Under the second Trump administration, reality constantly keeps topping sarcasm. When three Republican justices ruled against Trump’s tariffs, leading the president to say they “sicken” him, I described the Chief Justice’s position to a figurative “cuck chair.” He’d put aside any principles or sense of institutional legitimacy to give Trump the White House and a blank check of functional total immunity, only to find himself ritualistically humiliated in public for refusing to support Trump’s massive, illegal tax hike.
And then Donald Trump decided to take the cuck chair analogy much more literally, and physically showed up to watch the Supreme Court humiliate his Solicitor General as he attempted to defend the administration’s attack on birthright citizenship.
Indeed, his dingbat Civl Rights Division chief thought the chair was, in fact, literal:
There is not. And Jamelle Bouie quickly made the explicit connection: “they are calling it the scotus cuck chair.” Instead, Trump arrived and took a seat in the gallery to witness oral argument over Trump’s effort to undo the Fourteenth Amendment’s citizenship language. The administration’s argument rests on a handful of “originalists” claiming that the original understanding of the Amendment did not support birthright citizenship despite this being the unchallenged understanding of the text for well over a century. And by, “unchallenged,” we mean originalists like Randy Barnett of Georgetown who wrote a book about the Fourteenth Amendment never said anything about this language until now.
A reading so “original” that no one noticed it until it happened to align with contemporary Republican party priorities. Reality continues to out pace snark.
The Court, by and large, did not seem prepared to overturn a bedrock principle of American law based on Richard “COVID will only kill 500 people” Epstein’s trenchant analysis of a subject where he’s not really an expert.
How bad did it get for the administration? Solicitor General John Sauer, when pressed about all the clear historical evidence that the Fourteenth Amendment was understood to apply to the children of people living here, beat a rapid retreat from originalism, “We’re in a new world where 8 billion people are one plane ride away from having a child who’s a US citizen.” Only for the Chief to coldly reply, “It’s a new world. It’s the same Constitution.”
Sauer didn’t fare much better with Justice Gorsuch. As Sauer listed descriptions of what constitutes “unlawfully present,” Gorsuch witheringly remarked “The stuff you have about ‘unlawfully present,’ it’s like Roman law sources you’re going to.” Apparently, we’ve found the one man who doesn’t think about the Roman Empire every day. Sauer mentioned Wong Kim Ark, the Supreme Court case the unequivocally closed the door on Trump’s birthright citizenship over 125 years ago, and Gorsuch jumped in with “I’m not sure how much you want to rely on Wong Kim Ark.” It was like watching a pack of predators play with their kill.
And that wasn’t even the worst flub with Gorsuch:
Sauer had even raised the topic of Native peoples off-handedly earlier in the argument so someone in the office had at least a vague sense that they were walking into a minefield with Gorsuch. And, as the principle of Gorsuch’s Gun teaches: if you raise the topic of Indian law in the first act, it must end up embarrassing the government before the final act.
Barrett didn’t prove any more friendly to the government. Sauer kept trying to create a distinction based on people coming to America with an intent to remain — advancing the dubious theory that African slaves brought to the United States — and inarguably covered by the birthright citizenship clause — took the view that slavery sucks, but hey at least we live here now! Barrett bypassed this insanity to ask the related question about the children of human trafficking victims brought to the United States illegally. Sauer’s answer could best be described as… confused.
Kavanaugh seemed most interested in finding a quick and easy way out of the case that could make the right decision while staying in Trump’s good graces.
Over and over, Sauer stressed “domicile” as the key to citizenship, despite the word appearing exactly zero times in the text.
Even Clarence Thomas seemed half-assed in his enthusiasm for the administration’s argument. He focused on Dred Scott, laying the groundwork for an opinion rewriting the Fourteenth Amendment to only apply to the children of freed slaves and a constitutional anachronism in 2026. Though by the end it wasn’t even clear if his heart was in it.
Indeed, Sam Alito appeared to be the only justice fully on board with Trump’s argument, trying to sell a story about unwanted immigration being non-existent at the time of the Fourteenth Amendment, as though there wasn’t an aggressive anti-Catholic movement in the 19th Century whose nightmare scenario was an Italian immigrant’s son being on the Supreme Court. Imagine the look on their faces if one could go back and tell them an Italian-American Catholic with a European knighthood would be the one channeling their vision from the bench. At one point, Cecilia Wang, arguing for the ACLU, pointedly noted that the children of Italian immigrants in 1898 wouldn’t be citizens under Alito’s reading, though he seemed unmoved as though he didn’t get that she was talking about his community. It’s the Chappelle Show‘s Clayton Bigsby bit, but real.
As for Trump… he bailed on the hearing early after it became glaringly obvious how badly he was losing.
What are the odds that he fires Sauer within the next 48 hours? Got to be pretty good, right? Keep on eye on the White House insiders making huge Polymarket bets on this about 10 minutes before it happens.
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter or Bluesky if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.
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