Title: What Last Week's Blockbuster Decisions Mean for SCOTUS

[music]

Brigid Bergin: It's the Brian Lehrer Show on WNYC. Good morning again, everyone. I'm Brigid Bergin in for Brian today. On Friday, the Supreme Court handed down blockbuster decisions for its last few outstanding regular cases of the term. All told, the Court gave Trump a raft of unprecedented victories that will expand his executive power while narrowing the power of judges and litigants to challenge him. All three of Friday's most anticipated cases were decided 6-3 neatly down ideological lines. The six-member conservative supermajority controlled the outcome of each case. Far on the outskirts is liberal Justice Ketanji Brown Jackson, the newest member of the Court.

Like she has in many recent cases, she penned a lone dissent in the birthright citizenship case, putting the stark implications of the Court's decision in plain English. Joining us now to help orient us in this moment is Ruth Marcus, a contributor to The New Yorker, a former columnist for The Washington Post, and the author of Supreme Ambition: Brett Kavanaugh and the Conservative Takeover. Ruth, welcome to the show.

Ruth Marcus: Thank you for having me.

Brigid Bergin: Listeners, my guest Ruth Marcus is a contributor to The New Yorker, and we're discussing how the Supreme Court's latest rulings have expanded President Trump's power. What are your questions for our guest and want to weigh in on some of those rulings last week? You can call us at 212-433-WNYC. That's 212-433-9692. Ruth, let's start big picture. In an essay back in May, you wrote that the Trump administration's goal with its executive orders "seems less to win in the end than to inflict as much damage as possible along the way." Given these recent rulings, can you take stock of some of that damage?

Ruth Marcus: Oh, a lot of damage is happening. Some of it has been averted. The Supreme Court and the lower courts have stepped in sometimes, particularly in immigration cases, to say, "No, you need to have some due process," but the most critical decision, the most important decision on Friday involved what lower courts can do during this interim period of I call it mischief-making. The case that the Court decided involved, of course, birthright citizenship.

There is nobody that I know who thinks that even this conservative Supreme Court is going to go along with the administration's effort to rewrite the Constitution by executive order and eliminate the guarantee of birthright citizenship, but it can cause a lot of uproar and chaos and issues-- real hardship for individual people in the process, and that is what the Court permitted.

I had forgotten that sentence that you read, but I think it stands up pretty well because by issuing these outrageous executive orders, executive orders on things like eliminating birthright citizenship, like telling law firms that they can be punished for the positions that they take or the clients that they represent, the administration can do enormous damage, even if it's going to lose in the end.

Brigid Bergin: I think in regards to this specific case, you also wrote, "This is an example of the Court stripping its own branch of power at the worst possible moment." Essentially, if the underlying executive order ending birthright citizenship is unconstitutional, it's not the judiciary's job to police that. Can you walk us through that a little bit? What makes this the worst possible moment?

Ruth Marcus: Well, what makes it the worst possible moment is what I was just talking about, which is, we have an administration that is willing to press the bounds of executive power and every other power in order to try to achieve its goals on the one hand, and on the other hand, we have a Congress that appears to be unwilling, unable to do its constitutional job of counterbalancing and checking and balancing the administration, so that leaves only the courts in our constitutional architecture as a counterweight and a check on the executive branch.

I have to say, if I had that sentence to write again, I might tinker with it a little bit because the Supreme Court is stripping its own branch of power, but to be a little bit more specific about it, it's stripping mostly the lower courts of power. I think the Justices themselves seem to believe, and Justice Brett Kavanaugh wrote about this in a concurring opinion, believe that they can tell the whole country and boss around the administration in ways that affect the entire landscape of those who would be challenging its orders, but what they're doing is saying, "Lower courts can't come in in the interim and issue these kind of blanket orders that stop administration policies in their tracks."

That's kind of-- As I said, the court is stripping its own branch of power. It's just stripping a part of its branch of power, but that's, honestly, we only have one Supreme Court, and it can't do everything immediately all at once.

Brigid Bergin: Right.

Ruth Marcus: The real question has been, in this interim time, how much can courts provide orders, especially when things are as outrageously unconstitutional as the birthright citizenship order? Do courts have to just pretend that they need to go through these things on a very small case-by-case, individual-by-individual basis, when we all know how it's going to end up, which is, this is unconstitutional?

Brigid Bergin: Then there's Justice Jackson, who has been unusually willing to go it alone, penning dissents by herself in that nationwide injunctions case, for instance. Although she joined her liberal colleagues in challenging the Court's ruling on some of the more legalistic grounds, she wrote separately in her own to warn about the sheer practical implications of the ruling. She writes that this decision is "an existential threat to the rule of law." From what you're saying, it sounds like you might agree with her.

Ruth Marcus: Well, I'm not sure I've worked through in my head whether I think that rhetoric is over the top or not, so I'm just going to put that to the side and say Justice Jackson has turned out to be a really fascinating Justice. I wrote about this, I think, earlier, in what was a very long week last week. Usually, the Junior Justice kind of hangs back. He or she doesn't write a lot of separate dissents or solo dissents. They're not that talkative at oral argument.

Justice Jackson from the start has been very talkative, very assertive, very willing to express her own views, and as these three years on the bench have proceeded for her, she has, at least from my reading of her comments at oral argument and her increasingly ferocious dissents, just been willing more than even her two other liberal colleagues, far more willing than her two other liberal colleagues to call out the conservative majority for the real serious damage she believes it's inflicting on the country.

I think for those of us who are pathetically nerdy court watchers, there's an interesting dialogue going on, really, kind of among the four women on the court right now, where there was some pretty sharp language between Justice Jackson and Justice Amy Coney Barrett, who was in the majority in this birthright citizenship case. Justice Barrett was really quite disparaging of Justice Jackson's dissent and basically suggested it wasn't legal reasoning at all. Justice Barrett went right back at her.

There were also some very pointed dissents that Justice Barrett had the week before last in which she took on the majority, and that majority included her liberal colleague in this case, Justice Elena Kagan, because they were 7-2 decisions. Tempers get frayed and nerves get jangled at the end of every Supreme Court term, but I would really kind of like to be a fly on the wall in the Justices' conferences, because it doesn't sound like it's a lot of happy campers there.

Brigid Bergin: No, definitely does not. Listeners, any lawyers, or maybe even former judges listening in who want to weigh in on any of this? We can take a call or two. The number is 212-433-WNYC. That's 212-433-9692. Speaking about Justice Jackson, you note in many of her lone dissents that she argues that members of the Court's conservative block are actually working backwards to justify the outcomes they seek. How controversial is that assertion?

Ruth Marcus: That is about the toughest thing that you can say, I think, about one of your fellow jurists. She is not the only one who has made that argument on both sides of the ideological spectrum, but when you tell your fellow justice that they are simply-- they're not-- they're making up the law in order to get the result that they want, that is the antithesis of what judges are supposed to do, what judges tell themselves, for the most part, that they're doing. She really took the Court on in terms of its textualism.

We talk about originalism and textualism. They're really very-- they're kind of cousins there. What she basically said is that this majority just tortures text in order to get the result that it wants, it's not engaging in a good-faith reading of the text. Those are fighting words for judges.

Brigid Bergin: Sure. I mean, two decades ago, Chief Justice John Roberts said at his confirmation hearing that he saw the Court as a baseball umpire calling balls and strikes. It seems like Justice Jackson might say that we've moved from being an umpire to actually playing the game. Is that your sense of it?

Ruth Marcus: She might say the umps have it rigged, I think.

Brigid Bergin: [chuckles]

Ruth Marcus: You know, look, it is-- I always thought the chief justice's metaphor was a silly one because different Justices have different views of the law and different ways they approach the law and different judicial philosophies, and so to think that you could set up, really, in the current environment, he might have talked about an AI system for judging where you could just feed in the text and come out with the right answer about the Constitution or about a law.

That's just not the way things work. You bring all sorts of background and understanding and judicial approach to the table, but that doesn't mean that you shouldn't engage in a good-faith effort to get to the right answer. What Justice Jackson and others have said it along the way as well are saying is that, in particular, this conservative supermajority, because now we have six conservative Justices, not just five, is running rampant with taking the law to get to the results that they want.

Brigid Bergin: We have a listener who texted, "With the Court now so partisan and seemingly being weaponized to declare unconstitutional well-established laws, my concern is that going forward all new seats on the Court will be filled with ideologues and we will just go through see-saw cycles of striking down previous precedents based on the Justice majority's ideology rather than the strict reading of the Constitution, that their role becomes essentially meaningless. Is that a valid concern?

Ruth Marcus: I am not quite there. For example, just to focus on this birthright citizenship case, as I say, I lose sleep over a lot of things these days, but I do not lose sleep over the prospect that birthright citizenship will be written out of the Constitution by a crazy Supreme Court conservative supermajority. I just don't think it is willing to go that far. At the same time, and in particular, this Court, we've seen it now two terms in a row, both with the immunity ruling last term and with this universal injunction ruling this term, they are giving much more power to the executive branch.

I do worry about ideologues on the Court. I worry that when you have a situation where the President is of one party and a Senate is of another party, we will have vacancies that could go unfilled for years. We've never seen that before, and that would be a very dangerous thing. I think that if you look at the Justices that President Trump appointed during his first term, Brett Kavanaugh, Neil Gorsuch, and Amy Coney Barrett, they are way more conservative than the Justices that I would have selected if President Marcus were in the Oval Office,-

Brigid Bergin: [chuckles]

Ruth Marcus: -which she will never be, but I really worry that if President Trump were to get an additional appointment or appointments in his second term, that we would yearn for the good old days of his three original picks.

Brigid Bergin: Hmm. Ruth, in many of the blockbuster cases, birthright citizenship, school opt-outs, restrictions on accessing adult content, and getting gender-affirming care, the Court has decided 6-3 neatly down those ideological lines. I mean, it seems like, as you just pointed out, the current atmosphere of the Court is very much shaped by these appointments that were made during that first Trump administration. Would you agree with that?

Ruth Marcus: Not every single time there is a six-Justice conservative supermajority, but all of those Justices are not the same. There is a spectrum of these conservatives, which I would say Justice Thomas on one end and a three-Justice kind of block of what I would call serious conservatives but sometimes gettable by the liberals, conservatives, sometimes maybe the three liberals can pick off one or two of the chief justice, not a Trump nominee, Justice Barrett or Justice Kavanaugh, and sometimes Justice Gorsuch is up for grabs as well, so there's a little bit of wiggle room there, but only a little bit.

I want to say we have never really experienced this as a country before where the identity of the President who selected a Justice can pretty much determine how that Justice is voting and therefore how cases are coming out. In previous decades and previous centuries, the choosing process was much less ideologically based. President Nixon is probably the best example of this. Presidents would pick Justices, and they would end up being extremely surprised by how they turned out. Both Democratic presidents, and even more, Republican presidents. I think it was President Eisenhower who said they made two mistakes, and they were both on the Supreme Court.

Brigid Bergin: [laughs] I guess the sense that this Court has an ideological bent, isn't necessarily historically unique, that this has happened before as well?

Ruth Marcus: Well, there are certainly, we think about FDR and the New Deal and the court packing plan that he resorted to unsuccessfully because he was so frustrated with a conservative Court, frustrating his efforts to bring change to the executive. I mean, there was a certain irony there because Democrats rooting for a Democratic president to triumph over a conservative Supreme Court. Now they want the Supreme Court to rein in a president because they don't agree with his actions, so, you know, sometimes it depends on where you sit.

Brigid Bergin: If you're just joining us, I'm Brigid Bergin filling in for Brian today. We're looking at the Supreme Court's recent decisions in several blockbuster cases that came down at the end of its term last Friday with Ruth Marcus, a contributor to The New Yorker and the author of Supreme Ambition: Brett Kavanaugh and the Conservative Takeover. We're calling out for, I know there are a lot of you out there, lawyers, maybe even former judges listening, who want to weigh in on any of this, what's your take on the state of the judiciary in the United States. We can take a call or two at 212-433-WNYC. Again, it's 212-433-9692. You can call or text at that number.

Ruth, some legal commentators have argued that eliminating nationwide injunctions is something of a bipartisan goal that even the Biden administration bemoaned conservative judges thwarting its student loan forgiveness plan by using nationwide injunctions. A law professor, Nicholas Bagley, wrote an essay for The Atlantic over the weekend in which he asked, "Why should one federal judge, perhaps a very extreme judge, on either side, have the power to dictate government policy for the entire country?" I guess I'd like to put that question to you. Why should a lower court judge be able to do that?

Ruth Marcus: This is a great question, and I'm really glad you brought it up. I have been among those who have wrung their hands at particularly cherry-picked judges. There's a lot of what the lawyers call forum shopping going on. If you have a Democratic president who's doing something that you don't like and you're a conservative, you can find a district in Texas where there's going to be one judge who's going to get that case.

His name has turned out to be in a lot of these cases, Matthew Kaczmarek, and he will weigh in and pretty reliably rule on the conservative side. When one district judge is determining contraceptive policy or immigration policy or anything for the entire country, that is not healthy, so there are completely legitimate frustrations that Republican presidents and Democratic presidents have had with universal injunctions. Justice Kagan said this at the oral argument in the birthright citizenship case.

She said that, look, there have been all kinds of abuses of universal injunctions. The question has been, and it's a very difficult, kind of technical procedural question for the courts to figure out, is how do you deal with the problems that are created by individual judges putting in rules that bind the entire country while the case is being sorted out? But also how do you prevent unfairness, inequity, damage from occurring in the interim?

I think this is a really important issue for the Court to try to resolve. I just thought that the vehicle that it used to try to resolve it, the birthright citizenship case, was the worst possible vehicle because if you had--, and the dissenters made this point, if you had 100 federal judges on their own deciding birthright citizenship cases, they would come to, I believe, a unanimous conclusion that birthright citizenship means what the Constitution says it means, but then you have this potential for patchworks of states where there is birthright citizenship, states where there isn't birthright citizenship.

What happens when somebody moves from one place to another? Can we have ICE agents coming to hospital nurseries, in places where there isn't an injunction in place, and snatching babies from their parents because the babies are in the country illegally because they don't have birthright citizenship? I mean, this is crazy. The Court tackled a legitimate issue but in the worst possible case, I think, and we'll find out if they tackled it in the worst possible way. They left open some doors that it's important for people to understand.

They left open the possibility that you could have class actions, though there are hurdles to bringing class action suits, so maybe that could protect people in the interim. They left open the possibility that maybe states that challenge Trump administration executive orders wouldn't be able to get what's called complete relief unless the injunction was universal, but we'll see. The conservative Justices, at least some of them, signaled that they're going to push back on that. This was a real problem, just the wrong case to decide it in.

Brigid Bergin: I want to bring some of our callers in. Let's start with Mike in Staten Island. Mike, you're on WNYC.

Mike: Yes, good morning, and delighted, Ruth, to hear you found a new home, The New Yorker.

Ruth Marcus: Thank you so much. I'm really excited about my new home.

Mike: Okay. My point is, surely the problem is our [unintelligible 00:23:36] Supreme Court has four Justices on it who arguably are illegitimate, and I say that because 10 months before Barack Obama's term ended, he nominated Merrick Garland to the Supreme Court, and Mitch McConnell flat out refused to even allow senators a vote, an up or down vote, on Garland's nomination, again, 10 months before Obama's term ended. Then just weeks before Trump's term ended, Senator McConnell allowed Trump to appoint Amy Coney Barrett.

What McConnell did back in Obama's time was he effectively-- he staged a coup, a bloodless coup but a coup nonetheless. I would argue that the four Justices appointed since Merrick Garland are arguably illegitimate because Merrick Garland was never voted on, which means they should all be replaced, but a far bigger problem, I suggest is not so much just the Supreme Court, it's the American Constitution, which was the wonder of its day 250 years ago, but now has become so out of date that it's becoming a joke, a dangerous joke. Anyway, that's my comment.

Brigid Bergin: Mike, thank you so much. A lot there, Ruth, but I want to pick up on what Mike was saying related to the composition of the courts, and then connected to a question that a texter sent to us, which was, "Does Ruth Marcus think there is a chance to get bipartisan support for term limits on SCOTUS judges, at least for future appointments?" We'd love to get your weighing in on the composition of the Court and what it could look like in the future.

Ruth Marcus: Well, I do agree with the caller that it is a dual outrage that Merrick Garland is not Justice Garland. He would have been a great Supreme Court justice and he should have been confirmed. I think that given that lack of confirmation, the rushed nature of getting through Justice Barrett, who I have to say has turned out to be quite conservative but quite interesting and intellectually honest and rigorous Justice. I'm not sure I would say that all four are illegitimate, but I wish that the Senate had handled it in a different and fairer way, and we would have a better situation if we had that.

I think that the question of term limits is it is an obvious solution that the framers would have gotten to if they had ever imagined a situation where Justices were going to be serving for as long as they did and where Justices were going to be as young as they are when they get to the court. Term limits would be a terrific but very, very long-term solution if you only applied them prospectively, which would probably be the only way to do it. It would take years and years and years for the Court to readjust itself so it would reflect that every president would effectively get two nominations per presidential term.

It's not going to-- I think the prospects of a bipartisan agreement on that are about as good as the prospects of bipartisan agreement on most things these days, which is to say nil. Even if we could get bipartisan agreement, there's a very legitimate question of whether it would actually take a constitutional amendment to get this done. Another flaw with the Constitution that the framers, if they were around, might want to do some tinkering with. It's extremely hard, as all your listeners understand, to get a constitutional amendment that's generally good, but in situations where the Constitution has turned out to be clunkier than we need it to be, it's a problem.

Brigid Bergin: I want to go to another caller. Let's try Craig in Morganville. Craig, thanks for calling WNYC.

Craig: Hey, how are you doing? With this case, with the birthright citizenship, why is it that the ruling was not made on the rule itself, but instead, the technicality of the law opened up a completely other can of worms about lower court judges? It's they are caught up in the minutiae of the actual act itself, which was the same thing that happened with Roe v. Wade, but nobody wants to admit that, because of the technicalities of it, screwed up that verdict too.

I think that the conservative ones are using those technicalities to bend it to their will, and sometimes it gets to the minutiae of the progressive or the common sense people. I think that a lot of times the lawyers who are trying to make these things better think that these judges have common sense, "Oh, they have to do this. Who would think that they wouldn't rule against it?" And they bank on that, and I don't think they do, and it gets caught up way too much in the technicality of it.

Brigid Bergin: Craig, thanks for calling.

Ruth Marcus: Thank you, Craig. I think you ask a really good question, which is, why don't we just decide the darn case instead of talking about all this stuff that's extraneous and kind of preliminary. I hate to say this, but there's kind of a technical answer here. The technical answer, but it really gets to the essence of your question, is that the Trump administration, when it appealed the case to the Supreme Court, didn't say the orders that apply to the individual plaintiffs in this case.

There were some pregnant women who said, "We need our babies to know they have birthright citizenship, et cetera." It didn't challenge the order that the birthright citizenship executive order should be held in abeyance while the whole thing proceeds through the courts as to those individual people. It just challenged the universal nature of the order, and it said, "It shouldn't apply beyond these individual plaintiffs or maybe individual states." Because that was its way, and the dissent called the administration out on this, that was its way of putting off the reckoning for as long as it could.

Because the administration, you can hear this in the words of President Trump himself when he talks about this, sometimes he says, "Well, we might not win or it might not stand, but we'll try." The administration knows it's going to lose in the end, but it just wants to put off that day of reckoning for as long as possible while it engages in mischief and terror. That's the technical answer, is the administration didn't appeal that part of the case, but the actual answer is I think the conservative Justices in particular wanted to figure out a way to rein in these universal injunctions.

Also, lawyers are lawyers, which is to say they always have to deal with what feels like technicalities to the rest of us. Is there standing? Is the case moot? Is the case right? et cetera before they get to the merits of the case. That's for better or for worse, what law is all about.

Brigid Bergin: Well, we are going to have to leave it there for today. My guest has been Ruth Marcus, a contributor to The New Yorker, a former columnist for The Washington Post, and the author of Supreme Ambition: Brett Kavanaugh and the Conservative Takeover. Ruth, thank you so much for joining me today.

Ruth Marcus: It's great to be with you.

Copyright © 2025 New York Public Radio. All rights reserved. Visit our website terms of use at www.wnyc.org for further information.

New York Public Radio transcripts are created on a rush deadline, often by contractors. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of New York Public Radio’s programming is the audio record.