Legal Docket: Minority report

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NICK EICHER, HOST: It’s The World and Everything in It for this 6th day of July, 2026. We’re so glad you’ve joined us today. 

Good morning! I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard. Time now for Legal Docket.

The Supreme Court has closed the books on another term.

Dozens of cases, the questions involving presidential power, immigration, religious liberty, free speech, and the reach of government.

The answers left the justices divided—sometimes sharply.

But step back from the individual wins and losses, and a definite pattern comes into view.

Whether you agreed with the outcomes or not, again and again it was clear that the Court had gone back to first principles: What do the words of the Constitution actually mean?

Two opinions that the court handed down on the final day bring that question into sharp focus.

EICHER: First was birthright citizenship.

President Trump sought to end automatic citizenship given to children born in the U.S. to temporary visitors and migrants in the country illegally. So he issued a sweeping executive order to that effect.

The Court struck that down.

Five justices said the executive order violated the Constitution. The sixth—Justice Brett Kavanaugh—said it violated federal law.

That distinction matters. The constitutional ruling largely takes the question out of the hands of Congress. 

And if it stands, changing birthright citizenship would likely require changing the Constitution itself.

REICHARD: So the executive order was struck down 6 to 3. But on the meaning of the constitutional question, the Court split by a single vote of 5 to 4.

At the center of the constitutional fight were six words in the 14th Amendment:

“Subject to the jurisdiction thereof.”

To break down the disagreement over those words, I spoke with Amy Swearer, senior legal fellow at Advancing American Freedom.

SWEARER: What this case comes down to is a difference in opinions about what the original meaning of the phrase “subject to the jurisdiction thereof” means. So you have the majority in this case ... that their view is that we adopted as a nation the old English common law view of jurisdiction and allegiance. Which is basically if you were born here and you weren’t, say, like the child of a diplomat or a child of an invading army, that you by virtue of that birth owed natural allegiance to the sovereign who owed you protection in return.

Under that reading, illegal aliens are still subject to American jurisdiction. They can be arrested. Sued. Taxed.

But the dissenters read the history differently.

SWEARER: The view of the Trump administration—and full disclosure, the view that I think is historically correct here—is that the subjection in the jurisdiction that they’re talking about is actually more significant. It’s not just, “Can we prosecute you for laws that you violate?” But it’s talking about a deeper tie of allegiance and a political jurisdiction … but that it had a deeper, more profound meaning than just, "well, were you here and did you have to obey our laws?" It’s talking about a political and complete jurisdiction.

So both sides went back to the original meaning of the same six words. And arrived at opposite answers.

What surprised Swearer was just how much the legal debate has moved—and how quickly.

SWEARER: Really, when it comes down to it, it was five- four on the constitutional question of what the 14th Amendment actually means. And I think if you asked many people even just eighteen months ago, they would have said it would have been closer to nine- zero. And I think that's a testament to the strength of the historical arguments that the Trump administration put forward and a lot of the scholarship that had been done…even in just the last year or two on this issue.

EICHER: In other words, the executive order lost, but an argument many legal scholars once considered nearly settled produced a bare one-vote constitutional majority.

And Swearer thinks the four dissenters may have laid the groundwork for a future majority.

SWEARER: The dissenting opinions ….did such a good and compelling job of presenting that historical evidence about what that phrase meant….to the generation that drafted it. I think going forward, you're actually going to see that dissenting opinion morph into a majority understanding…. so I see this being the silver lining that going forward these dissenting opinions continue to change minds in the legal field.

Her colleague at Advancing American Freedom, Hans von Spakovsky, points to one exception in the majority’s own reasoning that helps explain why that debate may not be over.

VON SPAKOVSKY: Chief Justice Roberts wrote the opinion and he says that the Citizenship Clause of the 14th Amendment requires that anyone born in the United States is a U.S. citizen. But then of course he makes an exception for the children of diplomats, even though there's no such exception in the law…. 

What they're talking about is territorial jurisdiction. In other words…if a German tourist comes to the United States for a two-week visit, obviously he's subject to our territorial jurisdiction. If he robs a bank, he can be criminally prosecuted. 

What that term meant in the 14th Amendment, according to the sponsors of it, “being subject to the jurisdiction” of the United States meant you owed your political allegiance to the United States.

And Von Spakovsky points to a historical irony in the majority’s reliance on English common law.

VON SPAKOVSKY: Alito points out that it's quite ironic that as we're celebrating the 250th anniversary of our declaration of independence from Britain, that Justice Roberts says that oh, we've adopted what the British rule was on citizenship, which even they've abandoned.

Justice Clarence Thomas cited one of the Senate sponsors of the 14th Amendment who explicitly said the clause would not apply to “temporary sojourners.”

REICHARD: And now on to the First Amendment—and a question on which the Court’s conservative majority did agree: Can the government limit what a political party spends to help its own candidates?

In National Republican Senatorial Committee vs the Federal Election Commission, the Court said no.

In a 6-3 decision, the court overruled a precedent from 2001.

EICHER: The decision said restricting what a political party can spend in direct coordination with its own candidates burdens political speech.

Von Spakovsky is a former Federal Election Commissioner, who understands the mechanics of the various lawsuits.

VON SPAKOVSKY: They all sued saying, "Look, this limit on coordinated expenditures is a violation of not only the First Amendment, but also our associational rights under the Fourteenth Amendment... And you should overturn your 2001 decision that upheld it.”

And what the Supreme Court did…is to say: you're right. Limiting coordinated expenses is a violation of the Constitution because the whole purpose of political parties is what? To recruit, find, and support their candidates. And by limiting that, you are limiting their political speech. Because as you know, it takes money to talk. If you want to run an ad, you want to rent a hotel ballroom to speak, that costs money.

The government argued the limits guard against corruption.

The majority demanded evidence the restriction was actually necessary, and the dissenters saw a danger the majority did not.

They argued sophisticated donors could find ways around rules against earmarking campaign money.

But Von Spakovsky says there’s just one little problem with that argument: the lack of evidence.

VON SPAKOVSKY: She neglects to mention that I think it's almost thirty states have no contribution limits in their state elections. And when this case went to trial, the Federal Election Commission's expert, who was the defendant in the case, couldn't cite a single example of that type of corruption…as having ever occurred in any of those states or in the federal election process. Not a single example. 

So she's just speculating, and you don't violate the First Amendment based on speculation.

REICHARD: That gets to the heart of the majority’s reasoning.

Government may have an interest in preventing corruption. But when it restricts political speech, the Court wants more than a prediction of what might go wrong.

The majority also noted that campaign finance is far more transparent today than it was when Congress first put these restrictions in place.

VON SPAKOVSKY: Why? Because of modern technology and the internet. You can go to the website of the Federal Election Commission, where I used to be a commissioner, you can look up any political party, any candidate, and immediately get who has given them money. When these disclosure requirements were first passed, you couldn't do that. You actually had to go physically to the office to the FEC in Washington to look that up.

EICHER: So in this case, the Court put the burden on government to justify restricting speech and not on political parties to prove the restriction unnecessary.

And taken together, these two cases help explain something both Swearer and von Spakovsky noticed about the term just ended.

VON SPAKOVSKY: In the past, they were more amenable to allowing all kinds of government restrictions on First Amendment rights. They've really changed that to have very strict scrutiny of anything done by the government that's going to restrict not only your ability to speak, but your associational rights...

REICHARD: He sees another correction in immigration law.

VON SPAKOVSKY: They really slapped down hard lower court judges in the immigration area…..the court simply held that federal immigration statutes say exactly what they say, and give the president the authority to enforce them.

Swearer sees an even broader pattern.

The justices may disagree over what the Constitution means. But increasingly, she says, they are arguing over the meaning of the text and not simply the result they prefer.

SWEARER: Even when the originalists disagree amongst themselves, which sometimes happens, you see this court as a whole continuing to insist that its job as judges….is to analyze what these texts meant to the the people who passed them….not what they wish it to be….And I think that's a good thing.

And for Swearer, that changes how she measures wins and losses at the Court.

SWEARER: So I think on the whole the American people won, though sometimes in specific cases they didn't always win. You know, you look at the birthright citizenship case, you look at the mail-in ballots case, for example. I think the Court got that wrong and the American people are worse off for it. 

But the American people win when the court continues to do to the best of its ability originalist analysis—that is tying its job back to understanding what the law actually is and what it meant to the people who passed it. What those words meant at the time they were passed.

And that’s this week’s Legal Docket!

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