MICHEL MARTIN, HOST:
The Supreme Court wrapped up its term this morning with three consequential decisions on birthright citizenship, campaign finance and trans athlete bans. Joining us to talk about this is Kim Wehle. She's professor of law at the University of Baltimore Law School where she teaches constitutional law, civil procedure, administrative law and federal courts. Professor Wehle, thanks so much for joining us once again.
KIM WEHLE: Great to be with you.
MARTIN: Let's start with that birthright citizenship decision. The Supreme Court ruled that virtually all children born in this country are entitled to birthright citizenship. How much of a - I don't know what word to use - rebuke is this to President Trump?
WEHLE: Well, you know, in listening to you restate the holding, it's ironic because you just restated the text of the 14th Amendment, which says all persons born. So this is the kind of decision that they could have just pointed to the Constitution and said, there's really not a job for the Supreme Court here. You just read the text. We're textualists, as the majority likes to say. And here we have a 5-4 ruling - or if you count Justice Kavanaugh's concurrence, 6-4 - 6-3 - on a debate around the plain language of the Constitution itself. So I think the fact that this has become a challenged issue and a debate in the country, in a way, is a win for people, you know, in the Trump camp that want to see this historic constitutional right dismantled.
MARTIN: I was going to ask you about that, what you make of the split decision and also the fact that, as you just heard our colleague Nina Totenberg say, that the court seemed to be going - or rather Justice - Chief Justice Roberts seemed to be going out of his way to not directly challenge or rebuke or disagree with the president. It sort of skirted - is the key - sort of simple constitutional question. And I was just curious what you make of that.
WEHLE: Yeah, I mean, I think Justice Kavanaugh - it's almost an invitation in his concurrence, speaking of him in particular, for Congress to come back and try to tinker with the law that followed up on the 14th Amendment and to create more exceptions. I think that was sort of a hint. Listen, bring it back to us with different legislation, and we'll see if we can take a second whack at the 14th Amendment.
I mean, but what the Chief Justice did was go back to the common law and said, you know, this is the - this is what kings did in England, and it was adopted here, and there really wasn't any ambiguity. Again, these are - this majority relies on text and relies also on history and tradition. We've seen that with abortion. We've seen that with gun rights. And so he kind of takes that safe avenue and says, listen, this is as historical as it comes.
And Justice Thomas, in his dissent, basically relies on the Dred Scott case and says, no, this is really about, you know, formerly enslaved people and the 14th Amendment. And I think some - you know, somewhat ironically, maybe, Justice Jackson in her concurrence, says, wait a minute. You're the ones that are saying the Constitution's colorblind when it comes to affirmative action and things like that but not when it comes to the 14th Amendment. So you can see the debate amongst the justices or really frustration with each other. But I think, frankly, the majority and Justice Jackson are solidly on firm grounds with reading the language, as the language - the text states.
MARTIN: Any sense of why they waited until the very last day of the term to issue this ruling?
WEHLE: Well, I have to think for - you know, I've thought this for a long time, that this court is worried probably about - or some of them - the president of the United States saying, one day, listen, this is a fake court. You know, he's - he has - he's violated lots of statutes. He's rebuked or just ignored hundreds of lower court decisions. And that one day, their own authority - which they don't have a standing army. They don't have a police force. You know, they have Marbury v. Madison, saying that they have the authority to interpret the Constitution.
So I think they're - they have to be very sensitive to the, you know, legitimacy of the court itself with this particular president. So maybe waiting to the end, where there's not as much court watching and discussion of the Supreme Court - it's hard to know. But it's almost like, you know, announcing news on a Friday, it's going to die faster.
MARTIN: So let's turn to another case decided today, the court ruled - this is actually two cases that were brought before the Court, and it's sort of one - rolled into sort of one decision. The court ruled that states may ban transgender girls and women from participating in sports at publicly funded schools, this - attended high schools and colleges. What's your take on this? It doesn't seem like it was a surprise to people sort of watching the court, but I am - I'm curious about your take on it.
WEHLE: Yeah. This was not that much of a surprise. There was some - there's been waffling with this court on how to define sex when it comes to transgender people. And under the - under Title VII, which is about discrimination in employment, Justice Gorsuch authored an opinion a while back saying that sex does include transgender. Here you're talking about money authorized for sports. And Justice Kavanaugh and his majority says, for purposes of this statute, Title IX, funding, sex means sex.
The whole point of this statute dates back to the 1970s, when the disparity in girls and boys sports was, you know, major. And this was designed to equalize that biological sex fairness. And he notes, you know, listen, even the plaintiffs didn't dispute that. They wanted a carve out for certain kinds of transgender kids. And essentially, they're saying, no, that's just - that's too granular. This is pretty straight up, straightforward.
MARTIN: And another decision that was not a surprise was, the court struck down limits on how much political parties can raise and spend on candidates. So overall, the birthright citizenship decision is just one of a few where the court ruled against Trump. And there was also the decision striking down President Trump's tariff program. Overall, how would you view this term when it comes to how it - how this court connected with the president's agenda?
WEHLE: Yeah, I think it's because of the birthright citizenship case and even the tariff case - which, again, shouldn't have been a really difficult decision. These are -and they ended up, you know, with a split court. I think we have to be careful in suggesting that these are serious strikes against the Trump administration. I mean, basically declaring the Congress having acted unconstitutionally for nearly 100 years in creating agencies that constrain the president's ability to fire some people - that's a really, really big deal.
And also with this campaign finance - which I know listeners are probably, you know, a little glazed over trying to understand it - I'm going to read from Justice Kagan's dissent. She writes, the majority invalidates Congress's restriction of coordinated expenditures, thus enabling a party to serve as an alternative...
MARTIN: OK.
WEHLE: ...Checking account for a campaign. A donor will be able to give a party as much as a half a million.
MARTIN: We have to leave it there. That's Professor Kim Wehle, professor of law at the University of Baltimore Law School. Transcript provided by NPR, Copyright NPR.
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