Recording 1: Let's get you up to speed now. The first case to come down was a birthright citizenship case. The justices--

Recording 2: The US Supreme Court has paved the way for President Trump on one of his biggest campaign promises. He wants to ultimately close the Department of Education.

Recording 3: This is a five-alarm fire, okay? What we are watching right now is potentially the dismantling of the remaining portions of the federal Voting Rights Act.

Recording 4: Many outlets in this room have been fear-mongering the American people into believing there is a constitutional crisis taking place here at the White House. But in fact, the real constitutional crisis is taking place within our judicial branch.

Recording 5: Trump is betting nothing will stop him. And you know what? I think he's probably right, because nothing has stopped him for years.

Recording 6: For weeks now, we've been exploring a question: are we in a constitutional crisis? The answer is yes.

David Remnick: A couple of weeks ago, we asked for your questions about the Trump administration and the courts, and there were a lot of pressing questions. We'll try to answer some of them today. I'm joined by Ruth Marcus, who writes about legal issues in the Supreme Court-

Ruth: Hi.

David Remnick: -and Jeannie Suk Gersen, who's a professor of Constitutional law at Harvard Law School.

Jeannie: Hi. Thank you.

David Remnick: They're both regular contributors to The New Yorker. Jeannie, Ruth, we've got a ton of great questions, so let's dive right in. Mike Slane from Greensboro, North Carolina, asks this: How is ICE able to conduct searches and seizures without a warrant? Isn't that a violation of the Fourth Amendment? What say you, Jeannie? You start.

Jeannie: You don't necessarily need a warrant to do searches and seizures. The standard for searches and seizures is probable cause, and it doesn't necessarily have to come from a judge. A police officer can engage in actions based on probable cause, and that's how we get the situation where there's no warrant.

David Remnick: Have there been any lawsuits or legal actions taken against ICE on these kinds of grounds?

Jeannie: Yes, there definitely are challenges to these kinds of things, and they're just working their way through the courts.

Ruth: If I can jump in there?

David Remnick: Ruth, go ahead.

Ruth: There was a case out in California just recently where, if I'm correct, the standard for ICE to stop you may be even less than probable cause. It's reasonable suspicion. This judge said, in slapping down ICE and saying it was acting improperly, that their suspicion was not reasonable. Just because you are a person with dark skin at a car wash, and just because perhaps other people who were not documented were picked up at this car wash in previous moments, does not rise to the level of reasonable suspicion. There are constitutional protections, at least in theory, in this place. They just may not be very operative in practice.

David Remnick: Kate from Providence, Rhode Island, asks this: How is ICE able to cover their face? You see a lot of people wearing masks, not wear a uniform or identify themselves while they conduct their raids. Is there a law that prohibits that?

Ruth: There is not a law that I'm aware of that prohibits that, unless there's a general law against creepy police behavior, which I don't think we have in this country. You look at the video of the Turkish woman who was a student at Tufts, who was whisked off the street by these masked agents, who it was not even clear to me that at the time they were apprehending her and basically taking her, surrounding her and putting her in a vehicle, explained that they were law enforcement agents.

It's something that I think had not really occurred to law enforcement people in a pre-COVID, pre-doxing environment that law enforcement agents would be routinely doing that. This is one of those 'maybe there ought to be a law, but there isn't' situations.

David Remnick: Jeannie, just following up, what happens if jurisdictions like New York or Los Angeles ban the masks that ICE agents wear? Is that enforceable, and would the Trump administration have a legal recourse there, do you think?

Jeannie: Well, if the state or a city jurisdiction were to ban something that the federal government is doing — that's a direct clash of federal policy, say, and state government — then you've got issues of federal supremacy, so that would have to be argued for. Is there a reason for the federal government to need to have things like masks when they do their law enforcement activity, including ICE? I don't believe that it would be difficult to come up with reasons. We may not accept them. But, for example, we do things like obscuring the identities of police officers all the time when we're talking about undercover operations and things like that, maybe a case could be made.

At the same time, in general, when the federal government has a policy and the state government wants to go against that policy, we do believe in federal supremacy, and that is an issue.

David Remnick: Ruth, one listener sends this question. "Trump has been floating the idea of denaturalizing and/or revoking the citizenship of certain US citizens." Can he do that, and how seriously should we take that?

Ruth: They never taught you these things in law school because he's pushing on areas of the law that are not normally pushed on. Denaturalization is a thing. If you obtain your citizenship in an improper way, that you've misled authorities about who you are and what you believe, and they can come back and show that you obtained it improperly and are not entitled to be a citizen, it is now actually one of the stated priorities of the civil part of the Justice Department. Though Trump has threatened to do this, there is not, at least extant in the law, a way to denaturalize someone who is in fact a natural-born citizen.

David Remnick: Jeannie, Jacob Josephson from New York City asks, "Can Trump legally abolish birthright citizenship with the help of the Supreme Court?"

Jeannie: Well, with the help of the Supreme Court is the key phrase there. If the Supreme Court rules contrary to how it's previously ruled, that birthright citizenship does not exist for people who are simply born in the country, yes, then that will be the rule. I do not believe that the Supreme Court is on its way to dispute that.

David Remnick: You don't? You don't think the composition of the court has changed in such a way that it would rule in a different way?

Jeannie: No. I believe that the Supreme Court will rule that the Constitution mandates that if you're born in the country, you are a citizen. I don't see this as one of the big risks of this period, that we're going to have a ruling in a few months' time that if you're born in the United States, you may not be a US citizen.

David Remnick: Ruth, you agree?

Ruth: I'm with Jeannie on this. The question is very well phrased. The other piece of the question is, could Trump do this unilaterally? Could he do it by executive fiat? There is not just the language of the Constitution, but there is a statute on citizenship that makes that clear as well. You don't even have to reach, if you're the Supreme Court, the constitutional question. You could say the President of the United States cannot do this on his own.

David Remnick: Ruth, am I right? The decision about birthright citizenship is tied up with another case having to do with nationwide injunctions. The case is Trump vs. CASA, CASA being a Maryland nonprofit, and the Supreme Court decision limited the power of federal judges. Can you at least briefly unpack that? What's going on with those injunctions?

Ruth: This is the question of what the administration calls rogue, out of control lower court judges or local judges willy nilly issuing rulings that purport to block an effort of the administration, not just in the individual case before it, but throughout the country, and to be held up while the litigation proceeds. Let's just be clear that this was not a favorite tactic of the Biden or Obama administrations when they were subject to these nationwide injunctions, and it is not a favorite tactic of the Trump administration when they're subject to them. There are legitimate questions about whether individual courts ought to be able to do it.

Maybe they could do it if there were a class action. There's a lot of litigation right now, particularly in the birthright citizenship case, trying to reach the same result of blocking the birthright citizenship order, but doing it through the mechanism of class actions. This is a tactic that Democratic and Republican administrations have both resisted and that has been deeply hobbled, for better or worse, by the Supreme Court.

Jeannie: Lots of people, myself included, for the last 15 years, have railed against universal injunctions, which have been used to stop every single major Democratic presidential action that you can think of, including Obama's DACA expansion, which was protecting young immigrants from deportation, Biden's student loan forgiveness initiative. Basically, you'd see Republican litigants going to places like Texas to get a favorable ruling, and then it would be subject to a universal injunction.

Now, we didn't have a lot of trouble seeing why this was a bad thing for those years. I therefore believe that the CASA decision was correctly decided. It was premised on the idea that there are these alternatives, as Ruth mentioned: the class action, the idea that states can sue and get different kinds of relief that are similar. The universal injunction, which is like you take one judge, you choose the favorable judge, and then it binds the entire country, it's something I've been very troubled by for a really long time.

We have district courts and we have circuit courts, and those courts operate in their own areas. Therefore, when they issue an injunction, it should apply to the parties before them and whatever district they're operating in.

Ruth: Can I ask, Jeannie? Did you think that the three liberal justices who dissented in that case were wrong?

Jeannie: I did think they were wrong. Much of what they were saying was overstated. They pretty much ignored a lot of the issues that a lot of liberal jurists and liberal lawyers had brought up during the years in which we were against universal injunctions. I think they were being colored by the merits issue, which is the underlying issue of birthright citizenship. I think that was the thing that was the confounding factor that kind of distracted people from seeing the correctness of this decision.

David Remnick: Ruth, you want to disagree?

Ruth: While I share your concerns about universal injunctions, I thought this was the worst possible case to limit them in because of the flagrant unconstitutionality. Maybe it will turn out that the exceptions that it provides are adequate to protect us from the excesses of the Trump administration, but I'm not so confident of that. I was a little bit more moved by the fears of the dissenters that basically the lower courts can no longer protect us, because it's pretty clear that the Supreme Court doesn't have a big interest in protecting us in the interim while these kinds of litigations continue. I'm more negative on this than you are.

Jeannie: I think that part of it is maybe underlying our disagreement is two different visions of what it is, what the role of the courts are, and what the role of the Supreme Court is. For one thing, you can't say if you limit something for lower courts, that's somehow limiting the judiciary as a whole, including the Supreme Court. I don't agree, I guess, with Ruth's assessment that somehow the judiciary was the loser here. I think the Supreme Court was asserting its prerogative to regulate the lower courts in a way that would ensure that they stay in their proper lane in this very, very delicate, not just delicate, but horrific time in which we have an executive branch that is regularly acting lawlessly.

You got to think really carefully about what is the best way, the most clever and wise way for the Supreme Court to conduct itself and regulate the lower courts in the long run. One possible approach is you think courts are supposed to remedy wrongs immediately, including an unconstitutional executive order, and try to make the president follow the law at every turn. I see that vision as having some merit.

The other one, though, is to make sure that you regulate what the courts do so that they can preserve their legitimacy in the long run, so that in this tricky moment, it doesn't lose its way, so that it preserves its power to issue rulings that people respect, obey, and do not flout, which is a huge risk in this administration.

Ruth, you think that this was the absolute worst case to issue this universal injunction decision. I don't agree with that. I think that exactly in those cases where you'd be tempted to be like, "Oh, but this one," that is what the rule of law means. You want to be able to issue difficult decisions like this when the underlying merits issue is one that's extremely contentious.

Ruth: Across the board, the amount of harm that this administration can wreak on children who are born here with an entitlement to citizenship, on departments that are dismantled in an effort to do what you would need a statute to do, which is to get rid of them — I'm thinking about the Education Department — on people who are government employees who are fired, who are entitled to their jobs, but take years and years and years to get their recourse.

I think what we are allowing by restricting, and I take all of your points about the role of lower courts and about the ways in which the Supreme Court should conserve its power and authority, but there's so much damage that can be wreaked in the years before things get to the Supreme Court, and so much willingness on the part of the Supreme Court to allow that damage to be done, that I'm just afraid we're in a very bad place.

David Remnick: If I'm getting this right, is that Jeannie's inclination here, and her conviction is that if you are arguing for the continuance of the rule of law, then you have to behave like it. What Ruth is contending, to some degree, is that we're in such an emergency time in terms of politics that emergency times require slightly emergency measures in the court. Jeannie worries that if you reach the other side of the Trump administration, you will be left with a permanently damaged system of justice. Am I getting the disagreement right?

Ruth: No. I think I'm not going to concede that I am-- The rule of law has exceptions person in this argument.

David Remnick: I'm not saying it has exceptions, but you're worried that the greater damage will be done if it's not rectified by a more aggressive court.

Ruth: I'm worried that enormous damage is being done in the here and now, and waiting for the Supreme Court--

Jeannie: Enormous damages being done by the executive branch in the here and now. In terms of the Supreme Court, is it going to compound that damage, or is it going to try to wisely navigate through a time when the executive branch lawlessness--

David Remnick: I think we at least agree on the crux of the disagreement.

Ruth: We need to throw in there the supine role of Congress in all of this, and whether that should change or not change our attitude towards the role of the courts.

David Remnick: The New Yorker's legal correspondents, Jeannie Suk Gersen and Ruth Marcus. We'll be back with more of your listener questions in a moment. This is The New Yorker Radio Hour. More to come.

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David Remnick: This is The New Yorker Radio Hour. I'm David Remnick. From the battle over birthright citizenship to the gutting of federal government agencies, there is no shortage of Trump legal controversies to choose from. Even I find it pretty overwhelming to make sense of it all. Today we are joined by The New Yorker's legal correspondents, Ruth Marcus and Jeannie Suk Gersen, to help us navigate the new normal that we're all living in. They're answering your questions about the crisis facing the courts in the Trump era.

Rick Mazeroux, who is from Vancouver, asked this very direct question: What happens if Trump violates a Supreme Court order, and has he already? Jeannie.

Jeannie: I do not believe that the Trump administration's position so far has been "I'm not bound by the Supreme Court." In fact, one of the really bright spots of Trump vs. CASA, the one about universal injunctions, is that in oral argument, the Supreme Court asked the question about Supreme Court orders and Supreme Court judgments, and the administration said that it is bound to obey the Supreme Court's judgments and opinions, and that that also ended up in the opinion. I think that that's a very positive thing. So far, we have an executive branch that is acting lawlessly, but it is not of the view that the Supreme Court does not bind it.

David Remnick: Ruth, here's a very straightforward question from Sam Klein of Texas, and he asks, "Is the legal profession changing as Donald Trump consolidates executive power away from the judicial branch?" What does Sam mean there, and what would you say to that?

Ruth: Well, I think it's changing because Donald Trump has scared the bejesus out of law firms, some of whom have capitulated. Major law firms across this country are not accepting clients, are not bringing cases, are not participating in the kind of pro bono litigation that they were an essential part of in the legal effort to stop some of the initiatives of the first Trump administration. Like the education and colleges space, the legal profession is changing before our eyes, and not in a good way.

David Remnick: Jeannie, anything on that?

Jeannie: I will disclose that I have filed amicus briefs in all of the cases brought by law firms against the Trump administration about that executive order, or series of executive orders, about law firms. Yes, it's a real problem, even though we have success so far in the courts, so that the law firm executive orders were considered to be unconstitutional. The bottom line is, as Ruth says, just having a ruling from a court, that doesn't solve the problem because there's still the chilling effect. There's still the idea that people are scared, and who knows what other retaliatory measures could come upon them if they do something that the administration disapprove of.

David Remnick: As we're speaking, Jeannie, I have to think that you're in the middle of so much of this. You're at Harvard University, you write for The New Yorker and you've seen the pressure on the press, and you filed amicus briefs for these law firms.

Jeannie: Yes.

David Remnick: It's just an incredible multi-front onslaught that seems to me successful in so many ways.

Jeannie: It is successful. Also, I'm an immigrant and a naturalized citizen.

David Remnick: There you go.

Jeannie: I think Ruth brought up earlier with the denaturalization debate. When I thought about that, I thought, "Well, okay. If you lied or there was some falsehood in how you got your citizenship, then that could be cause for denaturalization." That seems straightforward, but I guarantee you there are lots and lots of naturalized citizens who you could find something that's not perfectly correct in their documents. I think there are lots and lots of, say, Korean immigrants who came to this country. It was a country that was divided North and South.

David Remnick: Where you're from.

Jeannie: Birthplace, there's no way that they represented their birthplace as somewhere in North Korea, even though after the Korean War, they came after their birth to South Korea. There are just things like that all over the place. If the federal government is determined to do something to you, they can find a way to do it. That is what we are finding with Harvard University.

David Remnick: When we go back to our earlier, you and Ruth were having an interesting disagreement on a point. It must be particularly painful to you, Jeannie, to, on the one hand, be at the center of all this onslaught from the Trump administration as a player in one way or another, and at the same time, stick to your guns, as you see it, about the way the court should deal with these things. I'm not saying it's contradictory, but I'm saying it must be incredibly difficult.

Jeannie: What's excruciating is the lawlessness all over the place emanating from the executive branch. What we have in our system is that we're stuck with the Supreme Court as a way to push back on that executive lawlessness. In the end, it's backed by a theory that the executive branch seems to have, which is about the supremacy of the executive branch. There's going to be disagreement about how best to deal with that and how best for the Supreme Court to push back on that in the long run, not just one case at a time. It will definitely be imperfect.

It's not just excruciating, it's a potential comfort to me that we still have a Supreme Court that isn't completely blown its credibility and legitimacy, which I would be very tempted to do myself if I were on the court.

David Remnick: Ruth, what do you make of the appointment of former Trump attorneys, for example, Emil Bove, Alina Habba in New Jersey, Todd Blanche, to elevated judicial roles in US Attorney positions? Is there any precedent for a president putting such people with such close ties to him personally in these spots, or is that business as usual?

Ruth: We don't usually have presidents coming into office with a stable of criminal lawyers who have represented them in a number of criminal proceedings and trials before they came into office. To have Emile Bove, with the background that he has and the behavior that he's demonstrated while at the Justice Department, including his role in getting rid of the Eric Adams indictment, about to become a federal appeals court judge, and from there potentially about to be a Supreme Court justice, is really something.

But then if you want to get to the really something, we have to talk about Alina Habba, because she is not unique in the absence of any prosecutorial experience whatsoever in coming in there. She said, coming in as a US attorney, that she hopes she could use the job to turn New Jersey red. That is not how prosecutors are supposed to use their jobs. This is the sentence I keep saying, this is not normal. I don't feel strongly about this.

David Remnick: No, clearly not. Jeannie, we get a lot of questions about the future of the court. During Biden's first term, some Democrats talked about expanding the court or imposing term limits, for example. What's within the president's power, and what are the upsides and downsides of court packing?

Jeannie: We've seen this in our history. The Supreme Court hasn't always been nine justices. The number has changed. Basically, Congress creates the lower courts, but the Supreme Court is in the Constitution. The Constitution has no provision about how many justices there should be, but there's no doubt that Congress has the power to create more justice positions and to pack the court in that way. I think that another popular thing that's been discussed is term limits for justices, and that one is more tricky and less likely to happen. In general, we are dealing with a conservative court that's going to be conservative for a generation. I think that that is the reality that we have.

There have been periods of our history where we had a liberal court for quite a long time.

David Remnick: True.

Jeannie: To me, this is kind of like the tide goes in and the tide goes out. We right now feel like we are in an emergency because of the lawlessness of the actions coming out of the executive branch. In the grand scheme of things, if our country survives all of this, then it will become one of those periods where we had a Supreme Court that was really conservative. We don't want the Supreme Court to be more than a conservative court, which is like a Trump court or a court that does what Trump wants. I don't see evidence that that is what is happening. It's possible, but it's not what's happening right now.

David Remnick: Ruth, what say you?

Ruth: The tide goes in and the tide goes out, but it's not usually for that long, and it's not usually Mitch McConnell and others controlling the tide so that--

David Remnick: Well, this is my question to you, is about Mitch McConnell. Michael Franish asks this question. The refusal of Senator Mitch McConnell to hold nominations for hearings on Merrick Garland, an appointee of Barack Obama's, appears to violate the Constitution, Article 2, Section 2. Did Democrats ever pursue or consider pursuing legal action against McConnell for what he did, and if not, why not?

Ruth: No, they didn't, but just to continue on my rant, it wasn't just that Mitch McConnell refused to fill the Garland vacancy — well, the Scalia vacancy, I should call it — but he also then rushed through the confirmation of Amy Coney Barrett, so there are two seats on the court that Democrats could argue they should have been able to fill. That's why I was responding so sharply to this notion that it's just kind of the tides of events, and we all just have to bide our time. I will say I don't think--

David Remnick: In fairness, not that Jeannie can't speak for herself, but I don't think that Jeannie was saying it's merely tide comes out. She's saying that this is a particularly lawless time, which not just compounds the problem but makes it unique.

Jeannie: The tides analogy is not about, "Oh, this is just how things go." It's that in terms of the sweep of the country, we have times when we have a conservative court and we have times when there's a liberal court, and it depends on who is the president and who is in the Senate. This goes completely along with the idea that we had Mitch McConnell, who was in power, and he played hardball politics, and the Democrats weren't willing to play hardball politics to really counter it. Again, that's politics. To answer the question, there wasn't a law against it.

David Remnick: Ruth, Carl Riley from Liverpool in the UK asks this. "Getting elected in 2024 saved Donald Trump from criminal prosecution. What happens after he leaves office?" Is there any chance that a future Democratic administration can or will resurrect the criminal cases that were proceeding against him, or will courts pick those prosecutions up, or are they gone forever?

Ruth: There will be very little appetite to resurrect either of those two prosecutions — the January 6th case or the classified documents case. I think that those are gone forever.

David Remnick: Jeannie, final word from you.

Jeannie: I agree that those cases are not likely to be resurrected. I think that the entire episode of trying to bring criminal cases against Donald Trump, that really was a real, that was a difficult test for our country because, on the one hand, you've got the principle of nobody is above the law. On the other hand, it was not a wise decision overall-

David Remnick: Politically.

Jeannie: -to try to prosecute Donald Trump in the circumstances that existed at the time. It was doomed to fail from the beginning. I think it was a very difficult dilemma, but I'm not sure that they chose the correct fork in the road.

Ruth: In both cases. Jeannie?

Jeannie: Well, in the classified documents case, less so. It was hard to know exactly what the Supreme Court would do in the classified documents case, but the ones about January 6th and election interference were particularly ones that they should have done in a different way. They should have either done it really quickly, or they should have just said there are some things that are unfortunate about the legal system and about certain circumstances in which there's a president who has acted lawlessly. There's a reason that Richard Nixon was not prosecuted and was pardoned. At the end of the day, what would have been for the good of the country if he had been prosecuted or not.

I don't think it was for the good of the country that we had these Trump cases.

David Remnick: Ruth, do you agree or disagree?

Ruth: I don't disagree about the timing. Sooner would have been better. The notion, if that was what happened, that you needed to build these cases from the bottom up and start with the people breaching the Capitol, and only after those were all dealt with, or mostly dealt with, go to the president. I just have a really hard time stomaching that, though I take the point about the political backlash and the effects. We don't have kings. We do have a system. We want a system where no one is above the law.

The implications of what you're saying is that we unfortunately have to swallow a reality that sometimes some people in some circumstances are above the law. I don't want to live in that world, and I don't think we should have had to live in that world.

David Remnick: Jeannie, Ruth, I really appreciate your time and wisdom. This was a wonderful discussion. I want to thank all our listeners for their terrific questions.

Jeannie: Thank you.

Ruth: Great to be with you. Thanks.

David Remnick: The New Yorker's legal correspondents, Jeannie Suk Gersen and Ruth Marcus. You can find more of their coverage and analysis of the courts on newyorker.com. Thank you to everyone who submitted questions via email and through our various social media platforms. We look forward to another round of listener questions in the future.

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