MICHEL MARTIN, HOST:
Stephen Vladeck will be listening to the Supreme Court's arguments today. He is a professor at Georgetown University Law Center who has studied and written extensively about the high court. Good morning, Professor. Thanks for joining us.
STEPHEN VLADECK: Thanks, Michel. Great to be with you.
MARTIN: Which justices will you be paying the most attention to, and why?
VLADECK: Well, I mean, I think, as is so often the case with the Supreme Court these days, much depends on where Chief Justice John Roberts is and where Justice Amy Coney Barrett is. It's possible, Michel, that this is not going to be close and that we're going to hear a broad consensus from across the bench, not just that Wong Kim Ark was maybe rightly decided, but that Congress, in its powers, decided to make that the law of the land in 1940 and 1952. But if it's going to be close, if there's going to be a sharp divide on the bench, I think the chief justice and Justice Barrett are going to have a lot to say about which way that divide falls.
MARTIN: You heard Nina's piece where she talked about some of the briefs that have been presented to the court, some of the arguments that have already been presented. Which arguments from the lawyers do you think will be most compelling to those justices?
VLADECK: You know, I think the question is do the justices really want to revisit what their predecessors did a hundred and twenty-eight years ago in the Wong Kim Ark case or do they want a narrower, easier way out? And so, you know, a lot of what I'll be listening for, Michel, is how much of the conversation is about what those who wrote the 14th Amendment back in 1868 were thinking and how much of it is just that this is all water under the bridge because of what Congress did well after the Supreme Court's first interpretation of that provision. The more the conversation today is about Congress, I think the worse that is for the Trump administration.
MARTIN: Well, you know, but if birthright citizenship was considered settled law, as you just pointed out, for more than a century, how much can we read into the fact that the justices agreed to hear these arguments at all?
VLADECK: Yeah. I mean, this is an unusual case, Michel, in that, as you'll remember, the Supreme Court actually had a version of this case last summer when the Trump administration went to the court for emergency relief, basically asking the justices to put on hold lower-court injunctions against the policy. That case was about a procedural question - that is, whether these lower courts could block the policy on a nationwide basis. It was during the oral argument last May where you heard justices from across the bench actually insist that Solicitor General Sauer and the Trump administration bring this case back to them on the merits. Justice Barrett even memorialized that in her majority opinion last June. So this is an unusual case where the Supreme Court itself basically demanded that the Trump administration bring the issue back to them on the merits. You know, for those looking for tea leaves, that's not usually a good sign if you're the Trump administration.
MARTIN: Speaking of which, president is scheduled to go to court as an observer today, which is another thing that's never happened before. And I'm just - I'm not going to ask you what you think his intention is in going, but I am wondering what impact you think his presence might have on the court.
VLADECK: If President Trump actually is going to go, I don't know that that's going to change anything in particular about what the lawyers say or about how the justices behave. I mean, I think, you know, we already live in an age where everyone knows that everything they say can get back to the relevant people. The justices aren't auditioning for anything. They're not trying to impress President Trump. They're trying to do what they think is right in these cases. And, you know, we might all disagree with what the justices think the right answers are here. I have a hard time seeing how President Trump being in the courtroom would do anything other than add to the intensity and the significance of the case. I don't think it'll change the arguments much at all.
MARTIN: Any prediction?
VLADECK: You know, this - trying to predict Supreme Court arguments before they happen is always, I think, a bit of a fool's errand. I think one of two things is what we're in for today. It's either going to be a blowout, where the court is adamant that the law of the land is and shall be birthright citizenship, or it's going to be close. And if it's close, Michel, I think a lot of folks are going to be nervous as we wait for a decision in late June or early July.
MARTIN: That was Stephen Vladeck, professor at Georgetown University Law Center.
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