A MARTÍNEZ, HOST:
We heard from Supreme Court expert and Georgetown law professor Stephen Vladeck on Wednesday before the justices heard arguments on birthright citizenship, and now we've called him again the day after. Professor, we're going to pick your brain again. Nina Totenberg's estimation was that at least seven justices were leaning against President Trump and ruling in favor of birthright citizenship. What's your sense?
STEPHEN VLADECK: I mean, as ever, I'm not going to disagree with Nina.
MARTÍNEZ: No (laughter).
VLADECK: I heard a very similar breakdown across the bench yesterday of skepticism, and in some cases, outright hostility toward the administration's position. You know, you can never be sure, A, but I think it's a pretty good bet that the administration is going to lose and perhaps by that exact margin.
MARTÍNEZ: Any exchanges of that hostility that was most revealing to you?
VLADECK: Well, you know, you already played the clip from Chief Justice Roberts' skepticism about the federal government's birth tourism argument, but I also thought that Justice Neil Gorsuch was especially pointed in some of his questioning of Solicitor General Sauer, especially when it came to what the government's position would mean for Native Americans, especially those who choose to live on reservations. You know, Justice Gorsuch has been a fierce defender of Native American rights since joining the court, and I think the gap in that question from Solicitor General Sauer did no favors for the government with that vote.
MARTÍNEZ: With Supreme Court cases, it almost feels like a scoreboard in a game of some sort because, you know, it's - there are nine justices, and we got to see exactly how it shapes out - 5-4, 7-2, 8-1. If Trump loses his case, what are the different ways that could happen?
VLADECK: Yeah. You know, I think one of the interesting questions, A, is, is it going to be on constitutional grounds, as Nina was suggesting? There's also a narrower statutory argument that whatever the 14th Amendment means, Congress in 1940 and again in 1952 wrote the Supreme Court's 1898 decision in the Wong Kim Ark case into statute. And so at the very least, the executive order is inconsistent with that statute. But, you know, when that issue came up yesterday, A, the justices and Solicitor General Sauer seemed to shy away from a narrow ruling. Everyone seems to want a broad ruling here, which is unusual, but also suggests that that's what we're going to get when the court hands down its decision by, you know, presumably the end of June.
MARTÍNEZ: So - OK, so you think Trump will lose this case. You wrote, though, in The New York Times that in some ways, he has already won. What does that mean?
VLADECK: Yeah. So, you know, this is the second time the Supreme Court has had the birthright citizenship issue, and last year it didn't reach the merits in a ruling that otherwise narrowed the ability of lower federal courts to issue nationwide or systemic relief against the executive branch. That didn't end up mattering here, partly because the court effectively ordered the Trump administration to bring this case back. A, my concern is it's going to matter in other contexts, in policies beyond birthright citizenship, where we've already seen over the last nine months, it's been harder to challenge lawlessness in Minnesota, it's been harder to challenge systemic cancellations of federal grants, it's been harder to challenge mass firings of federal employees. And so, you know, I think Trump is going to lose the birthright citizenship case, but the way these cases have been decided might have actually given him and the executive branch, going forward, more ability to engage in potentially problematic behavior without necessarily having the Supreme Court scale it back.
MARTÍNEZ: So if this administration, say, loses decisions in lower courts, will it just go straight to the Supreme Court? Is that what you're saying?
VLADECK: No, I think the danger is that it won't appeal at all. And, you know...
MARTÍNEZ: It won't appeal - OK, OK.
VLADECK: And so when you have district courts blocking the president and it's on a nationwide basis, of course, the government has to appeal 'cause it can't act. But if, you know, five or 10 or 15 plaintiffs obtain an injunction, say in Los Angeles, that's only good for them until that case gets appealed. And so I think the real question that this whole litigation and not just yesterday's argument raises is, how are we going to preserve the ability of federal courts on a systemic basis to rein in a lawless president? I think birthright citizenship is ironically going to end up being the outlier there because of how much attention it's understandably received. In some respect, it's the other policies where I'm more worried about a potential gap.
MARTÍNEZ: Professor, I mean, you obviously pay attention to this quite closely. What do you think the Trump administration has done to the way the Supreme Court is perceived by the people who really look toward its decisions as a way to kind of set a bar for the United States?
VLADECK: Yeah. I mean, I think we've seen, historically, A, that the Supreme Court has been a pretty effective check in reining in excesses by presidents of both parties. At least to this point, we've seen less of that from this Supreme Court and the second Trump administration. You know, other than the tariffs case, we've really seen a bunch of rulings, especially on emergency applications, where the court has enabled behavior by this administration that lower courts have blocked.
A, I think the question going forward is, which one's going to be the exception and which one's going to be the rule? Is the court going to be more skeptical of President Trump going forward or is the birthright citizenship case going to be the extreme outlier because of how transparently odious and counter-historical the administration's policy is?
MARTÍNEZ: Stephen Vladeck is a professor of law at Georgetown University Law. Professor, thanks.
VLADECK: Thank you. Transcript provided by NPR, Copyright NPR.
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