Trump's Birthright Citizenship Arguments Were Laughed Out of Court

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:00:00 Clip: Thank you.

0:00:04 Matt: It's worth taking a moment to actually read the 1898 case because it could not be more clear that everybody means everybody.

0:00:35 Thomas: And welcome to Opening Arguments. This is episode 1249. I'm Thomas. That over there is real -life attorney Matt Cameron. How you doing, Matt?

0:00:41 Matt: Happy April Fool's Day, Thomas. What an April Fool's Day it has been at the Supreme Court.

0:00:44 Thomas: Boy. Don't celebrate. It's against my religion, so I don't want to hear any stupid jokes or pranks. I just, I don't, I'm not, I'm anti-prank. I

0:00:53 Matt: I got bad news for you because that's the whole episode. This is just one long prank on America.

0:00:56 Thomas: We're gonna so we got this great break matt we're going to pretend what if they did a whole case that was like hey what if like birthright citizenship didn't exist and they're like we'll do it on april 1st we'll do a whole case everybody don't pretend we'll do briefs and stuff we'll pretend that it's a real case this

0:01:16 Matt: Then we'll mark it up for April 1st. It'll be so good. I really started to wonder.

0:01:18 Thomas: That's so funny Were expecting the oral arguments to just be like, nah, gotcha, fools? I

0:01:28 Matt: I mean, I cannot emphasize, I'm going to make this point several times today, but this is the stupidest argument the federal government has ever brought to the the Supreme Court by far. It has to be. This is so bad. I mean, I spent a lot of time over the weekend the last couple of days reading the briefs, reading the source material, getting more familiar. I knew the arguments. Obviously, I'm familiar with the law, but I wanted to go deep on this because it's so interesting to me and because there is a fake controversy here that has been created. This has been climate change, right, where you've just had a bunch of people decide that they have another side to this because its convenient for them.

0:01:56 Thomas: Think climate change denial might be smarter than this. Can get lost in some data or something and be like oh, actually, if you look at the blah-biddy-blah, this is just like pretty straightforward.

0:02:07 Matt: In science, but yeah, this is just lies and misrepresentations and just policy. There's a lot of policy, which is never usually an kind art of thing that somebody who's going to win a legal case brings in if you're just talking about policy. Famously, that's a good way to lose usually. We'll get into it, but I just want to point out that as of now, since of a callback to a couple of weeks ago when we were talking about prediction markets. The wisdom of the crowds has decided as of last night, it was 84-17 in favor of striking this down. And now there is a 7% chance, according to Kalshi, that this will survive, that this order will survive. Think that might even still be too high after watching these arguments. I want to get into it. I want to play some clips. I'm going to show you kind of what these arguments are and really expose them for what they are. I Want to come back another time, maybe next week and talk more about the people on the other side of this, the right-wing grifters who have, I think, very knowingly and in bad faith come up with these arguments. Not often that I really say that about people on the other sides of arguments. Usually you can find people who really believe something.

0:03:00 Thomas: You lawyers are pretty pretty, chill. Usually you're pretty, uh, pretty patient about that and too much, I think, but

0:03:06 Matt: Usually when it makes it to the Supreme Court, there's at least somebody on the side that believes in what they're saying or can believe it. As we're going to see, everything overwhelmingly against the government here. And than I realized after I started digging into it. So we've got plenty of time. We'll talk about it. We've got pretty much the whole show because this is really the most important case of the term. I do think the tariffs case is probably more consequential ultimately because that actually had a chance of working. I never thought this had a change, and I've said that from the beginning. And I think the only question at this point is whether it's going to be anywhere between 6 -3 and 9 -0.

0:03:35 Thomas: Procedurally, should this have been like even somehow faster? Does it make sense that they're even doing this? I

0:03:41 Matt: As fast as possible. They actually leapfrogged the First Circuit. So this is actually one of those where they decided, of course, they couldn't do that with Jack Smith's criminal cases. They had to let that take its sweet time, through every possible appeal and motion to reconsider and everything. This one, they wanted to hear as quickly as possible. And I understand people are saying it's kind of scary that they even considered this. But at the same time, I have to say there is this movement that is building to the point that I think it's going to be good to get a definitive statement from the court saying that Wong Kim Ark, the 1898 case that really already settled this, actually already already settled this. I think that'd be good to get that in writing at this point.

0:04:13 Thomas: It's good to get a ruling that's like this happened like that we were there for this we're not not in a mandela effect universe where there wasn't that you know they could rule on the bernstein bear spelling too if they want you know that's probably that's more controversial actually I find

0:04:31 Matt: Let's get a certain petition going on that because

0:04:33 Thomas: It more plausible that that was spelled differently than the birthright citizenship doesn't exist I just think I mean how many of us would probably lose citizenship or just have a serious question as to our citizenship you on how this went you know I know obviously they would they would say somehow everybody's like grandfathered in or something but it's like this this would affect so many people right oh

0:04:52 Matt: Mean, arguably right now the order is prospective, but it's been mentioned and it did come up today that it could be retrospective if they found the whole thing had been misinterpreted the whole time, the same way they did with the Second Amendment. Remember when they found that suddenly it turns out everybody does have an individual right to a gun as of 2011.

0:05:06 Thomas: That's a good point I mean that that case when you talk about the second amendment that's also that level of dumb in some ways maybe not as dumb but yeah they but they decided to retcon it yeah

0:05:09 Matt: That was a long shot too. That's right. Yeah. Yeah the NRA didn't want that guy to bring that argument because they were so sure he's going to lose. Don't think that's going to happen here. I really don't after looking at this because this is so much worse. We'll get into all these details. I want to go take you through the history of this and how we got here and then look at kind of in order how these arguments went down. And then I've got a very quick footnote. We're going to move over from birth tourism to litigation tourism about one one German tourist. Good use of his time in New York City to file a bunch of lawsuits.

0:05:39 Thomas: And it does seem like pretty much everyone's on the same page that this isn't going to work so it's nice I'm excited to to learn why that is. And, you know, at least that's a good sign.

0:05:48 Matt: I've been on this train for 14 months and I'm very happy to have been proven right so far. I really don't think, honestly, I'd bet my house on those at this point. Would. Here we are.

0:05:57 Thomas: I would bet your house on it too.

0:05:58 Matt: Okay. Deal.

0:06:00 Thomas: I see your house and I call with your house.

0:06:05 Thomas: Yeah, no, absolutely. I think it's time to take our break. You can skip all these ads at patreon.com/law and you can get that law novel movies. Gosh, that was fun. I'm so glad we got to put out a preview for folks because that That was, that was really funny. I like that one a lot. Glad we're back to doing those.

0:06:22 Matt: Hanging around doing some jury nobbling. Good times.

0:06:25 Thomas: It was, I was worried about putting that kind of nobbling on the main feed. Like if, if iTunes or whatever is going to, I think, I don't know if they have a policy against nobbler. It's we'll see.

0:06:33 Matt: We dodge the explicit tag on the jury nobbling?

0:06:36 Thomas: No, we definitely, I definitely put that explicit tag for the nobbling. I'm just not sure it was enough. Like I was, you know, I Don't know. I don' t know if I have like an, an explicit explicit, like a explicit plus or something. All right. Well uh patreon .com slash law we'll take a break and we'll get to it right so you were gonna set us up first with a little bit of the the history I

0:06:56 Matt: Yeah, really quickly, I know we've been covering this pretty extensively, but just to catch everybody up, I'm not going to take too long on this, but on his first day in office, as promised, Donald Trump signed an order called Protecting the Meaning and Value of American Citizenship. And this, again, is an executive order. This is not an act of Congress. It's just a policy memo saying this is what we're going to do. And as we've discussed, an executive order really just tells the government how to do things, how to organize itself, how to carry out certain policies. And of contrary to the reporting, it wasn't that he was somehow canceling the 14th Amendment's birthright citizenship guarantee. It's that he Was just saying, we are not going to issue federal documents, passports, social security numbers, anything else to people basically that can't prove that one or both of their parents were here lawfully in a certain way. And I want to say up front, after really thinking this through over the last couple of days and listening to the arguments today, I think there's a version of this order that could have worked a lot better. Think what they did here is they just swung for the fences. They tried to get the biggest, I guess you'd say the most maximalist possible version of this Order, and one that would include basically anybody who had been born here to anybody that wasn't a lawful permanent resident or citizen. And you think about it, that includes people here on student visas, people here in tourist visas, people who are undocumented, people on temporary protected status for 20 years, right? Think that one thing that came out in and in the arguments is that the government might have, and again, I don't think they would have, but they might have at least had a case, something that looked like a case if they had stuck to, we're going to deny citizenship to people that were born while your parents were here on vacation for a couple of weeks or

0:08:22 Thomas: Like set a time limit or something like

0:08:24 Matt: It was clearly temper, if you didn't have the intent to stay here, right? Immigration law is very concerned with what we call immigrant intent. So if you're coming here and it's obvious, like even if you come here on a tourist visa, but you get a job right away and rent an apartment, we're going to assume that you have immigrant intent. You're trying to stay here. And as we're gonna find out, that is a major linchpin of John Sauer's argument as Solicitor General in this case. I'll just say it right now. What he's trying to say is that domicile is what this comes down to. Too. So this order was immediately challenged, immediately enjoined, never went into effect. Every single court to look at this order found it was unconstitutional. Nobody has agreed yet that this is something that should have happened or that the president has the right to do, because there is the whole separate question about can the president just direct the federal government to ignore the constitution? And obviously, even I would hope that if they really were being honest about it, I would hope that Alito and Thomas could both agree that they can't do that. Really takes an act of Congress to overrule this birthright citizenship guarantee. Thing you need to know going into this, and this will come up and I'll be doing some readings from it, but the major sort of final boss precedent on this, the thing that John Sauer as Solicitor General has to overcome to win this case, is he has to be able to either say that the court needs to overrul Wong Kim Ark, which is the the 1898 case that confirmed for sure that the 14th Amendment meant what it said when it says that all persons born or naturalized in the United States subject to the jurisdiction thereof are U .S. citizens. What Wong Kim Ark said. We'll talk about it. Has to either say they're going to overrule it or that there's some way he can distinguish it now. And he goes for kind of a secret third option here in which he says, well, what they actually meant was the secret hidden meaning of Wong Kim Arc is that they actually mean that the parents had to be here lawfully. And it doesn't say that. It does not say that at all. And I'll prove that pretty soon here. It gets to the point that he and the proponents of this argument have to lie about what Ark Wong says. This is not even, I don't think, a fair reading. I don'T think I can even give him credit for just misreading it. I think it's just a lie. What he says is essentially that Wong Kim Arc's parents in 1898, I remember this is a time when the Chinese were mostly excluded.

0:10:20 Thomas: They had an act about that didn't they we're

0:10:23 Matt: Our first major immigration sin, in our first immigration legislation, 1883. Wong Kim Ark was born here. His parents went back because they had no way to stay here legally. He came back on a boat many years later and said, I'm a US citizen because I was born on US soil. And I want to note that the Chinese community in San Francisco was really good about pushing the law forward. And they actually had an incredible sort of mutual benefit association with the six companies in San Francisco. They put up a defense here and took this case to the Supreme Court. And the Supreme Supreme Court found really in very strict language, it's really hard to miss, that anybody born here is a citizen. And we'll get into how they found that and how it works. But the main thing you know about John Sauer's argument, where he's starting with this, is use the word domicile a number of times, right? And domicil for the purposes of common law and really for immigration law is about your intent. That's not like a status you can have, It's just about whether you mean to stay here. Has to lie and say that essentially that Wong Kim Ark's parents were the equivalent of lawful permanent residents when he was born, which would be green card holders, but there was no such thing in 1898 or in any time in the 1800s. So that's out. That doesn't make any sense to begin with. And also there's the fact that his parents had to go back because they could not stay lawfully because everything was so anti -Chinese at the time and we were doing everything possible to remove Chinese people. So that doesn't even work on its face on the facts of that case. I said, the First Circuit was going to take this appeal from the New Hampshire court, but Supreme Court snatched it. They took it away. And as they can do sometimes, and as they have done in cases they think are particularly important, they took a certiorari before judgment. And so this has gone directly from the district court to the Supreme court, and that's how we're here today. Plaintiffs are a synonymous woman named Barbara. That's Trump v. Barbara. And one of the plaintiffs was pregnant at the time that this challenge was filed. She has since given birth. Wanted to be sure to include the rights of unborn, not in this sort of right -wing way, but in the very important going forward way. We want to make sure that everybody's included. Sort of was prospective from February, the month after it was signed. It was supposed to go into effect. It never did. Was never retroactive.

0:12:25 Matt: It But my concern would be that if they were somehow in some alternate universe to find that this order was constitutional, that it would be kind of hard to miss that this would have to be retroactive, probably. Going to start here with a clip from the very end of the case, because this lot about the whole thing. We're just going to do a little spoiler here.

0:12:41 Thomas: Gonna start at the end okay is

0:12:42 Matt: We're going to star at the end. I'm gong to give you an interaction, and

0:12:43 Thomas: That the part where they go april fools oh

0:12:45 Matt: It should be. It pretty much is. A good laugh moment here. So this is Justice Kavanaugh asking Cecilia Wang, who's arguing for the ACLU, who does a great job here, I don't want to spoil it. Let's just have, let's hear this moment. It's pretty funny.

0:13:15 Thomas: I got I got a golf tea time

0:13:25 Matt: There you go. Really says it all. I anybody should read Wong Kim Ark. If they're interested in this issue, it's worth taking a moment to actually read the 1898 case because it could not be more clear that everybody means everybody. And

0:13:35 Thomas: But they were so woke back then, you know, the woke mind virus.

0:13:37 Matt: True. They couldn't get enough of Chinese people in America. They were just importing them as much as they possibly could and keeping them here. Here. As I hope everybody knows, and I know we have a lot of listeners around the world, but we at that time in the 19th century were importing Chinese laborers, basically abusing them, using them to build the West and getting them out of the country as quickly as possible. Very, very strong anti -Chinese sentiment to the point that there was an entire political party that was just an anti-Chinese party that was basically running on the promise that we would pass the Chinese Exclusion Act in that's

0:14:03 Thomas: We never have parties now that are based on just the exclusion of like particular people.

0:14:09 Matt: A wall or Muslim bans, that wouldn't happen. That I thought was such a great moment of Kavanaugh basically just being like, yeah, so we're going to follow the precedent, right?

0:14:19 Thomas: Came across as like, I got some stuff to do. Do I do I need to sign something or what? It can my secretary handle this yeah

0:14:25 Matt: Does this need to be more than a page? Totally. This could have been an email. Totally. Yeah. But I think he's really making the point we've all been saying, which is that, and the way he phrases it is, if we agree with your read of Wong Kim Ark, but I don't know how there is any other read because it's such a clear case. And he's absolutely right. I mean, it's 128 -year -old president. By the way, it just turned 128 on March 28th. So we're just in its first 120th year as of this week. And I wanted to mention Cecilia Wang, who's arguing for the ACLU. Cool story because she herself is a birthright citizen. Of course, you and I are also birthright citizens, but she was born to Taiwanese immigrant parents who were grad students at the time. So potentially she could be affected.

0:15:05 Thomas: I it is everybody or are you saying because there's some immigrant thing or is it just like pretty much anyone born yeah

0:15:09 Matt: Anyone here is a birthright citizenship. But it's especially significant for this case, obviously, for people born to immigrant parents who didn't have a permanent status at the time. It was really amazing that you're looking at the legal director of the ACLU, somebody with a very long, excellent career, somebody who started a career basically by fighting Doropayo in Arizona, worked on the Sherry Mishumier Papers litigation, has been in all kinds of cool stuff, very accomplished lawyer, and is joining kind of the tradition tradition of immigrant lawyers stepping up to protect their communities. And her parents were from Taiwan. I'm not going to say Taiwan and China are the same place, although, of course, in the 1900s, 1800s, they would have been. In the 1800s there was an incredible established tradition of the Chinese community rallying together to raise money for lawyers and also to put their own through law school so they could have Chinese American lawyers file habeas claims. And Island in San Francisco was the Ellis Island of the West Coast. I don't know if you know about it, but honestly, I wouldn't be surprised if they don't teach it in California state history. It's really important, but it's one of those things.

0:15:59 Thomas: I can't remember it yeah oh I had a public education center I don't know. I'm not a good indicator.

0:16:10 Matt: That's all right. Ellis Island had something a 98 % admissions rate, and Angel Island, because of the Exclusion Act, had something 4 % or 5 % admissions rates. Had of armies lawyers today to file habeas claims to get people out. I'm going to play a quick clip of Cecilia Wang so you can hear her talking about what this meant to her. This is recorded just after the argument before we go on.

0:16:42 Thomas: This is very hacky, but what's the one that repealed prohibition? Because I'm a 21st Amendment. My parents, they didn't like each other that much. So it's, you know, I'm that kind of citizen. Sorry. Okay. Hey, like a Rodney Dangerfield joke. Didn't deserve this. I'll go back. Back oh

0:16:48 Matt: The 21st. Yeah. I thought that was so cool that she's first -generation American who, you you play this out, if this actually were to go the worst possible way it could go, her citizenship could be in danger, could actually be questioned. She's up there defending Wong Kim Ark on its 128th anniversary just days after. Think it was just so loaded. And we're not going to hear very much of her because honestly, her half of it went very smoothly. They had some interesting questions for her, but they were not ripping her apart anywhere like they were sour. So I wanted to play more clips of sour.

0:17:31 Thomas: Hers was just like a matter of paperwork they're like yeah what's today's date okay yeah we got that um is your name spelled right yeah okay no pretty much I think we've heard all we need to hear yeah

0:17:54 Matt: We got 50 more minutes. Might as well hang out. Yeah. See any good movies.

0:17:56 Thomas: You're you are like a member of the bar I guess I don't know is there anything else we need clear up for

0:18:03 Matt: Yeah, I just didn't want to give her... We're not going to listen to very much of her part because it's good. It's really good. And if anybody is interested in this, they should listen to the whole thing. But goes it on some detours that aren't that important. But I think I really want to focus on the government's argument. So, I wanted her to have you hear her talk.

0:18:15 Thomas: Like you got any thoughts on any the other cases that we have right now this is kind of just while you're here yeah I think

0:18:19 Matt: I'm going to jump in and yeah. Now we're going to hear John Roberts using a word that nobody wants to hear their case described as at So quirky, not a word you want to hear in the Supreme Court. Supreme Court is down with a lot of weird stuff, but they don't like quirky. Hierarchy. Just to explain what we're doing here, really the important part is that the only wiggle room in the 14th Amendment is on the idea of subject to the jurisdiction thereof. Obviously, it says anybody born here is a citizen, but they have to be subject to jurisdiction in the United States. Talked about this before, but

0:18:47 Thomas: Are quirky just yeah yeah

0:19:23 Matt: Just to be very clear, it is unquestionable at this point that what they meant, pursuant to the debates they were having at the time, was people like children of ambassadors, children born to invaders.

0:19:32 Thomas: Or if there's an army like taking over us right and they have children here something like that yeah Yeah,

0:19:35 Matt: And is saying, I think pretty eloquently here, we have these established narrow exceptions and you're trying to open this up to millions of people and I don't see it. He's just telling them, this is his first question to Sauer. How do you get here? So I just think quirky is one of those things to listen for. I'm not even going to say this is the fatal flaw. The whole argument is nothing but fatal flaws. There's nothing good in this.

0:19:53 Thomas: That's like going to the doctors and the doctor's like, oh, that's hmm. That's weird. I don't really want to hear that. That's is that how that always is? OK, hmm.

0:19:58 Matt: It's a little quirky. Have your lungs always been that quirky?

0:20:06 Thomas: Yeah, that'S not where that goes.

0:20:11 Matt: Yeah, so bad start for John Sauer. Presentation up front. Clarence Thomas asked him some easy questions. And then John Roberts, I just perked up when he used the word quirky because I knew that wasn't going to go well. And let's move move on to Gorsuch, who has some interesting points here. And I know we don't enjoy Gorsich very much, but on our side.

0:20:28 Thomas: But if he's on our side, I will at least enjoy him ripping a different another asset like an asshole versus asshole. Sometimes it's like OK, I take it's It's like when Bill Maher's right about something. It's, like, all right.

0:20:39 Matt: We got to give it to him. Yeah, we got some interesting moments here and we'll just play it on. I'll stop a couple of times and we will talk about what's going on here. It's a trip. This is a very important question. I just want to explain this for a second before he gets to the answer, because there's a funny moment coming up here. Gorsuch is asking very reasonably the question I had going in, which is entire argument, the linchpin, as he says, is that domicile is somehow the thing that they meant. The idea that you are there and intend to stay there and that you're in a lawful status, which again, there was no such thing as he's pointing out. Very glib to say there were no immigration laws before 1880. Law has a new book about this that I'd strongly recommend anybody wants to read about sort of colonial era laws and how the states were regulating immigration, there was a lot going on. But of course, there was no federal immigration system. That's what people, including myself, mean when we talk about there not really being immigration law before that time. But he's asking him, telling me about domicile, do you mean how they would have seen domiciles in 1868, or how we would interpret it today in the Immigration and Nationality Act, which is the intent to remain? And in 1868 as Sauer is saying, it wasn't that different because under the common law, domicil is just where you intend to be. It's not a lawful status. It's just, is this where I want to make my home? Making the very good point that it's kind of hard to compare these. This is apples and oranges because you didn't have to do anything to establish domicile. It was just a state of mind. There was nothing to apply for. Now Sauer's about to cite Wong Kim Ark and he's aboutto get slapped down by Gorsuch.

0:23:08 Matt: This was worth mentioning very quickly. Fact that Gorsuch is telling him straight up that Wong Kim Ark is not good for you, the precedent to which we are bound, the case you're trying to distinguish, and there's a laughter in the courtroom.

0:23:19 Thomas: In mind what we heard I mean that would have been after this but what we what you played where it's like so if we like literally read won kim arc like at all like as long as we haven't lost it like we haven'T lost the scroll of won kim ark back in the archives then then we're good here yep okay

0:23:35 Matt: Page decision? Granted. Okay, let's do it. I really is perked up again when Gorsuch says directly, don't rely on Wong Kim Ark. I don't think you can use it. It does. Let's on, hold on. I could almost see the look on his face when he says Roman laws. It is pretty funny. There's a lot of argument about stuff from way before 1868. And I understand there's an argument.

0:23:42 Thomas: That seems pretty indicative yeah yeah well should have that same freaking reaction when they do the dumb like gun control stuff and they're pointing to like you crap from england and all that like come on or the trump being a king stuff you know that one had a lot of weird stuff like that but all of a sudden and they were open to it then yeah

0:24:29 Matt: A case that we need some originalism on because they're directly challenging what it meant when they wrote these words in the 14th Amendment. It has to have of a limit. And I understand the originalist argument that to get into the state of mind of what the public would have understood, they have to think about the lawmakers and what they were studying. And at the time, maybe he would have studied some Roman law, but there is no support. And it's going to keep coming back at him here that no support for the idea that they cared about lawful presence or unlawful presence. It just wasn't a factor.

0:24:56 Thomas: Back then if you if you tied a couple of logs together and had a cabin somewhere like you come on you're a cowboy whatever I don't know I think that's how it worked is that's a good point wow yeah

0:26:33 Matt: He's getting to the heart of the problem here,

0:26:35 Thomas: I I mean this is so dumb I haven't put that much thought into it but I didn't think about the fact that like yeah which which parent now we're getting to some real stupid like biblical crap like you know what about what about men's rights you know what about father's rights why don't we could we can give some men's rights talking points about like oh it's matters only with the you know the mom is a citizen right

0:26:53 Matt: It gets worse because, and this is going to come out as we go through the argument, but obviously as somebody who thinks about this stuff all day, it's very hard to actually determine somebody's status at any given time, especially if you're trying to reconstruct it a generation later, right? It's also very hard to think about intent, right? And even with Wong Kim Ark, what was his parents' intent at the time they were there versus when they left? Like you'd have to have a factual hearing to figure out if somebody was actually a citizen based on this stupid test about domicile. You'd have to do an individual case -by -case analysis. It wouldn't just be, as people have been saying, prove that your parents were here lawfully. You would have to have a full factual finding if there's any challenge at all to your citizenship. It would be a disaster. And this comes out a few times in the argument, but No, it's not.

0:27:31 Thomas: Ridiculous yeah

0:30:05 Matt: Such a great way to say it. Would be astonishing, but that is what he has to say, and he's trying to say he's not saying that. But basically, this is a very good point about this blip of generations where there were people still being trafficked into the United States after slavery was outlawed. It's not really something we think about. Is saying by your argument, you're talking basically that all these people the 14th Amendment was supposed to protect would actually have been not citizens because they were brought in unlawfully against their will. He doesn't really have a good answer for this because she's right. Just kind of blathering about how antebellum law treated slaves, which isn't a question.

0:30:55 Thomas: What

0:32:08 Matt: Okay. I got to stop there. Not saying this directly, but what she's saying is it's not that different from Wong Kim Ark's parents who were not going to be permitted to stay because have wanted to stay, but the law wasn't going to let them. In this case, you've got people that were kidnapped and brought here who probably would prefer to go back to Africa rather than be enslaved in the South. These are people that would leave at the earliest opportunity if they could. How can you say they're domiciled? And he's

0:32:09 Thomas: I don't even understand got to draw a distinction between those two things because he's not is he he's not saying overturn one kim mark right or is he is that one of his

0:32:34 Matt: Not saying it directly. He can't. He knows he can't, he just trying to distinguish it.

0:32:36 Thomas: Well so I'm sorry if it's a dumb question why does he know he can't because I feel like these people pretty much have no shame like okay he just it's just that's looked at as like to on the pale yeah

0:32:44 Matt: Could try, we 128 year old precedent. That's pretty straightforward. I think so. He has to basically say that we've been reading it wrong the whole time, which is almost as stupid. I think that's actually stupider, but it sounds a little smarter. Thing about allegiance and domicile, as it's going to be pointed out later, this is all made up. This is just not at all how anybody ever understood this. And want to talk about this more, I'm hoping, on Wednesday's show next week when we get into where this stuff came from and the people who actually have tenure at law schools who have been coming up with this nonsense. You sent a law student out into the stacks, you could come up with an argument. You could find all of the sources for people that opposed the 19th Amendment to give women the vote.

0:33:24 Matt: You could fine plenty of people that oppose the 15th Amendment outlaw slavery. There are plenty of them out there. But you don't have to put them in a brief. They lost. They were not the winning opinions here, and that's mostly who he's citing are the people that opposed Wong Kim Ark or didn't think the 14th Amendment was a good idea as written. Just to give you the idea, the flavor of the kind of nonsense he's drawing from, one of the big pieces of evidence they cite in the brief is a letter from Senator Trumbull, who was one ofthe people who helped get the 14th amendment passed and the Civil Rights Act of 1866, which had very similar language. It's going to come up soon. But Trumbul wrote to Andrew Johnson, who was, of course, a huge racist from the South.

0:33:58 Thomas: That guy wasn't great geez

0:34:00 Matt: As mentioned earlier in this argument, we just heard that part, Johnson vetoed the original Civil Rights Act of 1866 specifically because it would have created birthright citizenship in a way that he did not want written down. Doesn't really have a lot to say about this. So the best he's got is that Trumbull wrote a private letter to Johnson and said, don't worry about it, man. It's fine. Going We're to give birthright citizenship to some people. And then again, I have to use this language, but they were talking about gypsies. They were talking about Chinamen. They're using all this antiquated language. And they're saying, don't worry about it. We're not actually going to give these people. He was trying to get Johnson not to veto it, but that was private communication. And that's not even what he was saying in public necessarily. How originalism is even supposed to work. Evan Bernick and Judd Sugarman wrote a great amicus brief on this, just about how they're they're doing originalism wrong in this argument. Vernick considers himself to be a liberal originalist. I'd love to have him on to talk about this.

0:34:50 Thomas: We could talk about kbj while we're at it maybe yeah

0:34:52 Matt: Absolutely, because she does some of this too to him. Don't even know how he can say this with a straight face. Maybe he didn't have a straight base when he said it. But the idea that once they've been forced to come here, they don't have allegiance to any foreign or African potentate. Just said in her hypothetical, think about somebody who was kidnapped and wants to get back to their home as soon as possible.

0:35:09 Matt: And he's like, oh yeah, no, they've given all that up.

0:35:04 Thomas: What yeah oh that wears

0:35:11 Matt: Yeah, right. Those people don't want them back. The countries don't want them. Yeah.

0:35:11 Thomas: Off what that is so weird

0:35:16 Matt: It's insane. But it just doesn't make any sense. She'll go on to ask about people who are illegally trafficked when they have kids. And she says it turns on whether the parents are lawfully in the United States. So even people who were brought in in today modern day slavery because we do have it going on today. And I've worked with plenty of people who've been kept in basically involuntary servitude or paid dollars a day or been forced to work on paid overtime and basically what I would call not obviously comparable to Southern slavery, but our version of it today that people are doing terrible things to their workers. Met plenty of trafficking victims who've brought in their false pretenses and told they're going to get a job on a farm, but it turns out they have to work in a restaurant or worse. Curse. Is all still happening. And insists that even with those people, but insists on whether the presence was lawful, even if they were brought in here under false pretenses. So it keeps going. We Okay. Well, we haven't heard from Alito yet, and we're going to have to do that, unfortunately. But we've

0:36:05 Matt: Got a shot in a chaser here because we've an Alito Fox News monologue followed by a Sotomayor palate cleanser. It's a great combo, actually. Is going to go on a little monologue as he is wont to do that really has nothing to do with the merits in front of him. He just wants to rail on Democrats, I guess. I don't know.

0:36:05 Thomas: Great oh you have to be enthusiastic while you enforce them it can't even be you have have to be like happy about it yeah that's they they had kind of a shitty attitude when they enforced them and so you know that ruined the whole thing in

0:37:16 Matt: Come on, ICE, would it kill you to smile?

0:37:38 Thomas: Minds fuck in their minds they have like houses and families and work you know what an asshole god so

0:37:49 Matt: And 20 years of residence, sure. He's complaining and whining about about how the Biden administration, Obama administration, is what he means to say, of course, didn't enforce immigration law as much as he would have liked. So now we have these concerns rolling.

0:38:01 Thomas: That's why we have these people here that yeah

0:38:03 Matt: Yes. Because they all could have been mass deported by now. And so he's concerned trolling and saying, well, look, we've got this humanitarian problem. And he's basically saying, I think these people have established domicile, which goes completely against what Sauer is trying to say. Basically, because he wants to do this Fox News monologue so bad, he's completely undercutting the argument he's probably going to end up agreeing with. The only one that really seems to me that might even support this argument, really. I thought that was an interesting moment where he's saying it's a humanitarian crisis, that we've got all these people that think they've established domicile, but by any definition, they have established domcile because keeps saying it has something to do with your lawful presence, it just doesn't.

0:38:37 Thomas: So what he's saying is they should have been mass deported for their own good back before it would have been it would have been way better off yeah

0:38:40 Matt: But they've accidentally set up domicile because we let them.

0:39:18 Thomas: Think that matters yeah

0:39:30 Matt: That's not what anybody's saying. Okay, so a couple of things. Humanitarian point that he was making was that we've got a bunch of people here, obviously, who have established domiciles. What do we do with them? Because I think they are birthright citizenship. I mean, he's basically saying that. Idea that there's a small minority of nations that still have birthright citizenship is not true. The UK no longer does. It was mentioned, I think, earlier, where it's going to be mentioned that as of 1983, they ended birthright citizenship. That's where we got it. But at the time in English common law, that was very much the understanding. There was no question that's what it meant, that it's everybody born within the sovereign's jurisdiction. Of the Western hemisphere still has basically some form of birthright citizenship because it was all colonial powers that set these countries up. That's just not true to say that it is a small minority of nations that have that rule. Then he's claiming at the end that they're asking them to rule only only prospectively. But as you're really saying it's been misread this entire time, I don't know how you can be able to say it's only prospective, even though that's what the order says.

0:40:28 Thomas: To be fair I feel many laws work like that sometimes right where or something, you don't go back and apply it retroactively, right?

0:40:32 Matt: Well, there's a whole body of case law we don't have time to get into about when Supreme Court decisions become retroactive and not. Were to go forward, it'd have to be another conversation. And the order itself says it's it's perspective, but I can immediately see states starting to decide to mess with this and take this up and challenge it if we're to get there. Again, I don't think we're going to get that. So let's hear Sotomayor because there's some great stuff here.

0:41:23 Matt: I just want to point out how good that is that she's just straight up like, there aren't any treatises or scholars who say it's different. It doesn't challenge that.

0:41:31 Matt: Because I mean, if you're an originalist and you want to understand what the understanding was at the time when this was passed, it was under the common law that anybody born in the jurisdiction who wasn't the son of an ambassador or an invading army, that they were citizens. That's what they understood. And he's not going to contest that.

0:42:39 Matt: Totally not. Case, Hintopolis that she mentions is directly on point from 1954, I believe. It was somebody parents had no question overstayed their visa and both the majority and the dissent. And the majority, as she quotes here, says, the child is, of course, an American citizen. Nobody questions it, right? The dissent acknowledges that they're a citizen. Is pretty well understood in the 50s. And this is after, by the way, Congress has had a chance to pass both in 1940 and in 1952, laws clarifying citizenship. And what they have done is just mirrored the language of the 14th Amendment and not changed it. So that has to mean something. And he has no way to respond to this. He just doesn't.

0:47:39 Matt: Okay. I want to point out what she's doing here. Thought this was an excellent summary of why this is revisionist and why this is a completely absurd argument and why it doesn't belong in front of the Supreme Court. Love the way at the end she says, you're bringing us a story, basically. Like you're telling us a completely different story. So what do you think that we should need to see? The magnitude of the evidence to accept your revisionist theory. Former dean of Harvard Law School putting you on the spot and asking you to explain explain yourself about is obviously so wildly out of pocket. Like you were just coming in with something that we have never seen or thought about before. What do you think you should have to prove to us? So he has no choice but to do what anybody would do in this situation and lie his ass off. So that's what he's going to do.

0:48:19 Thomas: Be fair, he's been doing that the whole time, so...

0:48:21 Matt: But he's gonna especially do that now. And I really perked up because, and Evan Burnick actually posted the link to the law review article he's going to be talking about. And so I can read to you from it to tell you the truth of what he is about to say.

0:49:57 Thomas: Mean, I don't know anything about this, but does that mean a guy in 1921 was wrong in a law review article or because that can happen? People have been wrong before, you know, like if I wrote a law review article now and then someone 100 years from now was like, whoa, this guy thought that it meant this. It's like, OK, well, he was wrong.

0:50:01 Matt: Certainly to begin with, that's right. So that's not what the law review article says is the problem.

0:50:18 Thomas: That's another option.

0:50:18 Matt: So yeah, but no, absolutely right. The best he's got is a law review of the article from somebody who went on to work in the Roosevelt administration. And he's basically blaming the Roosevelt Administration for somehow coming up with the actual interpretation of that we all believe is true today. I don't really understand what he's doing. In the Law Review article, which again, linked to from Evan Burnick, guy says very clearly that there's no question that this is what Wong Kimmerich says. And also, another very important thing, there's a case called Lynch v. Clark that comes up a lot during this argument. And the best that Sauer can do is basically just saying, well, everybody thought that case sucked, which literally, that's pretty much what he says. Not true that everybody did not think that case sucked, including Forney, the guy who's talking about this law review article. Forney acknowledges that Lynch v. Clark was very important in Wong Kim Ark and that they acknowledged that it was a well -decided opinion, that it wasn't important for this. And to what they call sojourners, to people who are passing through. And doesn't like it, but he says, what is more important, all of these decisions were based upon the theory that the law of citizenship of the U .S. was taken from the common law of England, and the latter makes no distinction between persons born of the country of alien sojourners and those born of domiciled aliens. And even gives a hypothetical, and he says, but one might ask, if a Chinese merchant and his wife are returning from Europe to China, the United States, and a child is born to the woman in San Francisco the day before they set sail, is that person really a citizen? And he says of course that person's a citizen, And no question, indeed, as absurd as it may seem, right? So this is the typical thing where they're creating a controversy that doesn't exist. They're creating split that doesn' t exist. This guy at that time had to acknowledge that it was the state of the law. What And he's got, is misapprehending or misquoting a law review article.

0:50:58 Thomas: Everyone loved that case. Wow. Non-lawyers, like, so your, you argument for your case is not, you know, look at this precedent, look it this, such and such, such, and such. Look at this, like law review article that a guy wrote that expressed maybe an opinion that he's misreading that this is how the case actually was. Like, is this is this theory that like the lost city of Atlantis, you know, a sort of way like the actual meaning of Juan Kim Ark was was was lost to time and then they accidentally like did a different meaning of it?

0:52:22 Matt: That' s right. Yeah. And now he has the one true meaning that he's coming out with. Yes, he is.

0:52:28 Thomas: Well, to be fair, that's what they did with the Second Amendment. So I don't know.

0:52:31 Matt: Yeah, and that worked. But I think there was more support for that than there is for this. This is the moment that I wanted to address very quickly because this is one that got the most attention today and it's been very badly misunderstood. It's a funny moment. I posted about it because I thought it was very funny. You'll enjoy it, I think, but it doesn't say what people think it's saying. So Gorsuch obviously, as I hope people know, is actually very much sincerely about Native rights. It's something that was important to him as a Coloradan and as a circuit judge. Interested in the Native American issues. And I want to be clear before we play this clip that at the time of the 14th Amendment, at the Time of the Civil Rights Act of 1866, Native Americans were not considered to birthright citizenship. And it wasn't until 1924 that we actually passed a law specifically saying that Native Americans are U .S. citizens by birth. So technically speaking, there is no constitutional birthright citizenship for Native Americans, which is pretty messed up, obviously, but that's the truth. That's the law. Gorsuch is really going to push him on this point. And remember, this is the justice who's known on the court for being somebody who cares a lot about tribal issues, I think in a very sincere way. And is not the justice you want to come unprepared to talk about tribal issues with. And he knew that he was going to be talking about tribal issues because Elk v. Wilkins is another case that comes up a lot. That was one of the other precedents before Juan Camargo that involved a native person in which the Supreme Court found that even though this man had actually tried to leave his tribe, that he was not a citizen from birth, and that's just how it was. Here's this moment that is getting some attention, and it's a very funny response from Sauer that you'll enjoy, but

0:54:39 Thomas: Oh my god, that is, that the teacher asking you something on the homework that you really should know, oh let me see, this is saying the page here, yeah, yeah yeah, I want to say yeah, yes, yes yeah let

0:54:49 Matt: Probably. Him. I mean, this destroys the argument, because he's getting to admit that under my test, obviously, Native Americans were domiciled here. They intend to stay here, but they were specifically excluded by the understanding of the 14th Amendment at the time, and to the point that Congress had to pass a law to be sure that they were birthright citizens. And he's like, yeah, I guess under my test, they would be. And just not history. That's not how it worked. That response of like, I'd have to think about it, yes, I guess, that's not the answer you want, especially to Neil Gorsuch. Just one of many ways that this argument is just so not even half -baked, it's barely rising.

0:55:19 Thomas: Get back to you on that does it continue on I can't imagine gorsuch was happy about that yeah a

0:55:31 Matt: Yeah, there's a little more. But he's taking the yes because that's what he said. There's a Kavanaugh exchange. We don't need to play the whole thing, but I just wanted to mention. And I think my theory here is that Kavanaagh is going to find a way to do what Kavanauch likes to do. And he's going to come at it slightly differently. He'll have a concurrence where he's like, yes, I agree.

0:55:52 Thomas: Concurrence that no one else signs on to that's stupid yeah

0:55:54 Matt: I for that. And I'm going to leave time to get into this, but it's kind of interesting. The difference between the 14th Amendment and the 1866 Civil Rights Act. And there's kind of a funny moment where he's asking him, because in the Civil Rights Act of 1866, Congress said that people not subject to a foreign power were birthright citizenship. And then just pretty much the day that they passed that bill, they started debating the 14th Amendment. And then in the 14TH Amendment, it ends up saying that subject to the jurisdiction of the United States are birthright citizens, right? So he's asked him, why did it change? And basically, Sauer just makes up on the spot. He's like, they wanted to do something more positive, not negative, right?

0:56:31 Matt: They want a positive definition. But the really funny part is when Sauer says, and it's like five minutes, I don't want to play it all, but Sauer says that his solution would leave room for Congress, which is incredible. Now, this is actually an argument that these people have made, and I think I want to watch next week. We'll watch some of Ilhan Warman.

0:56:31 Thomas: What so you would want people's like citizenship to be maybe determined to like like every two years when the house changes, you

0:56:49 Matt: Yes, left up to Congress. Exactly, Which exactly. Is exactly what the people that put the 14th Amendment together and got it ratified wanted to avoid. Void. That was exactly what they said. They didn't want a new administration to come in and take people's citizenship away or completely rewrite the rules every four years. This actually is something that Ilan Wurman, who we're going to talk about next week, have things to say about him next week. I don't have time to talk about him right now, but on his podcast, which I'm going to posit to you, is the version of opening arguments that you will hear in hell. And I'll explain that more next week but it is,

0:57:19 Thomas: No, they had that one for about a year. It was Andrew and Liz, I think.

0:57:21 Matt: That's true. It's true, no, this is worse, actually, actually says the same thing about how, well, don't worry about it, even if this is upheld, and if Trump's order goes through, Congress will fix it, they'll pass a law, Congress. Idea that you're going to leave room for Congress to fix this is like saying that you can go ahead and burn my house down, because that leaves room for me to build a new house, except I won't be building a house. I'm going to hire a bunch of people who have never built a house before who hate each other to build my house. It's just like, yeah, stupid. I mean, it just it's laughable. We go on, we're going to skip this part too, but Coby Barrett had some questions about foundlings, which is kind of fun talking about people who don't have parents. If we found in a basket on the fire station, what do we do with those people?

0:58:02 Thomas: Right.

0:58:03 Matt: He doesn't have an answer.

0:58:04 Thomas: That's kind of a good point. If you can't determine where their parents were citizens, then, you

0:58:08 Matt: Yeah. What do we? And I think he's basically like, well, that's not very many people, So who cares? Going to just wrap it up here with the KBJ summary. I thought she did a great wrap up of what the court is being asked to believe in this case. And that starts at 59.

0:58:22 Thomas: Is What is all the background noise? Like, what am I? Are you hearing that? That's not you. Just like tons of background noise.

0:58:34 Matt: Will note Donald Trump is in the courtroom. I forgot to mention that. This is the first time a president has attended oral arguments. He actually left 13 minutes into Cecilia Wang's argument.

0:58:37 Thomas: What? I was going to say, there's no way he could sit through that.

0:58:43 Matt: They didn't use his name once. Well, except maybe to talk about Trump's order. But imagine that man sitting through an entire Supreme Court argument.

0:58:48 Thomas: That is, wow. You should have

0:58:50 Matt: I forgot

0:58:50 Thomas: Mentioned that at the top. That's kind of crazy.

0:58:52 Matt: To mention that. It is historic. It's never happened.

0:58:54 Thomas: Yeah, that's sort of, I mean, yeah.

0:58:56 Matt: Would hope that even he could see that Sauer got trounced, but I don't know. I mean, he seemed pretty salty about it afterward.

0:59:02 Thomas: I don't think he has any. I don'T THINK HE HAS ANY IDEA OR CARES, REALLY, ABOUT, LIKE, THE ACTUAL, LIKE HOW THE ARGUMENTS ARE. HE JUST IS LIKE, BUT I SHOULD WIN. WHATEVER.

0:59:05 Matt: That's true. Right. And he wants to stare at his justices so they'll do the right thing, I guess. But

0:59:13 Thomas: BUT THE. YEAH, THE NOISE. THAT'S NOT NORMAL, RIGHT? AM I? OKAY. I DON'T REMEMBER HERE. I'VE DONE A LOT OF THESE. I don't remember HEARING A CONSTANT LIKE THERE'S SOMEBODY'S KID IN THERE OR SOMETHING. IT'S KIND OF WEIRD. ALL Protests outside?

0:59:25 Matt: Yeah, it might be. I just have to stop for a minute and say, Jackson is so good at just calling people out of just being complete idiots, right? And I just love the way that she's like, OK, so we'd have to believe these impossible things before breakfast. I think you have a number of hurdles here, which is just a great way to say this is the shittiest case I've ever seen. What are we doing here? We've spent an entire hour talking about stuff that you just can't back up. So, I just wanted to give a little example of Jackson doing liberal originalism. That's just Jackson just being brilliant, doing her thing, kind of coming at it from the other side about I can do originalism too, because there's all kinds of stuff in the record that goes against him.

1:03:09 Thomas: I could do originalism backwards and in heels.

1:03:12 Matt: That's right. One very quick clip. I don't have the exact. It's in the ACB. I want to go back here because this is a great way to end. As we started with the Kavanaugh basic clip saying, if take your reading or the common reading, the understood reading of 1K Mark, then you win. Here's an amazing sort of summary of the entire problem with Amy Coney Barrett.

1:04:05 Matt: There it is. That's the moment for me. Yeah, yeah, yeah. But what about the Constitution?

1:04:10 Thomas: He didn't mean the year 14 -01. What did he mean? What's 1401? Want like okay hmm

1:04:13 Matt: Believe that's the statute because 1401, to be clear, we're looking at both the constitutional basis of the 14th Amendment, but then also Congress passed a statute. I mentioned this before, but both in 1940 and 1952, they passed a codification of the 14th Amendment where they explained exactly all of the different scenarios. Like if you're in Eskimo or you're born outside in certain outlying possessions, just to clarify, because we picked up a lot more territory by 1952. So

1:04:38 Thomas: It sounds like this should be really clear then if they've done all that gone to all that trouble

1:04:42 Matt: Exactly. And the first line of 1401, he's citing 1401F, which talks about people of unknown parentage, but is literally just exactly mirroring the 14th Amendment and saying a person born in the United States and subject to the jurisdiction thereof. They didn't think that needed to be explained.

1:04:57 Thomas: They did this with all this trouble do an explainer then well that part's fine we don't need to touch that wow

1:05:02 Matt: Exactly. And I love that he brings up the statute and she says, yeah, yeah, yeah. But what about the constitution, which is really the best tagline of the whole argument? What the part where it says people born in United States are citizens? You want to address that?

1:05:14 Thomas: We should probably talk about that yeah

1:05:18 Matt: Yeah. So that to me, I mean, there's no way that Barrett's going for this. She was so skeptical of the whole thing.

1:05:24 Thomas: What's your prediction I think eight one could pessimistic as you it's sometimes warranted to be these days I feel like there's just no chance I mean that poof I can't imagine there being five justices that want to go for this yeah

1:05:27 Matt: Possible. I have said that from the beginning, and I felt ever after this because they just hammering Sauer all the way through. And then when Wang comes in, they're just kind of looking at some of the more interesting implications of some of this stuff and kind of like having more of an academic...

1:05:51 Thomas: Did you read anything in the news today uh yeah did you do the crossword it was really hard what what did you have for I guess

1:06:01 Matt: Is likely to join Alito as he often does in these kinds of things because he's just very, very true on

1:06:06 Thomas: We didn't hear any of them so I don't know so

1:06:08 Matt: Thomas was basically trying to raise the MAGA point, the conservative talking point that they've been using for years, which is that the point of the 14th Amendment was to overrule Dred Scott, which of course was the worst thing the Supreme Court ever did in finding that people brought into this country involuntarily were not citizens and didn't have any rights. Was, it's true. The 14th Amendment was specifically designed to address Dred Scott, to overrule it. It was never officially reversed. It's just the constitution was changed. But the thing is that Wong Kim Ark already addresses that too. If you care about what the case you're supposed to be following says, it is from Wong Kim Arc. Its main purpose doubtless was, as has been recognized by this court, to establish the citizenship of free Negroes, which had been denied in the opinion delivered by Chief Justice Taney and Dred Scott. However, put it beyond all doubt, that all blacks as well as whites, born or naturalized within the jurisdiction of the United States, are citizens of the United States. So they're saying, even in this opinion, directly, and they repeat it several different times, that anybody born in this country is a citizen. And the purpose was obviously to to address the issue of the fact that we had a bunch of people that the Supreme Court had found were not citizens, but also everybody else. And be seriously argued that they meant anything else or that they were secretly in the back room saying, well, yeah, of course, we're all going to agree and pinky swear this means domiciled legally. Nothing like that is in here. Nothing.

1:07:27 Matt: Much. This is exactly what I expected. And I understand the the doomerism. I understand people getting upset about them taking this at all. I certainly was. It should have been a closed book. I mean, nobody thought this was constitutional. And at the end of the day, even if you do think, even If you're one of these people who, and I can't honestly think you believe this in good faith, I'm sorry, I just don't. But even if You actually think that there's a historical record that somehow suggests that we cared about somebody's lawful status at the time that they were domiciled here, still have to deal with the fact that it's Trump trying trying to do this through executive order. And

1:07:26 Thomas: Boo you lose racists on yeah

1:07:59 Matt: We can't have that. They just can't do it. And the executive order is so broad that maybe your best argument is that people who are domiciled here temporarily, that were only going to attend grad school for two years or only going to Disneyland and had a baby while they were here unexpectedly. See that. And again, they might've taken that case, but they didn't because they had this ridiculously broad order where Trump was trying to destroy the constitution. So this is what you get.

1:08:21 Thomas: Right well boy that that flew by we went extra long but that was really interesting and necessary this is a case that I know we've been waiting for for a long time uh so I think it was worth going through it especially because it seems positive and

1:08:29 Matt: Very exciting. This was my Superbowl. This

1:08:33 Thomas: And as we were uh recording this the didn't blow up so I'm happy about that that's good that good. Yeah. Launch.

1:08:39 Matt: Oh, great. Love it. Love to hear it.

1:08:42 Thomas: Stuff. What a great day.

1:08:44 Matt: Okay. Well, we don't even need a footnote today. I think we can leave it at that.

1:08:47 Thomas: Yeah. Footnote is the Constitution says what it says. Put a footnote on the 14th Amendment and it just says, John Sauer, you're an idiot. Just read it. Read it again.

1:08:56 Matt: And I've had a great time and I hope everybody's enjoyed listening to this, but we really could have stopped at the Kavanaugh point right up front. He had a good point there that this could be a very short opinion and I I hope it is.

1:09:04 Thomas: For once, that was a fun Kavanaugh thing to hear. Yeah?

1:09:07 Matt: Yeah.

1:09:08 Thomas: Right. Well, Well, thanks so much, Matt. Forward to, yeah, that decision going the right way. That's good. And thanks for listening, everybody. And we'll see you on Monday.

1:09:16 Matt: All right. Later.

1:09:20 Clip: This has been Opening Arguments, produced by Thomas and Lydia Smith, with editing help from Peter Baird. The intro is by Thomas Smith. This outro is by Matt Cameron. Support the show at patreon .com slash law. Contact us through Patreon or openarguments at gmail .com. Make sure to follow our blue sky at OpenArgs. But most of all, please share the show. Thanks for listening.

1:09:53 Matt: Well, everybody thought that case sucked, which literally,

1:09:57 Thomas: I want to say yeah, yes, yes yeah let could do originalism backwards and in heels.