Constitutional Law Expert Discusses Court Term

The Supreme Court affirmed birthright citizenship for Americas. A majority rejected a campaign finance restriction. and the court upheld a ban on transgender students in girls sports. I'm Michelle Martin with Steve Innskepe and this is a special episode of Up firstirst from NPR News. The courourt rejected President Trump's bid to deny citizenship to some children born in the US. The president had personally attended arguments in trying to overturn the language of the Constitution Republicans won a different case that lets the party spend money in coordination with individual candidates. and the court combined two cases on transgender athletes. States may require students to play on boys or girls teams based on biological sex. What do the decisions reveal about the court and the country? Stay with us. We've got an analysis of today's rulings Supremeourt has issued the final decisions of this term. The court ruled that President Trump's executive order trying to limit automatic citizenship to babies born in the US is unconstitutional The court also struck down limits on how much political parties can raise and spend on candidates and it let states ban transgender girls from participating in sports at publicly funded schools Joining us to talk about today's decisions are NPR Supreme Court and justustice correspondent Carri Johnson, legal affairs correspondent Nina Tottenberg, and senior national political correspondent Mara Lason Nina, I'm going to go to you first Let's start with a birthright citizenship decision, eagerly awaited decision by all parties. What struck you about the decision It wasn't a surprise that the Supreme Court struck down President Trump's exxecutive order that would have denied citizenship to babies born in the United States who were here whose parents were here illegally or even legally on visas. Every judge up until today who had ruled on it had struck down his executive order, and it never as a result went into effect But today, by a six to three vote The court reached the same conclusion that the citizenship clause covers babies born in the United States and guarantees them automatic citizenship. And the author of the opinion, of course, was the Chief Justice John Roberts. And it was very interesting his delivering the summary of his opinion because he went out of his way trying not to antagonize President Trump by saying that much of what this administration argued in the court was the same thing. However, at the core at the end, he said dating back to British citizenship, which was guaranteed to American colonists, and that's where they got the idea that everybody born in the US should be American citizens. That from the founding of the fourteenth Amendment and dating back even to the ideas of the seventeen hundreds, means that anyone born on US soil is guaranteed U. S. citizenship. You know, what do you make of the fact that the justices were split on this ruling? Given, as you said that every lower court has ruled in this way, that the fact that the court was split at this level, what does that say to you It tells you just how conservative this court is. You could even say in some ways that this was a five to four ruling because Justice Kavanaugh did not sign on to the Chief Justice's opinion He said, look, Congress legislated this in the nineteen fifties. So it legislated the same thing. so I agree that children born on U. S. soil are automatic U. S. citizens. But he didn't sign on to his reasoning about what the founders intended in the Constitution. Just briefly, though, Nina, you were in court today when the opinions were read. Could you just describe what that was like? You were telling us that an earlier decision day, there was some sort of unusual tension manifest among the judges. So what was it like today You know, there was at least one disscent from the bench, but it was not like the other day. It was much more normal and it is the last day of the term for all practical purposes and therefore Everybody is just ready to flee. All the justices are ready to flee. They've working there tails so off part in the expression for the last two or three months to get everything done. And it's been a very, very contentious term. And you don't have to be a genius to know that these folks don't particularly get along. They got along enough to get to the end of determ and get it done by the end of June. And this was a calmer court today getting ready to Leave town, I would say. We're listening to NPRs Nina Totenberg at the Supreme Court and Nina, when you say the phrase working their tails off, I immediately think of Nina Totenberg working all those years at the Supreme Court. NPR's Carrie Johnson is also covering this case. She is here in stududio thirty one or I should say, covering this day of rulings, Karri because we have these separate rulings on the issue of transgender kids in sports. What's the decision? This was a decision in a combination of cases, one from West Virginia, another from Idaho with respect to trans students participation in women and girls sports at the high school level and the college level. Just as Brett Kavanaugh wrote the majority opinion in this set of cases, he said schools that receive Federal funding for education programs can determine eligibility for women and girls' sports teams based on biological sex. That's important because about half the states have enacted bans that would not allow trans girls and women to participate in these sports. The Supreme Court majority, led by Brett Kavanaugh, now says those bans are totally fine. They can stay in effect at issue two separate laws. Title nine, which is an important law that governs federal funding for education programs and prohibits discrimination on the basis of sex, as well as the equal prrotection C cllause of the Constitution. Can I just add one thing? Go right in? Sitting the Justice's box today. were Justice Kavanaugh's wife his mother and his two teenage girls. and he has been their coach in various sports for years and he's a big sports enthusiast. So it was no accident that he talked so passionately about what sports do for young women and what Title IX did for young women and stressing his argument that it is only because of concerns about safety and undue influence on competitiveness, that he and the court reached this decision. Karerie Johnson, Nina makes a point there that reminds me that the opinions on this are not split on straight partisan lines. There are lots of people who would consider themselves liberals who had a problem with trans girls in sports It's a complicated issue in terms of the culture wars and the Trump administration and the MG movement have really been on the offense on several of these culture war issues involving trans Students and adults for that matter. Care, let me ask you about another consequential decision reached this morning that loosened campaign finance restrictions. So briefly tell us about this decision, and what impact could that have on political campaigns with several primaries left and the midterm elections in November? Yeah, this is another important decision considered to be a very big victory for the Republican National commommittee which had pushed quite hard to get rid of limitations on coordination with candidates and spending for advertising dollars. somethingomething that our colleague Mara Eason says the RNC could put into effect within the hour. Important because it continues this trend of the Cervative Supreme Court viewing these issues on the lens of the First Amendment, that this is free speech, that this money counts as free speech dating all the way back to Citizens United. And in fact, former Senator Russ Feinwoldt of Wisconsin, a Democrat who, if you've been around a long enough to know, he passed an important campaign finance law with John McCain back in the day said this is the latest in a series of bad decisions by the Supreme Court that's flooded the political system with unprecedented amounts of money, leading to potential corruption and the idea that billionaires can buy politicians. I'm glad you mentioned NPR's Mara Lyson, because she is on the line with us to analyze the politics of this a little bit. And Mara first, let's talk about that birthright decision huge but not surprising defeat for President Trump. How is he likely to take this I think we're waiting for an angry truth social post at the moment But I think he'll say that he's going to continue to fight for this I think that that's the message he wants to send to his megabase. Remember this was his first executive order, the very first one that he did on his first day in office So he'll keep on pushing for this. But for the moment, you could argue that it was a political win for him in another way because he doesn't have to deal with the chaotic consequences of getting rid of birthright citizenship right before an election Interesting point. And so there's not the blowback. He gets the message. He gets the message. He gets the messaging that he wants to the people who support that message. Let me ask now about the campaign finance case. The president has responded to this one B big win for Republicans. And and I it's be hard to disagree with them on that one. Go on and big win for Republicans, Republicans have a lot more money. This makes it easier for them to spend it. h They don't have to use the old rules of no coordinating with candidates. They also are going to get lower rates to buy political ads on television. I guess this hurts somebody who owns a local TV station. But yeah, it's very much in concert with other things that this court has done around campaign finance. They believe that money is speech And so that wasn't much of a surprise. I think in all, when you look at the whole term, and I'd be interested to see what Nina thinks about this, it was a pretty successful term for him. Executive power got expanded, and that is what he's been pushing for. this is a court that believes in the unitary executive. They got rid of Humphrey's executor, which means that he can fire people without cause who are in heads of federal agencies. They haven't ruled yet about the Fed They seem to think that's a kind of special case. But that's they held it off for now. Let me just bring in Nina Totenberg. Nina, how would you assess this term if it was asking how it looks for President Trump We would say that with the exception of Birthright and the Tariff case, this was a gonzo term for Trump He won most of everything he wanted E on tariffs, as everybody always knew, there are some ways around it, even though someome of those may be limited. And when it comes to birthright, Mara's right, and everything else pretty much that he wanted, he got. and this is a support that by a six to three majority is devoted to the idea of executive power, and it has strengthened it over and over and over again You're listening to a special bonus episode of Up firstirst from NPR News to make sense of the Supreme Court's blockbuster rulings. When we come back, we'll bring someone who's been keeping a close eye on all the Supreme Court cases we've been talking about. That's Kim Whay. She's professor of laaw at the University of Baltimore School of Law You're listening to a special episode of Up firstirst from NPR News to make sense of the Supreme Court's blockbuster rulings. We're going to turn now to my conversation with Kim Whaley. She is prorofessor of laaw at the University of Baltimore School of Law. She teaches constitutional law there Let's start with that birthright citizenship decision. The Supreme Court ruled that virtually all children born in this country are entitled to birthright citizenship. How much of a I don't know what word to use rebuke is this to President Trump. Well, you know, in listening to you restate the holding, it's ironic because you just restated the text of the fourourteenth Amendment, which says all persons born. So this is the kind of decision that they could have just pointed to the Constitution and said, there's really not a job for the Supreme Court here. You just read the text we're textualists, as the majority likes to say. And here we have a five four ruling or if you count Justice Kavanaugh's concurrence sixty three on a debate around the plain language of the Constitution itself. So I think the fact that this has become a challenged issue and a debate in the country in a way is a win for people, you know, in the Trump camp that want to see this historic constitutional right dismantled. I was going to ask you about that what you make of the of the split decision and also the fact that as you just heard our colleague Nina Tottenberg say that the court seemed to be going or rather justice Chief Justice Roberts seemed to be going out of his way to not directly challenge or rebuke or disagree with the president. It sort of excirted is the key sort of simple constitutional question. And I'm just curious of what you make of that Yeah, I mean, I think Justice Kavanaugh is almost an invitation in his concurrence, speaking of him in particular, for Congress to come back and try to tinker with the law that followed up on the fourourteenth Amendment and to create more exceptions. I think that was sort of a hint, Listen, bring it back to us with different legislation and we'll see if we can take a second whack at the fourteenth Amendment. I mean, but what the chief justustice did was go back to the common law and said, you know this is what Kings did in England and it was adopted here and there really wasn't any ambiguity Again, these are this majority relies on text and relies also on history and tradition. We've seen that with abortion. We've seen that with gun rights. And so he kind of takes that safe avenue and says, listen, this is as historical as it comes And Justice Thomas and his dissent basically relies on the Dred Scott case and says, no, this is really about know formerly enslaved people in the fourourteenth Amendment. And I think you know, somewhat ironically, maybe, Justice Jackson in her concurrentce says, wait a minute You're the ones that are saying the Constitution's color bllind when it comes to affirmative action and things like that, but not when it comes to the fourteenth Amendment. So you can see the debate amongst the justices or really frustration with each other. But I think frankly, the majority and Justice Jackson are solidly on firm grounds with reading the language as the language The text states. An any sense of why they waited until the very last day of the term to issue this ruling? Well, I have to think for and I've thought this for a long time that this court is worried probably about or some of them the president of the United States saying one day, listen, this is a fake court You know, he's violated lots of statutes. he's rebuked or just ignored hundreds of lower court decisions. And then one day, their own authority, which they don't have a standing army. they don't have a police force. You know they have Marbier versus Madison saying that they have the authority to interpret the Constitution. So I think they have to be very sensitive to you know the legitimacy of the court itself with this particular president, so maybe waiting to the end where there's not as much court watching and discussion of the Supreme Court. It's hard to know. But it's almost like, you know, announcing news on a Friday, it's going to die So f Let's turn to another case decided today, the court ruled that this is actually two cases that were brought before the court. it sort of rolled into sort of one decision. The court ruled that states may ban transgender girls and women from participating in sports at publicly funded schools attended to high schools and colleges. What's your take on this? It doesn't seem like it was a surprise to people sort of watching the court, but I I'm curious about your take on it. Yeah, this was not that much of a surprise. There was some there's been waffling with this court on how to define sex when it comes to transgender people. And under Title seven, which is about discrimination in employment, Justice Gorsuch authored an opinion a while back saying that sex does include transgender Here you're talking about money authorized for sports. and Justice Kavanaugh, his majority says, for purposes of this statute, Title IX, funding, sex being sex, the the whole point of this statute dates back to the nineteen seventies when the disparity in girls and boys sports was major This was designed to equalize that biological sex fairness. And he he notes, you know, listen, even the plaintiffs didn't dispute that. They wanted a carve out for certain kinds of transgender kids. And essentially they're saying, you know, that' just that's too granular. This is pretty straight up, straightforward. And another decision was not a surprise was the court struck down limits on how much political parties can raise and spend candidates. So overall Um The Birthright citizenship decision is just one of a few where the court ruled against Trump And there was also the decision striking down President Trump's tariff program Overall How would you view this term when it comes to how this court connected with the President's agenda Yeah, I think it's because of the birthright citizenship case and even the tariff case, which again n shouldn't have been a really difficult decision. are and they ended up, you know, at the split court. I think we have to be careful in suggesting that these are serious strikes against the Trump administration. I mean, basically declaring the Congress having acted unconstitutionally for nearly a hundred years in creating agencies that constrain the president's ability to fire some people, that's a really, really big deal. And also with this campaign finance, which I know listeners are probably a little glazed over trying to understand it. I'm going to read from Justice Kagan's dissent The majority invalidates Congress's restriction of coordinated expenditures and enables parties to serve as an alternative checking account. So what she says is, a donor willll be able to give now as much as a half a million dollars to cover a candidate's bill. when before of that, before that, it was only seven thousand dollars. So we're going to see Um, basasically potential, according to her, quid pro quo, I'll give you money if you vote my way uh, that kind of action through parties instead of through candidates. And she says, Listen, there's nothing in the First Amendment that bans this at all This is almost the use of the First Amendment to greenlight this kind of massive amount of money in politics, where you know big donors choose their politicians and choose their policy, It's inherently anti democratic. That's Kim Whaley. She's a professor of Law at the University of Baltimore School of Law Professor Will, thank you so much for joining us once again Great toly with you You've been listening to a special edition of UpFirstst from NPR News. This edition of Up First was produced by Anna Perez, Lillily Ceros, and Milton Guerara. We get engineering support from Zach Coleman and Damen Herring. Our deputy executive producer is Kelly Dickens. Our executive producer is Jay Shayler