I'm Austin Mitchell, and for the past couple years, my colleague Azeem Gireshi and I have been reporting on the story of medical care for transgender kids, where it came from, the lives it changed, how it became a protocol that spread around the world, and how the politics and a Supreme Court legal fight now threaten its existence.
You can hear that story on The Protocol, a new six -part series from the New York Times.
Listen wherever you get your podcasts.
Well, this was a big one, wasn't it?
This was a big decision.
From The New York Times, I'm Rachel Abrams, and this is The Daily.
This morning, the Supreme Court has delivered a monumental victory for the Constitution, the separation of powers, and the rule of law.
In a major ruling on Friday, the Supreme Court limited the ability of judges to block President Trump's policies nationwide.
including his order to end birthright citizenship.
I'm grateful to the Supreme Court for stepping in and solving this very, very big and complex problem, and they've made it very simple.
The ruling was immediately cheered by the president.
It is a big blow to our ability to enforce our rights.
While critics have decried it as a fundamental threat to the rule of law.
But this is just chaos that they've unleashed in the judicial system for no reason at all.
That kind of ruling establishes not just an imperial executive, but an imperial Supreme Court.
Today, my colleague Adam Liptak explains how the ruling redefines the role of the courts at a moment when the White House is aggressively testing the limits of its power.
It's Monday, June 30th.
Adam, we're talking to you just a couple days after the ruling by the Supreme Court in this birthright citizenship case.
And the ruling has pretty big implications, not just for the case, but really for the role of the courts and also for a presidency that has been testing the limits of its power and of the law since President Trump took office back in January.
Yeah, the decision has a lot of moving pieces, Rachel.
And as you say, it's nominally about birthright citizenship, but really it's about the power of the courts to check the president.
And the court gave President Trump a big victory.
It severely limited the ability of lower court judges to stop him from pursuing his ambitious agenda.
agenda. Can you just remind us, what are the basics of the case, and how did the court arrive at the decision that it did?
So on assuming office, President Trump issued an executive order purporting to put an end to birthright citizenship, a fundamental constitutional value in the 14th Amendment that says if you're born in the United States, you're a United States citizen.
And that's a very bold thing.
It was promptly challenged, and three different federal judges in Maryland, in Massachusetts in Washington state, issued preliminary injunctions blocking the executive order.
And the case makes its way to the Supreme Court.
The lawyer for the Trump administration does something odd.
He says, I'm not challenging in the Supreme Court the constitutionality or not of birthright citizenship.
But I think these lower court judges did something wrong.
They issued what people called nationwide injunctions, sometimes called universal injunctions.
And just remind people what that means exactly.
A universal injunction goes beyond the parties to the case.
It says, I'm a judge, I rule in your favor, and because you're right that this government policy is unconstitutional, I'm going to give relief not only to you, but to everybody else affected by the policy.
And that is a fairly recent development that there should be such broad injunctions.
Let's remember, Rachel, this is not the only executive order that courts have found unlawful.
There have been more than 25 universal injunctions on the president's efforts to shut down agencies, to cut funding, to fire federal workers, to bar transgender service members, to deport hundreds of thousands of people.
People, this is a major, major clash between this administration and lots and lots of federal trial court judges.
And as you said, the White House came to the Supreme Court not asking them to rule on whether the executive order on birthright citizenship was constitutional, which I suspect they think they don't really have a good shot of prevailing it anyway.
Instead, the government is coming to the Supreme Court with the intent of going after these nationwide injunctions.
Yeah, the consensus view of legal experts is that the administration's arguments on birth right citizenship as such are quite weak.
So they thought, what the hell?
We will do what many other cases have done, ask the court to decide whether nationwide injunctions are proper.
No presidents like nationwide injunctions.
The Biden administration didn't like them.
The Trump administration didn't like them.
And this was, I don't know, the third, the fourth time they've asked the court to hear the issue.
And it was a surprise when they did, because it doesn't seem like the perfect vehicle to decide the question.
This case has a lot of complications.
And yet the court nevertheless issued this major ruling, giving President Trump and other presidents a lot of power to do stuff unchecked by the lower courts.
And so basically, this ruling makes it so that all those other cases you just mentioned, where judges issued universal injunctions that apply to the whole country, All of that could be moot.
The Supreme Court is basically taking a huge power away from the lower courts.
That's right. Adam, I want to understand the ruling a little bit more, and specifically, can you help us understand the majority's legal reasoning here?
How do they explain why these nationwide injunctions were so problematic?
The majority opinion is written by Justice Amy Coney Barrett.
It's the biggest decision of her career.
It's quite a surprising assignment for such a junior justice to get.
She writes for the six -justice conservative majority, all of the Republican appointees.
All three of the Democratic appointees are in dissent.
And her argument is kind of a classic originalist take on the question.
She says that when Congress passed the Judiciary Act of 1789, it gave courts some powers, but it didn't give them this power.
And it looked back at English law, and basically, it was what conservatives often go to, which is tradition and history, and less what's the better way to address an executive who is claiming huge powers.
So let me read you a couple snippets from the decision.
Justice Barrett writes, universal injunctions were not a feature of federal court litigation until sometime in the 20th century.
She goes on to say they remained rare until the turn of the 21st century and that one study has identified approximately 127 universal injunctions between 1963 and 2023.
23. But 96 of those, over three quarters, were issued during the administrations of George W.
Bush, Barack Obama, President Trump, and President Biden.
So she makes the case that this is a recent concoction and therefore, under originalist thinking, quite suspect.
So focusing on history, she says, the bottom line, question mark, the universal injunction was conspicuously non -existent for most of our nation's history.
Had federal courts believed themselves to possess the tool, surely they would not have let it lay idle.
So basically, Justice Barrett is saying, look, I've looked into the history of what our system from the start envisioned as the power of the federal courts, and it is not a system in which a single district judge can block the actions of the president for everybody in the country.
That's just way too sweeping a power to give one particular judge.
Right, so she's arguing that that the two dozen or so universal injunctions issued since Trump took office for the second time are a vast overreach by federal judges who are claiming a power they do not possess.
Does she have a point here?
I mean, what you've just outlined does make some sense to me on paper.
Yes. Lots of people think there are good reasons to be wary of universal injunctions.
Another way to think about it is someone should decide whether these programs are lawful, but maybe that should be the Supreme Court and not a judge who may have been cherry -picked by the litigants.
On the other side of the balance is we have a president here who is issuing a really aggressive set of initiatives that will upend the way the nation works and that many people would say needs a prompt judicial reaction and needs to be paused while cases go forward. Otherwise, the executive orders could be irreversible.
The idea here being, in other words, that this president, as we've mentioned, has been testing the boundaries of the law so frequently and in so many ways that you need the tool of universal injunctions.
Right. And remember, too, these are provisional rulings.
These just freeze the status quo while the case goes ahead and the merits will be decided eventually.
And the question is, if Donald Trump wakes up one morning and issues an executive order, Does that like presumptively stay in place for a couple of years while the case wins its way through the courts?
Or can a federal judge have an early look and say, you know what, I don't think this is lawful and I'm going to give it due consideration.
But in the meantime, I'm going to freeze the status quo.
Well, that's what I have a question about, because let's say he does issue an executive order.
If this tool of universal injunctions is not available, what, if anything, does Barrett and the rest of the majority say could take its place during the whole process of figuring out whether something is legal?
Justice Barrett did say there were a few alternative routes to get to something like the same place.
And the main one she focused on was class actions.
A class action is a kind of case where a few named plaintiffs represent a whole class of people.
And if they win, all of those people get the benefits of the court's ruling.
And that kind of approach, nobody disputes is lawful.
Now, class actions are cumbersome.
The Supreme Court has been trying to cut back on them.
But that is the primary vehicle that Justice Barrett suggests could be an alternative to universal injunctions.
So what does this ruling mean altogether for the executive order to end birthright citizenship?
Well, there's an interesting wrinkle.
The court says its ruling will not go into effect for 30 days.
And that means that challengers are going to scramble on at least a couple of different levels.
We've already had two class actions filed on Friday, the same day the decision came down.
There's a decent chance that one or more courts, again, shut the thing down across the nation.
But if that doesn't happen, we're going to end end up in a weird, curious world.
22 states challenged the birthright citizenship order, and they won.
And those victories remain in place.
So if at the end of 30 days we don't have any movement, we'll have a patchwork with 20 -plus states having a system where children born there are citizens and in the rest of the country not.
Okay, but just to be clear, this whole issue of patchwork system could be totally moot in the short term and in the long term, right?
Because theoretically, some case could wind its way up to the Supreme Court that is directly about birthright citizenship and whether it is constitutional.
And as you've said, it seems likely that the Supreme Court would rule in favor of keeping birthright citizenship and against the president's executive order.
So in that instance, this whole birthright citizenship issue, that just gets put to rest. Everything reverts to the way it was for 160 years.
However, the issue of overturning nationwide injunctions would remain.
And that brings us back to the point at the beginning of the conversation that this case is about something much bigger than just whether you are a citizen if you were born here.
Do I have that right?
Right. I mean, this case arises rises against the backdrop of a president who is pushing the most aggressive program in living memory, perhaps in American history, testing the boundaries of the law.
And the three dissenting justices wrote scathing dissents in which they said the majority had taken a profound wrong turn in formal historical analysis at the expense of the reality of withdrawing the main tool that judges have used to keep this very aggressive administration in check.
I've read a lot of dissents in my day, and these dissents from the three Democratic appointees were really harsh and really thought that democracy was in peril.
We'll be right back.
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support for this podcast comes from good rx good rx can help you save money and better manage your health this summer good rx lets you compare prescription prices at over 70 000 pharmacies and instantly find free coupons you can find big savings at the pharmacy for the whole family pets too good rx is not insurance but maybe your copay if you do have insurance save at the pharmacy this summer go to good rx .com slash the daily Adam, as you mentioned earlier, the ruling was 6 -3, with the court's three liberal justices dissenting pretty ferociously, actually.
Can you explain the response and why it was as strong as it was?
Well, the main dissent was written by Justice Sonia Sotomayor, joined by Justices Elena Kagan and Katonji Brown -Jackson.
And Justice Sotomayor did something that justices very seldom do.
She read major portions of her dissent from the bench, which is a sign of profound disagreement.
She thought the court had gone badly astray.
Let me just give you a taste of her opinion, Rachel.
She says, no right is safe in the new legal regime the court creates.
Today, the threat is to birthright citizenship.
Tomorrow, a different administration may try to seize firearms from law -abiding citizens or prevent people of certain faiths from gathering bring to worship.
The majority holds that, absent cumbersome class action litigation, courts cannot enjoin even such plainly unlawful policies.
So she sees a very broad threat to all kinds of freedoms, and not only freedoms that conservatives like or liberals like, but to the very texture and nature of the American experience.
So Sotomayor, clearly not satisfied with the alternatives, including class actions, that Barrett and the conservative justices have suggested here.
And she also sees this as setting up a terrible precedent that could be taken advantage of by future administrations.
That's right. But Justice Sotomayor is meeting Justice Barrett on the legal arguments.
A separate dissent, maybe an even hotter dissent, comes from Justice Ketanji Brown Jackson writing only for herself.
And she says the majority's decision lets the executive branch violate the Constitution with respect to anyone who hasn't sued, anyone who's not a party.
And she says that's, quote, an existential threat to the rule of law.
Justice Jackson makes the point that the majority creates kind of a two -tiered system.
There are people with money and lawyers and the wherewithal to go to court and get relief.
But a lot of people don't have that.
And she says that's a real flaw in the court's reasoning as well.
So it sounds like Jackson is basically saying, we're in a new legal world here with this ruling.
Lots of Americans will have their rights violated by the president.
And the only way that they can fight it is if they sue the government, which most people just do not have the time or the resources to do.
And they're going to be forced to do that because these injunctions are no longer here to protect us against executive branch overreach. And so effectively with this ruling, all of a sudden, all of us here in the United States would have to become legal combatants essentially to protect basic rights enshrined in the Constitution.
Yeah, I mean, her language is just this side of apocalyptic.
She says the majority's complicity in the creation of a culture of disdain for lower courts, their rulings and the law will surely hasten the downfall of our governing institutions, enabling our collective demise.
So clearly she's not mincing her words.
Indeed. And Justice Barrett did not appreciate that commentary.
And here we saw really a quite unusual thing, where the two most junior members of the court were really going at each other And in tones that were quite remarkable, Barrett, writing for the majority, says, we will not dwell on Justice Jackson's argument, which is at odds with more than two centuries worth of precedent, not to mention the constitution itself.
We observe only this, Justice Jackson decries an imperial executive while embracing an imperial judiciary.
Wow. Can you just translate that for us, Adam?
Yeah. Barrett is saying that the majority ruling is modest. It wants to stop judges from being activists.
It wants to keep everyone in their own lanes.
And according to her, Justice Jackson wants judges to decide everything, even things that ought to be decided by the elected branches.
Like, she's basically saying Justice Jackson doesn't want an imperious president, but she's perfectly happy with judges overreaching.
That's her view. But they're operating on two different levels.
One side is saying, and you can find this persuasive or not, but Justice Barrett is saying, you look at the legal materials, you look at history, you look at tradition, you look at the governing statute, and you come to a conclusion.
And Justice Jackson is saying, the conclusion you have led us to is one in which the President of the United States can largely do whatever he wants.
Basically, you guys are minding the details, but you're ignoring the practical realities of your decision.
Right, but Justice Barrett feels that the upshot of Justice Jackson's dissent is actually to give too much power to the federal courts.
And Barrett quotes Justice Jackson's own words against her.
Barrett says, Justice Jackson would do well to heed her own admonition.
And then quoting from Jackson, everyone from the president on down is bound by law.
The suggestion being that the dissenters also need to follow the law.
Wow, it really sounds like Barrett is basically throwing Jackson's words back in her face.
Is it usually this pointed and personal?
Well, back in the day before Justice Antonin Scalia died in 2016, he could write a biting sentence.
But even then, there was an element of playfulness and humor to it.
This seemed quite raw.
It kind of feels like in this back and forth between Jackson and Barrett, that this is actually fundamentally about the power of the president versus the power of the courts and the balance between the two of them.
That's right, Rachel, although I would draw a distinction.
It is true that the majority amplifies executive power, presidential power, the power of President Trump.
And it's true that the dissent wants federal trial judges to be able to judge the lawfulness of Trump programs. But the place I might draw a slightly different distinction is I don't think the Supreme Court is eager to give up any of its own power.
While it doesn't think that lower court judges get to have the last word vis -a -vis the president, it at least wants to reserve for itself the right to do that.
But at the same time, this is a court for the second term in a row on the last day of the term by a 6 -3 vote manages to profoundly amplify presidential power.
Last year, they'd ruled in favor of then presidential candidate Trump on the question of whether he was largely immune from prosecution.
And in the the process sketched out a vision of a bold and energetic president unchecked by law in many realms. And this year, it kind of vindicates and even further amplifies that vision of the presidency by saying that judges around the country can't tell the president what to do.
And in both of the cases, the majority says, we are talking about the nature of executive power.
It applies to all presidents.
It's not about any particular president.
But at least in the short term, it has profoundly helped President Trump.
Right. It seems not unreasonable to say that it's difficult to divorce the two.
Given this new understanding of presidential versus judicial power, if you are President Trump, what becomes possible now that this ruling has been issued that perhaps was not possible before?
Well, for starters, he faces a couple dozen universal injunctions, and I think he might well be able to go to court and get some or all of them dissolved.
On issues, just to be clear, like firing federal workers, defunding federal agencies that you talked about earlier.
That's right. Adam, do you think that there's any chance that the government's goal all along with this birthright citizenship executive order and the obvious challenges that were going to come Do you think that they intended from the beginning that this was going to be something that would ultimately help them not end birthright citizenship, but expand executive power the way that you have just explained?
Right. Well, whether this was strategic brilliance or happenstance, what transpired was that the administration gained one of its most dearly sought goals, which is not to let judges block its initiatives and programs and judge the lawfulness of the Trump agenda.
Now, the immediate consequence of the court's ruling might be a lot more litigation because it may be that a lot of individuals are going to feel they need to have to sue because they don't have the benefit of universal injunctions.
But the big picture is we have a president who's quite happy with the Supreme Court.
so we see a kind of close relationship, a dynamic relationship between the president and the Supreme Court with the president claiming unprecedented powers for himself and the court not only not standing in his way, but generally opening the door.
Adam, thank you for spending part of your weekend with us.
It's good to be here, Rachel.
Thank you. We'll be right back.
Here's what else you need to know today.
On Sunday, the Senate started debate on President Trump's domestic policy package.
package. It's not clear if GOP leaders have enough support to pass the measure by their deadline of July 4th.
Although many Republicans hailed the tax cuts and reductions to Medicaid and other social programs, Democrats universally assailed the bill, which a new analysis says would add at least $3 .3 trillion to the federal deficit over the next 10 years.
And Republican Senator Tom Tillis of North Carolina says he will not seek reelection in part because of his opposition to the bill.
His announcement came a day after President Trump threatened to back a primary challenger against him because Tillis would not fall in line.
His departure is sure to set off a competitive race in North Carolina that could be pivotal in the battle for control of the Senate.
Today's episode was produced by Diana Wynn, Rochelle Bonja, and Rob Zipko.
It was edited by Patricia Willans and Rachel Quester, contains original music by Alicia Baitube and Marion Lozano, and was engineered by Alyssa Moxley.
Our theme music is by Jim Bunberg and Ben Landsberg of Wonderly.
Special thanks to Michael Barbaro.
That's it for The Daily.
I'm Rachel Abrams. See you tomorrow.
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