Is It Legal to Bully the Supreme Court?

By Emily Bazelon and David French

Ms. Bazelon is a staff writer at The Times Magazine and the Opinion section. Mr. French is an Opinion columnist. They both hold law degrees.

Emily Bazelon: Hi David. I should start on a light and friendly note, I know, but I confess that the birthright citizenship case is making me feel trolled. President Trump began his term with an executive order professing to end the right of citizenship for the children of undocumented immigrants and foreign residents with temporary visas, among others. I understand the politics — light up the base and then torch the court if it stands in the way.

To me this is the headline: Trump Trolls America. Because I don’t think the administration is making a serious legal argument. D. John Sauer, the solicitor general, offered some shreds of evidence from the historical record, which some conservative scholars have tried to weave together, to argue that the president can end birthright citizenship with a stroke of his pen. But on the other side of the scale are the meaning and longstanding interpretations of the 1866 Civil Right Act and the 14th Amendment and the 1898 Supreme Court decision United States v. Wong Kim Ark and a 1952 statute. Those are heavy weights, all stacked up.

I understand that to do their jobs the justices have to take the president’s legal positions seriously. They pressed Sauer and also Cecillia Wang, the A.C.L.U. lawyer representing the opposing side. We should do our jobs by analyzing the argument — what stood out to you?

David French: There was an incredibly telling exchange between Chief Justice John Roberts and the solicitor general. “We’re in a new world,” Sauer said, because “eight billion people are one plane ride away from having a child who is a U.S. citizen.”

Chief Justice Roberts’s retort was perfect — “Well, it’s a new world,” he said, but “it’s the same constitution.” In that one moment you saw the contrast between the MAGA legal philosophy and the legal philosophy of most of the justices. MAGA wants specific results, the justices interpret texts. And when MAGA’s argument contradicts the constitutional text, it’s almost always going to lose — as it has lost time and again before this court.

Emily: Well, I’m not sure about time and again, given the many wins the administration has had on the emergency docket (and some significant victories to come this term, in all likelihood). Another thing that bothers me about the birthright case is that at the end of the term, assuming the administration loses, it will help make the Supreme Court seem more middle of the road than it is. The term will come across as Trump lost some and won some. But that’s a benefit of going to extremes — it makes the court seem moderate by comparison when truly it is not.

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Emily Bazelon is a staff writer at The New York Times Magazine. @emilybazelon • Facebook

David French is an Opinion columnist, writing about law, culture, religion and armed conflict. He is a veteran of Operation Iraqi Freedom and a former constitutional litigator. His most recent book is “Divided We Fall: America’s Secession Threat and How to Restore Our Nation.” You can follow him on Threads (@davidfrenchjag).

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