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Amina Srna: It's The Brian Lehrer Show on WNYC. I'm producer Amina Srna filling in for Brian today. Welcome back, everyone. We have been live as the Supreme Court wraps up its term this morning, and already two major rulings have landed. In one, the justices limited the ability of lower courts to issue broad nationwide injunctions, maybe clearing the path for the Trump administration to move forward with plans to end birthright citizenship for children born in the US to undocumented parents. The case wasn't about citizenship directly, but it could have massive implications.

Justice Sotomayor, in a scathing dissent, wrote, "The gamesmanship in this request is apparent, and the government makes no attempt to hide it. Yet shamefully, this court plays along."

In a second big ruling, the court sided with parents who want to opt their kids out of classroom discussions of LGBTQ themes, saying they are likely to succeed in arguing that a school policy denying those opt out violates their religious freedom. Writing for the majority, Justice Alito said, "We have long recognized the rights of parents to direct, 'the religious upbringing' of their children." Justice Sotomayor dissented, "The reverberations of the court's error will be felt, I fear, for generations."

There may be more rulings still to come this hour, including decisions on trans youth and health care under the Affordable Care Act. For now, we're joined by Elie Mystal, justice correspondent for The Nation, to help us make sense of these early rulings and what they mean legally, politically, and culturally. Hi, Elie. Welcome back to the show.

Elie Mystal: Hi there. How are you?

Amina Srna: They said it was going to be a blockbuster day, and they weren't kidding. Let's start with the ruling on nationwide injunctions. The court made it harder for lower courts to block federal policies across the country. That paves the way for Trump or a future president to move forward with plans to end birthright citizenship. Nationwide injunctions, what did the court exactly decide?

Elie Mystal: They didn't make it harder for lower courts to block Trump. They made it almost impossible for lower courts to block Trump. That is by design. Amy Coney Barrett, writing for the majority, has, I think the ball game line. She says, "No one disputes that the executive has a duty to follow the law, but the judiciary does not have unbridled authority to enforce this obligation. In fact, sometimes the law prohibits the judiciary from doing so." To take that out of legalese, what Amy Coney Barrett is saying is that we would like Trump to follow the law, but if he doesn't what can we do?

Puts following the literal Constitution as part of the presidential prerogative. That he can choose or not choose to follow the Constitution, and there's nothing the poor little judiciary can do about it. According to Amy Coney Barrett. That is an insane position, and it undercuts the very essence of the rule of law. It undercuts the very idea of a country based on laws, because she is saying directly that there is at least one person, the executive, Donald Trump, who can choose or not choose, can decide at his own will whether or not to follow the law.

Amina Srna: Before we get a little bit further into explaining this case, can you just backtrack a little and just explain to us what a nationwide injunction is and why it's been such a big part of legal battles that have played out in the Trump administration?

Elie Mystal: You go to court and you say, like, "This thing that the government is doing is unconstitutional. It's illegal. It can't happen. It's bad." The court agrees. The court's like, "Oh, the executive, the government can't do that." They issue an injunction that stops the law from happening, that stops the government's action from happening. Instead of just issuing an injunction as to you personally, the person who sued. They say, "Well, if the executive or if the government does this to you, can't do this to you, you really shouldn't be able to do this to anybody."

This is so obviously unconstitutional or so obviously illegal that the government shouldn't just not be allowed to do it to you. They shouldn't be allowed to do it to anybody. They issue a nationwide injunction banning the executive or banning the government from doing it to everybody. Now, Republicans love nationwide injunctions when Democrats are president, I will refer you to the Joe Biden administration, where nationwide injunctions were consistently and constantly used to thwart, to frustrate, to stop Joe Biden's agenda.

They use nationwide injunctions to stop his agenda on immigration. They use his nationwide injunctions to stop his agenda on student debt relief. They use nationwide injunctions all the time. What the court says today is that nationwide injunctions, at least when a Republican is president, probably shouldn't happen. When you get the plaintiff who says, "This thing that's happened is illegal," that the court can only say, "Yes, it's illegal as it happened to you. We don't know if it's illegal when it happens to somebody else."

Somebody else, if it happens to them, has to go through the entire process of suing again and again and again. In the immigration situation, what that means, is that any unconstitutional or illegal action Trump takes against one immigrant, that immigrant has to sue individually in their own personal capacity. Then, when Trump does it to the next guy, the next guy has to sue. When Trump does it to the third guy, the third guy has to do. When the Trump does it to the 131st guy, the 131st guy has to come in and sue by themselves individually.

If he does it to a person in Massachusetts, the person in Massachusetts has to sue. If he does it to a person in Louisiana, the person in Louisiana has to sue in Louisiana individually in their own capacity. What it means is that not only do you have this chaos of immigration laws, citizenship laws applying differently depending on which state you are, you happen to be in, you also have just a glut of litigation that now has to be filed individually.

Amina, there is precedent for this. There is precedent for citizenship laws changing depending on what state you were in. We call that the antebellum period. That was what we had literally during slavery, where your citizenship rights changed. If you happen to be in Georgia or Missouri, if you happen to be in Kansas or New York, if you happen to be in Ohio or Louisiana, that was the state of the nation before the Civil War, and that is now the state of the nation today, where your citizenship changes depending on which state you happen to be in. Thanks to Amy Coney Barrett and the Republicans on the Supreme Court.

Amina Srna: Elie, we're getting a lot of calls in already, and I haven't even given out the phone number. Let me do that really quickly. Listeners, if you have any questions about any of these Supreme Court opinions that came down today on the last day, including on nationwide injunctions, parental rights, on LGBTQ curriculum in schools, age and consent on adult websites, or anything from the term as a whole. It's the last day, so we can take any of it. Give us a call now at 212-433-WNYC. That's 212-433-9692. You can also text that number.

Elie, I said in the intro, this case is not about birthright citizenship directly, although, as you explained to us, there are very real consequences to that. My question to you is this applies-- the case itself? This is U.S.-born children of undocumented immigrants. Is that what I'm getting?

Elie Mystal: Right, right. Well, really, the case applied to the unborn children. It's pregnant people who are suing to make sure that their children will have citizenship rights because they are born here. It's not just the people. It states individually as well, suing, saying that again, if we have citizenship rights that change from state to state to state, that's an unworkable legal solution. The upshot of the case is that all of those cases have to be reargued now.

Again, plaintiff by plaintiff, individual by individual, you might still see some wins. New York courts are probably still going to say birthright citizenship is a thing. I don't know about Arkansas courts, I don't know about Louisiana courts, I don't know about Texas courts. What I do know is that under this decision, courts in Texas, courts in Louisiana, and courts in New York can now have their own different birthright citizenship laws, which, again, we've tried to live that way before. It resulted in war. It didn't work out so well.

That's where the court brings us back to. You're saying like, "Oh, this isn't directly on point with birthright citizenship," it is because the case was about injunctions stopping his executive order ending birthright citizenship. At 30,000ft, it's also worth pointing out that if the court has a problem with nationwide injunctions, just the legal technical issue of a district court judge, in some Podunk town issuing a nationwide injunction that stops a literal president from carrying out their political agenda.

If the court has a legal problem with that, this is the case that decided to play that out. Not student debt, not abortion, not any of the other issues that have come up under nationwide injunctions to the Supreme Court over, I don't know, the past five or 10 years, none of those do we have this massive ruling about nationwide injunctions. Here, with birthright citizenship, with something that is so facially and obviously unconstitutional, this is when they decide to do their nationwide injunction thing.

The other thing you got to-- look, I know many of your listeners are familiar with originalism and familiar with the Republican concept that all laws must be ossified in the slaver's constitution and our antebellum ways. I will never accept that the appropriate way of determining whether or not a thing is legal now involves us looking 250 years into the past. In this case, and I am not making this up, because I am not that creative. Amy Coney Barrett cites repeatedly the High Court of Chancery in England in the 1700s to argue that nationwide injunctions in 2025 are unconstitutional.

She does this repeatedly. She does this as if it's a reasonable thing to do, as if it's a reasonable place to ask. She's literally looking into a court that existed under the rule of a king, a mad king, a king we revolted against. She's looking about how a court treated bills of peace in the High Court of English Chancery in 1787 to try to figure out whether or not nationwide injunctions can exist in 2025. It's insane. It's insane. It's like, I can't let that go. I can't just be okay with this continued Republican insanity masquerading as law, because it's not.

Amina Srna: We do have a caller on Justice Barrett. Let's go to Alan in Midwood. Hi, Alan, you're on WNYC.

Alan: Good morning, and thanks very much for this great discussion. Not being a federal court litigator myself, I'm speaking as a lawyer, layman in that specialty. I'm still trying to get my head around this, not having read the whole decision. Does Elie see text in Barrett's writing that suggests that this is just a matter of extending a TRO for the time it takes for appellate and Supreme Court judges to make a final decision where there's a disputed presidential policy?

Or is there any suggestion she's saying that the president will be allowed to have the last word, and Supreme Court and appellate courts can get away with never making a national ruling out of the disputed district court decisions? Are they saying they could just-- yes, go ahead.

Elie Mystal: That's a good question, Alan. What you're talking about doesn't really appear in Barrett's opinion, but it appears heavily in Brett Kavanaugh's concurrence to Barrett's opinion. Brett Kavanaugh basically argues, "Hey, guys, everything's going to be fine, man. It's going to be okay." What he argues is that while this decision now creates just chaos at the district court level, just, again, Louisiana is going to do one thing, Arkansas is going to do a different thing. New York's going to do a third thing. It's going to be absolute chaos.

What Kavanaugh argues is that in due time, all of those different decisions will still matriculate all the way up to the Supreme Court, and that the Supreme Court retains its authority to make nationwide injunctions. The Supreme Court retains its authority to rule on the merits of these decisions. Kavanaugh argues that all this decision really does is take away the power of the lower courts to resist, to stop, to object to Trump's unconstitutional policies, while the Supreme Court still retains the power to do so.

Sure, you might get deported right now, but eventually we're going to figure it out. I don't know if we can bring you back from El Salvador, but we're going to figure it out eventually, guys. Everybody chill, bro. It's going to be cool, is Kavanaugh's concurrence. I'm in the weird position of hoping he's right. The court doesn't act fast enough to address the human toll of Trump's unconstitutional activities. I hope Kavanaugh is right that eventually it will matriculate up to the Supreme Court, and eventually Supreme Court will ruin the merits.

In the majority opinion, there wasn't a lot of discussions about how the merits argument is going to play out when it does eventually get to the Supreme Court. In dissent, Sotomayor did a lot of that work explaining how the merits should roll out. I am not so sure after this decision that there are five votes to stop Trump's unconstitutional repudiation of birthright citizenship. Again, I go back to the part of Amy Coney Barrett's decision that I quoted at the top of this segment.

The judiciary does not have unbridled authority to enforce the obligation that the executive has a duty to follow the law. If that's what she believes, that the judiciary can't enforce laws against the president. It wouldn't be the first time she believes that, because we can just go back to the immunity decision from last year, where they declared Trump a king. He might have five votes to violate the Constitution. I don't know. Yes, Alan, that is a legal question that has not been decided yet, and Kavanaugh thinks that it will be in due time. I don't know how that turns out yet.

Amina Srna: Alan, thank you so much for your call. Here's another question from Carol in Bradley Beach, New Jersey. Hi, Carol, you're on WNYC.

Carol: Hi. Hi. I was thinking that if the Republicans consider corporations an individual, and if a birthright citizenship case has to go person by person. What if we can create corporations quickly enough so that all these people are under one corporation registered in Delaware, where everybody registers to avoid taxes. We just use that as a way to protect people. Then it's one person, a corporation, covering all the people underneath it, within it.

Elie Mystal: I'm sorry, I didn't catch your name, but I love the way you think.

Amina Srna: Carol.

Elie Mystal: That's the creative Carol.

Amina Srna: Thank you, Carol.

Elie Mystal: That's creativity and awesomeness there. Luckily, there's already a mechanism in the law to kind of do what you're saying. It's called the class action. It's called class status. You can argue that you are part of a larger class. This happens all the time in, say, environmental litigation, it happens all the time in products liability litigation, where you are a class, you are part of a class of people who is affected and can sue as a class. The problems are twofold. Number one, getting class status is difficult. It is not something that is easy to do.

There are lawyers that specialize in exactly this, and they will tell you it is not easy to organize a class and get class status in front of a court. It's also not something that the lower courts are particularly good at doing. They don't like to grant class status if they don't have to. Again, you're in a situation where you might be ruled as part of a class of Venezuelans that a New York court recognizes, but a Louisiana court might not recognize the same class. You've got that two-tiered problem to start with.

The second problem goes to let us never forget the fascism, and cruelty, and violence, and brutality that the Trump administration visits upon immigrants and that ICE visits upon immigrants. Imagine that you are being round up by a masked man claiming to be an ICE official. Now, while that person is beating you, harassing you, threatening you, imagine trying to explain that actually you're part of a class recognized by a New York court that protects you from deportation to the ICE official while you're in his van. That's not an argument you're going to win.

Even though you might be part of the class, even though that class status might have been granted, even though you might have sued as a class and won. How is that going to help you when the bad men come? That's the other horror of this Supreme Court decision today. It opens the aperture for Trump and ICE to disappear people, to kidnap people, to brutalize people without them being able to clearly show they have a constitutional right to be here.

We are living in a world post a kid born today, a kid born tomorrow is going to grow up in a world where their birth certificate is not sufficient proof of their citizenship because of today's decision. It might be sufficient proof in New York. It might be sufficient proof in California, but it might not be sufficient proof in Arkansas. It might not be sufficient proof in Iowa. That's the upshot of today's decision.

Amina Srna: We are going to have to go to a quick break. When we come back, we'll continue with more legal analysis of the big Supreme Court news from this morning. When we get back, we'll turn our attention to the second big ruling in which the court sided with parents who want to opt their kids out of classroom discussions of LGBTQ themes. We'll take your calls on that. 212-433-WNYC. That's 212-433-9692. Stay with us.

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This is The Brian Lehrer Show on WNYC. I'm Amina Srna, and my guest is Elie Mystal, justice correspondent and columnist for The Nation magazine and host podcast Contempt of Court with Elie Mystal, and the author of Bad Law: Ten Popular Laws That Are Ruining America.

Elie, right before the break, I had said we'll get to that second ruling. There are, I believe, four more that have come out. I believe we're done for the Supreme Court term. Let's talk about the LGBTQ themed lessons. It seems that the court has sided with parents who want to opt their kids out of reading those books and seeing that material. The justices said that the parents are likely to win on religious freedom grounds. What does that mean in practice?

Elie Mystal: On any other day, this would be the worst decision that the Supreme Court issued this term. The issue involved a group of parents, Muslim parents, who wanted to opt their kids out of public school discussions that involved LGBTQ+ issues, specifically when they would be reading a storybook that featured LGBTQ plus characters. When I say characters, I want to emphasize that what we're talking about here is a storybook about a dude who marries another dude. That's it. It's just a regular children's story.

It's just Uncle Bob's wedding to like Gary as opposed to Uncle Bob's wedding to Mary. It's just a story. These parents they wanted to opt out. They said that that conflicted with their religious teachings, whatever. Not only the Supreme Court agree with them and say that they could opt out. The Supreme Court, Alito, said that, "Any parent could opt out of any instruction that they felt offended their religious sensibilities in public schools." He went further to responding to the somewhat obvious argument, like, "Don't we have private schools for that? Don't we have religious schools for people who want to raise their children in a religious environment?"

Alito said, "No, no, no, because religious schools are sometimes too expensive." That was the only reason, religious schools are expensive. We have to allow people who want to infect the public schools with their religion to do so because it's cost-effective for them to do so that way. We are now literally in a world where any person can raise a religious objection to any part of the school's curriculum.

This is an example of something that I would love to see the left wing weaponize. If this is how it's going to go down, I would love for the left to weaponize this and let it go down. Because I can come up with some religious objections to all sorts of stuff that schools teach my children.

Amina Srna: Wait. Elie, actually, I think we have a caller on this. Can we let them-- let me grab them. Charles in Greenwich Village, you're on WNYC. Hi, Charles, what's your question?

Charles: Hello. Hello. Justice Alito's decision seems to, although I haven't fully read it, to suggest that a parent can opt out from classrooms for their children where they discuss Jesus as anything other than a historical figure or Christianity in any way as a religion. Is that right?

Amina Srna: Charles, thank you so much for your call. Elie, I feel like maybe you were going there. I don't know about Jesus in particular.

Elie Mystal: I think Charles is 100% right. Let's go. I'm so sick of liberals always being on the back foot of always just like, "Oh, well, we lost." If this is how they want to play it, let's frickin play. You want to say that you can't have a storybook featuring LGBTQ characters. Guess what? You also can't have a storybook featuring Jesus in any way other than a poor guy from the Middle East. Let's go. Let's do it. Now, obviously the court is full of Republican hypocrites, and when you have those lawsuits, I'm sure they'll find some way around them.

I want to see them do it. I want to see them try. I want to force them to expose their own hypocrisy. That would make me happier than just accepting this decision as fait accompli. There's another really important part of this decision that I want people to understand. Alita says that this is a parental rights issue, that parents have a right to raise their children in the manner that seems best to them. I'm reading that and I'm screaming at my screen.

Where was this respect for parental rights in Skremetti last week when the Supreme Court ruled that parents who want their children to receive gender affirming health care cannot do so? Cannot do so. A court because it offends Alito's version of Jesus. Parents who want to gay bash, oh, they're free to do it in the public schools, but parents who want to get their children medicine are not allowed to do so because it offends Samuel Alito. Where was his compassion for parents last week? That is the beating heart of the hypocrisy of this decision.

Amina Srna: Elie, we will definitely have to continue this conversation, but in the few minutes that we have remaining, I just wanted to take note of the other Supreme Court cases that have been coming down as we've been speaking. Kennedy-- pardon?

Elie Mystal: Yes, I can run through them. There was a win for Obamacare with Alito, with Gorsuch just being real salty. Running a 36-page dissent basically uphold. Gorsuch was angry over legal issue. It was a win for Obamacare. There was a huge free speech decision where Thomas 6 to 3 normal liberal conservative breakdown where Thomas and the conservatives ruled that you can basically restrict access to porn.

That again, on another day, would have been really fun to write about. It comes down to an age verification thing that they got going in Texas. Nobody is trying to say that little children should be able to access porn. That's not anybody's argument. The liberal dissent argument is that adults should be able to access porn, and making them put in a credit card before they do so that's a violation of free speech. Thomas is like, "No, the porn bad." That came out.

Then, in a huge voting rights case in Louisiana, the court punted, literally said, "We're just going to reargue this next term." The last ruling of this term was, "Yes, we're going to take another look at that next term," which is very rare. It almost never happens that the court waits till the last day of its term to say that they're going to reargue a case.

Louisiana is basically arguing that it made a district trying to follow a lower court ruling and trying to help Republicans. Literally like that's their argument. We were trying to both not be racist and help Republicans and guys that super hard. The court was like, "You know what, that is pretty hard. Why don't you reargue that again? Because that's a tough needle to thread there." I guess we're going to do it all again next term.

Amina Srna: A quick question on that. One of your book-- I mean your book talks a lot about voting restrictions and voting laws. Why is this one more difficult to make a decision on than the previous ruling?

Elie Mystal: Because Louisiana created two majority Black districts. That's what's being challenged by white folks, saying that the two majority Black districts are an unconstitutional racial gerrymander against white people. Louisiana is also saying that we created these two majority Black districts so that the other six or seven could be super Republican, and we were trying to protect Republicans. That's the twist. That's the aha. That's what the court is kind of like, "I think we need more argument on."

Amina Srna: That's where we'll leave it for today. Elie Mystal, justice correspondent and columnist for The Nation magazine and host of the podcast Contempt of Court with Elie Mystal, and author of Bad Law: 10 Popular Laws that Are Ruining America. Elie, thank you so much for your time today and putting this all into layman's terms for us. We really appreciate it.

Elie Mystal: Thanks for having me.

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