Weird Islands
Notes de l’épisode
It's the last opinion day of the term, and the big one landed: Trump v. Barbara, the birthright-citizenship case. We read the majority as the rare easy case and spend most of the episode on why the four dissents each end up somewhere different — and trying to figure out exactly where they actually land. Along the way: a bogus Nina Totenberg story, a Landor GVR that might quietly unsettle a chunk of Spending Clause criminal law, and whether the professors who defended the order deserve the "legal scholarship police."
Highlights[00:00:27] The bogus Nina Totenberg wire story that Justice Alito was retiring — "Fake news, Dan."
[00:02:03] The Justice Alito / Justice Sotomayor bench-dissent dust-up from the immigration hand-downs
[00:03:11] Last opinion day — 3 opinions, 4 cases; NRSC v. FEC and West Virginia v. B.P.J. / Little v. Hecox flagged for later
[00:05:27] A significant new grant teed up on possession of semi-automatic rifles (AR-15s)
[00:06:43] A GVR in light of Landor in a federal arson case, and the narrow-vs-broad theory of what a GVR means
[00:09:34] Whether Landor's narrowing of Sabri could upend a swath of Spending Clause federal criminal law
[00:10:58] Why RLUIPA reaches prisoners — Chuck Colson's post-Watergate lobbying (courtesy of a listener, Emma Kaufman)
[00:12:55] Trump v. Barbara — Trump loses, but closer than predicted: "Trump beats the spread"
[00:15:25] Should professors who defended the order be punished? — "we don't need legal scholarship police"
[00:19:58] The majority's walk: common law → Dred Scott → the 14th Amendment → Wong Kim Ark
[00:26:21] Wong Kim Ark as linchpin, and whether its "domiciled here" language was doing any work
[00:36:48] Justice Kavanaugh concurs in the judgment on the statute, then dispatches the constitutional question breezily
[00:42:05] New states, Hawaii, and Living Originalism — when may you add new exceptions? "Weird islands you can't drive to"
[00:48:33] The 91-page Justice Thomas dissent, the facial-challenge pivot, and the reserved domicile question
[00:56:40] Justice Alito's Civil Rights Act / "not subject to any foreign power" reading, and the statelessness caveat
[01:00:11] Justice Gorsuch's 3-page solo dissent: if not domiciled here, then where? — a jab Thomas may not share
[01:05:33] Justice Jackson's anti-subordination concurrence, and whether it lands against Thomas
[01:10:24] "I feel proud to be an American, Dan" — hail to the Chief, and to Justice Barrett; sign-off
Cases
Sabri v. United States (2004)
Commentary & articles