Muse

We will hear argument this morning in case 25-365, Trump v. Barbara. Hey, everyone. This is Leon from Prologue Projects. On this week's episode of 5 to 4, Peter, Rhiannon, and Michael are talking about Trump v. Barbara, colloquially known as the birthright citizenship case. At issue in the case was President Trump's executive order from January 2025, attempting to end birthright citizenship as we know it. and make it so that the children of parents who are in the United States unlawfully or temporarily are not automatically granted citizenship, despite being born in America. The hosts covered the oral arguments in this case a few months back, in part because the executive order appeared to be such a clear violation of the 14th Amendment, and the justices seemed unusually and vocally skeptical of the administration's position.

The position you're taking now is a revisionist one.

It's like Roman law sources you're going to. I guess I'm not seeing the relevance as a legal constitutional interpretive matter. Well, it's a new world. It's the same constitution.

But what about the constitution? That raises a humanitarian problem. So we're bringing pregnant women in for depositions.

After the case was argued, it was widely assumed the Trump administration would not only lose the case, but lose it badly. Instead, birthright citizenship survived by one single vote. This is 5 to 4, a podcast about how much the Supreme Court sucks.

Welcome to 5 to 4, where we dissect and analyze the Supreme Court cases that have left our civil rights thin and depleted, like the crowds at the Great American State Fair. I'm Peter. I'm here with Michael. What crowds? And Rhiannon.

Hey, so I'm out of the country, which I think we'll get to in a little bit, but I actually don't know anything about the American State Fair. Is it humiliating for America? What's going on?

It depends on how you look at it. Like, yes, the presentations are humiliating. Yes, the lack of turnout is humiliating. Yes, some of the state booths are literally like, my friend was telling me, like, I think the Maryland one just literally says, visit Maryland. And that's it. There's like nothing else. But on the other hand, the fact that nobody turned out for this shit maybe is a source of pride. We're like, fuck this. Fuck this bullshit.

The idea, Ree, is that there's just like a bunch of booths for every state. And like most of them are weirdly right wing. And there's like weird right wing performances and speakers. And like no one is attending. There are many shots of their little concerts where there's, like, some band on stage singing some song you've never heard of. I don't mean, like, a B-lister. I mean, like— A literal nobody. Like, musicians that would otherwise be performing at a local church. Yeah.

Right. Like, my uncle getting up on stage or something. Yeah.

Yeah. And not, like, a church that hosts musical events.

I saw a photo or video of, like, of a guy, a musician, performing to an audience of one. And he was like, to the audience member, he's like, follow me on Instagram. And it's like, you, you follow me on Instagram.

I've seen literally maybe three or four separate performances where they pan to the audience and there are fewer people in the audience than there are on stage.

And there's one, this is like some conservative influencer talking to a 10-year-old child, a little girl, about the Salem witch trials. It's fucking insane.

Insanely funny, dude.

Why would you say that the Salem witch trials did not go far enough?

Because they're witches.

The actual answer as to why they didn't go far enough is there really are witches. You're right.

And our producer was asking us about this. There is a very small but very real portion of the religious right who are trying to do Salem Witch Trial revisionism, where it's like, no, they were witches.

Right. The Puritans were onto something.

Yeah, yeah.

Not to sound like a big liberal, but the one area where the Salem Witch Trials went a little far is, I would say, they weren't organized enough.

All right. So this is sort of, from our perspective, an emergency episode in the sense that we rallied to record this earlier than we otherwise would have. Rhiannon out of the country.

Yeah. And actually, I mean, we have to talk about this. If Peter has like a whatever update about why he's recording in whatever, like urgent or different times, mine much more important. I do have to say I recorded the Kermit Roosevelt episode about America 250 that we recorded or released a couple of weeks ago. I recorded that one out of the country as well. I was in Amman, Jordan. And yet when I recorded that episode, I was in a studio. Here I am out of the United States again, this time in a country called Canada. and i'm in the worst lighting video audio setup you could imagine and that's because north america

is in the shithole yeah uh and i am in my now second week of fatherhood i congrats now have a baby daughter who is one room over crying there's a baby girl at peter's house

Folks, if you listen closely, you will hear it. A little Easter egg.

Not to be outdone, I'm also sacrificing. One of my favorite teams is playing in the World Cup right now, and I'm not watching it.

Who has, like, favorite World Cup teams, you fucking nerd, dude? What? Hot damn.

No, you're the nerd. You're the idiot loser who doesn't have a team they're rooting for in the World Cup?

Who doesn't like watching fucking Messi, the GOAT? Yeah, I have a team I'm rooting for. It's called the United States of America, folks. confirmed loser Iran's out I guess I'm rooting for America whatever wait that's embarrassing usually I just root for countries that seem like they've been historically less successful

yeah underdog

and so I was like oh I'm gonna root for Morocco and then someone was like Morocco one of the scummiest teams in the World Cup that's correct that's correct that's what I get for trying to be woke you know Egypt go for Egypt

I'm rooting for Morocco I'm rooting for Egypt as of today the day of this recording these two teams are still in

I like that Egypt joined Iran in refusing or trying to refuse to do any pride celebrations. I want the most homophobic team possible to win the World Cup.

That's the 5-4 position.

Incredibly funny that it was Egypt-Iran in the pride match, and they were like, no gay shit, no gay shit.

Strolling from both sides to both sides.

All right. Today's case, Trump v. Barbara, the birthright citizenship case. This dropped on the final day of the 2025-26 term, and it's a rare instance of us doing a good case in the sense that this came out correctly. The Supreme Court upheld the constitutional right of birthright citizenship, the idea that people born here are citizens, which makes sense because it is explicit in the Constitution, right? The reason we're covering this case is because it was shockingly close. Only five justices, a bare majority, signed on to the decision upholding the constitutional guarantee of birthright citizenship. A lot of outlets initially reported this case as 6-3 because Brett Kavanaugh concurred in judgment that the executive order was illegal. But in actuality, four justices, Alito, Thomas, Gorsuch, and Kavanaugh, all said that the Constitution does not guarantee birthright citizenship. And that's notable because it means that we are one vote away from overturning a constitutional bedrock, one of the foundational pieces of our constitutional order, which just a few years ago was a consensus position.

Yeah, it was. And look, this is a win, a nominal win, but it's worth emphasizing not just that it was a narrow win, but that the consequences of this going the other way are dramatic. They're tremendous and they're horrifying. We've talked at length on the podcast in the past, and we will later in this episode, about how due process has been whittled away for non-citizens, about the way undocumented people in particular get treated in this country in truly horrific ways. But calling into question people's citizenship, calling into question the bedrock foundation of citizenship, which is birthright citizenship, opens the door to just a tremendous amount of fascist retribution against their political enemies. That is very frightening.

Yeah. And I think this is made slightly more visceral by the fact that it is happening or almost happened entirely at the whims of a racist, revanchist political movement and their extremely stupid leader, Donald Trump.

Yeah.

So let's go over what that case says. Let's pick apart some of these dissents. Let's talk about what it all means.

Let's get into a little bit of history. Want to give some background, although I imagine our listeners for sure have heard this history over and over again, even just by listening to this podcast. We have covered this case. You can listen back to our term preview. We talked about it. We talked about the oral arguments in this case back in April. Peter and I did an episode about the oral arguments. And then even just a couple of weeks ago, that episode that we did with Kermit Roosevelt, where we talked about the Dred Scott decision, that has relevance here. So everybody, I'm sure, in addition to the news coming out about this case has heard kind of the case history. But let's run through really quickly just so we can get to actually what the crazy part of this case really is, which is that it was such a bare majority, which is that it was a 5-4 decision. That is wild. And all of the different absolutely maniacal, psychotic, cuckoo bananas, separate writings that we have, separate decisions being written here. Okay. 1700s. America's born. America was built on slavery.

No politics, please. No politics.

Dred Scott decision. We're speeding through. Okay, guys. Dred Scott decision.

It's widely referred to as the worst Supreme Court case in history. It contributes, in fact, to the outbreak of the Civil War. That's an 1857 decision that says that black people, whether they are enslaved or formerly enslaved, cannot be citizens of the United States. OK, then the American Civil War is fought from 1861 to 1865. The South does, in fact, lose. Now, afterwards, America enters this time of so-called reconstruction. Amendments to the Constitution are passed. And the 14th Amendment gives citizenship to all people who are born in the United States. It also gives equal protection of the law. It also gives due process. But here we have in the 14th Amendment, the Constitution enshrining birthright citizenship in the U.S. There were questions about this, right? Racists didn't like it. But in 1898, the Supreme Court decided a case called Wong Kim Ark, which we have talked about as well, in which a Chinese man who had been born in the United States, he sued for his citizenship, even though racist ass America didn't want to give citizenship at the time to Chinese people or descendants of Chinese people. And the Supreme Court said in this case, Wong Kim Ark, that the first clause of the 14th Amendment means what it says. All persons born in the United States and subject to the jurisdiction thereof are citizens of the United States. Birthright citizenship means birthright citizenship. That is the Supreme Court in 1898 saying that. After that, you have this issue decided. Basically, it seems like this is all settled. We don't really have debate about this for more than 120 years before Donald Jester Trump gets elected for the second time to office. And he hands down an executive order back early 2025. We all remember it saying all of the sudden that the executive branch is going to stop recognizing children who are born in the United States, but born to undocumented parents or parents on temporary visas. The executive branch is going to stop recognizing them as American citizens. Right. This purports to functionally end birthright citizenship. That's where our story has landed us. Birthright citizenship. The issue then tons of groups, individuals, classes sue over this executive order, say, hey, hold up. The 14th Amendment says something very specific about this. You can't do that, Donald Trump. It goes all the way to the Supreme Court. Listeners will remember when we did the episode about the oral arguments, we talked about how John Roberts, yes, but other conservatives, too, including Gorsuch, including maybe Kavanaugh, were expressing skepticism with these arguments about birthright citizenship not being enshrined in the Constitution. But what do we get here? Yes, birthright citizenship sort of barely protected by the skin of its teeth.

Yeah. So first, when Trump drops the executive order, I think all of the savvy legal commentators were like, oh, this is plainly unconstitutional. This will never survive. Then the conservatives started sort of building arguments on like their right wing blogs and getting them published and things like that. Right. Trying to lay out their argument, make it a little more thorough, a little more real feeling. Right. And then you get oral argument, and it looks like Trump's going to get whipped. It looks like it's 7-2 at best, maybe 8-1. And then the case drops, and it is 5-4. That is why everyone's sort of buzzing. And I think to get a sense of the significance of this, to understand why we're covering the case, to understand why the fact that four justices dissenting here is so outrageous, we need to start with the text of the Constitution. The first sentence of the 14th Amendment reads, 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. So you have a general rule, which is that everyone born in the U.S. is a citizen. And you have what's really one exception, which is that you must be subject to the jurisdiction of the United States. We will circle back to that because that is a tiny caveat in reality. But the right wing argument relies on making it a huge caveat.

Yeah, exactly. In many different ways.

So that's the text, right? Then there is the history of the 14th Amendment. Essentially, everyone, including the justices on the court who dissented, agree that the primary purpose of this passage was to ensure citizenship for black people in America. The court in Dred Scott had held that black people are not citizens. And after the Civil War, Congress was looking to right that wrong. They passed a law in 1866, and then they passed a constitutional amendment saying the same thing in 1868. That's the history. The majority here is written by John Roberts, and it gives a decent overview of this history. In the middle of the Civil War, the Attorney General Edward Bates wrote a letter rejecting Dred Scott, saying that, quote, every person born in the country is at the moment of birth, prima facie, a citizen. And then, like I said, in 1866, Congress passes a law saying the very same thing. And then a constitutional amendment follows, right? So we know all of this. We know what the text says. We know that the purpose was to address Red Scott and ensure that citizenship for Black people could not be challenged. And we know that the goal here, the way that they were doing that was to provide birthright citizenship. Everyone born in the country, just about, is going to become a citizen. But what about that little caveat, right? What about subject to the jurisdiction thereof? Everyone who was born in the United States and subject to the jurisdiction thereof, what does that mean? Jurisdiction? That seems like something lawyers are going to weigh in on. Yes. So it was intended to create a couple of exceptions. First, birthright citizenship does not apply to the children of diplomats. We know that because Senator Jacob Howard, who helped draft the amendment, said so explicitly. We also know that because it was debated in Congress. And part of this is because of what we now refer to as diplomatic immunity. If you are a diplomat in the United States, you are not always subject to the sovereign authority of the country that you are in, right? There's sort of a shared authority with your homeland, and that is part of the agreement that countries make when they allow diplomats in. So you are not fully subject to the jurisdiction of the United States if you are a diplomat or a diplomat's child. The caveat was also meant to carve out certain tribal Indians, which we know because the 1866 law said so explicitly. They are also not subject to the jurisdiction of the United States in the same way as the rest of us because they are governed by tribal laws, right? We have various treaties with the various tribes that sort of outline the division of sovereignty and jurisdiction. So the question here is, is anyone else covered by this, right? What about immigrants? What about an immigrant who pops over to the United States? Well, that was debated by Congress when they were debating the constitutional amendment. A senator, Edgar Cohen of Pennsylvania, opposed the amendment specifically because he objected to the children of certain foreigners automatically becoming citizens, specifically Chinese and Romani people, right?

Very upset. We don't like these foreigners. Are their kids really just going to become citizens? And other senators pushed back saying, yes, that is what's going to happen. So there were open discussions happening during the debate around this clause where it was acknowledged by everyone involved, including the opponents, that this would grant citizenship to the children of new immigrants. I want you to keep in your brain this phrase subject to the jurisdiction thereof, right? This is the whole conservative argument is about making this super broad. The whole theory that they have is that people who have recently immigrated here or maybe temporary visitors are not subject to the jurisdiction of the United States. But that doesn't really make a lot of sense, right? Tribal Indians and the children of diplomats are very literally excluded from the government's jurisdiction in material respects, which just isn't true about someone, for example, who just came here from Mexico illegally and then has a baby. That person is still subject to the jurisdiction of the United States. So, like Rhee mentions, this has come to the Supreme Court before. It came in 1898, a case called the Wong Kim Ark. The case was about the citizenship of the child of Chinese immigrants. And the court said, yeah, citizen by nature of their birth. And it was not until recently that anyone has seriously doubted that holding, right? And the 14th Amendment has been interpreted this way since the passage of the amendment. So the text of the amendment, the history of the amendment, the practice, the precedent, everything judges are supposed to look for in interpreting the law. Every single thing points in one direction, which is why it's not enough to say that this case is like a win and then move on. Right. The very presence of any dissent, let alone from four justices, is absurd. It is an insult to the constitutional order. Unbelievable. Yeah. And now we are going to walk through various concurrences and dissents because the majority opinion here is, like, 29 pages, and then every other opinion stretches the whole thing out to almost 200. So, like, Kavanaugh has a 10-page dissent. Thomas has a 91-page dissent. Alito has a 39-page dissent. And we were talking about this, but, like, it just reeks of desperation, right? Like there's a real doth protest too much kind of vibe going through it where the majority is like, here's this like really clear cut argument we have. And then the dissents are like, actually, actually, if you if you zoom out insanely far, here's 150 pages. If you just listen to my fucking rambling for 90 pages, then you would agree with me. Yeah. Let's get into it. And, you know, like, first in line for the dumbassness is, of course, Brett Kavanaugh. We've talked about these concurrence dissents before. His short little, I just need to get my own little voice in here. And it's always drivel. It's always so, so ridiculous. You didn't need to write it.

You didn't need to show your ass like this. But you know what? In terms of podcasting about the Supreme Court, I'm grateful that he does it every single fucking time. So Justice Kavanaugh has both a concurrence and a dissent. He's concurring in the judgment only, but saying, actually, constitutionally, the 14th Amendment, there's room for interpretation. That Wong Kim Ark court, they got things wrong. There can be more exceptions to birthright citizenship. So basically, Brett Kavanaugh is saying, you know what, maybe the president couldn't act in this way, but you know who could change birthright citizenship and change the rules for qualifying for birthright citizenship? Congress could do it. Mm hmm. What Kavanaugh is doing here is actually almost like giving a lane for how birthright citizenship could be changed, that more exceptions that are written out in Wong Kim arc, like, you know, the children like Native American children or the children of foreign diplomats, that the law could be rewritten and that would be just fine. But Congress hasn't acted that way so far. So Congress passed a law mid-1900s in which Congress mirrors the language of the 14th Amendment in establishing what birthright citizenship is, what citizenship of the United States is, right?

And just to clarify, because it's kind of hard to keep track of all these laws, in 1866, there's the Civil Rights Act, which says, you know, birthright citizenship. And then in 1868, there's the 14th Amendment, which puts it in the Constitution. And then almost 100 years later, you have another law, which is really about immigration. It's like Congress trying to pass this robust immigration law that restates the 14th Amendment.

Exactly. So in the statute, it says that people born in the United States, subject to the jurisdiction thereof, are citizens of the United States. Kavanaugh says, look, Congress adopts those same exceptions, that same definition of what it means to be subject to the jurisdiction thereof. Congress has had the opportunity to change that interpretation, but they have not. They adopted the same interpretation that Wong Kim Ark decided back in the 1890s. But Kavanaugh says, what if they didn't? Congress could change the law here, which is like a very strange, like, what are you giving this pathway for?

It's very odd. Yeah. You have to understand, like, there's this law from like the 1940s or 50s that basically mirrors exactly the language of the 14th Amendment. And he's saying the executive order violates that law. But the 14th Amendment still doesn't provide for birthright citizenship. Right. And that seems a little bit absurd, right? Because the language is identical. It's mirrored. How can it violate one but not really the other, right? And I think what he's trying to say is that when Congress passed that law with the mirrored language, what they were actually trying to do was put into a law the holding and Wong Kim arc. Right. But according to Kavanaugh, that holding is actually incorrect. It's one of the most bizarre convoluted pieces of legal reasoning I've ever heard. I have seen Sarah Isger of Advisory Opinion say that she agrees with it, which confirms that it is, in fact, dogshit stupid. Yeah.

If she's on board, then you know.

It is so weird. And also, when I first read it, I thought what he was trying to do is this like classic thing where if you can decide the question without addressing the constitutional issue, then you generally should. That's sort of like a practice that is smiled upon at the Supreme Court, right? At least in theory, constitutional avoidance. You're supposed to avoid the constitutional question if you can. But he actually addresses the constitutional question. Right. It's very weird. It's very weird.

He's riffing off like this principle, which is like when Congress passes laws using language from the Constitution or from cases, they sort of adopt the judicial understanding of that if it's like settled right and he's like well they were adopting this settled understanding but that understanding was wrong yeah right so like the statute preserves that understanding in amber but because we think it's wrong we can say it's wrong and then congress can change the statute right it's so it's also he's saying congress was wrong it like it's very bizarre like congress just ensconced the wrong interpretation.

Yeah, he's saying Congress was wrong, and he's saying the Wong Kim Ark Court, basically. Yeah, they decided, you know, it's this precedent. They decided this constitutional question at the time. But wait a minute. Society changes.

We progress. New things happen. You're reading this and you're like, wait, pause. Conservatives are always about how the Constitution is a dead document. It stays the same, right? Interpretation of the Constitution is the same. No matter what advances in society happens or no matter how the world changes, the Constitution stays dead, just how it was written whenever it was written. And all of the sudden, Brett Kavanaugh is talking about how, well, the Wong Kim Ark Court, that Supreme Court, and the drafters of the 14th Amendment could not have possibly comprehended this thing about immigration, which is that like people come to the United States and they do so sometimes illegally.

Because of planes and stuff?

Because there's planes now and all kinds of things. Of course, that's ahistorical. It's wrong. The Congress that drafted and ratified the 14th Amendment, in fact, knew very well that there were temporary sojourners in the United States. They talked about it. Knew very well that there were non-citizens, people who had like, quote unquote, snuck into the country, people who didn't have documentation to be in the United States at that time. We read this article by Anna Law in which she writes about how historical these claims really are, in particular, that there was an illegal slave trade happening for decades prior to the Reconstruction amendments being ratified, right? So Congress knew not only that there were migrants who could be, you know, called, quote unquote, undocumented or didn't have legal status in the United States, but that also like slave traders traded in slaved, enslaved persons who were illegally brought into the United States at this time.

A huge problem for all the dissents, by the way.

History, facts. Yeah, it's a big problem.

The importation of slaves was outlawed in 1808. So any slave brought after that, and there were many, would be here illegally, right? And obviously, the 14th Amendment was meant to give them and their descendants citizenship. And so if your whole thing is like, well, someone here illegally cannot get citizenship, you're not really undoing Dred Scott, are you? Right. This is a problem that all the dissents sort of try to wrangle with but can't.

It's just ridiculous. It's ridiculous throughout all of these, this concurrence slash dissents, ridiculous throughout all of the dissents that this example of illegal immigration is some newfound phenomenon that the ratifiers of the 14th Amendment that the Supreme Court in the 1890s could not have possibly conceived of because surely that would have been an exception to birthright citizenship. When, in fact, in the face of all possible exceptions that were considered and definitely known and definitely in existence happening, that Congress ratified the 14th Amendment anyway.

I'll add, Wang Kim Ark was about the Chinese Exclusion Act. Exactly. Which was the first federal effort to create a category of illegal immigration.

The Chinese Exclusion Act, we've said this on the podcast before, like the birth of modern immigration law. It is the creation of a population and to say they don't have status here. So this is contemplated. It's just it's ridiculous.

Yeah.

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Let's talk Clarence Thomas, baby. 91 pages.

It's Michael's moment to shine.

Guys, guys, this was brutal. This was brutal.

Our Clarence Thomas guy.

Over six years on this podcast, it's just been building, it's just been grinding for Michael to come to this moment where he can go off on a 90-page Clarence Thomas descent.

You know, I've said in the past that Clarence Thomas can actually be a very clear writer and a very persuasive writer.

Michael, I was just thinking about this. I was like, what has happened to this man? Yeah, right, right. Yeah, yes. 20, 30 years ago, his shit was good. It was tight, you know? Now, he's losing it, dude. He's fading.

Yeah, so it really highlights, like, how bad this opinion is and how I think outcome-motivated is that it's such a mess. Yeah. So I'm going to try to unpack it. I'm not going to, like, take the opinion in order because that would be, it would just take you on this like labyrinthine journey into the addled mind of Clarence Thomas, which we don't want to do. Here's the general gist. He says, we've talked about this, the language subject to the jurisdiction of. He says what that really means is subject to the complete jurisdiction, not just the jurisdiction, the complete jurisdiction. So of course, if you're in the United States, you're subject to the jurisdiction, you have to like follow the criminal laws, but you don't pay income taxes, right? Unless you are subject to the complete jurisdiction of the United States. He also says subject to the complete jurisdiction means domiciled within the United States. So he says really what this language is about is living in the United States.

Right. And by the way, the technical definition of domicile, like the one you learn in law school, is where you are and intend to remain. Intend to remain. Right? And it just sort of goes without saying in his brain and and alito's brain at least that people who are here illegally don't intend to remain but i'm like but a lot of them very much do very obviously do yeah that's what you hate right that's what you guys don't that's what bothers you about it they're not leaving that's why you're mad dude yeah because they won't leave that's why that's why you're pissed so then he

says well okay but the domicile thing like why is that in there and he says well really what that's about is allegiance and he says because here's the thing back then you know it was frowned upon things like dual citizenship were frowned upon and and allegiance to another flag another country another king or whatever that was you know considered bad and so the whole idea was this is how you establish someone had their allegiance to the united states is that they're domiciled here and when they're domiciled here they're subject to the complete jurisdiction and that

is what that phrase means. So now we've jumped three times. Subject to the jurisdiction, residence, domicile, where are you? And actually that means allegiance.

So you might think, hearing that chain of logic, that he starts with like a real dissection of the phrase subject to the jurisdiction of. You'd be wrong. He does not start with that. Now you might think, actually, well, he probably starts from the basics. Allegiance. It's all about allegiance at the end so he starts with allegiance and about the importance of allegiance and all that you would also be wrong he starts with domicile the middle step which is weird and you're like okay so it's a little out of order but then he moves to domiciled and then from there he moves to domiciled and then more domiciled and then it's just domiciled all the way through

He talks about domicile for so long, it's unbelievable.

I counted 325 mentions of the word domicile in his opinion, give or take, let's say three, because, you know, I was adding in my head as I went through the mentions. Unreal, dude.

That's more than three per page.

Yeah. I did a control F for allegiance.

and throughout all the opinions, it shows up like 150 times. And I remember being like, that's way too many. Yeah. That's way too many to be talking about a word that's not in the fucking clause.

It's so insane. This is an opinion about the meaning of the word domiciled, which again is both not a word that appears in the Constitution or at least in the 14th Amendment and is not, according to Thomas, the primary concern being addressed by the 14th Amendment. And yet it's a 90-page opinion about it. It's unbelievable.

There is something that I continuously thought reading every dissent, which is that all of their arguments can be rebutted very swiftly by just asking the question, if that's what they meant, why didn't they put it in there?

Why wouldn't they just say allegiance?

If it's all this shit about domicile and allegiance, then why isn't it in there? Why didn't they just pop it in there and clarify this? Why does it require you to unpack it for 90 pages in order to explain what they meant, right? Why did they rely on your ability to research a 90-page treatise about the secret hidden meaning of these words, right?

And Thomas is talking about this over 90 pages. That is longer than any debate about domicile or allegiance when this amendment was ratified by the U.S. Congress. They didn't even debate these words for as long as Thomas is insisting that it's the actual meaning of the 14th Amendment.

He spends a fair amount of time on the history leading up to this, which is sort of like I get you're like trying to establish like how these legal terms were understood at the time. But it also seems weird when, again, as we discussed, the statute and the constitutional amendment were meant to change the status quo of immigration and establish for the first time, like, this sort of broad understanding. So it's like understanding what the status quo was beforehand, that just tells you what's being changed, right? They weren't codifying that. That's the whole point is they were not codifying the preexisting understanding of citizenship. It's just wasted 15 pages of my time. Very extensive analysis of the different government powers over people domiciled within the jurisdiction versus people passing through. Again, sort of a non sequitur because, okay, that's the difference between being subject to the complete jurisdiction and only the partial jurisdiction. But again, it doesn't say subject to the complete jurisdiction. It just says subject to the jurisdiction. It says something, not what you want it to say. It says something different. Yeah. So what I think is going on here, if I had to put myself in the mind of Clarence Thomas, what I think is going on here is this. Obviously, the text of the 14th Amendment does him no favors here. If you want to hold that birthright citizenship is not sort of absolute, if this executive order is going to be upheld, you need to find some wiggle room there. You also have Wong Kim Ark in the way, because if you're a Mr. Originalist and original understanding and history and tradition and all that, a case from the 1890s has to have massive, massive weight. And so what do you do with that? And here's the thing. Wong Kim Ark does talk about the plaintiffs having a permanent domicile in residence in the United States. And this is what Thomas like clings to is he wants to turn that into like a foundational part of the holding to say this is actually what the case turned on. This is what was so important about the case, the fact that he was domiciled here. And so that's why his opinions about it.

That line in Wong Kim Ark is pretty clearly just dicta. Oh, for sure. But he disparages everything the majority relies on and the central holding of Wong Kim Ark. He says that's dicta. For our non-lawyers, dicta is something in an opinion that is non-binding. It's sort of, it's ancillary to the central holding and therefore it's not binding in the same way as other precedent, right? So it's just sort of like an irrelevant part of the opinion.

The sentence he cites from Wong Kim Ark that like mentions domicile, there's a weird like Westworld doesn't look like anything to me going on here. Because again, remember, he says domicile is important because it signifies allegiance. When you're permanently domiciled somewhere, that means you don't have allegiance to a foreign power. I'm going to read you this citation to Wong Kim Ark. It says, the question presented by the record is whether a child born in the United States of parents of Chinese descent who, at the time of his birth, are subjects of the emperor of China. but have a permanent domicile and residence in the United States becomes, at the time of his birth, a citizen of the United States. They explicitly have allegiance to the emperor of China.

He's saying his parents are citizens of China, essentially. They're Chinese citizens.

They have the allegiance, which he says is precisely what you're trying to avoid.

an allegiance to a foreign power having their children become a citizen it's right fucking that it's right there in his own quotation and he's just like he doesn't even mention it he doesn't even of course not which is wild this opinion drove me nuts so this is it's basically 90 pages of this like going around in circles and i do think like it's possible that he's just lost it like he's lost his touch and he can't write cohesively anymore but i do think there's a degree to which this is also just like, this isn't a good argument, right? It's not an argument that hangs together well. And so, of course, he's going in circles and going in circles.

Well, his whole thing is like, yeah, if you read that sentence, sure, it looks like there's birthright citizenship. But if you zoom out so impossibly far that all you can see is the abstract concept of citizenship, then maybe you can squint and see this thing that I want you to see, right? That's his whole goal. I think one of the funniest elements of his opinion is that he says very expressly, like, yes, this was meant to address Dred Scott and to grant freed slaves with citizenship, but only them, right? Only them. Only meant to grant them citizenship, and it wasn't meant to go farther than that. But that doesn't really click with the rest of his opinion, which is all about, like, allegiance and shit like that, right? Right. And this is something Ketanji Brown Jackson points out in her concurrence. Like, what allegiance do the slaves have to America at this point? How are you squaring that? And he just sort of lets these things sit side by side and never really lines them up.

One thing that'll have your head spinning if you're not, like, reading this very carefully is he does a lot of, like, what I would call square rectangle confusion, right? Like, all squares are rectangles, but not all rectangles are squares. And he sort of does that with like, yeah, some slaves deserved citizenship in some quotations from some people back then because they fought for the Union. But that doesn't mean all slaves got citizenship because they all fought for the Union. They didn't all fight for the Union. Some of them were conscripted into the Confederacy. Some of them didn't fight at all. But they all got citizenship, right? But he plays with this. He does this also with jurisdiction versus complete jurisdiction, right? He does a lot of this sort of like back and forth where he's like sort of switching between things in a way that's very confusing if you don't like really dissect it. But when you do dissect it, it just doesn't hang together. And it just ends up being a whole bunch of trepicked history to run around in circles to say, you know what? Birth tourism is evil and degrades citizenship, you know?

Yeah, yeah. Which he doesn't have the balls to say expressly, but Sam Alito does, which we'll get to. Yeah, yeah.

That is the Thomas 90-page dissent in as succinct and clear a way as I can offer it, which I think is doing it a lot of favors. I do want to mention Gorsuch writes a three-page dissent. He joins Thomas' dissent, but he writes separately to be like, A, I know I have a reputation for being woke sometimes. I want you to know I'm still kind of woke even though I'm joining this. His thing is like, look, to strike down this executive order, we have to say it's illegal in all instances. And I don't think it's illegal in all instances. I think it might be illegal in the case of like someone flying into the United States, having a kid and flying out like that might not be citizenship.

He's trying to create and Kavanaugh is hinting at this, too. It seems like they would be on board for legislation that says like a temporary visitors baby doesn't count. Right. Like someone who's just passing through or whatever, like something that's a little bit narrower than than Trump's executive order.

And he says, you know, this question isn't squarely presented to the court about like sort of long term undocumented residents of the United States. But he sort of muses aloud, like, if they're not domiciled here, where would they be domiciled? Right? Right. Which suggests he does think actually like under the Thomas rubric, like undocumented people who've lived here some sufficiently at the time would have their kids become citizens. So I'm still woke, even though I'm doing something really retrograde. Sorry, Gorsuch, no points. Zero points.

Yeah, don't got to hand it to him.

The Gorsuch dissent is at the end of the entire slate of opinions, and it's three pages. And it's like, you're like 190 pages in the Alito dissent raps, and you're like, finally. And it's like, oh, hi, I'm Neil Gorsuch with three more pages. You're like, shut the fuck up, dude. Shut the fuck up.

You're a fucking loser.

Do not write rhetorical questions to me. Where would they be domiciled?

Fuck off. Do not put rhetorical questions in my face, Neil Gorsuch. Fuck you. It's so Gorsuch. His whole life he's been doing this. You can just tell this is the type of guy he is, you know, so kind of a good foil, good response to the Justice Thomas madness is Justice Ketanji Brown Jackson's concurrence, which is joined by Sonia Sotomayor. So Jackson is writing separately here, obviously concurring in the judgment, upholding birthright citizenship, protecting.

meaning of birthright citizenship as it's written in the 14th Amendment. But she writes separately to really kind of correct the historical record, the fake historical record that Thomas is trying to lay out and Kavanaugh and the rest of them, honestly, as well. It's a strong concurrence. I think it really gets to the real history of the 14th Amendment and birthright citizenship. She quotes Eric Foner, who's this author historian who has written about the second Reconstruction, written about the Reconstruction era in the United States. And she talks about what the 14th Amendment was meant to do. And this is on record. This is what the drafters, the ratifiers of the 14th Amendment were doing, which is changing fundamentally on purpose, intentionally, and broadening the meaning of citizenship. It was defining in an expansive way what citizenship of the United States meant in a way that was different than it had ever been defined previous to that, right? And that was the whole fucking point. It was, in fact, part of the whole fucking point to the Civil War.

She uses like the words anti-caste and anti-subordination repeatedly. Yes, exactly.

Very KBJ, very standing up for this reading of Reconstruction as the second founding, right? And very expressly, Although I think she could have been even more aggressive, like pro-historian, almost being like, here's what historians say and contrasting that with just sort of like, and then there's Thomas. There's like Justice Thomas making up his own history, but he's not a historian.

Yeah, I think it really gets to something. And, you know, there are legal academics and kind of like legal historians who have written a lot about this. I would tell people to go read like Ruth Wilson Gilmore on the 14th Amendment and the history of the 14th Amendment and what it meant, not just to the formerly enslaved, but in terms of black citizenship and what citizenship meant that like this wasn't just saying, OK, you know, you formerly enslaved person. Yeah. OK, you're a citizen of the United States. Your kids will be citizens of the United States, whatever. It was actually like putting forth the 14th Amendment and including the birthright citizenship clause at the beginning of it, putting forth. And this is what Justice Jackson is getting at, putting forth this really broad vision, a positive vision of what it meant to be a citizen of the nation. In Reconstruction, and this is why Eric Foner calls it the second founding, this is nation building. The United States is building a nation and defining what it means to be a citizen of that nation. This wasn't just about giving the formerly enslaved citizenship in sort of like a technical, legal, formal sense, but saying the institution of slavery did something destructive to humanity, did something destructive to the Black family, to Black people's bodies, to the dignity of people. And here, in changing our constitution, we are doing something to right that. And we're actually putting forth this conception of what it means to be a dignified human person, a person who belongs to a nation, by giving them citizenship and defining what that citizenship means. It's much more deep than something like where somebody is domiciled. And it's much more expansive, in fact, than some sort of weird conception of where somebody's allegiances lie.

Well, I want to cut in because Justice Thomas is also concerned with the Black family, and that's why he believes we should ban rap music. Yeah.

I did like also Ketanji Brown-Jackson's concurrence. She starts it by noting that Clarence Thomas cannot shut up about the colorblind constitution, the colorblind constitution. Yeah. It doesn't countenance any difference between the races.

And then here, he's like, this is really just about black slaves. It's just black slaves. That's really all it is.

It's just this one race that people were concerned with. And it's like, wait, what?

It was Dred Scott and nothing else. It was literally the facts of Dred Scott. It was like Dred Scott on its facts. And that's it. Just that guy. Overturning that. And she rightfully is like, and look, it's not colorblind, right? Like this is not a colorblind amendment, but it's not limited. to black people in the least and you know you're just full of shit you know and and i want to point it out yeah and i really i appreciate that yeah she does a good job with them yeah she also does

not have any interest in engaging in any of this domicile bullshit like she just skips right past

it yeah she's like this is garbage this is garbage like she you know she's like we'll center the black voices that organized this we'll talk about the history that as i see it and it's the right history, and then we'll move on. Like, we don't need to do this nonsense, because it is nonsense.

Sam Alito writes a dissent which no one else joins. In some sense, he has a similar take to Thomas, where citizenship is sort of this allegiance domicile thing. He doesn't add a huge amount substantively. Thomas focuses on the history. He's trying to do originalism. Alito is like trying to prove his point with logic. He says, OK, so we know that the phrase subject to the jurisdiction excludes the children of diplomats and tribal Indians, and they are subject to a foreign power. And therefore, anyone subject to a foreign power is not subject to this jurisdiction of the United States and doesn't get citizenship. And this is just sort of a failure of basic logic. Like the kind of logic test you would give to someone to see if their IQ was above 85. Right. You know, like sharks are fish, tuna are fish. Are tuna, therefore, sharks? Sam's like, yeah. No, Sam. No. So keep at it.

No, let's look at the picture again. Keep at it, little homie. There's an old tweet it reminds me of that's like, cars have windows and can move and houses have windows and can't move. So it's not the windows that make the cars move. That is what Alito's opinion reminds me of.

Yeah, yeah, yeah. So the real crux of the Alito opinion is that it is full of explicit resentments and open political biases in a way that is hilarious. You have to admit it's funny, even if it's offensive. He read the Thomas dissent and was like, no, this is not racist enough. I'm just going to like read you a bunch of quotes from this. And this is in his opening paragraph. As interpreted by the court today, the 14th Amendment confers citizenship on virtually everyone who happens to be born in this country, including the children of birth tourists, women who come here solely for the purpose of giving birth to a child and then promptly return home. Careful analysis of the text of the 14th Amendment and the process that led to its adoption shows that it does not degrade the concept of United States citizenship in this way. So I feel like half the time conservatives are like, we're here to faithfully execute the law, whatever it may be. And then the other half, they're just like, oh, so a fucking Mexican can just have a baby here. And now and now it's a citizen. Right. Right. This is very Alito. When he is writing about a policy that he does not like, he can't write about it without showing his disdain. He can't pretend that he's like an unbiased judge. Right. Right. He has to say that birthright citizenship degrades the concept of citizenship. Right. Right. He wants people to believe that he is an unbiased juror, but he actually can't help himself in like a very real way.

His brain is so cooked. I don't know if he even sees how like much this sort of disqualifies him as a neutral arbiter using language like this. Like then he's like, this is why, this is why it's so obvious, right? It degrades your citizenship. Right, it degrades your citizenship. Of course. So of course it can't be in the Constitution.

As if, like, the ease with which someone else gets citizenship has any impact on mine or, like, the rights that it confers. It just doesn't follow. And also, like, even in their stupid understanding of citizenship, like, does the fact that a child born to a couple of losers who happen to live in America and be American citizens, does that degrade my citizenship? No, it doesn't. It's just you can cut it in every direction, right? He goes on, instead, the 14th Amendment confers citizenship on only those children who at birth owe allegiance solely to this country. Now, this is one of the problems with like the Thomas and Alito conception of citizenship. It seems like they predicate it on some combination of domicile, where you live, and allegiance. But they sort of dance around the fact that you're talking about a baby. children who at birth owe allegiance solely to this country you're on the supreme court and you're talking about baby allegiance yeah that's what you're doing right now brother it's a baby a baby doesn't owe anybody anything domcile like we mentioned is where you are and intend to stay right i've got a baby in the next room and she doesn't intend anything

there is nothing she intends she's got no purpose at all can't even see more than

seven inches yeah things happen to her but she's not intending any of it right it just happens

she's just experiencing there's there's no intending you want to talk about allegiance

let's talk about wife allegiance buddy what's your because last time i checked sam alito's wife was hanging an upside down flag in support of a coup a few years back what does that say about your wife's allegiance? How does that impact her citizenship, buddy? Right. There's a lot of wife allegiance problems on the Supreme Court right now, and they're very focused instead on baby allegiance, which doesn't exist.

I also, to be serious for a moment, I do think...

think like this also highlights how unworkable these definitions are and like roberts mentions this and like thomas sort of shrugs it off and i think alito does too i don't i don't remember but like where someone's domiciled is not always clear and what someone's allegiance is is not always clear and so what this does is invites literally litigation about citizenship right about where you're domiciled or what your allegiance is thomas is like shrugs this off He's like, well, domicile is like a well-understood concept in the law. And it's like, well, that's not the – the question isn't whether the legal definition is clear. The question is whether it's easy to apply to people. And the answer is no, especially when part of it is your intention and whether or not you intend to stay somewhere. And that is going to be a subject of factual dispute, right?

And if you're saying that the domicile is sort of – it's really just evidence of allegiance, which means that the government could say, well, we don't think that you do have allegiance to the United States. Right. And so we're going to question your citizenship or the citizenship of your children. Right. Right.

All of the conservatives here, you see it in Thomas, you see it in Alito especially, what they're all trying to do because the conclusion they want to draw, the conclusion they reach is so obviously wrong. They have to do this. What they're forced to do is be both so narrow in trying to be concrete, which is hyper fixation, hyper focus on things like domicile, but also have to be so broad as to be magical around allegiance, right? And what you end up having is actually a definition of citizenship that is meaningless. You are talking about magical things. You are making stuff up. You are screwing up, like traumatizing the meaning of words. You're doing bad law. You're doing terrible, really dumb analysis. And what do you get out of that? This thing that you are trying to protect and laud and, like, hold up on this pedestal as being, like, so important in terms of American citizenship. What you've done to it is made something meaningless. You're talking about nothing. This is garbage.

Yeah, and I don't want to give them too much credit. They're, like, not overlooking the fact that this makes citizenship turn on, like, things like your subjective intent to stay in a place or what's in your heart about your allegiance. Like, that's the point. The point is to be able to call into question anybody's citizenship. Yeah. That's the point here. They just don't want to say that out loud.

Alito says that United States citizenship is precious. And I guess what he means is like, we shouldn't dole it out so freely, right? As if I want his people to dole out citizenship. The idea that they're embracing is like, what if we took this simple rule that has very concrete output, right? If you're born here, you're a citizen, and replace it with a series of abstraction so vague that no two people could possibly agree on what they mean exactly what if we did that does that sound good does that no no it doesn't sound good does that sound like something you would do with something that is precious no of course not that's not what they mean what they mean is like i think there are too many fucking citizens running around right yeah and i'm gonna read you one one last week from alito he says the court's interpretation also has national security implications suppose that a person's only connection to this country is that he was born here to a mother who was present just long enough to give birth and then quickly returned to our native country. Suppose that country is a strategic adversary or enemy of the United States. Suppose the child never visited the United States while growing up and was inculcated with hatred of this country. According to the court, that person is a citizen of the United States. He can enter and leave the country as he pleases. He can travel the world on a United States passport. Even if he plots to harm this country, he cannot be deprived of his status as a citizen, at least under current precedent. It's like, I'm sorry, do you want to charge this fake person with a crime or do you want to shut the fuck up and suck my dick, dude? Like, what are you talking about, bro? Is this guy plotting against the country? You've just made up a

fictional... Does he take any steps on the plot? Is he compiling money? Is he building a bomb or

is he just traveling the world what about this what about this two american citizens domiciled in the united states give birth to a baby but they teach him to hate the united states yeah

yeah oh my god oh my god i've i've flipped it on you sam how are you gonna handle this one dude

you're telling me we can't strip them of citizenship like that's it's outrageous it is

the funniest part of this is that he acts like we are actually undoing precedent at several points during his opinion where he's sort of like this is going to cause problems for america it's like dude this is how it's been for 170 years what are you fucking talking about right right it's so

interesting how like you peel back just one layer or you just spend a little bit of time in the mind of these guys which is when they deign to like actually write out an explanation of their thoughts Thank you.

Like really how old world their thinking is like the concept of like liberalism, like liberal democracy, democratic republic, whatever. Right. Like every individual born with certain rights. Right. Individual rights, equality, freedom, liberty, blah, blah, blah, blah, blah. Like what Sam Alito is talking about here is like more like a nobility system and like the noblesse oblige, like Anna Law was talking about this as well. Right. Which is like, no, actually, there's a certain class of people who have power and they have rights. They pass it down through their children, just through their bloodlines. And then they have certain special obligations, honors, traditions that attach just by virtue of their being in that class and being part of that bloodline. You know what I mean? This is how folks in the 1600s in England and France are talking about things. That's what Alito is talking about here. And it's just that fucking stupid and magical.

Paul. His whole like birth tourism thing, right? He's doing like edge case constitutionalism, right? Where you just, you imagine this edge case, this thing that happens probably quite infrequently. We don't really know. Sam Alito doesn't even pretend to know how often like birth tourism happens, right? And he acts like we should sort of build our constitution around it. Like, oh my God, what if one person every now and then pops into this country and has a baby

just to get them citizenship? There are 3.6 million babies born here a year.

I mean, well, what I mean, what are like he doesn't even explain the policy downsides except for this hypothetical person who is like an enemy of the United States.

Right. Exactly. Explain what the problem is then, Sam.

OK. And what if they're not an enemy of the United States where they're just a person like what's the problem? You can't tell me how frequently this is happening. You can't even tell me why it's a problem. But it's sort of like, you know, he's got he's got this sort of like it's it's better no one gets citizenship than one birth tourist go free. Like that's his sort of that's his angle here. And by the way, birth tourism is something that like the State Department works to prevent. They can deny visas because they're like, we think you're doing birth tourism. We think you're just here to have a baby. Right. That's not impacted by the 14th Amendment. Right. Right. That's that's something that the State Department right now has the authority to do. So, like, there were already ways of addressing this.

Right. The birth tourism thing, too, as like some sort of exception to the birthright citizenship clause is also a historical because, OK, Sam Alito, like you're saying, like the folks who ratified the 14th Amendment could not have conceived of that possibility as well. like oh if they had just thought about the possibility that somebody would come to the united states and then the baby they have is an american citizen what like he's like it's like yeah by the terms of the thing that they are ratifying yeah right this is a possibility and everybody's okay with it sam except for you he's just like hey i've thought of one possibility

that maybe the people who wrote the document didn't so let's just scrap it like that's not how it works dude you don't get to do that and like we said up top regardless of what happened here i got my baby in at the buzzer all right birthright citizen whether you like it or not and i'm not gonna let some fucking italian run run my beautiful daughter out of this country

i do think before we wrap it's worth mentioning like the stakes here you know reminding our listeners that some pretty horrific things are being done to non-citizens right now in this country, right? Being thrown into concentration camps. In the recent past, family separation policies, you know, purposely trying to prevent people from leaving water out in the desert so that people just dehydrate and die trying to get into this country, being sent to horrific slave labor camps in El Salvador. Just really horrendous stuff. And it would only get worse were this legal regime to be put in place. The second the fascists who currently control the government get to question their political enemy's citizenship and drop their political enemies into a bucket of non-citizens, you better believe they're going to start expanding the sort of horrific shit they can do to non-citizens absolutely this is not just about quote-unquote birth tourists or even undocumented people this is about yeah everyone this throws everybody in this country that does not have a piece of paper saying they're naturalized citizens is a birthright citizen right that is the vast vast majority of the 350 million people

who live here. Yeah. Our producer pointed out that there was some media coverage of oral argument in this case, where the newscasters were like, oh, it's kind of beautiful that this was argued by a birthright citizen. And it's like, no, no, no, that's probably you too. Yeah. Right. Like, yeah. Right. It gives the impression that a lot of people might have been observing this thinking that this is just about some marginal community, some very nominal number of Americans. No, if you were born in the United States, your citizenship rests on this. If they strip it away, your citizenship is unprotected in a way that it wasn't before.

This potentially revolutionizes the way this country works. It just essentially nullifies the entire constitution and any semblance of rights you have, because you can always just be plopped into a bucket of non-citizens where none of that shit applies to you anymore. And again, as Peter said at the top, this was five to four. This was one vote away. Republicans currently have the presidency in the Senate. If John Roberts has one of his mystery seizures again and dies this summer, they could replace him with the vote to make this go the other way. If Republicans hold the Senate in the 2026 midterms, they'll have two more years for Sonia Sotomayor to have a health scare, for John Roberts to have a health scare. To anybody in that five-vote majority to need to retire for one reason or another and replace them with the fifth vote to overturn birthright citizenship. The odds get worse if they hold the presidency in the Senate in 2028. Like, this is a five-alarm fire. The fact that this was one vote away should be lighting representatives and senators and pundits' hair on fire. Like this should be a fucking national emergency that is like we need to address this because they are this fucking close to fundamentally remaking this country.

And by the way, what are like Democrats doing? Well, Chuck Schumer put out a post that was just like the Supreme Court gets it right.

Yeah.

Brother, you don't understand what just happened.

No, not only did they get it right, he said that they stood up to Trump's bullying. It was valedictory to the Supreme Court.

The Washington Post called it overreach. That was the Washington Post editorial board, which, to be fair, is full these days of some of the dumbest people in America. But still, there has just been a complete lack of reckoning with what just happened and the stakes moving forward. All right, folks, next week, premium episode, we're going to be engaging in what is now basically an annual tradition where we assess the media reaction to the Supreme Court term that just passed. And it almost feels like it got worse, in part because the Washington Post editorial board has been taken over by some of the dullest people on earth. But we're going to dig in and we're also going to take a glance at some of the justice's latest financial disclosures.

Five to Four is presented by Prologue Projects. This episode was produced by Allison Rogers. Leon Nafok provides editorial support. Our website was designed by Peter Murphy. Our artwork is by Teddy Blanks at Chips NY. And our theme song is by Spatial Relations.

The Salem Witch Trials did not go far enough.