Leah Litman, law professor and author of "Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes" joins Sam Stein to discuss the Supreme Court’s ruling limiting nationwide injunctions and its implications for Trump’s executive order targeting birthright citizenship. Also, the potential consequences for civil rights enforcement, and how this decision could reshape the balance of power between the courts and the executive branch.
Read more in The Bulwark, "The Supreme Court Just Made America a Dangerous Place"
As always: Watch, listen, and leave a comment. Bulwark+ Takes is home to short videos, livestreams, and event archives exclusively for Bulwark+ members.
Don’t care for video? Use the controls on the left side of the player to toggle to audio.
Add Bulwark+ Takes feed to your player of choice, here.
As per usual, Sam interrupts his guest as soon as he gets bored with the guest's response to his question. Some of the interruptions are just Sam wanting to show the guest that he's as knowledgeable as she is. The Bulwark listener/viewer are the ones who get cheated.
Awww, my worlds colliding, and for such a delightfully dystopian episode! 1) MORE LEAH. 2) Sam, at the end there you were kind of (incorrectly) mansplaining the law to an expert you invited on because she is *checks notes* a law professor. Love you. Don't be that guy.
That was really helpful though I’ll have to listen to it a couple more times as it’s dense. Excellent interview by Sam, really worked to bring out key points of what could be a thicket of legalese. Thank you.
Sam, Thanks for having Leah on the show to decipher this consequential ruling. What a terrific, knowlegable guest. Imagine what kind of ruling this is when an expert like Leah has to say at one point "It's unclear". I listened intently to learn as much as possible about this ruling and it's ramifications. Maybe my mind isn't equipped to handle these things, but my takeaway is the Supreme Court (or should I be more precise, the shit six) is going to interpret the Constitution at the behest of everyone but the American people. Like, what's good for them. What's good for Trump. What's good for Steven Miller. What's good for Bondi. What's good for Texas. What's good for Alabama. I think you get the picture. Sorry, sounds like we're pretty fucked to me.
Steve Vladeck of One First has an entirely different explanation of the USSC decision on universal injunctions. He is almost literally on a different planet from Leah Litman where this case is concerned. I would strongly recommend to Sam that he read Vladeck’s analysis before settling down thinking that Litman’s analysis the correct one.
Here’s the link:
“162. What Does the Birthright Citizenship Ruling Portend?”
https://www.stevevladeck.com/p/162-what-does-the-birthright-citizenship
What Vladeck goes into that Litman does not is illustrated by this part of the analysis:
“…There’s no question, in my mind, that today’s ruling dramatically restructures the relationship between federal courts and other government institutions (and between the Supreme Court and lower federal courts)—in ways both big and small. How deleterious those changes are to the ability of courts to hold the President accountable depends, in my view, on how three questions are answered—questions raised by today’s ruling, but very much not answered by it:
(1)When will parties (especially states) need a universal injunction in order to obtain “complete” relief?
(2)If lower courts start certifying more nationwide classes in suits challenging federal policies, will the Supreme Court approve? [ie, class action lawsuits]
(3)To what extent is Justice Kavanaugh’s concurrence (and the normalization of emergency relief for which it argues), speaking for a majority?…”
Vladeck doesn’t say one single word about the 30 day period being for filing some kind of regulations. His emphasis is that the 30 days is to allow the plaintiffs to file a class action lawsuit on behalf of all birthright citizenship holders in the entire country. If this happens, a nationwide “universal injunction” would be the appropriate remedy. Litman’s answer is unnecessarily complicated.
So every state that follows Trump's illegal order will be sued bkz it's unconstitutional.
Thank you Leah and Sam for sifting through the legalize of the SCOTUS decision and explaining it in 'regular' language - making it easy to understand for us.
💖💖
😁☕️
This is the Supreme Court paving the way for Trump to change/remove our basic Constitution rights. The Constitution states that the extraordinary authority to do that lies solely with our elected representatives, expounded by case law from the Federal Courts.
The entire concept of democracy is “we govern ourselves.” We elect our representatives, who in turn enact laws. The Supreme Court is assisting Trump to usurp Congressional power in direct violation of the Constitution. Our elected officials will be powerless, even those who are genuinely working to protect democracy. Congressional action will not be recognized. It is already ignored.
So, the elections in 2026 are irrelevant. We must not think they will help. It does not matter how many pro-democracy candidates are elected — Congress will no longer have the authority to stop Trump/MAGA. The authoritarian coup will be complete.
If the current make up of the court is handing down decisions that favor one one political party and their policy choices over other political parties, isn’t the obvious choice to pack the court and level the playing field? What other option is there to return the courts to some sort of neutrality or rule for the benefit of everyone?
Not sure but was it Leah Litman who wrote the book "Lawless"? :D Thanks Sam and Leah, great interview.
Is there any hope
Leah Litman is great as is her book Lawless. She is spot on here.
Leah Litman is brilliant and delightful. Would love to hear more from her.
What would the Court say to an EO abolishing the Court?
Hang on. This whole thing about needing a nationwide ruling because a person's status shouldn't change when they cross state lines... Isn't that exactly what happened with the Dobbs decision? Now a woman can be a "murderer" in some states and not others. So... make that make sense.
Extradition. If a woman is arrested in a state in which abortions are legal for an abortion in a different state, they can be extradited to the other state. Citizenship is a bit different as being a non-citizen isn't a crime in itself.
I see. I still don't believe our fundamental rights should change from state to state, but I understand the distinction for this particular thing. It's wild we're even discussing it, but thank you for clarifying.
Xavier Becerra? Rob Bonta is AG of California now and he is urging us to avoid overreacting to this ruling.
Did not a number of the MAGAmaoists judges refuse to answer hypotheticals?
This country is definitely biased and want project 2025 implemented!
I don’t agree with that. Trump had to deny he knew anything about it because it wasn’t popular. The people running the administration are gung ho for 2025, and I think the 6 Republican members of SCOTUS have no problem with it. But it’s not popular with the populace.
This country was the wrong statement, it should have said this administration.
The regime controls the levers of power. SCOTUS is now just another branch of the regime. The populace doesn't have a say in this until the 2026 elections. More than enough time for the regime to ensure it controls those as well.
A great first cut explanation of this latest SCOTUS partisan ruling.
Thanks for running through it, Leah! 👍👍
Great job, Sam.
I feel I have a pretty good understanding of today's ruling. It is basically against national injunctions and Judge shopping we saw when Republicans sued Biden.(by taking everything to the Texas district) However it just seems to my non legal eyes that SCOTUS is so contorting everything and creating more problems. No wonder people dislike SCOTUS and their popularity is in the toilet.
I think so.
When the case benefits the GOP they will rule in their favor. If it's something Dems want, they won't.
US Constitution be damned.
I think we are not seeing the big picture here. Today birth right citizenship. Tomorrow the Civil Rights Act.
Actually, I think a lot of us are seeing the bigger picture: The Roberts court aspires to eclipse the Taney court.
Here is my question. Isn't every U.S. citizen a citizen of the U.S. because they were born here? In other words, if U.S. citizenship is not based on birth-right citizenship, then what is U.S. citizenship, including mine, based on?
No, because if your parents are both US citizens then you are a US citizen no matter where you are born. Maybe your great-great-great grandparents were birthright citizens, but that only goes for the first generation to be birthright citizens. After that the citizen parents are giving citizenship to their kids.
Thanks, Ann. Your reply partly captures what I am trying to convey. If we go back far enough in a genealogical sense, the citizenship of most, maybe all, U.S. citizens is based on the fact that someone was born here from parents who did not have citizenship or from parents who had acquired naturalized citizenship (or from the fact that they themselves became naturalized citizens after the age of 18). I am curious. What specific law says that citizenship is automatically granted to me due the fact that my parents are U.S. citizens? I ask this question out of ignorance. It seems to me, and I could easily be wrong, that my citizenship is ultimately grounded in the 14th Amendment, not necessarily because my parents are U.S. citizens.
Okay. It looks like it’s the 14th Amendment for everyone, including you and me. It only gets complicated for us (children of US citizens) if we’re born outside the US. As for the current “birthright citizenship case”, here’s a good (and concise) analysis by NPR:
“What is birthright citizenship and what happens after the Supreme Court ruling?”, by Bill Chappell, June 27, 2025, https://www.npr.org/2025/06/27/nx-s1-5448863/birthright-citizenship-supreme-court-ruling
Note that a class action was filed by the plaintiffs within 2 hours after the USSC decision was rendered. Imho, they should have done that to begin with (I’m a lawyer).
I’m embarrassed to say that I’ve always heard the phrase “birthright citizenship” as applying to immigrants only, and it never occurred to me that it applied to everyone. When these things get litigated it’s almost always either dealing with immigrants or people born outside the United States. My bad.
Anyway, here’s the scoop from the Congress.gov on the Constitution and its interpretation regarding citizenship:
“ Based on the first sentence of Section 1, the Court has held that a child born in the United States of Chinese parents who were ineligible to be naturalized themselves is nevertheless a citizen of the United States entitled to all the rights and privileges of citizenship.1 The requirement that a person be subject to the jurisdiction thereof, however, excludes its application to children born of diplomatic representatives of a foreign state, children born of alien enemies in hostile occupation,2 or children of members of Indian tribes subject to tribal laws.3 In addition, the citizenship of children born on vessels in United States territorial waters or on the high seas has generally been held by the lower courts to be determined by the citizenship of the parents.4 Citizens of the United States within the meaning of this Amendment must be natural and not artificial persons; a corporate body is not a citizen of the United States.5” [read the footnotes on the site - important]
https://constitution.congress.gov/browse/essay/amdt14-S1-1-2/ALDE_00000812/
And this on Loss of Citizenship:
“ In Afroyim v. Rusk, a divided Court extended the force of this first sentence beyond prior holdings, ruling that it withdrew from the Government of the United States the power to expatriate United States citizens against their will for any reason. [T]he Amendment can most reasonably be read as defining a citizenship which a citizen keeps unless he voluntarily relinquishes it. Once acquired, this Fourteenth Amendment citizenship was not to be shifted, canceled, or diluted at the will of the Federal Government, the States, or any other government unit.2 In a subsequent decision, however, the Court held that persons who were statutorily naturalized by being born abroad of at least one American parent could not claim the protection of the first sentence of Section 1 and that Congress could therefore impose a reasonable and non-arbitrary condition subsequent upon their continued retention of United States citizenship.3 Between these two decisions is a tension that should call forth further litigation efforts to explore the meaning of the citizenship sentence of the Fourteenth Amendment.“ [read the footnotes because it seems the federal government cannot take birthright citizenship away from anyone or prohibit you from getting it except in very narrow circumstances]
https://constitution.congress.gov/browse/essay/amdt14-S1-1-3/ALDE_00000813/
Okay, well, I need to look a little more because the first thing that popped up in my Google search was this complicated bit from U. S. Citizenship and Immigration Services:
https://www.uscis.gov/citizenship/learn-about-citizenship/i-am-the-child-of-a-us-citizen
However, it looks like it is dealing with being a child of US citizen parents, but you were born abroad, so you “acquire” US citizenship from your parents depending on a whole bunch of factors (and paperwork - where would we be without paperwork), with a separate set of procedures and rules for the children of military personnel.
If I find something more suited to “I was born in a hospital in Austin, Texas and my parents and grandparents were all born and raised in Texas and nobody ever left the United States”, I’ll let you know.
Thanks, Ann. I appreciate the fact that you researched the answer to my question. It seems very complicated, unless we allow the 14th amendment, i.e., birth-right citizenship, to be the thing that determines who is and who is not a citizen born in the United States.
Yes, AND…it wouldn’t surprise me if Stephen Miller and his America First Legal team at some point argue that under the provision: “… The requirement that a person be subject to the jurisdiction thereof, however, excludes its application to…children born of alien enemies in hostile occupation…”, immigrant children are born of “alien enemies in (a) hostile occupation” because the current “flood” of immigrants is an “invasion” and therefore a “hostile occupation”.
One would assume the USSC would laugh that out of court, but one might be wrong. Let’s hope not.
If my citizenship—and anyone else born in the United States—isn't based on birth-right citizenship, then does that mean that the only citizens in the U.S. are the ones who are naturalized citizens?
I did not have to apply for citizenship to be a U.S. citizen. I was born here, which makes me a citizen. Or does it?
I am also confused. If my Great grandparents came to the US from Europe and were not yet citizens but met and married and had a child, and that child married someone in a similar situation that you ultimately are not a citizens. So, although my lineage in the United States goes back to the late 1800's if my ancestor was born in the united states prior to their parents being legal citizens then 3 generations later I would be illegal.
What about the Native Americans? Their ancestors were probably born somewhere else.
Since we originated elsewhere sounds like no one would be a US citizen. I am sure they do not want to admit that our ancestors came from Africa.
Whether Native Americans are natural-born citizens depends on the status of Indian tribes. If they are regarded as sovereign nations (as they often were in US law), then their members do not necessarily have birthright US citizenship. But I rather suspect that Stephen Miller would oppose recognizing the sovereignty of Indian tribes.
I was thinking along the same lines. Are they going to make it retroactive? My disgust knows no bounds today.
It is based on whatever His Royal Highness Trump thinks it is!!
Ahhhhhhh Leah Littman!!!! #StrictScrutinyFanGirl
Everyone should read her book. It is very easy to understand and funny too.
funny really - sam's comment about giving away their power. why is it that these folks don't want their power? or that they aren't going to negotiate for it? i mean isn't that the normal way things work? generally folks don't instinctively just give up what they have ... do they? i don't get it.
They see it as an investment. Also they're cowards who are afraid of Trump's mob. The victims of political violence are the targets, but not the intended audience. He's offering them a cookie, with a death threat if they turn it down, so now they're all eating cookies (and because they are self-centered, probably dropping crumbs and grinding them into the carpet THEY will certainly not be vacuuming).
I was never petty before. It's taken a ******* LOT to get me to this place. MAGA making everyone worse since whenever the hell.
Great. Fine. Good work Americans having and keeping the oldest and most fragile constitution imagineable, barely held together with hopes, prayers and centuries old duct tape. Can we please deport Marco Rubio und Borrn Trump now at least?
Leah Litman. A refreshing voice of alarm and reason.
Yeah, I saw someone interview her a few months ago and immediately liked her. Refreshing is the right word.
They are continuing to whittle away the Constitution.