to think about this. I think I didn't learn a lot from this opinion that I hadn't already thought of and seen through, so nothing in it changed my view. But the more people think I'm wrong, the more you might wonder whether I know what I'm talking about. But I still do.

[00:17:42] [Dan] Okay. So should we kind of walk through all the many opinions? I guess. I mean, this is a case where more people wrote than didn't write.

[00:17:54] [Will] It is a case where the PDF containing the opinions is 194 pages. Mercifully few of which are the opinion of the Court by Chief Justice Roberts, which is, I guess, a kind of recurring theme. I think it's a pretty simple case. I don't know that we're going to get a whole episode out of this, Dan, but—

[00:18:10] [Dan] Well, we'll see.

[00:18:11] [Will] I'm being a little facetious.

[00:18:13] [Dan] But we can get a whole episode out of anything. We can get a whole episode out of chitchat before we even get to an opinion. But you know, we're making good progress, I think. So yeah, let me just read the disposition line. So Chief Justice Roberts delivered the opinion of the Court, in which Justices Sotomayor, Kagan, Barrett, and Jackson joined. Justice Jackson has a concurrence that's joined by Justice Sotomayor in part. Justice Kavanaugh has an opinion concurring in the judgment and dissenting in part. We can talk about that disposition line in a second. Justice Thomas has a dissenting opinion in which Justice Gorsuch joins. Justice Alito has a dissent solo, and Justice Gorsuch has a dissent solo. So a lot of opinions.

[00:19:00] [Will] Yeah. Okay. Let's start with the majority.

[00:19:03] [Dan] Yeah, I'm just going to say this is a very good majority opinion. It's a great majority opinion. It is clear, it is efficient, and it's very well written, and it has some real, I think, lines that are going to endure.

[00:19:20] [Will] Yeah, no, some friends who are not particularly conservative were texting me, you know, praising the opinion to me. And somebody even said, you know, it's sort of a shame that the Chief couldn't have delayed the issuance of this opinion until July 4th, so you could read it aloud on July 4th as the ultimate 250th birthday gift to the country. I probably will try to do a dramatic reading of the opinion on July 4th.

[00:19:46] [Dan] The entire opinion?

[00:19:48] [Will] I don't know. How long do you think that would take? I don't know, an hour? I won't do it on the podcast.

[00:19:53] [Dan] Don't worry, Dan. Okay, I mean, you can. We can just release it as a bonus as long as I don't have to be there.

[00:19:58] [Will] While you're gone, I'm going to fill the feed with my— all right. The 14th Amendment, as most people will know, says, "All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the state wherein they reside." And so obviously the first part of that, "all persons born in the United States," is a form of birthright citizenship. And the question has always been, well, what's this "and subject to the jurisdiction thereof" thing doing? It's clearly requiring something more than being born in the United States. What is it requiring? And jurisdiction, of course, being a word of many, too many meanings, has produced a huge confusion literature debate about what that could mean. So the Court says you've got to start with the common law.

[00:20:46] [Dan] And so going back, we have this old common law principle, which is— let's see. Jus soli, right?

[00:20:59] [Will] Yes.

[00:21:00] [Dan] Which means?

[00:21:02] [Will] I don't know Latin, Dan. Law of the soil.

[00:21:07] [Dan] Yeah, exactly. Right of the soil. Okay. Which meant in substance what?

[00:21:12] [Will] Well, so going back, there was this longstanding idea that anybody who was born in the territory of the king was subject to the king's jurisdiction, in the sense that you had a duty to obey the law just by dint of being there. And because in exchange, you received the duty of protection. That is, the king had an obligation to protect your legal rights just because you were there. So allegiance and protection were common phrases in theory at this time, but they were heavily soil-based. People who were here in the king's domain would have a temporary allegiance and receive temporary protection. And then people who were citizens received permanent allegiance, permanent protection, and so on. But that's the basic territorial bargain. And thus, English common law produced cases such as Calvin's Case about people who were born in the territory of the king and entitled to at least temporary protection and so on.

[00:22:10] [Dan] Okay. And then the idea is this crossed the Atlantic with the colonists. So this is just transplanted. That becomes the principle here in America.

[00:22:19] [Will] Right. So one set of— by the way, out there in the debate, people debate, is this really the common law principle? Because the common law principle, as we'll see in a minute, had exceptions. Didn't really have the category of people we now all agree are the equivalent of illegal immigrants. How does that work with that? There are arguments about that. The Court does note, for instance, that the principle applied to the children of what were then called gypsies. They are now called the Roma people. But anyway, so next claim: this view crossed the Atlantic with the colonists and was adopted with little fanfare after the Revolution, so it applied to citizens just as much as subjects. This common law of citizenship, known as jus soli, or right of the soil, prevailed in each and all the states after American independence and continued to emphasize reciprocal allegiance and protection, quoting Kent's Commentaries on American Law. So that's claim 2, that it's the British common law. Second claim, it was the American common law. Note that we're kind of talking about general law here, a general law backdrop to the Constitution, right? Another major precedent here is Lynch v. Clarke, a New York case from the 1840s, relied upon. So that's backdrop. Then you get Dred Scott, right?

[00:23:34] [Dan] Yes, which basically screwed this up.

[00:23:37] [Will] Yes. And this is part of what makes it so wrong.

[00:23:39] [Dan] Right.

[00:23:40] [Will] And this is another one of these great, great writings from the Chief. The common law made no distinction on account of race or color, but the slave states did. This was, by the way, like a foundation of antebellum and abolitionist legal thought, that sort of the general law was freedom, and slavery could exist, but only to the extent that a state had enacted it as positive law in an area where it had the power to do so. That also came from England. And so Dred Scott imposed a race-based limitation on who could have citizenship, saying that Black people, just as a matter of unwritten constitutional law, could not be citizens. And the Court says it was wrong. Here's another— the next act begins. The Court had overruled the common law, but the people eventually would overrule the Court. So that's the 14th Amendment. And we talk about the adoption of the 14th Amendment and how it was— of course, the Citizenship Clause was designed to overrule Dred Scott, or to constitutionalize the Civil Rights Act, which had also overruled Dred Scott.

[00:24:51] [Dan] And, you know, basically looking at those contemporary debates and pulling out of it this principle that subject to the jurisdiction is broad.

[00:25:05] [Will] Yes. And also that the relevant question is something like what the common law question was, right?

[00:25:11] [Dan] Of course. Does the sovereign have authority over you?

[00:25:14] [Will] Right. Even temporary authority. Even the language of the clause is that of the common law. Cases like Lynch and Chancellor Kent and so on talked in terms of jurisdiction, and so the 14th Amendment repeats the jurisdiction label. Then the Court also says— I guess that's like a common law argument— and the Court also says textually, even putting the common law to one side, the Citizenship Clause's key phrase, subject to the jurisdiction, requires the same result.

[00:25:40] [Dan] The jurisdiction means power. Power to govern.

[00:25:44] [Will] And there's power to govern almost everybody here. And so it applies to almost everybody. Now then, we do have to start talking a little bit about the exceptions, right? There are a set of small exceptions where sovereigns were understood to have impliedly waived their jurisdiction, such as foreign sovereigns, sort of Indian tribes. But those are themselves kind of inter-sovereign international law concepts. And so no such inter-sovereign concerns apply to children born of parents unlawfully or temporarily present in the United States.

[00:26:21] [Dan] Okay. And then we're going to turn to precedent. Wong Kim Ark, which is a case about a man born in San Francisco to Chinese parents. Who was being denied citizenship, and the Supreme Court said, "Can't do that. 14th Amendment."

[00:26:44] [Will] Right. And in that opinion, the Court does describe Wong Kim Ark's parents as domiciled here. And so as a matter of precedent, the conventional view is the holding of Wong Kim Ark is that anybody who's born here to parents who are also domiciled here is a birthright citizen. And if you're born here to parents who are not domiciled here, question mark. It isn't totally clear from Wong Kim Ark whether that domicile thing was doing work or not. People debate this a lot about what's the holding. I will say I taught Wong Kim Ark for the first time this year, teaching constitutional law. And it was amazing— the dissent in Wong Kim Ark is the arguments that you hear today from the revisionist view and the Trump side. And so it was just striking how much the arguments in favor of the administration were the Wong Kim Ark dissents. Now, you could still say they weren't technically rejected in Wong Kim Ark as to non-domiciliaries, or maybe it was still not held as a matter of precedent. But I think the Court is right to see Wong Kim Ark as largely confirming their view of things.

[00:27:50] [Dan] Okay. So the Court, I guess— is it fair to say they're reading it somewhat broadly?

[00:27:56] [Will] Well, I think they're just saying it generally confirms our view. And they say, "We've generally understood." So either they're reading it broadly or they're reading it as persuasive support. I'm not sure.

[00:28:11] [Dan] I mean, if you look at page 15 to 16, they do say they are reading the opinion to stand for this pretty broad rule. Right? That applies to everybody except for these narrow categories. Children of ambassadors, other representatives of foreign sovereigns, as well as those born in the alien nations of Indian tribes. All others were citizens at birth. Okay, great. And then, so Part 5 of the opinion, starting on page 17, confronts this argument that we need to think of the concept of allegiance differently, that the government has jurisdiction over someone only when that person owes the government allegiance, and allegiance is going to mean something different.

[00:29:06] [Will] Right. How much? The government offers a smorgasbord of formulations: primary allegiance, sufficient allegiance, full allegiance, requisite allegiance.

[00:29:18] [Dan] And so the idea here is the kind of person who's born in the U.S. but basically has all the relevant connections to some other country— parents are not lawfully here, or at least here temporarily— they would primarily owe their duty of allegiance to some other country. I think that's the argument being responded to here.

[00:29:43] [Will] Yes. And I think the way, at least the principal dissent and the government put it, is that they don't necessarily disagree with the Court of what the English rule was. Their view is that it just isn't totally what came here. The English view rested on something about having a king and being subjects, and then as we move from subjecthood to citizenship, somewhere along the lines it changed. The Court says, "The trouble is that there is scant evidence for this dramatically revisionist view," which I think is basically right, notwithstanding the length of the dissent.

[00:30:15] [Dan] Yeah, which we will get to.

[00:30:19] [Will] Okay.

[00:30:20] [Dan] So basically, the original rule was still the rule, is still the background to the drafting and ratification of the 14th Amendment. And so this rule that it's dependent on domicile— as in, like, not the place where you currently are, but just the kind of place where you have your long-term connections— that is not the key concept. That is the argument that had been pushed by the revisionists. That is not going to win. Okay, so now we're sort of about 20 pages in. The Court is going to look to congressional debates over the Civil Rights Act of 1866 and the 14th Amendment. Lots of references to the common law.

[00:31:02] [Will] Yeah. So the different argument you could make— so one argument you could make to dispute the majority is to say, "No, no, no. They're wrong on the common law. The common law actually was based on allegiance, not jurisdiction, and allegiance means something different." A different argument you could make is actually the 14th Amendment doesn't codify the common law. It does something different. And the best argument for that is that the 14th Amendment was designed to constitutionalize the Civil Rights Act. And the Civil Rights Act did not say subject to the jurisdiction thereof. It said not subject to any foreign power, which is at least easier to read in this kind of dual allegiance way.

[00:31:40] [Dan] Whereas someone who was born to citizens of another country would at least arguably be subject to that foreign power as well.

[00:31:50] [Will] Right. Now, of course, you could have said that about Wong Kim Ark. Indeed, the dissent said that of Wong Kim Ark. They said he is subject of a foreign power in the sense that at the time, he was a subject of the Emperor of China. As I understand it, under our understanding of Chinese law at the time, he could not renounce his Chinese citizenship. It's just not possible as a matter of— or Chinese subjectship. I'm not even sure what to say. His membership. He could not stop being subject to a foreign power. Yet, the Court held in Wong Kim Ark, he's a birthright citizen anyway. So we know that the 14th Amendment must not just mean not subject to a foreign power in that sense, unless you're going to question Wong Kim Ark.

[00:32:30] [Dan] Yeah, if Wong Kim Ark is correct. Right.

[00:32:33] [Will] And that's part of— the majority says, you know, in the last point they say, page 25, "In the end, it is the dissent in Wong Kim Ark that makes the strongest case for a domicile-based theory of American citizenship. But this view commanded only a dissent in 1898, and neither time nor circumstance has changed the fact that it is not the law."

[00:32:53] [Dan] Another good zinger.

[00:32:55] [Will] Yeah. I mean, the Chief Justice is always a great writer, and sometimes his great writing is on display when he's trying to cobble together an opinion that doesn't totally make sense or is burying some bodies or skirting around some tough things it's not deciding. But when his good writing is on display just in defense of a proposition that's just straightforwardly correct and supported by all the relevant evidence, then it's just, like, a force to behold.

[00:33:23] [Dan] Yeah. Penultimate paragraph, the paragraph before the disposition line, I think is very strong. So he's talked about— the previous paragraph talked about history a little bit. Says, "Citizenship then and now was the right to have rights, to freely participate in our political community. The framers of the 14th Amendment extended that promise to every freeborn person on this land," quoting a statement by Senator Trumbull at the time of the 14th Amendment's passage. "We keep that promise today." That's a line that's going to endure.

[00:34:00] [Will] I mean, I hope it doesn't come up very often.

[00:34:02] [Dan] Yeah, but, you know, still could get quoted a lot, you know. So I think it's a good opinion, right? 26 pages. Do you— you spent more time with the primary sources than I have. That's just not the kind of work I do. Do you think this is kind of going to briefly— or is this hitting the points that it needs to hit to make this point by the lights of originalism?

[00:34:34] [Will] I think it's hitting all the points it needs to hit. I think that you could quibble, like, should the Court spend more time explaining the exceptions? Because they do give rise to the question, if these are exceptions, if there's an inter-sovereign jurisdiction waiver exception, how broad is that, etc. I don't think the Court needs to spend more time on it to resolve this case. But, you know, if we were to enter into a treaty with Mexico in which we and Mexico both agreed not to assert various kinds of birthright citizenship over nationals born in one another's countries, how does that bear on this? You know, the Court doesn't tell us, and maybe it isn't even clear whether he's answering that or not. Things like that. I don't think that's a problem. And I don't know exactly how originalist the opinion is. I mean, obviously, it starts with the common law, the common law to Dred Scott, to the 14th Amendment, to Wong Kim Ark. You could ask how much of the weight is being borne by Wong Kim Ark versus not.

[00:35:33] [Dan] Right? I mean, it's written as if that's not the primary support, right? It's written as if we get to that later, that kind of reinforces everything.

[00:35:42] [Will] Right. I think it's not the primary support, but it's definitely reinforcing things. And in fact, the linchpin of the counterargument to the counterarguments is everything you say was rejected by Wong Kim Ark, which is true. Now, again, a true originalist might say, okay, overrule Wong Kim Ark. That's an 1898 Supreme Court decision from which Justice Harlan dissented. You've overruled other cases from the same era from which Justice Harlan dissented, like Plessy v. Ferguson. Why not this one? And so, now again, I think the answer is because Wong Kim Ark was right, but the Court does let Wong Kim Ark bear a decent amount of the weight. And I think it's not a problem because, again, this is just, I think, an area, an easy case, where the British common law, the American common law, the text, and the precedent all point in the same direction. So that's part of why I didn't think it was that hard a case.

[00:36:37] [Dan] All right. So there is this concurrence by Justice Jackson. Why don't we circle back to that after talking about the Justice Thomas dissent? Because she is really responding to him.

[00:36:48] [Will] Yeah, okay.

[00:36:49] [Dan] So skip ahead to the partial concurrence in the judgment and partial dissent by Justice Kavanaugh. I don't really think properly it makes sense to frame this as a dissent, in the sense that typically that should be dictated by the Justices' attitude with respect to the judgment of the Court.

[00:37:18] [Will] I agree. So I agree that—

[00:37:19] [Dan] So it should just be concurring in the judgment. He's saying dissenting just to mean, like, I disagree with the stuff they said. But if you concur in the judgment, you're not agreeing with anything the majority said anyways.

[00:37:28] [Will] I mean, so I agree, right? The judgment is affirmed. And Justice Kavanaugh agrees that the judgment should be affirmed. Sometimes in the past this has happened where the Justices treat establishing a constitutional holding as a separate thing the Supreme Court does, almost like a separate holding you can dissent from. This comes up especially in weird cases where the Court sometimes holds something unconstitutional, but then says there's no remedy. There was an immigration case like this a few years ago where I think somebody dissented from the holding, but agreed with the remedy. So I think technically it's not correct, but it is somewhat precedented to do that. So Justice Kavanaugh's view is the plaintiffs win on the statute. 8 U.S.C. 1401 says that all persons born in the United States and subject to the jurisdiction thereof shall be nationals and citizens of the United States at birth. Same language as the Constitution. And Justice Kavanaugh says the statute surely was meant to reflect Wong Kim Ark, and Congress did not want to test Wong Kim Ark's statement by adding new exceptions. And indeed, the executive branch has consistently interpreted the statute that way until very recently.

[00:38:45] [Dan] It seems quite plausible to me, right, that— putting aside, let's just bracket the constitutional question— that if this had been the understanding for a very long time, that probably would make sense to interpret the statute as just consistent with that rather than doing something more adventurous.

[00:39:07] [Will] Sort of. I think it's descriptively true that the people who enacted the statute had a view about this, and their view was the Wong Kim Ark view and the majority's view. What to do with a statute that repeats constitutional language— whether that should reflect the assumptions of the drafters about the meaning of the Constitution or the true meaning of the Constitution. I think it's kind of confusing, and my intuition depends a lot on the hypo.

[00:39:34] [Dan] So maybe it's just meant to go to whatever the constitutional limits are.

[00:39:37] [Will] Yeah. When you have a long-arm jurisdiction statute where a state says, "Let's assert extraterritorial jurisdiction up to the limits of the Due Process Clause," do we think that should be indexed to the personal jurisdiction precedents at the time the statute is enacted? Or are they saying, "No, no, we'd like to assert whatever we can get away with." My intuition is there, it's the second. Now, this is a little— so I'm not sure I have a fully worked out view about when a statute just repeats constitutional language, when that does or doesn't. Now, since I think the statute— the assumptions that they made when they enacted the statute were correct, with them in the Constitution, it's especially hard for me to get through it. In a counterfactual world where Wong Kim Ark misinterpreted the statute and Congress, you know, went along with that, disagreed with the Constitution— yeah, I don't know what to make of that. Anyway, Justice Kavanaugh, however, disagrees about the constitutional issue.

[00:40:37] [Dan] Yeah, and this is interesting because he's going to address the constitutional issue, but he does so very briefly. And using an interpretive method that raised a lot of questions for me. So one thing is to note that there's going to be some different approaches to this among the Justices that don't agree with the majority. He says what the majority is doing is basically dictated by Wong Kim Ark, and Wong Kim Ark is wrong. That is not the only path to go down. Right? You could say, "No, no, no, no. You're reading Wong Kim Ark too broadly." But he says Wong Kim Ark's treatment of the exceptions and the 14th Amendment Citizenship Clause is incorrect. Okay? He says it's incorrect because he endorses sort of, like— he was getting some criticism on social media for this, as if he's endorsing a living constitutionalist understanding of the 14th Amendment, where he says basically, sure, there were those exceptions, but those are not frozen in amber. There can be subsequent exceptions that courts can recognize based on new developments after 1868.

[00:42:05] [Will] Yeah. So that part actually I think is quite orthodox. It's always a little controversial because this method can be manipulated for mischievous purposes, but in a sense, it's got to be right that at the time of the founding, there were a set of states. There were 13 of them. And we all understand it's not a closed set. There could be new states according to some principle contained in the Constitution. Now, there it's very clear because the Constitution explicitly says Congress can admit new states, and so it's easy for us to see, of course, state is not a closed set. It includes new states. Then you could even imagine a debate about, well, can they just admit any state? What's the principle for admitting a new state? We'd say, well, it has to be relevantly similar. It has to be admitted by Congress as a state. You can imagine somebody coming along and saying, but even Hawaii, these weird islands that are so far away you can't even drive to them? We'd fight about what is the principle of relevant similarity and presumably agree that it counts. I think that's quite orthodox. Now, it is true, Jack Balkin has a book called Living Originalism where he emphasizes this principle, and some people think emphasizes it so much that what he does shouldn't count as originalism. Other people think it should. But I think that part's good. And it is sort of a little unsatisfying to be like, why do we just have this closed set of examples? What do they even have to do with one another?

[00:43:29] [Dan] Yeah, although it's certainly true that there's some things that you have to hold— if you're doing originalism right, there's some things you have to hold constant and some things you don't, right? It freezes some principles, some rules, and then there's other things that can kind of be incorporated dynamically, or you can just apply the same rule to a new fact pattern. It's not obvious to me that this is one of those places where there's some sort of room for dynamism. To the extent we have a broad rule, and that broad rule is understood as having a limited set of exceptions, not clear to me that constitutionally codifying the broad rule is intended to create kind of interpretive flexibility for expanding those exceptions down the road.

[00:44:14] [Will] Well, the problem is I think flexibility is an overly vague metaphor to think about it. The Constitution does not say all persons born here except ambassadors, tribal Indians, children of invading armies are citizens. It says all persons born and subject to jurisdiction are citizens. And so the question is, what does subject to the jurisdiction mean? And one view could be, it just means everything except for these 4 things. It's just like a term of art that everybody would understand to be those 4 things. Or it could be those 4 things have some property— that maybe they were the only 4 things anybody could think of that had that property, but they had that property. In which case, a new thing that has that property— it's not dynamism exactly to say, "Well, if a new thing has that property, it's like the old things." Now, Justice Kavanaugh does go more in the flexibility direction.

[00:45:02] [Dan] Yeah. I mean, the way he applies his principles, it seems very flexible. Living constitutionalist, et cetera.

[00:45:13] [Will] Yes. So that's where I think he goes awry. I think he's right to say you should be able to ask, what is the legal category that these four exceptions had, and does anything else fall in this category?

[00:45:25] [Dan] The category would be who's subject to the jurisdiction, right?

[00:45:28] [Will] Well, yes. Yes. Right?

[00:45:30] [Dan] That would be— I mean, to the extent Congress were to say illegal immigrants are not subject to our jurisdiction, right, and that we can't prosecute them, they have to be immediately deported, maybe it's a different result, right? But that's not what he's postulating. He says you can recognize new exceptions when they are based on subsequent developments or circumstances that are new, i.e., largely unknown or unanticipated by the Framers, and two, are relevantly similar to the four previously recognized Wong Kim Ark exceptions.

[00:46:06] [Will] Right. So that I agree with, but the question is what is relevantly similar? And the relevantly similar category ought to be people over whom we don't have jurisdiction. And here again, jurisdiction is a little slippery in that— I think nobody— well, not nobody, many people agree, we did have jurisdiction over tribal Indians in the sense that if we wanted to, we could exert vast power over them and did shortly after the 14th Amendment. We have jurisdiction over diplomats in the sense that if we wanted to round them all up, we could, and other countries would get mad at us.

[00:46:40] [Dan] I mean, it would violate treaties, right?

[00:46:42] [Will] Well, that's good. And that was true of the Indians.

[00:46:44] [Dan] I mean, there is the principle of diplomatic immunity.

[00:46:47] [Will] Yes. And that was true of the Indians in 1868. We still dealt with Indian tribes by treaties as well. In 1871, 3 years after the 14th Amendment is adopted, we enact a statute of questionable status that says the treaty regime is over, although even that one still preserves the existing treaties. So I mean, there is this puzzle of jurisdiction's a word of too many meanings, and exactly what jurisdiction meant that those things had in common is a tough question. And that's why I think if you had the treaty hypothetical, or if Congress enacted a new statute that treated undocumented immigrants like diplomats and said, "If you're caught here, we're going to send you back, but we're not going to prosecute you for parking tickets," and various things like that— at some point, that might be relevantly similar.

[00:47:35] [Dan] Yeah. No, I can believe that.

[00:47:37] [Will] But I don't think you can just do a, "This is odd and Congress wouldn't have wanted it," inquiry.

[00:47:42] [Dan] Yeah, because that seems to be part of what he's doing when he sort of says, "Significant illegal immigration is a new circumstance that was largely unknown as of 1868." Right? And then points to a bunch of kind of what really strike me as kind of policy concerns, right, about birth tourism.

[00:47:58] [Will] And that is where he's giving originalism a bad name.

[00:48:01] [Dan] Yeah. I mean, it's an interesting opinion because it is so breezy, right? It is confronting this constitutional question in far fewer pages than the other opinions. Maybe we'll talk about Justice Gorsuch in a bit, but he's much more tentative. So I found it a little strange. Justice Kavanaugh, he does have a tendency to write these shorter opinions that don't feel the need to drill down on every authority. I thought this one was surprising, though— surprisingly breezy.

[00:48:38] [Will] I mean, this is funny. They're just such different genres of the separate opinion. It's a concurring opinion, for one, that doesn't make any law. So there's a— I mean, 10 pages, a sense of which 10 pages is kind of long for something that, you know, could be zero. But Justice Thomas's dissent, by contrast, is 91 pages because it's attempting to provide a sort of historical refutation of deep-seated, and he thinks mistaken, conventional wisdom. And so if you're going to try to persuade me that, like, everything I learned in school was wrong, you might need a lot of pages. If you're just going to tell me conceptually, here's how I think about it and here are some concerns that I think are reasonable, 10 pages might be enough.

[00:49:19] [Dan] Although it might be better to do that and say, "Here's my tentative conclusion." But I mean, he reaches a firm conclusion. Quite firm. "For these reasons, to reiterate, the executive order does not violate the 14th Amendment." But he just does so in a way that I think opens himself up to criticism for not adequately defending his methodology.

[00:49:44] [Will] Look, I mean, I think the most charming thing about this opinion is everybody will hate it. He rules against the Trump administration categorically, facially. The order is completely unlawful. Also, though, rules against the majority and against the conventional wisdom about the Constitution. He does so in a sort of way methodologically that will irritate all the originalists. People sometimes complain or accuse Justice Kavanaugh of trying to please people or curry favor or whatever, which I think is sometimes unfair. I think this opinion, again, it has no audience.

[00:50:25] [Dan] Yeah, and it doesn't have any of the kind of Kavanaugh trademark, "All Americans should be happy about this. We're doing our best." It doesn't have any of that really.

[00:50:34] [Will] Right. Kudos to him. I think it just must be what he thinks.

[00:50:39] [Dan] Okay. So then we go on to the 91-page Justice Thomas opinion, which I did— I guess I read. My eyes went over the entire thing, but it's very hard for me to retain all that information. It's certainly written in a way that makes you feel like, gosh, this guy's got a lot of evidence. Right? To show that the majority's more compact discussion of the constitutional question— maybe it's a lot more complicated. And there's a lot of evidence on the other side that they're ignoring. But tell me about that. Tell me as a primary source person.

[00:51:24] [Will] Well, it does have a lot of evidence. I mean, there's a lot of stuff. The narrative we started with is complicated in every stage of it. The English common law was complicated. The American cases about the English common law were complicated. The adoption of the Civil Rights Act was complicated. Wong Kim Ark was complicated. Justice Harlan, the great dissenter, dissented in Wong Kim Ark, right? So at each stage, I think he's right that it's complicated and that, like, none of those claims are— I don't know, none of those claims are 100 to 0 claims. None of those claims are the Earth is round versus the Earth is flat claims. And for people who like their law mechanical, or at least like their law mechanical when it's conclusions they like, as you start to dig into it, it's kind of disquieting. I think especially there's quite a body of sort of respectable legal thinkers in the post-14th Amendment era who support the dissenting position of Wong Kim Ark before Wong Kim Ark. I mean, after all, the case is Wong Kim Ark v. the United States. The United States was on the other side. And then there remain people afterwards who want to limit the holding of Wong Kim Ark or think it's bad, et cetera. Now, it's a little funny because there are lots of other opinions where Justice Thomas is like, "Why would you listen to elites? Think of all the bad things elites have argued at various points." Some of whom are these same elites. So I'm not that impressed with them. But they exist. And there were various complicated wrinkles. Also, this was an era when dual citizenship was not really favored. There are other cases— you might be born here and then be taken back to your home country and then decide to live there. Does that sort of effectively renounce your American citizenship? And so there were some cases that said you had until 18 to kind of pick one. But then you had to pick one. So it's complicated. Ultimately, I don't think any of those complications add up to enough to support the order. But then I think Justice Thomas makes a very interesting pivot, I think, which is not always appreciated in— well, I was going to say in coverage of this case, but it's the same day and I haven't read all the coverage. This is a facial challenge by the plaintiffs, and the plaintiffs won below. So at least if you want the view affirmed, you should have to think that the order is completely unconstitutional, whereas all Justice Thomas needs to do is convince you that there are at least some people covered by the order who are not covered by the original meaning of the 14th Amendment. And, you know, he even has some footnotes where he's like, all I really have to show is that temporary visitors are not covered, but what do we do with illegal aliens, who in one sense might be permanent but in another sense, like, legally shouldn't be able to be permanent, and so on. Those are interesting points.

[00:54:25] [Dan] Yeah. And so do you understand the scope of his rule? So he's doing a domicile-based reading of Wong Kim Ark. So his approach is a domiciliary approach.

[00:54:40] [Will] Well, I think we have domiciliaries versus temporary visitors. I don't know for sure whether he thinks those two categories cover the waterfront, or there could be non-temporary, non-domiciled visitors who he's also not committed to.

[00:54:56] [Dan] But I mean, he thinks that the line for citizenship is domicile.

[00:55:00] [Will] Yes, I think so. Which was also a longstanding common law concept. An important concept in the conflict of laws. There are a whole set of conflict of laws cases where the law depends on your domicile, and the place that has jurisdiction over whether you're married and questions of status is the place of domicile.

[00:55:22] [Dan] So who does he think would be covered by this? Are all unlawful aliens not covered by this?

[00:55:34] [Will] So that is reserved. So in footnote 10, he says, "Because this case presents a facial challenge and no one disputes that lawful temporary visitors and some illegal aliens are not domiciled here, I would reserve for another day the question whether the children of illegal aliens can be domiciled here." But then he goes on to cite a paragraph of arguments and evidence that— as one of the properties of domicile is permission to remain, because the common law test for domicile was, are you physically present and do you have an intent to remain permanently? Some people thought you can't have an intent to remain permanently that counts if you're not allowed to remain permanently. That said, in the next paragraph, "Many others understandably suggested that long-term resident illegal aliens satisfy the elements of domicile because they reside here with the intent to permanently remain." And this is going to get us onto a second, Justice Gorsuch, who joins this dissent but has something separate to say.

[00:56:31] [Dan] Yeah. Okay. So it took us 91 pages to do all that. Anything else to say about it?

[00:56:37] [Will] No.

[00:56:38] [Dan] Okay. So then we've got a solo dissent, also pretty long, but nowhere nearly as long, by Justice Alito. And so why does he separately? What is his view?

[00:56:53] [Will] So I'm not sure I understand all the ins and outs of it, but I think I understand Justice Alito to be much more focused on the Civil Rights Act distinction, and not just a grappling with the question of what was the common law.

[00:57:13] [Dan] And so where do you think he lands on the rule?

[00:57:19] [Will] I'm not sure. I mean, I think he is more certain that more unlawful immigrants would not get citizenship.

[00:57:33] [Dan] So you think he has a position further from the majority opinion than Justice Thomas?

[00:57:39] [Will] Well, like, with Justice Thomas, we don't know what Justice Thomas thinks, right? That's more unclear, but he seems more concerned with the practicalities. He sort of said Congress has to be deciding this issue. It's up to Congress to fix these unfortunate results and so forth.

[00:58:03] [Dan] Okay. So I think his bottom—

[00:58:06] [Will] He has this whole thing about how we haven't been enforcing the border laws, and they're sovereign— what's the term? The cities.

[00:58:16] [Dan] Sanctuary cities.

[00:58:17] [Will] Sanctuary cities, yeah. They're encouraging illegal immigration. It has a little bit more of a kind of policy feel to it.

[00:58:25] [Dan] Yeah, I guess it has several moving parts. I think it does, as a methodological matter— Justice Thomas is like, "I have found the meaning of the 14th Amendment, and it is different from what the majority says." And Justice Alito's, much more of it has a feel of, constitutionalizing something is a big deal, and we should not constitutionalize this, especially if it's bad, unless we have to. I think his bottom line interpretive conclusion— this is at page 36, sort of his Part 5— is that subject to the jurisdiction means subject to the jurisdiction of the United States alone, and not subject to any foreign power. So he's going with the Civil Rights Act view. And that therefore, a great many persons who are born here to illegal immigrant parents fail this test because they're automatically made nationals of their parents' native country. Now, of course, that's also true of Wong Kim Ark.

[00:59:17] [Dan] That he would have been subject to that.

[00:59:19] [Will] Yeah, he was the subject of a—

[00:59:20] [Dan] Foreign power. Yeah. So he does then go through a list of other countries that have that rule. Mexico, Guatemala, El Salvador. And so I guess, is it possible that he thinks that if someone would be otherwise stateless, then they do get citizenship?

[00:59:41] [Will] Maybe.

[00:59:42] [Dan] If they're from a country that says, "No, no, no. You don't get citizenship here just because your parents are citizens. You have to be born here too." Those people would not get citizenship in their home country, so they wouldn't have that relationship of jurisdiction, and then maybe they do get citizenship here?

[01:00:04] [Will] I think so. Yeah.

[01:00:07] [Dan] Okay. Should I go to Justice Gorsuch?

[01:00:11] [Will] Yep.

[01:00:12] [Dan] Okay. So he's interesting. He's with Justice Thomas completely. He signs on to the whole thing. But he has a 3-page separate solo dissent. And he makes a few points. So first of all, he says, "Justice Thomas and I are consistent with Wong Kim Ark. We don't need to reject that." Two is the facial challenge point. Right? That's straightforward. I don't really think there's any reason that needed reiteration, but maybe— his point, I think, is to sort of suggest that he does, as we'll get to, have some concerns about the scope of this executive order, and that there may well be some situations where it denies birthright citizenship to people who should get it.

[01:01:04] [Will] He says, yes, specifically the question of can undocumented immigrants be domiciled here, right?

[01:01:13] [Dan] Yeah, if they are born to parents who make their permanent home here but nonetheless in defiance of federal immigration laws.

[01:01:19] [Will] Right. And he says, "I wonder, is a child born here to parents who have long chosen to make this nation their permanent home not a citizen under the 14th Amendment solely because his parents' presence violates statutory law? If those parents are not domiciled here, then where are they domiciled? And if the answer is nowhere, how can we reconcile that conclusion with this Court's longstanding recognition that every person is domiciled somewhere? Because the executive order is not facially invalid, these questions may not properly be before us, but their answers are undeniably important to a nation committed to a view of citizenship open to all children born here, to parents who can call this country home." So I take it also these three points together are like— Justice Gorsuch is still on the side of most immigrants, right?

[01:02:05] [Dan] Yeah, and it's interesting that he joins the Thomas opinion and then writes something that Thomas may well not agree with.

[01:02:13] [Will] Yes.

[01:02:13] [Dan] There's a good chance he doesn't agree with it.

[01:02:16] [Will] There's a good chance. I mean, by dint of the fact they separated, there's a good chance. Justice Thomas's footnote is, "On the one hand, see all these cases, but on the other hand, see Justice Gorsuch's dissent." So I think he's leaving that open. But yes, they're certainly different in emphasis and in inclination. So as I read this, all 4 Justices in dissent— I mentioned this earlier— seem to have tentatively staked out different positions. We can't say for certain they're all different because they don't all resolve everything conclusively. But Justice Kavanaugh is with the plaintiffs, but on non-constitutional grounds. Justice Gorsuch is maybe the next closest to him, with the plaintiffs, in that— the executive order may well be unlawful as to everybody who wants to be here permanently, or who calls this—

[01:03:07] [Dan] Everyone whose parents want to be here permanently.

[01:03:09] [Will] Everybody whose parents call this country their home. Yeah.

[01:03:13] [Dan] But he may have a more majority-friendly view of the constitutional issue than Justice Kavanaugh.

[01:03:20] [Will] Yes.

[01:03:20] [Dan] So in some ways, he might be closer to the majority. On the constitutional question.

[01:03:24] [Will] Yeah. Yes. Well, frankly, even then, Justice Thomas might be as close to the majority as Justice Gorsuch is. He hasn't ruled that out yet, although he seems to be leaning less in that direction. And that too is closer to the majority on constitutional grounds than Justice Kavanaugh, even as he's further from them on remedy. And I think Justice Alito is further, although the fact that Justice Alito and Justice Gorsuch both sort of dovetail on the statelessness question, that makes that a little confusing. Like, if Justice Alito— well, yeah, I guess Justice Gorsuch would probably give birthright citizenship status to many more people than just those who would otherwise not be domiciled anywhere, whereas Justice Alito seems to be limiting himself only to those who would not be domiciled anywhere else.

[01:04:11] [Dan] Or would not be subject to another country. That might not be the same thing as domicile.

[01:04:17] [Will] Yeah. So the Alito thing— is the Alito caveat limited to children of non-citizens?

[01:04:25] [Dan] Children of non-citizens of what?

[01:04:28] [Will] Of the U.S. So suppose that the country of France says anybody who has any French heritage is a birthright French citizen. And we make you a French citizen by operation of law, whether you like it or not. You're a Frenchman. If your grandfather was French, which mine was, you're a Frenchman, whether you like it or not. Would the Alito view be that all persons born here, even to two U.S. citizen parents, born in the United States, are now not birthright citizens because they are subject to a foreign power?

[01:05:01] [Dan] That's interesting. Presumably, he would just think we don't have to worry about it because we always—

[01:05:06] [Will] because Congress has chosen to recognize the children of U.S. citizens born here. Yeah, but Congress would have the power if it wanted to just exclude people based in part on other countries' claim to them.

[01:05:21] [Dan] Yeah, that's interesting.

[01:05:22] [Will] I mean, that can't be right, but that might be his view.

[01:05:26] [Dan] Okay, and then do you want to just briefly circle back to Justice Jackson, and then we'll do some closing thoughts?

[01:05:32] [Will] Yes.

[01:05:32] [Dan] Okay, so Justice Jackson is responding to Justice Thomas, right?

[01:05:38] [Will] Mm-hmm. And she is sort of responding to him not just here, but sort of responding to him on other 14th Amendment issues, and sort of coming in and saying, "Oh, Justice Thomas, he believes in colorblindness in other cases, but now here he's adopting this cramped interpretation of the Citizenship Clause and reading it as mostly about former slaves. And here's a much better way to think about the 14th Amendment. It's an anti-subordination provision."

[01:06:12] [Dan] Okay, so I don't totally understand this. So I read her concurrence before I read his dissent, because it came earlier in the PDF. And so the way she describes it is, "Despite his longstanding endorsement of a colorblind Constitution, Justice Thomas now surprisingly suggests that the Citizenship Clause was a race-conscious remedial measure relating only to freed slaves such as Dred Scott and those who shared with them certain characteristics."

[01:06:36] [Will] Which is not clearly what he says.

[01:06:38] [Dan] It's clearly not what he says, isn't it?

[01:06:40] [Will] Yeah. I mean, there is— I saw some people in the discourse doing this, because there is this problem. If you have an overly stingy view of domicile, for instance, then you have to say, well, are we sure that all freed slaves counted as domiciliaries— although I think many of them did because they had a right to remain here. Or if— again, this is not quite where the dissent goes, but if you take the view that coming here in violation of law means that your children are not subject to our jurisdiction, which I think some people had taken, then what about people who were brought here as part of the illegal post-1808 slave trade? Would their children be excluded? And so some people then responded to that by saying, "Well, that's different. We all know African Americans are different." That would be a race-conscious claim, to just say it's freed slaves. But Justice Thomas doesn't do that. Justice Thomas has a non-race-conscious principle. And I mean, it may be wrong. I think it's wrong. And then Justice Jackson even seems to acknowledge that, because she says he says it's freed slaves such as Dred Scott and those who shared with them certain characteristics. That's what a race-neutral—

[01:07:49] [Dan] So the part that she quotes is page 56 of his opinion, where he says, "The Citizenship Clause was enacted for people who were born in this country and called it home. It was enacted for freed slaves such as Dred Scott who had a domicile here and therefore were entitled to sue as citizens. It was enacted for men such as Frederick Douglass who demanded citizenship not as aliens nor as exiles, but as Americans." But there he's not saying only, right? He's saying this was the point of it. But then he says it embodies a principle, right, that can be applied to other people, right?

[01:08:20] [Will] And just descriptively— I mean, I spent more time with the draft of the 14th Amendment. I think it's true the 14th Amendment was adopted to protect the rights of Black people. And then it was self-consciously adopted in race-neutral terms to do so. The idea was we should enact enduring principles, the motivation for which is that currently African Americans are being denied those things. But it was a self-conscious choice to create enduring principles with a race-conscious motivation. So maybe she should do this as a gotcha when the Court eventually says that doing neutral things for race-conscious reasons is unconstitutional— like abolishing the LSAT for race-conscious reasons is unconstitutional, which the Court may well say one day— and then she can do this as a zinger. But it doesn't really work here, I think.

[01:09:09] [Dan] Yeah. And it's sort of like— she's using this as an opportunity just to lay out her own kind of broader theory, her approach to the 14th Amendment. Which doesn't strike me as obviously the right spot for it.

[01:09:25] [Will] No, although again, look, it's the end of the term. She wants to get something out there that's not just complaining. So it may as well be here. She cites the most secondary historical literature. Thomas has some legal citations to some of the originalist contrarians and to a lot of the early, the long-dead elites. The majority cites very little in the way of modern scholarship. There's no citations to the Keith Whittingtons and Mike Ramseys who have refuted the revisionists. She has a lot of Eric Foner and various other major historians. I mean, she likes secondary literature, I think, more than many. So she's got kind of her own spin.

[01:10:19] [Dan] Okay. Anything else to say?

[01:10:24] [Will] I feel proud to be an American, Dan.

[01:10:27] [Dan] All right. Yeah, you're on social media, you said, "Hail to the Chief." So this is a victory lap for you as a former Chief Clerk.

[01:10:35] [Will] Reasonably good day for him. I was expecting more people to get upset with me for that. Also hail to Justice Barrett, by the way. Principled jurist and originalist that she is. She also joins this. And I think we've seen already a lot of— already there was some sort of weird unhinged anger being directed at her for writing the Election Day decision, which we haven't talked about yet. Which is not an opinion that— and now I think this is going to further cement the—

[01:11:10] [Dan] I saw Mike Davis, who's the former Gorsuch clerk, sometimes acts as Justice Gorsuch's unofficial spokesman and is a big go-between for people in the Trump administration, was very, very mad at Justice Barrett today.

[01:11:25] [Will] Yeah. Do you think, Dan, any of the dissenters have any ounce of sort of bad faith— that any of them are doing this in part because they don't want Trump to get mad at them? That Justice Kavanaugh could have just written the statutory grounds and then said, "I don't have to decide the constitutional grounds," et cetera. Do you think any of them are motivated by that at all?

[01:11:48] [Dan] By being afraid of Trump? No.

[01:11:50] [Will] Okay.

[01:11:50] [Dan] They have nothing to be— I mean, Trump is not going to be president forever.

[01:11:54] [Will] Or being afraid of Mike Davis?

[01:11:56] [Dan] No.

[01:11:56] [Will] Okay.

[01:11:57] [Dan] I don't think so. I certainly don't think Justice Gorsuch is afraid of his former clerk. No, I mean, I think that they might be motivated by the policy concerns. Which are not crazy, right? I mean, the thing that I think is interesting, and this is an interesting thing about our Constitution, is that it is more rigid than the constitutions of other countries and has lasted a lot longer. We are kind of the last country that's going to do this, right? Or at least one of the last. England doesn't have this rule anymore. Look, it creates weird incentives. I mean, birth tourism is now a real thing. And maybe there's reasons why it's not bad. Maybe there's reasons why it is bad. It strikes me as it would be better to have a world where all the different countries had rules that work together. Because if you don't have that, you end up with stateless people, which seems very, very problematic.

[01:12:55] [Will] Yeah. I mean, I do think there are also long-run reasons to want to have the rules. The rules are a trade-off between short-term incentives but long-run building of a stable political community. Rejecting the idea that you can have multigenerational castes of non-citizens and stuff like that. And that has benefits too. And similarly, I mean, the entire American immigration experience has had all aspects of exceptionalism in lots of ways. And I think at least when that exceptionalism— I don't know that that's always bad.

[01:13:39] [Dan] Okay. Well, I got to go. You probably got to go. All right. Thanks very much for listening. Please, as always, rate and review the show where you get your podcasts. dividedargument.com for transcripts, blog.dividedargument.com for commentary, store.dividedargument.com for merchandise. Email us, pod@dividedargument.com. Leave us a voicemail, 314-649-3790. Or leave us a voice message on the website.

[01:14:10] [Will] Thanks to the Constitutional Law Institute for sponsoring all of our endeavors.

[01:14:14] [Dan] And I think I'm willing to promise that there won't be a long delay between this and our next episode. We are going to try to record multiple additional episodes before I leave for my vacation.

[01:14:24] [Will] So that's a promise.

[01:14:32] [Dan] The case was submitted.