The Megyn Kelly Show - Supreme Court BOMBSHELLS： Against Trump on Birthright Citizenship, WIN For Protecting Female Sports, with Mike Davis, Alan Dershowitz, and Kristen Waggoner ｜ Ep. 1350

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00:01:00.560 Welcome to The Megyn Kelly Show, live on Sirius XM Channel 111 every weekday at New East.

00:01:12.240 Hey, everyone. I'm Megyn Kelly. Welcome to The Megyn Kelly Show. We have big breaking news out

00:01:16.700 of the U.S. Supreme Court this morning as the high court issues two major decisions on the last day

00:01:22.680 of its term. I mean, more than two technically, but we're going to focus on two right now in a

00:01:27.140 victory for team sanity. The justice is ruling that states are permitted to keep boys out of

00:01:34.140 girls sports with bands. We have 27 states that have banned boys from participating in girls

00:01:41.300 sports. The question was, is that legal? The answer is yes. That doesn't save the girls in

00:01:50.020 the remaining states, but it does allow states that are willing to protect young girls and women

00:01:56.380 to do so. It is a watershed moment. It is an epic decision for girls and women's rights.

00:02:04.380 And the high court came down the right way on it with all six conservatives joining to say,

00:02:10.300 yes, those states and those girls will be protected. We're going to have a breakdown

00:02:14.560 of that decision later in the show, including with someone who was a party to the litigation.

00:02:19.380 First, though, a setback to the president's agenda and a shockingly cowardly decision from the high court on birthright citizenship.

00:02:29.380 And we knew it was going to happen, but we didn't know exactly how they'd get there.

00:02:34.120 And there was always at least the hope, you know, the possibility that they would do the right thing. 0.96

00:02:40.100 I mean, what's essentially happened now is that anybody from China can come over here, have a baby, and that baby will be an American. 0.90

00:02:48.920 no matter what. They can leave the day after the child is born, the minute after the child is born. 0.67

00:02:56.620 And honestly, there was a real question. I, like many people, when I first saw this,

00:03:00.940 the challenge to this, it was long before President Trump's executive order.

00:03:04.300 It was written by a legal scholar and, you know, saying this is not what the founders intended.

00:03:08.960 I too thought, what do you mean that this is sort of how we all grew up, thinking that

00:03:12.480 if you're born here, you're a citizen and that's kind of the end of it. If you actually look at

00:03:16.740 the history of that practice here in the United States and then what happened after the 14th

00:03:24.220 Amendment was passed. You see that's wrong. You find out that that's actually not the way this

00:03:31.080 the 14th Amendment was treated, the way the founders understood this country would operate.

00:03:36.620 Right. And it there was plenty of basis to strike down birthright tourism based on the particular phrasing of the 14th Amendment.

00:03:50.540 Right. You have to be born here and subject to the jurisdiction of the United States.

00:03:56.180 And that is why President Trump issued this executive order purporting to end birthright citizenship in the United States, aimed especially at the children of illegal immigrants. 0.67

00:04:06.960 Now, he did say that if you if you're already here and you've been the beneficiary of this, you can stay.

00:04:12.820 He wasn't trying to create chaos for those who had already taken advantage of what they believed the 14th Amendment provided.

00:04:19.720 But he was saying on a go forward basis.

00:04:21.580 And now that's been overturned.

00:04:23.620 Now his executive order is no good.

00:04:25.580 and he can't write another one. They didn't give him a clear roadmap on how it could be done

00:04:31.100 either. Five justices found that the EO violated the 14th Amendment. Chief Justice Roberts,

00:04:38.820 Amy Coney Barrett, and the three libs on the court. The chief justice writing in his majority

00:04:45.000 opinion, quote, citizenship then and now was the right to have rights to freely participate in

00:04:52.060 our political community. The framers of the 14th amendment extended that promise to every free

00:04:57.880 born person in this land. We keep that promise today. Of course, they were talking about freed

00:05:03.140 slaves. That's why it sounds so weird. Free born person in this land. Okay. Justice Kavanaugh got

00:05:10.080 in there as well for good measure. Um, they didn't need him because they had Barrett and they had

00:05:17.140 Roberts with the three libs, but he decided to join in just just to say that Trump's executive

00:05:22.720 order, he thought had to be struck down because he thought it violated a federal statute,

00:05:27.880 one that he said could be amended by Congress. So he's trying to show a roadmap, but

00:05:33.080 it doesn't matter if you've got Coney Barrett and you've got Roberts and you've got the three

00:05:38.520 libs together, forget Kavanaugh, his we can do this by congressional amendment idea will not fly.

00:05:48.620 They did not think that it was consistent with the Constitution, with the 14th Amendment for

00:05:55.060 Trump to issue an executive order like this. So as much as I'd love to look at that Kavanaugh line

00:05:59.280 and say, OK, there's a way of doing this, there isn't. Not as far as I read this, a long opinion.

00:06:05.080 We'll have to go through it in more detail later.

00:06:08.080 The three conservatives, of course, the true conservatives on the court are Thomas and Alito.

00:06:15.140 Gorsuch has betrayed us before.

00:06:16.640 I'm not going to lie.

00:06:17.340 I like him, though.

00:06:18.580 But he issued Bostock. 0.99

00:06:20.220 He authored Bostock, which is the one that said the trans citizens have rights under Title VII and they can't be not hired or fired on the basis of their being trans. 0.84

00:06:32.640 I mean, I get it. 1.00

00:06:33.640 I can see the argument, but let's face it. It's a mental illness. And you can say you're too 0.98

00:06:39.840 unwell to work here. Honestly, Goldman Sachs now has to hire somebody who looks like Scott

00:06:46.020 Wiener who wants to show up like that with his weird little tie against his naked torso and 0.98

00:06:51.960 probably nipple rings. I don't like why? Why? Okay. Anyway, it was Thomas Gorsuch and Alito 0.98

00:06:59.940 who dissented on birthright citizenship.

00:07:03.000 They were entirely persuaded by the administration

00:07:06.080 and they raised several concerns

00:07:07.880 about the majority opinion with Alito

00:07:09.360 bringing up national security implications.

00:07:11.560 Hello, this is 2026 America.

00:07:13.560 People are misusing this provision

00:07:17.220 and the legal ramifications of reading it

00:07:21.740 the way these majority justices did.

00:07:26.220 The Alito writing quote,

00:07:27.700 suppose that a person's only connection to this country is that he was born here to a mother who

00:07:33.160 was present just long enough to give birth and then quickly returned to her native country.

00:07:38.180 Suppose that country is a strategic adversary or enemy of the United States. Suppose the child

00:07:43.100 never visited the United States while growing up and was inculcated with hatred of this country.

00:07:48.880 According to the court, that person is a citizen of the United States. Plus, a bizarre circumstance

00:07:55.800 happening right after the rulings came down with NPR via Nina Totenberg, who I'm sorry, but is

00:08:04.200 the most holier than thou stuck up snob at NPR who covered the high court for them for years,

00:08:13.480 including when I covered it for Fox News. And you would think, you know, I was new, whatever,

00:08:18.220 but unlike Nina Totenberg, I had practiced law for 10 years. So I knew what I was doing

00:08:22.280 around a courthouse and I understood the law. But she treated me and anybody else, 1.00

00:08:28.640 Savannah Guthrie was there when I was there too, as like we were dirt on the bottom of her shoe

00:08:34.440 because she thought she was all that in a biscuit. She was NPR, Supreme Court correspondent. Again,

00:08:40.840 like get back to me when you've actually made an argument on your feet in front of judges,

00:08:45.980 Nina. Because Nina, while she is technically retired from that position, 1.00

00:08:50.720 decided to blast out a report, NPR did with her name on it, her byline, that Justice Alito was

00:08:57.240 stepping down, that Justice Alito was retiring. And by the way, the headline was Justice Alito,

00:09:03.860 the justice who brought us the reversal of Roe versus Wade is stepping down. Of course,

00:09:09.320 NPR had to get its bias in, even on its now erroneous and retracted report. Within 10 minutes,

00:09:15.700 NPR had to take it down. I spoke with my sources immediately upon seeing it,

00:09:20.720 who said they they were being told something very different by the justice and the Supreme

00:09:27.820 Court denied it almost immediately on the record, which is very rare for them.

00:09:32.280 And within 10 minutes, she had to take it down.

00:09:35.600 I mean, this is just completely embarrassing. 0.96

00:09:37.900 This is humiliating.

00:09:39.300 You do not jump the gun on a Supreme Court retirement ever, ever.

00:09:45.820 It's like saying the pope is dead when he's not.

00:09:49.220 All right.

00:09:49.480 That's happened in the past, too.

00:09:50.720 So it's basically it's chaos this morning as the various news organizations try to digest the import of these opinions and get a hefty dose of fake news from Nina Totenberg and NPR in the process.

00:10:06.980 Joining me now to react to all of this is Mike Davis.

00:10:08.900 He's founder and president of the Article 3 Project.

00:10:11.660 And also with us is Alan Dershowitz, legal legend and author of the new book Founding Fathers and One Jewish Mother.

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00:11:23.980 Guys, welcome.

00:11:25.460 Alan, great to see you.

00:11:26.200 It's been too long.

00:11:26.980 Hope you're feeling well and doing well

00:11:28.560 and honored to have you back on a historic day.

00:11:32.220 Glad to be back on your show.

00:11:33.500 I always enjoy having conversations with you.

00:11:35.840 One of these days,

00:11:36.740 we have to have a really serious conversation about Israel,

00:11:40.720 the one issue that you and I may disagree on.

00:11:43.080 And my new book is about the founding fathers of Israel

00:11:45.840 in the United States. So let's agree to disagree about Israel and have a good conversation that

00:11:51.400 will inform your viewers. Well, I love to have you on. And I know we we have evolving views on

00:11:56.600 at least I do. But we'll see about a debate in any event. OK, Mike, your reaction to the those

00:12:03.040 two decisions in particular. I guess we should start with birthright citizenship. We're going

00:12:06.780 to we're going to get to the girls sports issue with Alliance Defending Freedom and one of the

00:12:12.420 young girls involved in the litigation later. This is the most egregious lawless decision I've

00:12:18.740 seen out of the Supreme Court in many, many, many years, maybe decades. The Chief Justice,

00:12:26.300 John Roberts, along with Justice Amy Coney Barrett and the three liberals, essentially scratched out

00:12:33.300 half of the 14th Amendment's birthright citizenship provision. The subject to the

00:12:41.420 jurisdiction piece, meaning if you have to be born in America, number one, and number two,

00:12:46.780 subject to the jurisdiction of the United States, number two, which means allegiance to the United

00:12:52.000 States, the Chief Justice, Justice Barrett, the three liberals, scratched up that second piece

00:12:58.320 and essentially held that anyone who comes to America and has a kid gets birthright citizenship,

00:13:04.900 including Chinese birth tourists, terrorists, human traffickers, illegal aliens, people who

00:13:11.880 are here on vacation, you name it, you come to America, you give birth, your child gets birthright

00:13:17.880 citizenship, meaning they get the golden ticket. They get all the privileges, all the rights of

00:13:23.740 citizenship. They get social security numbers. They get to vote. Maybe from Beijing, they can

00:13:29.920 mail in their votes after they go back to Beijing and never step foot in America again, because

00:13:34.640 they're American citizens. They can vote from Beijing. They can get Social Security. They can

00:13:39.400 get the other welfare benefits of being a citizen. I don't think that the American people, we, the

00:13:46.940 sovereign citizens of America, we never agreed to this. We did not agree to this at our founding.

00:13:55.100 We did not agree to this after the Civil War when we enacted the 14th Amendment to overturn the

00:14:00.820 Dred Scott decision and give birthright citizenship to the children of freed slaves.

00:14:05.440 We didn't agree to this in any subsequent Congress.

00:14:09.100 We never agreed to this.

00:14:10.460 This is the ultimate betrayal by the Supreme Court of the United States.

00:14:17.240 Alan, your take?

00:14:18.540 Well, I agree with much of what was said, but not all of it.

00:14:21.060 This is a fascinating case because it poses the issue of textualism, which is something 0.99

00:14:27.000 that liberals usually hate, following the precise text of the Constitution, no matter how stupid 0.94

00:14:33.240 the Constitution might be, and not looking at the original intent or the meaning, etc. 0.94

00:14:38.900 So this is a very interesting conflict between textualism and common sense. Look, let's start

00:14:44.000 with birthright citizenship. It's the dumbest idea ever conceived of anybody. No smart person 0.99

00:14:48.940 would ever put birthright citizenship in a Constitution. Almost no other country in the

00:14:53.420 world has it. All the examples that you've given and the others have given about people just being

00:14:59.920 born in the country and then leaving, of course you're right. Birthright citizenship is stupid, 1.00

00:15:04.220 stupid, stupid. Also, it was never intended to cover people from China who come here, 1.00

00:15:10.740 give birth, and then go back and have no allegiance to the United States. That's all clear.

00:15:14.680 The problem is the wording of the Constitution. The wording of the Constitution is dumb, 0.99

00:15:20.440 But it's there. And so you have a textualist that I could understand a real conservative textualist like, you know, our dear friend Justice Scalia, who was saying, well, you know, I'm not I'm not empowered to change the Constitution. 0.91

00:15:37.400 The Constitution says born in the United States, subject to the jurisdiction there.

00:15:42.000 Yeah, maybe.

00:15:44.220 So I would hope that, A, the Constitution would be amended to make sense, but unlikely.

00:15:51.520 But, B, I have more hope, Megan, than you do in Justice Kavanaugh's dictum, because I think it's dictum on sides.

00:16:00.640 It's dictum on.

00:16:01.240 Explain that. 0.78

00:16:01.840 I do think that if Congress were to have hearings, were to bring people who would testify about people from China coming over here and giving birth and then leaving, and that they were then passed a statute saying people like that are not subject to the jurisdiction of the United States, and therefore, although they qualify if they are subject to the jurisdiction of the United States, that's a legislative matter. 0.67

00:16:25.560 And legislatively, we now rule under Article one of the Constitution that people who have no allegiance to the country other than the accident of birth are not subject to the jurisdiction of the United States. 0.94

00:16:37.260 So I still have hope that that could be done. And I have absolute desire to see Congress try to do that. I'd be happy to testify. I'd be happy to help them on this.

00:16:47.020 I think it's really important for Congress to get into the act because executive orders are generally subject to much, much greater scrutiny by the Supreme Court because they're not part of the Constitution than are actions by Congress, which are Article I actions.

00:17:04.200 So I think this is maybe the right textual decision, but the wrong common sense decision.

00:17:12.100 And I think Congress can overrule it in effect.

00:17:16.080 You know, go ahead, Mike. I was just going to say, if you take a step back before, you know, before we get down to the nitty gritty, I was persuaded by Alito's dissent where he wrote, look, you know, the assumption that citizenship as used in the 14th Amendment means what we all think it means today is erroneous.

00:17:37.920 And he went back and he said, if you if you look at how it was being used, like elsewhere across the pond, the great in Great Britain and so on, it wasn't it.

00:17:46.100 You weren't just automatically granted all the rights of citizenship the way the three of us have it here in America.

00:17:52.340 And I mean, I guess he wasn't able to persuade Roberts, Barrett and ultimately kind of also Kavanaugh to this effect.

00:18:01.020 But I do wonder because there's going to be serious blowback to the conservatives.

00:18:04.540 No one's going to give any blowback to the libs.

00:18:06.040 Let me just add one. I think we're used to getting betrayed by Roberts. But I mean, Barrett, she like I'm sick of Barrett. I'm sick of this bullshit by Barrett. I got to be honest. And maybe if we get some sort of a constitutional effort at limiting subject to the jurisdiction thereof, as Alan's saying, as Kavanaugh telegraphed, because it'll be immediately challenged, it'll wind up right back in front of the Supreme Court.

00:18:29.180 We could peel off a Barrett, maybe not the chief justice, but we could definitely peel off a Kavanaugh. That's for Mike. Go ahead, Mike.

00:18:35.080 Well, just really fast. I love what the professor is saying about the Kavanaugh approach to maybe try to fix this. I think the problem is, is that we already have five votes with the chief justice, Justice Barrett, and the three liberal justices saying that this is now constitutionalized under the 14th Amendment. So you can't change it by statute. That's the problem. So it's going to have to be a constitutional amendment. I would just say this to the chief justice.

00:19:00.100 Which requires 38 states. Just as a reminder, you're going to have to get 38 states to agree.

00:19:06.380 We can't agree on anything.

00:19:07.300 Two thirds of both houses of Congress and 38 states. It's just not going to happen.

00:19:10.800 Number two, that what the Supreme Court said about legislation is pure dictum because we don't have such legislation.

00:19:18.300 Let's assume Congress passes the following law saying, all right, we don't think they're subject to the jurisdiction if they're just born here.

00:19:24.380 But if they are, start paying taxes, register for the army, do all the things that citizens have to do.

00:19:32.220 And if you don't do those, then we will make you not subject.

00:19:37.960 We will say we will declare that you're not subject.

00:19:41.120 Look, the reality is they're not subject to the jurisdiction of the United States.

00:19:45.040 If a tourist comes to the United States and commits a crime here, of course, he's subject to the jurisdiction for that purpose.

00:19:50.400 But you can't draft them, you can't make them pay taxes, and you can't make them, you can't

00:19:55.880 convict them of treason, which is something only a citizen can be convicted of.

00:20:00.200 So, you know, we can test this in a lot of ways.

00:20:04.060 Congress hasn't yet done its job.

00:20:05.840 And so I think the dictum, you're right, there was dictum, the Supreme Court says you can't

00:20:10.240 tamper with this, is just dictum.

00:20:12.400 And that's why Congress should fly in the face of the dictum, say, no, they are not

00:20:16.400 subject to the jurisdiction.

00:20:17.580 now let's go to court and maybe we can peel away one or two of the justices

00:20:21.500 mike how did we go so wrong with amy coney barrett that's a very good question because 1.00

00:20:27.860 she auditioned as a constitutionalist as a tax analyst as an originalist as the next 1.00

00:20:35.440 scalia she had her former law clerks and friends sell her as the next scalia she sold herself 0.99

00:20:42.620 as the next Scalia for whom she clerked. 1.00

00:20:45.160 And I don't know, was she lying

00:20:47.260 through this audition process?

00:20:49.680 Was it fraud by Amy Coney Barrett

00:20:52.020 or did she get rattled when she got on the bench

00:20:55.080 and during the Dobbs decision

00:20:57.040 and the Planned Parenthood groups were threatening her family?

00:21:01.060 Are you so sure that Scalia would have voted

00:21:03.600 with the dissenters in this case?

00:21:05.700 Are you so sure of that?

00:21:07.040 I'm not so sure.

00:21:08.580 I don't know what he would have done.

00:21:09.840 He'd love to write an opinion every two or three years saying, look, this violates my

00:21:15.020 core principles.

00:21:15.980 I think it's wrong. 0.99

00:21:16.760 I think it's dumb. 1.00

00:21:17.480 I think it's stupid. 1.00

00:21:18.420 But we're bound by the text of the Constitution. 0.99

00:21:20.720 So I don't know for absolute sure which way Scalia comes down on this.

00:21:25.780 Well, let me tell you why I think Scalia would have ruled the constitutionalist way here.

00:21:30.500 Remember, the Supreme Court previously said that American Indians were not subject to

00:21:36.680 the jurisdiction of the united states under the 14th amendment so they did not get birthright

00:21:41.860 citizenship congress gave them birthright citizenship in 1924 by statutes right right

00:21:48.980 congress could have done the same thing here if congress wants to give birthright citizenship to

00:21:54.900 1.5 million chinese birth tourists uh congress can do that but it hasn't done that here and that's

00:22:01.580 in Puerto Rico, by the way.

00:22:03.700 No, I mean, this is this is this has become a vanity project.

00:22:08.600 Look, I would say this.

00:22:10.040 The chief justice and Justice Amy Coney Barrett have put their vanity over our country, and

00:22:15.900 it's unacceptable.

00:22:17.560 This is this is my husband's theory of how to and how not to select a Supreme Court

00:22:23.700 justice.

00:22:24.680 Doug's not a lawyer, but he's got good thoughts on this.

00:22:27.080 And his thought is no more attractive Supreme Court justices. His belief is that they get pulled into the Georgetown Party circuit and their people appeal to their vanity in making them want to be loved by the professor circuit, not the Alan Dershowitz professor circuit.

00:22:49.540 That's a good circuit to be on. But the Georgetown professor circuit. And they need that approval.

00:22:55.480 They need those pats on the head and they turn. And it's always the conservatives who turn.

00:23:00.480 You don't it doesn't go the other way. Alan, you're a Supreme Court scholar.

00:23:03.900 Why? Why do we have so many suitors and Amy Coney Barrett's and even like Kennedy and O'Connor would

00:23:10.540 they love to be like the swing vote where they would go over. But it's so rarely happens the

00:23:14.740 other way. Well, it's happened the other way once or twice. Felix Frankfurter went the other way.

00:23:18.860 he was put on the court as a Roosevelt liberal and became a moderate to conservative

00:23:25.100 because in those days, the Harvard faculty was very conservative. So your husband is right

00:23:32.800 that justices like to play to the professorate, but it depends. Today, professors are all hard

00:23:39.560 left. I mean, I think I'm the only Republican, newly found Republican on the faculty, maybe one

00:23:47.240 to others, but the Harvard Law School faculty is, you know, 98 percent liberal Democrat. And so

00:23:52.860 things have changed. When I first went to the faculty in 1964, I would say it was 60-40

00:23:59.160 conservative to liberal. Now it's 98 to 2 percent liberal to conservative.

00:24:06.260 My gosh. All right. So here's here's what Alito writes in his dissent. This is the losing

00:24:11.220 side, unfortunately. But he says, OK, this is how the majority looks at things. He says that

00:24:18.860 the majority, their account of birthright citizenship is roughly as follows. After

00:24:23.520 American independence, the British rule of birthright subjecthood was modified in just

00:24:29.280 one way to take account of Indians, as you point out, Mike, who lived under tribal governance.

00:24:33.300 But otherwise, the rule was transplanted intact to American soil. As modified, the rule was that

00:24:39.860 a child born in this country is automatically an American citizen unless the child's born to 0.51

00:24:43.560 tribal Indians or to a diplomat with immunity from legal process. During the period before 0.91

00:24:48.200 the Civil War, the rule's status was firm. After the war, Congress codified the rule

00:24:52.220 in the 14th Amendment. And it goes on from there. Then Alito writes, every step of this story

00:24:58.600 is incorrect. The Declaration of Independence repudiated the foundation on which the British

00:25:05.640 rule was based. From 1776 until the eve of the Civil War, the status of the rule in this country

00:25:11.620 was unsettled. There's no evidence establishing that the Constitution's references to citizens

00:25:17.220 incorporated the British rule. And until the eve of the Civil War, there was little litigation

00:25:24.420 about the meaning of American citizenship. After the war, Congress finally adopted a constitutional

00:25:29.720 provision, Section 1 of the 14th Amendment, making certain persons citizens at birth. But that

00:25:34.500 provision differed substantially from the British rule. It specified that a person born here is not

00:25:40.120 a citizen unless his allegiance to the United States is unimpaired by any obligations to a

00:25:47.240 foreign power. And he, I mean, that's exactly right. That's what, what else does subject to 0.64

00:25:53.200 the jurisdiction thereof mean? He's trying to say that there was another provision in there.

00:25:58.040 And I will say one of the scholars on this issue has argued all along that the justices would not come down on the right side of this because they'd be afraid.

00:26:10.100 They'd be afraid of being called racists. Right. Because the 14th Amendment is more limited than some of its proponents are now arguing and that it would take incredible temerity to come down against it.

00:26:25.200 And what do we see? We see the squishiest conservatives, Mike, fly the coop, right?

00:26:32.520 It's like, did anybody ever doubt Alito and Thomas? And Gorsuch showing some spine here, too.

00:26:38.460 But let's face it, Barrett, Kavanaugh and Roberts are always the ones we're worried about.

00:26:44.200 Well, I would say this. I am my old boss. Justice Neil Gorsuch came out very good on all of these cases at the end of the term.

00:26:53.080 So I'm very happy, proud, quietly relieved. I agree with you. He got Bostock wrong, but he has been rock solid on these cases.

00:27:04.580 I would say this, if Clarence Thomas, who grew up in the segregated South and faced unbelievable Jim Crow discrimination, can write that the 14th Amendment applied to the children of the freed slaves, but the white liberals from Washington like John Roberts can't.

00:27:26.300 That shows you who has maybe a more bold and fearless view of their job as a justice of the Supreme Court.

00:27:36.600 They have lifetime tenure.

00:27:38.160 They have pay protection for a reason.

00:27:40.540 Their job is to follow the law.

00:27:43.020 It's to make them less popular when they follow the law and they follow the law and the majority doesn't like it.

00:27:51.780 I think with the Chief Justice and Justice Barrett, I think they're looking to become more popular.

00:27:57.440 I think it's become a vanity project for them.

00:28:00.240 One of my lawyer friends sent me this, and I think she is spot on. 0.56

00:28:03.600 The Chief Justice thought he was writing the next Brown versus Board of Education decision, but he wrote the next row.

00:28:13.880 Because this guy, this Chief Justice, got the law completely wrong like they did in row and constitutionalized it.

00:28:21.040 So it's going to take decades to fix.

00:28:23.560 Let me let me that is how it feels.

00:28:25.540 Can I dissent from that?

00:28:27.040 I don't think that this these the personal fear of being called a racist was a factor here.

00:28:33.540 Why? Because, look, a majority of the Supreme Court, including all the conservatives, ruled Harvard's system and North Carolina system of race specific affirmative action, which I have opposed as a liberal since 1970.

00:28:47.040 1970, I wrote my first law review article saying that race-specific affirmative action is

00:28:52.680 unconstitutional. It took a lot of courage, not only for me back in 1970, but for these justices

00:28:58.880 to fly in the face of the liberal dogma that, you know, you can't live without race-specific

00:29:05.080 affirmative action. So they have shown courage in the racial context from time to time. Look,

00:29:11.060 you can argue this is the wrong decision, I think, without necessarily impugning

00:29:15.120 the independence or integrity of the two swing justices that differ with you on this. So I agree

00:29:24.640 with much of the conclusion, but I would stay away from trying to psychoanalyze or politicize

00:29:30.980 these justices. I think they did what they thought was right.

00:29:35.060 I'll say this. This is making the rounds on X. The author of the citizenship clause of the 14th

00:29:41.560 Amendment, Senator Jacob Howard explained during the debates that it would obviously not apply to

00:29:48.360 illegal aliens or foreigners who are not loyal to the United States. It was for the children

00:29:55.000 of former slaves. And here's the quote from that senator referring to that provision.

00:30:01.800 Every person born within the limits of the United States and subject to their jurisdiction is by

00:30:05.460 virtue of national law, a citizen of the United States. This will not, of course, this is the

00:30:10.880 senator writing include persons born in the U.S. who are foreigners, aliens who belong to the

00:30:18.300 families of ambassadors or foreign ministers accredited to the government of the United

00:30:22.820 States, but will include every other class of persons. But there it is. This will not include

00:30:27.020 persons born in the U.S. who are foreigners or aliens or aliens. I mean, that's I think Justice

00:30:32.580 Scalia would be very persuaded by something like that. Let me tell you why he wouldn't be. Justice

00:30:36.920 Scalia says he doesn't believe in legislative history. He believes in the final words of the

00:30:43.240 enactment. He says. But you're you're trying to figure out what subject to the jurisdiction

00:30:47.800 there. I know. I know. But but he wouldn't be persuaded by legislative history. He never was.

00:30:53.240 He would say, you know, that's like going through the telephone book and picking out only the

00:30:58.120 companies that you want to buy from. He was a big opponent of looking at individual senators

00:31:05.880 and congressmen. He might have agreed, I think maybe he would have agreed, that the clause

00:31:11.700 subject to the jurisdiction thereof really does exclude people who are only in passing in the

00:31:19.120 United States. I think he might very well have done that, but he wouldn't have done that by

00:31:22.600 looking at the legislative history necessarily. Let me jump in there. Textualism and originalism

00:31:29.580 is what does the text say? That's textualism. And originalism is what did that text mean to

00:31:35.420 the public at the time of its enactment. So he would definitely look at that. Not legislative

00:31:40.860 history, but he would look at, okay, this is the proponents of this constitutional amendment.

00:31:46.720 This is how he's selling it to the public. Yeah. No, I agree with that. And I think he would have

00:31:52.220 been conflicted. I don't know, because I know him very well. In fact, my newest book that I just

00:31:58.160 wrote starts with a conversation he and I had while sitting together in Jerusalem. And I asked

00:32:03.880 You know, you're the smartest guy in the world. I know. Do you really think that a human being was encrypted for three days and then rose up and was alive? And he said, to the core of my being, Alan, I believe that. And you're so unfortunate that you can't believe anything without proof. So he and I had these arguments and these debates about constitutionalism, about religion. I love, you know.

00:32:27.080 Wait, hold that thought, Alan, because I know we get to have you a little longer than we get to have Mike, who's got to go.

00:32:32.840 But can I just ask you, Mike, what can what what next?

00:32:36.900 I mean, this is is is it just completely futile at this point, given how hard it is to have a constitutional amendment?

00:32:43.300 So the chief justice constitutionalized birthright citizenship like the liberals did with Roe.

00:32:49.060 It's going to be decades before we can fix this as a constitutional matter. 0.76

00:32:52.920 What it means is Congress needs to pass the Save America Act immediately, cancel August recess, get that to the president's desk, and that the Trump administration, Mark Wayne Mullen, the others, they need to get moving and start deporting people as fast as possible, starting with birthing aged women, the birthing persons, as the Democrats call it. 0.90

00:33:14.160 If you're going to give birthright citizenship to illegal aliens, we're going to get these pregnant women and women who could be pregnant the hell out of our country. 0.87

00:33:21.600 100 percent. I totally agree with you. Shipwreck crew Bill Jacobson has been tweeting that all 1.00

00:33:28.380 morning, and it's a very interesting argument. He writes, the Trump admin and all future admins

00:33:32.740 will have full justification to turn around and send back to their home countries any pregnant

00:33:37.320 female who seeks to enter the U.S. at ports of entry. Maybe we should set up medical clinics 1.00

00:33:41.360 at U.S. embassies around the world. This is a little tongue in cheek and make it mandatory for 0.95

00:33:45.000 females seeking a visa to undergo a pregnancy test and then only allow a visa to be valid for

00:33:49.940 entry into the U.S. for 72 hours after the date of the test. Why would this not be considered a 0.99

00:33:54.380 valid alternative to the EO in order to address the problem of birther tourism? That's that's 1.00

00:33:59.860 where it's going to go, because President Trump will play hardball on this. He's shown that in

00:34:04.380 response to the tariff rulings that he doesn't just accept, oh, I lost. OK, it's over. He's

00:34:09.240 going to find another way of narrowing this field. Mike Davis, thank you for today and every day that

00:34:15.320 you come on. We appreciate it. Bill Shipley is what I meant. Sorry. So, Alan, what do you make

00:34:21.640 of that? I mean, like, would there be the possibility of cracking down on pregnant

00:34:27.280 aliens who are coming over here, revoking visas, pregnancy tests even? I mean, how far could we go

00:34:35.140 with that? Well, I don't think it would be very popular to start deporting women in their ninth 0.94

00:34:39.780 or eighth month. I do think the legislative solution has to be tried first. I do think

00:34:44.660 Congress should pass, should have hearings and pass a statute saying the following people are

00:34:49.840 no longer subject to the jurisdiction of the United States and throw that back in the Supreme

00:34:54.480 Court. And I think there's a good possibility you could peel away one or two justices if the

00:35:00.400 legislation was thoughtful, nuanced, carefully done, and supported what the basic underlying

00:35:08.780 purpose of the 14th Amendment was. I'm not in favor of starting to round up pregnant women 1.00

00:35:15.180 and deporting them. And I'd rather see legislation that is more general. So I'm hoping to move in 0.89

00:35:22.660 that direction. I mean, I like he he he goes. He's not afraid, though, because, look, President

00:35:29.000 Trump's going to be looking for solutions now. I have every belief that he's going to be looking

00:35:32.820 for solutions. And then there was that one. He had another post online again. I think it's

00:35:38.540 somewhat tongue-in-cheek but he's trying to get a conversation started on what we could do here

00:35:42.480 um stand by he says uh let's see how about this a visa granted to an alien to enter and remain in

00:35:50.900 the u.s is automatically terminated if the female alien becomes pregnant and medical care providers

00:35:57.500 are obligated by law to report positive pregnancy tests under the threat of criminal prosecution for

00:36:01.820 failure to do so ain't this fun he writes uh now of course yeah too intrusive would that be

00:36:07.340 enforceable. But but could there be some limitation? I mean, are we required to just

00:36:12.260 let anybody who is about to give birth come into the country, given that we now fully understand

00:36:16.420 if that kid is born here, he's an American? Well, I think we ought to change the law and 0.99

00:36:20.780 make sure that a person born here who is not subject to the jurisdiction in any realistic 1.00

00:36:25.460 sense doesn't become a citizen. And if they are a citizen, let them pay taxes, let them register

00:36:30.900 for the draft. Let them be subject to what we citizens are subject to. Citizenship is not free.

00:36:37.340 uh citizenship entails not only benefits but obligations as well and these people who are

00:36:43.520 born here and leave immediately only get the benefits without the obligations and that's

00:36:48.460 certainly not what citizenship ever was intended to convey either in great britain or the united

00:36:53.200 states i don't think there's any country in the world that says other than ours that if you're

00:36:58.040 born here and no oh no allegiance to the united states you uh you uh uh you uh are a citizen now

00:37:06.160 If a person's born here in one day and then plays soccer for Nigeria for 25 and 30 years, is that person going to be allowed to play on the American team? No, because I think FIFA has a more common sense definition of who is an American, probably, and the Olympic Committee, a more common sense definition of who is an American than the Supreme Court's interpretation as it stands today of the 14th Amendment.

00:37:33.960 Can I ask you about Justice Jackson and her jurisprudence, Alan? Because everything I read from her is seems so overly emotional. She seems to be struggling to contain her personal reaction to these cases. And we saw some of that from Sotomayor yesterday as she chastised Justice Alito from the bench to like some of these women are sort of giving womankind a bad name by being overly emotional,

00:38:03.220 which is plain to type. She's taking issue with Justice Thomas in her dissent, who Justice Thomas

00:38:10.860 had, she said, surprisingly suggested that the citizenship clause was a race conscious remedial

00:38:18.060 measure relating only to freed slaves. And she doesn't like that at all. She says that's

00:38:23.380 inconsistent with your endorsement of a colorblind constitution. She goes on to say it's for this 1.00

00:38:28.340 reason that Justice Thomas says children who are born in the U.S. but to parents not domiciled

00:38:33.120 here are not entitled to claim birthright citizenship, she writes. But that narrow vision

00:38:36.720 of the 14th Amendment bears little relationship to the history of its ratification. Even worse,

00:38:41.740 Justice Thomas is telling, elides the entire point of the second founding. The Reconstruction 0.56

00:38:46.660 amendments were an anti-cast, anti-subordination reset for the nation, not a mere spot treatment 0.54

00:38:52.980 for the dark stain of slavery. Again, then yesterday we saw the side eye from Justice

00:39:00.940 Sotomayor, who was very angry that the high court said the president does have the fire,

00:39:05.540 the power to to fire the heads of most of these so-called independent agencies saying they have

00:39:14.540 to belong someplace under the Constitution. They belong under the executive branch and he's the

00:39:17.980 head of it. She she openly said that she didn't think President Trump was going to exercise

00:39:23.320 control or self-restraint in a way that we could approve of. It's like, what do you why what the

00:39:29.440 opinion, right? And like the personal agenda that's coming out. What do you make of it?

00:39:32.900 Well, when I was a law clerk on the Supreme Court 100 years ago, it was an all-male court 0.96

00:39:36.800 and there was plenty of emotion, but they hit it. They would go from chamber to chamber and 1.00

00:39:42.560 Justice Douglas would sometimes scream at people. Justice Black would scream at people. It was a

00:39:47.520 lot of emotion, but they kept it under wraps and the public didn't see it. We law clerks saw it.

00:39:53.680 public didn't see it. You may be right that women on the court are more willing to be honest about

00:40:00.960 showing their emotions when they feel it very strongly. And the question really is,

00:40:06.500 when you put a robe on, are you really essentially denying your right to show your emotions? You know,

00:40:13.480 the reason that British judges wear wigs and look identical, especially they used to look

00:40:20.460 because they were all men and they were all white was to demonstrate that they are not subject to

00:40:27.160 emotion that the law is kind of an objective reality that doesn't isn't influenced by the

00:40:34.480 personalities you know legal realism has shown for years that of course judges are human beings

00:40:40.040 and they're influenced by what they had for breakfast and their arguments with their spouses

00:40:44.420 and all of those things, the question is how much of that should show in the chambers of

00:40:50.460 the Supreme Court. And that's a fair argument to make. We're going to have on Christian Wagoner

00:40:57.080 in a minute to talk about the ruling on girls and boys trying to get into girls sports. But

00:41:02.940 I don't know if you had a chance to look at this campaign finance law ruling. The Supreme Court,

00:41:07.460 reading here from SCOTUS blog, issued a major ruling on money in elections by a vote of six

00:41:12.140 to three, the justices struck down a federal law that limited the amount of money political parties

00:41:17.980 can spend in coordination with a candidate for office. It's that piece of in coordination with,

00:41:23.880 I think this is the piece of where like the presidential campaign would always have to say

00:41:27.780 like, no, I'm not working with the pack. No, gee, I have no idea what they're doing. And it seems

00:41:33.060 like the Supreme court has finally put an end to that fiction and said, you can coordinate it's

00:41:38.040 free speech. You're allowed to do it like an extension of Citizens United here. Originally,

00:41:42.940 before Citizens United, we had labor unions that were spending, you know, all of their coffers on

00:41:49.660 elections and it was fine. Then Citizens United came along and they said, you know what? Corporations

00:41:54.240 can do it, too. It's free speech. And now we have this saying and you actually can coordinate with 0.77

00:41:58.680 the politicians as well. That's how I read it. What do you make? Well, I think it's a natural

00:42:02.480 extension of Citizens United. Again, I think dumb, dumb, dumb to allow unlimited expenditures 1.00

00:42:09.860 of money. It means that George Soros has a million votes and you and I have one vote. So it's wrong 1.00

00:42:17.780 from a political and from a realistic point of view. But, you know, remember the ACLU,

00:42:24.320 the American Civil Liberties Union, a leftist, radical now organization, supported

00:42:29.760 Citizens United. I don't know what their view was on this one, but, you know, you can read the

00:42:37.760 First Amendment as saying that the money is speech. So I do think that it's consistent with

00:42:46.620 Citizens United, but it's a bad decision from the point of view of democracy. It's far, far too much

00:42:52.140 power to too few people who have too much money. It's changed. Citizens United really did wind up

00:42:59.480 changing our body politic in a way that would really matter. I mean, it before Citizens United,

00:43:05.080 there was much more reaching across the aisle, bipartisan legislation, patting on the back of

00:43:10.940 somebody who was an adversary because you had to find a way of getting along with him. Now,

00:43:14.900 especially in the House, you come from a district that's heavily red or heavily blue. You kind of

00:43:21.640 answer to your donors who are the ones who got you elected thanks to all that money.

00:43:26.000 It's much worse than that. It's much worse. You also answer to the most radical people in your district because they're the ones who determine the outcome of primaries.

00:43:35.600 That's what we saw in New York the other day when three anti-American, essentially communists, people who root for Iran, people who hate America win because only 13 percent of the people or 7 percent, we don't know how many, vote in the election.

00:43:54.660 and the primaries now in all blue states determine the outcome of elections.

00:44:01.040 So we're going to have three members of Congress coming to Washington this year

00:44:05.400 that don't represent what the Democratic Party is about.

00:44:08.620 It's the reason I've left the Democratic Party.

00:44:10.700 I can't be in a party with the people who won those elections

00:44:14.480 or with Mamdani or with some of the other people.

00:44:17.600 I can't remain in that party.

00:44:19.320 And I think we're going to see others leave the Democratic Party.

00:44:22.000 And if the Republicans don't do something about Tucker Carlson and that view of the Republican Party, we're going to see people leave the Republican Party.

00:44:30.020 There are so many people today I know who feel themselves politically homeless.

00:44:34.320 They don't know what to do. They don't know where to go.

00:44:36.400 They don't like Trump. They don't like Mom Donnie.

00:44:38.940 They don't like the Democrats. They don't like the Republicans.

00:44:41.280 They don't want to stay home. I think we have a crisis confidence in our system.

00:44:46.020 You're not wrong. Tucker left the Republican Party.

00:44:48.500 I haven't been part of the Republican Party in 17 plus years.

00:44:51.440 And I don't remember what year it was I left, but I was mostly a Democrat when I was young.

00:44:55.600 Then I became a Republican when I, you know, sort of got a little older and realized some

00:44:59.580 things about the world.

00:45:00.580 And then as soon as I got into journalism, I said, you know, a pox on both their houses.

00:45:03.920 I don't want to wear anybody's team jersey.

00:45:05.240 And I became a registered independent.

00:45:06.920 I want to tell you this, Alan, President Trump just truth social doubt truth out a message

00:45:12.120 on birthright citizenship in the case.

00:45:13.580 And it's we are right over the target in our discussion, my friend.

00:45:17.120 he writes, the Supreme Court upheld birthright citizenship, which is too bad for our country,

00:45:21.660 but we can easily make it up in Congress through legislation with the support of the president

00:45:28.740 that has now been determined during this process. No long and unwieldy constitutional amendment is

00:45:34.340 necessary. Congress should start today to work on ending expensive and unfair to our country

00:45:39.540 birthright citizenship. They will have my complete and total support.

00:45:43.480 I hope the president calls me and asks me for my advice in drafting the legislation.

00:45:47.780 I would be happy to do that.

00:45:49.400 And I think it's the right approach.

00:45:51.300 I hope maybe he's listening to this show and maybe that truth social was stimulated by

00:45:56.820 that.

00:45:57.120 But I think it's the right approach.

00:45:58.620 And thank you for pushing it, putting it in the public domain.

00:46:02.900 Oh, I'm sure he's watching right now.

00:46:04.960 But yeah, you never know.

00:46:07.240 How can I know we're just digesting like the Kavanaugh concurrence where he said, oh, you

00:46:12.480 know, the EO runs afoul of legislation. So that's why I'm going to join in striking it down. But he

00:46:18.620 didn't sign on to the other logic. But as Mike was saying, and as I was saying, but you do have

00:46:23.340 five justices who just said the 14th Amendment does require birthright citizenship for, you know,

00:46:31.080 anybody who has a baby here. So how how can legislation get around? Because it's just dictum.

00:46:36.100 It's dictum until you get legislation. And then if the court strikes down the legislation as being

00:46:42.020 inconsistent with the body of the 14th Amendment, then it's a holding. But right now it's just

00:46:47.100 dictum because that issue is not before the court. The issue of whether the legislature could

00:46:53.280 change what it means to be subject to the jurisdiction was not before the court. And

00:46:59.780 therefore, anything the court says about them is merely dictum. It's not holding and much more

00:47:05.460 easily reversed and much easier to peel away a justice or two who could say this was merely

00:47:11.400 dictum. That issue was not briefed, not argued. It was not decided. Now we can decide it in the

00:47:17.160 face of real legislation that we can look at. I think that's the way the Supreme Court would

00:47:21.220 deal with that issue. So I think that would be amazing. Absolutely right. That would be amazing

00:47:26.760 if they close the one door and open that window while the Republicans control both houses of 0.99

00:47:30.680 Congress and the presidency would be spectacular. They have to act quickly. Okay. Can I ask you

00:47:37.640 before we go about this NPR report on Justice Alito. I mean, you've been covering the Supreme

00:47:42.120 Court. I forgot that. I knew I knew that you had clerked because we've talked about it before.

00:47:46.140 I love the story about how was it was it Justice White you clerked for? No, I clerked for Justice

00:47:51.560 Stevens. I mean, but I did foul Justice White on the basketball court and we played basketball

00:47:58.040 against each other. And I went up for he gave me an elbow in the face and I screamed at him.

00:48:03.440 you said, Mr. Justice. So, yeah, a long time. And we talked about this story about how he

00:48:10.140 insisted that you give back the banana that you took from, like, a gift, right, that had been

00:48:15.540 given to you. A criminal lawyer was because of me, because I argued a case in front of a judge

00:48:20.880 that he was clerking for and I wouldn't give up. And we won the case eventually. And he said I

00:48:25.640 inspired him to become a criminal lawyer for my 50th anniversary of being a law clerk. He decided

00:48:31.280 that he wanted me to sit next to him in gratitude for what I had inspired him to do. So I like

00:48:37.720 Justice Alito very much as a person. He's a real mensch, a real, real nice, decent human being. 0.96

00:48:43.100 I hope he stays on the court forever. But there have been rumors that he is thinking of retiring 0.95

00:48:48.980 before the next election so that if the Democrats win. Well, and that's my information. And I have

00:48:56.100 a very, very solid source that Alito, he that he is going to step down. But we don't know when we

00:49:01.720 don't know. I mean, and like in the not too distant future, I don't mean, of course, they're

00:49:05.340 all eventually going to step down or, you know, at some point, God will call them home. But I do

00:49:11.400 think it's extraordinary, Alan, to see NPR jump the gun on a Supreme Court retirement. It's just

00:49:19.200 not done. Like I said, it's like announcing the pope has died before he's died. It's just it's

00:49:24.280 not done, and if it is done, it's a massive piece of malpractice. Nina Totenberg has very close

00:49:30.140 personal relationships with some of the justices, and she, I think, exploits those relationships

00:49:36.920 sometimes in ways that are not particularly proper, and sometimes it backfires because

00:49:43.820 people tell you things in their own interest that turn out not to be true. Now, you know,

00:49:49.320 in the end, she'll be vindicated because Justice Alito probably will retire over the summer or

00:49:55.400 maybe at the end of the next term. And then she'll say, I told you so, I was just a little

00:49:59.140 wrong about my timing. But, you know, you have to look at anything that Nina Totenberg says

00:50:04.180 with suspicion. I have been a critic of hers like you have been since she began at NPR.

00:50:10.460 She is much, much bipartisan, much too political, and has many too personal relationships with the

00:50:16.300 justices on the court. And unlike you, Alan has been has proven incapable of putting her own

00:50:21.820 personal politics to the side in doing analysis of the Supreme Court, which is, you know, what

00:50:27.900 was her job for a long time. It's great to see you, my friend. All the best to you. You're looking

00:50:31.880 well. And once again, what's the name of the book before you go? Founding Fathers and One

00:50:38.600 Jewish Mother. And it's based on my own documents. I own early copies of the Declaration of

00:50:44.480 Constitution, federalist papers, early copies of Ben-Gurion, Golden Meir letters. And it's amazing

00:50:51.700 how similar the controversies were in the two countries. You know, Jefferson wanted an agrarian

00:50:57.820 country. Ben-Gurion wanted an agrarian Israel. Hamilton wanted a commercial country. Nataniel

00:51:04.140 wanted a commercial Israel. And so we're very similar, very similar conflicts. And I think

00:51:09.840 people will enjoy the book. Thanks for asking. Check it out. All the best. If you are heading

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00:53:17.200 something truly historic happened this morning at the u.s supreme court we did spend an hour

00:53:26.320 bashing them because we don't like the birthright citizenship opinion but i have to tell you

00:53:30.440 i teared up when i saw the opinion on girl sports so many people have worked so hard to make this

00:53:40.600 happened today and reason prevailed. The protection of girls and young women

00:53:46.260 is ensured now, at least for those 27 states that have passed bans, disallowing biological boys to

00:53:54.180 participate in their sports. The court's decision involves laws in West Virginia and Idaho. Do you

00:53:59.900 remember? We all went down to Washington, D.C. We watched these arguments live. So important was

00:54:04.500 this case to us, but it has implications for all the other states that have similar restrictions

00:54:11.140 as well and could potentially expand beyond that at some point. We have not yet had the big

00:54:16.660 decision. We have not yet had a case go up where the question is, must they ban boys from girls

00:54:24.400 sports? That was not on the docket. It was may they, may they, and the answer to may they was

00:54:30.540 yes. Justice Brett Kavanaugh writing for the majority quote, the constitution and title nine

00:54:35.160 do not require an overhaul of women's and girls sports throughout America. Justice Clarence Thomas,

00:54:42.720 not holding back in his concurring opinion, writing quote, a man does not have a legal

00:54:47.060 right to compete against women just because he believes that he is a woman because gender 0.84

00:54:53.520 dysphoria is a mutable, that's an important word, mental state that is the object of psychiatric 0.96

00:55:02.440 treatment. It does not resemble the immutable characteristics on the basis of which our

00:55:09.340 precedents have applied heightened scrutiny. In other words, if the court had been using

00:55:14.320 heightened scrutiny to evaluate these bans, it would have been much tougher to uphold them.

00:55:18.660 Um, and he pointed out those protected classes like race, sex, or national origin.

00:55:23.400 Those are very important words.

00:55:24.980 He's saying transgenderism is not an immutable characteristic like your skin color.

00:55:31.380 Okay.

00:55:31.960 And so it's not going to get this heightened scrutiny when it's treated as it has been

00:55:38.260 by these bands.

00:55:39.420 Like it's not the be all end all the high court's not going to bend over backward to

00:55:44.720 be protective of people who claim to have this status because it's not immutable. It's mutable.

00:55:50.180 You can mute it. Ask Chloe Cole, right? I mean, it's not this is something it's a social contagion

00:55:55.100 and a psychiatric illness. And it is being treated in many, many cases and actually does

00:56:01.760 get reversed all the time. Justice Thomas finishing, quote, to use language to obscure reality,

00:56:07.860 to show indifference regarding the truth is to lie to the public and cease to treat our fellow

00:56:14.540 citizens as equals. That is so beautiful. He is so underrated as an orator, as a great writer,

00:56:22.100 as a great thinker. He's another one who's unfortunately getting old and we need to

00:56:26.480 protect. Joining me now, I mean, truly to say that she's behind this decision would be to

00:56:31.900 understate the importance of her role in this battle. Her name is Kirsten Wagoner and she is

00:56:37.160 the president and chief counsel at Alliance Defending Freedom. We love Alliance Defending

00:56:42.560 Freedom. It is the firm that took this all the way to the U.S. Supreme Court. They've been in

00:56:48.080 since the beginning on the ground floor of this fight. And joining us as well is Madison Kenyon.

00:56:55.300 Maddie's a former athlete at Idaho State University. This is one of the two suits 0.92

00:56:59.600 involved in this lawsuit who stepped forward to be a part of this case. In 2019, she competed

00:57:06.240 against a male athlete in track and field during her college years and lost to him. He was claiming

00:57:11.560 to be female, five times. The male she competed against broke record after record, girls' records, 0.51

00:57:19.840 which had stood prior to a boy coming in and smashing them. And of course, he received nothing

00:57:26.420 but adoration in the fawning media. Today is a massive win, massive win for Maddie and little

00:57:34.600 girls and young women just like her. I'm just, I'm awed by your courage, Maddie. Kristen, I'm so

00:57:40.820 grateful to you just feel like it's monumental what happened i know how much work and and truly

00:57:47.260 on your part maddie courage it took let me start with you maddie and your reaction to the ruling

00:57:51.720 um to say i am ecstatic would be an understatement i've been waiting six years for today um my heart

00:57:58.200 is full of gratitude for adf for all the work that they've done for the attorney generals um

00:58:04.340 to know that 27 states as of today protect their women so that they don't have to go through

00:58:09.680 what I went through or witnessed their teammates pushed off podiums and see roster spots given

00:58:15.060 to men. And to know that that is not protected for those women is just a day to celebrate.

00:58:21.700 Because of people like you, because of young women like you, who instead of being shamed out

00:58:29.320 of your totally reasonable, fair and honest opinion, said, I'm not accepting that. I'm

00:58:37.620 actually going to continue speaking up. And indeed, I'm actually going to do something about

00:58:41.620 it legally. Can you just give us a couple of lines on how that happened for you, your experience that

00:58:47.620 got you to that point? Yeah. So the Women's in Fairness Sports Act was it was proposed at a

00:58:55.060 point that I was actually doing a speech class. And so I had read it and I gave a speech that

00:58:58.600 it should be passed by the time the speech was given. It was actually already passed.

00:59:02.540 and so I was like I'm in Idaho yeah and so I was in super big support of it found out that it had

00:59:10.060 um that ACLU had sued and through teammates that high school teammates my friend had in Utah they

00:59:18.080 connected us with ADF because they were concerned you had sued to stop the law they did not want

00:59:23.520 the law and then ADF is like what the ACLU used to be yeah it fights for actual rights as opposed

00:59:30.440 to just some woke agenda so you connected with the good guys yeah and said sign me up yeah but

00:59:34.940 we connected to them through athletes in utah that were concerned about this issue as well so

00:59:39.120 just like to point out that this is there are so many people not okay with this and so then we got

00:59:46.000 involved and we signed on we had to because nobody else was our coaches our athletic directors and

00:59:52.480 the ncaa were allowing men to compete as women and they were not protecting us they're not protecting

00:59:57.280 our opportunities. And we were watching them being stripped from us in present time. And so

01:00:02.360 we had to get involved. And that's how it started. Kirsten, we saw this. You and I spoke the day of

01:00:09.020 the argument. You came on the show. We both felt confident about it, but you don't want to heave

01:00:13.320 that sigh of relief until you actually see pen on paper. Your reaction to this huge victory for

01:00:19.660 girls. I mean, even as you were talking, Megan, like just the emotional reaction to it was so

01:00:25.660 significant for me and there are certain parts of the decision where I was just like oh thank you

01:00:30.640 thank you thank you thank you but I think you know I do want to recognize the first thank you

01:00:35.080 needs to go out to Attorney General Labrador in Idaho as well as Attorney General McCuskey

01:00:40.620 from West Virginia because we elect these officials and they are charged with defending

01:00:44.320 these laws and we have seen so many spineless gutless officials across the United States 1.00

01:00:49.640 refused to stand for women. And these men courageously did it. And they allowed and

01:00:55.660 essentially cheered on athletes like Maddie and ADF to come alongside and help as well.

01:01:01.860 But you're right. We started this 10 years ago, more than that. And it has been a long haul.

01:01:06.920 But man, was it worth it after today's decision?

01:01:10.780 Oh, it's just it's amazing to actually read the words written, you know, with the Supreme Court

01:01:16.320 pen, like affirming everything that we knew was true, you know, and rejecting their challenges

01:01:21.540 on every front. No, no, the equal protection clause. It's a no. We're not going to apply

01:01:27.360 that. That transgenderism is not a protected class. Like everything we could desire other 0.98

01:01:33.020 than mandating that it be banned in all 50 states we got, Kristen, wouldn't you say?

01:01:38.400 Yes, absolutely. And I am so excited about the applying this decision in the other states. I

01:01:43.880 mean, the court essentially said biology matters. It's a real thing. The law can reflect it. Sex

01:01:49.840 based categories are important. In fact, the court said it's vitally important. And so we're coming

01:01:55.100 for the 23 states. I mean, we already have cases in those 23 in several of those states. But I mean,

01:02:01.320 the court's decision, the logic of it is that women and girls are experiencing the cost of this

01:02:07.200 and that under Title IX, a federal statute, there is a right of girls to insist that they have equal

01:02:14.320 opportunities on the playing field. And I think that the logic of it is going to extend to our

01:02:18.840 rights in the locker rooms, in the dorm rooms, in the showers. And as you know, Megan, we've talked

01:02:24.560 about a number of our female athletes have actually suffered sexual harassment. One of our clients,

01:02:30.280 you know, actually it's the male in West Virginia, went up to one of our clients, whispered in her

01:02:35.840 ear repeatedly. I'm going to stick my dick in your you know what. And I can't even say that word. 1.00

01:02:41.100 I mean, this has got to come to an end. And I believe that this decision, the logic of it,

01:02:46.360 we are going to continue to press forward. There's so much to talk about.

01:02:49.540 I love what you're saying there. Yes. Can you add expand on that? I love what you're saying

01:02:54.680 that this will not be limited to just boys and girls sports that we're going to this is we can

01:02:59.220 use this to get them out of our gyms and our locker rooms, et cetera. Well, I mean, the court

01:03:04.320 says we're limiting this to whether states may make these distinctions but the rationale behind

01:03:09.840 it the logic that the court is using is saying there are inherent physical differences between

01:03:15.520 men and women between boys and girls and where those differences matter states are right to

01:03:21.920 enforce them the court also said that under title nine there isn't a right of girls to have equal

01:03:27.600 opportunities on the playing field and those just aren't like oh we have to have separate teams but 0.99

01:03:32.240 qualitatively the same opportunities, quantitatively the same opportunities.

01:03:37.140 And so under Title IX, which also is going to apply in the context of the privacy and

01:03:42.140 safety under these statutes, we are going to drive those decisions home.

01:03:46.160 And I think, again, some of the quotes that you used were exactly what I highlighted when

01:03:52.600 I was reading this decision, and that Justice Thomas saying, like, come on, let's recognize

01:03:57.340 the truth here.

01:03:58.640 That is the trajectory that the court is taking.

01:04:00.760 And as you know, it was reflective of the American public. 0.74

01:04:04.680 Now that we have seen what this toxic gender ideology does, eight in 10 Americans say, 1.00

01:04:09.620 get it out of our sports. 1.00

01:04:11.540 And I believe they will also start to say, get it out of our classrooms and give us our

01:04:15.900 rights back.

01:04:17.040 And it's so huge to like the Thomas's line about it not being an immutable characteristic

01:04:23.920 is huge because after Bostock, in which the high court said under Title VII transgender

01:04:29.860 people have a right not to be hired or fired, or I should say not to be not hired, to use the

01:04:35.840 double negative, or fired based on their transgenderism. We all worried very much, 0.68

01:04:41.400 like, how far is that going to go? If it's getting treated like race or sex or disability or age,

01:04:48.840 that's a whole different kettle of fish. Then you can't, you know, quote, discriminate against

01:04:54.040 transgenderism in any way, which would include the sports field, our locker rooms, and so on. 0.96

01:04:59.860 And their movement has been pushing for exactly that, using Bostock. 0.82

01:05:04.700 And today makes clear Bostock is extremely limited.

01:05:09.560 I think even Gorsuch is regretting Bostock.

01:05:12.280 That's my own read.

01:05:13.900 And Justice Thomas swoops in to make clear, not an immutable characteristic.

01:05:19.960 This is not a protected class, period.

01:05:22.320 Well, and not unironically today, Justice Barrett wrote a concurrence in Scrimetti,

01:05:27.020 which was the case about whether we trans our children with puberty blockers and states can

01:05:31.120 stop that. And Justice Barrett said as well that gender identity is not a protected class, that it

01:05:36.240 shouldn't be a protected class in her concurrence. So we have a number of justices that have already

01:05:40.660 recognized this in writing, and we need to continue to ensure that we get that final decision

01:05:46.060 by the Supreme Court. It is year after year, rejected these arguments, but these are the

01:05:50.280 arguments that radical activists are pushing forward, including the ACLU, and we have to keep

01:05:55.520 defending them and ensuring that our girls and our boys are not told they're born in the wrong body

01:06:01.160 because there are real world consequences to that. There's no, there's no such thing. God

01:06:06.360 doesn't make mistakes. He understands exactly who you are and how you should look and what body you

01:06:11.240 should be in. Um, I wanted to read this to you, Maddie, because Justice Kavanaugh, he was, and

01:06:18.080 maybe even still is, I don't know. He was for years, a coach of his daughter's basketball team

01:06:22.940 and of other other young women in high school or middle school basketball.

01:06:27.860 So he gets it.

01:06:29.040 And here's what he wrote in part.

01:06:31.260 And it was in response to the dissent, which was of, I mean, the three women abandon us

01:06:36.500 yet again, Kristen, the three female libs like they couldn't care less about Maddie.

01:06:42.360 They do not care about her or my daughter or yours.

01:06:46.020 Nobody.

01:06:46.580 All they care about is their woke liberal bona fides.

01:06:49.140 So Kavanaugh steps in and responds to their hysterics by saying as follows.

01:06:52.940 First, the dissent directs various rhetoric against the court's opinion, employing phrases such as contorted logic and misguided approach and diminished view of equal protection and unencumbered by fact or law.

01:07:06.140 He's citing Sotomayor here with respect that rhetoric is misdirected.

01:07:10.360 The court's holding today is straightforward. The Equal Protection Clause allows schools to maintain separate teams for female and male athletes.

01:07:18.140 Schools may determine eligibility for women's and girls teams based on biological sex. 0.66

01:07:22.360 that policy is constitutionally justified. Then he goes on to say this, Maddie. Some might ask, 0.80

01:07:28.660 what is the harm in allowing an additional athlete to compete in women's or girls' sports?

01:07:33.860 That sentiment, though understandable, misunderstands the nature and reality

01:07:37.440 of sports. Sports are highly competitive and generally zero sum. At almost every turn,

01:07:43.760 someone wins and someone loses. Every athlete who makes a team take a roster,

01:07:47.620 who makes a team takes a roster spot from another athlete. Every player who earns playing time

01:07:53.060 reduces the playing time of a teammate. Every player who makes the starting lineup

01:07:57.700 sidelines another who remains on the bench. Every competitor who wins a race or a competition

01:08:03.300 deprives another athlete of that victory or medal or prize. Every team that wins because of an added

01:08:09.580 player means that another team has lost because of that added player. Every player who makes

01:08:14.620 all conference beats another who does not every student who earns an athletic scholarship takes

01:08:19.420 that opportunity away from another student and so on women and girls who play sports care deeply

01:08:24.640 about all of those things getting emotional it's just been such a me too the next right the next

01:08:33.280 paragraph it just goes on megan i mean it's like he knows he knows he gets it he gets it he writes

01:08:39.840 they obsess about them they spend extraordinary time and effort to train in the heat and in the

01:08:45.460 cold to work out early in the morning and late at night to get a little faster to become a little

01:08:49.900 stronger jump a little higher shoot a little better watch a little more video to make the

01:08:54.560 learning lonely journey back from an acl tear to scrap for playing time to start to win the game

01:09:00.740 uh they're hugging and crying to win a championship to hang a banner to bring home a medal

01:09:06.680 to be all tournament, all county, all state, or all American.

01:09:10.240 They put a championship trophy, an all-league award on their bedroom shelf,

01:09:15.620 and it stays there forever.

01:09:17.560 As a reminder of their love of the game and pride in their achievements,

01:09:20.540 they learn to endure losses with grace,

01:09:22.820 to lift up their teammates, respect opponents who have beaten them fairly and squarely.

01:09:27.160 They learn to win with class, to look a defeated opponent in the eye,

01:09:31.000 shake her hand, and congratulate her on her effort.

01:09:33.640 Whether the star of the team or the last player on the bench,

01:09:36.680 they form lifelong friendships and lifetime memories.

01:09:40.740 They savor their athletic accomplishments and cherish them for years,

01:09:43.860 even decades after their playing days are over.

01:09:47.580 What does it mean to you to have a Supreme court justice,

01:09:50.680 right?

01:09:50.940 That actually getting it.

01:09:54.040 Yeah.

01:09:54.500 Wow.

01:09:56.880 The tears of joy.

01:09:58.320 That's for sure.

01:10:00.220 I think the biggest worry was that our stories weren't getting out there.

01:10:04.180 And it goes to show that they are.

01:10:05.920 and that when we voice what has happened to us that people were listening and people that were

01:10:11.180 listening used the power that they had to show that they were listening and it's so true like

01:10:17.800 my story I went to Idaho State University on a full ride I didn't even think I was going to get

01:10:22.980 a full ride and when I got the offer I remember like being speechless and thinking wow they think

01:10:28.200 I'm worth this that scholarship took me to Idaho State and I wouldn't have gone there without it

01:10:32.720 At Idaho State, I ended up getting a nursing degree that I wouldn't have gone if I wasn't at Idaho State.

01:10:37.460 I met my husband in that town.

01:10:39.340 My best friends, two of them are here with me, and they were bridesmaids in my wedding last year.

01:10:45.240 But that degree got me a career.

01:10:47.380 That career got me an ability to pave my future.

01:10:52.140 So it's like these limited roster spots, these tentative scholarships cannot be given to men 0.88

01:10:58.340 because it's stripping it from a woman who should have had it.

01:11:01.340 and my entire future has truly been impacted by that scholarship and by athletics and to

01:11:11.420 have now graduated and be able to look at back and see everything that sports has given me

01:11:16.460 my dedication to this issue just increased um and so yeah to see this hearing today come out is like

01:11:23.080 a day to celebrate for sure I um I can't express in words how how grateful I am and like seeing

01:11:32.840 the hand of God and all of this too like he has been there every step of the way and over the

01:11:37.220 last six years I've grown up and I've changed a lot but one thing stayed true and it's that you

01:11:42.560 know men and women are created different and that's a beautiful thing and should always be

01:11:47.680 recognized, especially in athletics. Yes, Kristen, that was my first reaction this morning when I

01:11:53.520 saw it. I mean, I expected it. I really did. I would have been shocked if it had gone the other

01:11:56.580 way, was praise Jesus. Praise God that that sanity has been restored. And again, the request was,

01:12:07.500 may we? May we ban? May we protect girls? Would that be okay? And thank God this court,

01:12:14.660 this president who placed three of these justices on this court saw it our way. And like this to me

01:12:21.360 is just so huge. It's doesn't quite make me forgive Coney Barrett and Kavanaugh on the other

01:12:26.360 decision, but it certainly makes me applaud their decision here. And there is a reason, you know,

01:12:32.020 there's a reason Kavanaugh got put on that court. The coach, the guy, ironically, who understands

01:12:38.040 girls sports better than Brown Jackson, better than Kagan, better than Sotomayor, right? Of

01:12:44.300 course, it took a girls basketball coach to step in and say, let me explain to you what girls sports 1.00

01:12:50.560 mean. I got to tell you, I mean, after 10 years of working on this, it's the first decision that

01:12:55.440 I've read where I was like, he gets it. I mean, that exact part, page 28 of the decision, which

01:13:00.200 is exactly what you read, just tears started flowing. And you could say, oh, why are you girls

01:13:05.220 crying because we celebrate the differences because we are made different and he just gets

01:13:10.380 it the torn ACL the trophy I had a trophy on my bedroom window and to be told for 10 years and see

01:13:17.000 so many girls said where people will tell them to sit down to shut up that it's just about they want

01:13:22.560 trophies and those shouldn't matter so tired of that silencing and the diminishing of their

01:13:28.700 accomplishments and what they mean for their future and I gotta tell you I mean you know

01:13:33.600 the decision does say sex means sex. It doesn't mean gender identity. So there are a lot of really

01:13:38.580 good nuggets in here. And something that I remember we talked about, Megan, at the oral

01:13:44.700 argument was, remember, they were using all these terms of transgender girls and wrong pronouns. And

01:13:49.820 it was like hard to track. Are we talking about a boy here or a girl here? You did not see that

01:13:54.920 in this decision. There are no wrong pronouns. There is no term that says transgender girl.

01:14:01.280 That is actually such a good point. 1.00

01:14:03.000 Thank God.

01:14:03.540 That really was telegraphing something.

01:14:05.600 I wish I could say the same over on NBC.

01:14:09.940 You have got to watch.

01:14:10.960 OK, we're going to see this together.

01:14:12.320 My team just told me about it.

01:14:13.620 But listen to this.

01:14:14.640 This is Craig Melvin this morning.

01:14:15.960 Stop 50.

01:14:17.060 The terms that we're using here during our reporting, biological male, biological female,

01:14:23.960 the high court put those terms in quotations in their decision and their dissent.

01:14:30.420 But just so you know, we're using those terms from the decision itself, biological male, biological female.

01:14:37.040 OK, so it's basically a trigger warning for the NBC audience that we're going to stick to reality in this report.

01:14:43.620 Krista, we just had to make sure everybody understood they're just doing it because the Supreme Court of the United States does it that way.

01:14:51.340 Well, and as the Supreme Court of the United States said, and Justice Thomas drove home in his concurrence, there's male and there's female.

01:14:58.920 And yes, we can put the adjective biological, but here at Alliance Defending Freedom, we

01:15:03.240 don't even use the adjective anymore because it is male and it is female.

01:15:07.020 And every child deserves to know that they were created wonderfully, fearfully by God.

01:15:12.920 They have dignity and respect.

01:15:14.440 But over 90% of kids, Megan, who are struggling with who they are and how God made them, if

01:15:21.140 they're allowed to grow through adolescence, they do not become medical experiments.

01:15:25.460 They grow to live successful, happy lives.

01:15:28.920 And that's what the science says.

01:15:30.480 So again, this decision is one of many that need to come, but we are on our way.

01:15:35.260 And the first place we're stopping is those 23 states that are disregarding the rights

01:15:39.860 of women and girls.

01:15:41.520 That's the next big ruling we have to get, that actually it should be banned everywhere. 1.00

01:15:46.980 This is not consistent with Title IX at all to allow the girls in those states to go 1.00

01:15:52.240 on suffering.

01:15:53.140 While we're right over the target again, how do people donate to ADF?

01:15:57.920 I'm not getting rid of you yet, but people are probably feeling inspired to support you

01:16:02.220 as a national heroine.

01:16:03.960 Oh, well, thank you.

01:16:04.960 I mean, you can go to our website, adflegal.org.

01:16:09.240 All of our work is pro bono, meaning for free.

01:16:12.860 And we have been privileged to be able to stand beside women and girls, including the

01:16:16.980 very first case that was filed and the first situation that we know of that arose, which

01:16:21.360 was 2017 in Connecticut.

01:16:23.620 And I got to tell you, Megan, you were the first interview I did with those three.

01:16:27.820 three high school athletes when no one else would stand up for them. They stood up for themselves

01:16:32.300 and their case is still going on because it's in a blue state in Connecticut. Yep. We're still

01:16:37.360 fighting that battle. I remember it. Well, we did it. It was via audio. We didn't yet have

01:16:41.240 visual on the show. So it was our first, you know, nine, 10 months of existence

01:16:44.640 and they were trailblazers too. And, and yeah, there's been so much procedural maneuvering in

01:16:49.520 that. When you signed your insurance policy for some brokers, that's the finish line,

01:16:55.220 Handshake, commission, done.

01:16:57.240 Then you may not hear from them again until it's time for renewal, in which case they're

01:17:01.280 your best friend once again.

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01:19:50.220 Hey, everyone.

01:19:51.240 It's me, Megan Kelly.

01:19:52.320 I've got some exciting news.

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01:19:57.700 It's called the Megyn Kelly Channel, and it is where you will hear the truth, unfiltered, with no agenda, and no apologies.

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01:20:24.260 I want to mention this to you. So, Maddie, over on CNN, I like to, you know, search around when there's breaking news to see how it's being covered on CNN.

01:20:32.340 There was someone who I didn't know who was lecturing the audience on how this is such a small problem.

01:20:38.100 You know, there's only and trotted out the lie that there's only 10 trans students participating in NCAA sports, which is not true.

01:20:46.660 I actually looked into this because my own daughter, who, when she was in eighth grade, a year, just a little bit more than a year ago, was told that lie by her teacher.

01:20:55.500 And it's not true.

01:20:57.080 And here's the truth, because I actually looked it up at the time, that, I'll stand by, got all of it.

01:21:06.020 Yeah, yeah, yeah.

01:21:06.840 there is a pro trans outlet called out sports uh who by the way if anything has reason to

01:21:15.060 underestimate the number of trans athletes playing in college sports because they know

01:21:19.260 how controversial it is they stated openly on the record that there have been well over 40

01:21:25.040 out meaning non-closeted trans athletes competing in college sports quote out sports knows there are

01:21:31.440 countless other trans athletes who have competed at the collegiate levels who have not been

01:21:37.340 publicly out. And they give examples. Fordham basketball player Bryson Kavanaugh decided to

01:21:42.220 forego senior season and the WNBA draft to come out and begin his transition. Duke Rower,

01:21:48.860 Liam Miranda waited until after competing to come out publicly and so on and so forth.

01:21:53.700 And it goes on to say that three of these trans people have won a national championship.

01:21:57.880 So and then for high schoolers, same.

01:22:00.580 They estimated in their piece that we estimate that I'm quoting here.

01:22:03.520 There are as many as one hundred and twenty two thousand transgender youth ages 13 to 17 who could be participating in high school team athletics.

01:22:11.940 One hundred and twenty two thousand, not ten.

01:22:15.900 So what do you make of already the media's attempt to you know, this is it's the opposite of Justice Kavanaugh.

01:22:21.620 You know, like it's first of all, it's such a small problem.

01:22:25.160 And second of all, what are you really losing by allowing someone else to compete?

01:22:30.340 I just think about the women for one of those athletes.

01:22:34.380 I mean, I know Kristen has the stats on some of them, but one male athlete in a race on

01:22:39.460 the track displaces eight others on a track with nine lines.

01:22:43.460 That athlete runs four events is in high school.

01:22:46.600 That's really common that it's exponential. 1.00

01:22:49.780 The amount of women displaced from every single one of those athletes. 0.93

01:22:54.700 and to know that there's over a hundred thousand of them it's yeah we gotta keep fighting it's a

01:23:00.140 great day to celebrate but we still have work to be done because i mean like i said this these

01:23:05.760 opportunities to be in sports and to gain more than just a competition more than just one race

01:23:13.860 like you gain so much from sports when it comes to scholarships and education and just and the 0.98

01:23:20.640 friendships that come from it, that we, if we sideline women, they have nowhere else to go.

01:23:25.400 And it just goes to show how important that is. So I flipped the issue and said, look at the women. 1.00

01:23:31.400 Yeah. Just the, the underestimation of the glorious feeling of accomplishment is so offensive. 1.00

01:23:40.640 Charles Koch actually used that turn of phrase in his book and used it on me when I interviewed him,

01:23:45.900 the glorious feeling of accomplishment it's what you want your kids to feel when they go off into

01:23:51.040 the world whether it's their high school job or their real job it's what you want your high school

01:23:56.480 athlete to feel even if they don't cross first on the finish line but but they do their best and it

01:24:01.940 was a fair playing field you know that they can feel that glorious and you just the other side

01:24:08.980 won't acknowledge that they won't acknowledge that that no if I was supposed to be first I

01:24:14.720 deserve to be first. I don't deserve to have my spot taken by somebody who doesn't belong in this

01:24:19.480 competition. I do want to ask you, Maddie, about the boy who, um, you were competing against his

01:24:25.120 name. He goes by June Eastwood and, um, via let's run in 2019, they reported this Eastwood's personal

01:24:33.080 best in the 800 meters, one minute, one 55, 23. That's almost four seconds faster than the

01:24:39.660 collegiate record of 159.1 set by Raven Rogers in 2017. Eastwood's personal best in the 1500

01:24:48.140 is 350.19. Jenny Simpson's collegiate record on challenge for a decade was almost 10 seconds 0.97

01:24:55.000 slower. Eastwood has run 1438.80 in the 5000 far ahead of same girl, Jenny Simpson's collegiate

01:25:03.760 record of 1501. So he was what, some 13 seconds faster than she was there. And yet this is how

01:25:11.860 that June Eastwood has been treated by the press. In the spokesman review, June's run,

01:25:19.200 transgender Montana athlete driven to succeed. USA Today, it's a life or death issue. Trans

01:25:25.240 athletes fight for their humanity while battling anti-trans laws. USA Today has been the worst,

01:25:32.340 the worst. Wired, close second. They're supposed to be a tech magazine. Why are they weighing in

01:25:38.140 on this? Anyway, I'm just going to keep going. Still on USA Today. In 2019, Eastwood became the

01:25:43.720 first Division I transgender cross-country runner. As a successful trans athlete, her presence on

01:25:50.100 the track is transcendent, transcendent, USA Today writes. And the spirit she brings to her sport

01:25:57.320 has little to do with the desire to dominate her peers.

01:26:00.700 It's bigger than that. 0.52

01:26:02.260 Eastwood's trans identity saved her own life from suicide 0.99

01:26:06.580 and the demons of gender dysphoria. 0.98

01:26:08.440 I mean, Kristen, this has got all, all of the triggers

01:26:13.600 that the left likes to put into this argument.

01:26:16.480 You know, it's going to be suicidal. 0.93

01:26:17.900 She's transcendent.

01:26:18.900 We should be celebrating her.

01:26:20.780 She's the one whose happiness and well-being we should be focused on. 0.98

01:26:24.060 The rights we should be focused on are the rights of women. 0.90

01:26:26.200 I mean, the fact that for so many years, women and girls have been maligned and vilified

01:26:32.400 for simply saying, we don't want to stand at the starting line and know who the winner

01:26:36.660 is before we even get there.

01:26:37.900 We don't want to be sidelined in our own sports.

01:26:39.680 We don't want to undress in front of a male.

01:26:41.720 All of these things, the fact that we've been told, again, to sit down, to shut up, and

01:26:45.340 then to be shamed about it is horrific.

01:26:48.600 And it is high time.

01:26:49.760 And I hope that this entire debacle that we've been through in the last 10 years teaches

01:26:54.260 all of us that we all have a part to play in truth, because you can be compassionate, but you

01:27:00.300 can't be compassionate while ignoring truth, because the two are not in conflict. And in terms

01:27:04.900 of June Eastwood and the transcendent progress that was made in that race, women were not only

01:27:11.820 knocked off of podiums, they not only didn't advance to the NCAA tournament, they didn't even

01:27:16.500 make the team as a result. We've seen that time and again. I mean, you remember Leah Thomas, 65th

01:27:21.740 place in men's category to first in the women's? And I've even started on the BPJ case, the West

01:27:27.460 Virginia case itself. One boy, BPJ, that boy who identified as a girl, he displaced 470 girls

01:27:34.540 1,400 times, took two regional championships and a state championship all through middle school.

01:27:40.340 What about the girls that didn't get to make it, that didn't get to advance?

01:27:43.240 Why don't we start focusing on them? And thankfully, the Supreme Court has. 0.99

01:27:47.000 Yes. Oh, my goodness. So here's USA Today. There's this woman, Nancy Armour. I'm telling you, there's something wrong with this person. She's got some some some skeleton in the closet. Or maybe one day we're going to find out she used to be Ned. I don't know. But there's an issue with this Nancy Armour, who is the worst in the way she writes about this issue. She has no no children. She has no no daughters.

01:28:10.580 She writes, okay, she's fear mongering currently in response to this ruling on how schools will

01:28:15.920 make sure a girl is a girl.

01:28:18.420 They always do this.

01:28:20.000 They always go to the AOC has done this too, that every time a girl's rights are restored,

01:28:25.100 it turns into they're going to want to see your vag in order for you to make the team. 0.93

01:28:30.100 This is bullshit fear mongering, but here's what she's writing. 0.99

01:28:34.160 The ban is heinous for what it does to transgender athletes. 0.99

01:28:37.920 But if you think cisgender girls, which is girls, never say cisgender and young women won't be caught up in the fallout, too. 1.00

01:28:45.080 You are woefully ignorant. 0.97

01:28:47.780 She subtweeted from The New York Times, quote, how will grade schools, middle schools and high schools conduct verification tests? 0.99

01:28:54.780 And will everyone be tested or just the athletes who draw suspicion?

01:28:58.500 Thoughts on that one, Kristen?

01:28:59.760 These laws have been in place in 27 states, many of them since 2020.

01:29:03.640 We haven't had those problems.

01:29:05.300 And this is about fairness, not surveillance.

01:29:07.380 As any mother knows who puts their children in athletics, whether it's high school, middle

01:29:12.100 school, whatever, you have to have a physical.

01:29:14.800 So if there's an issue about whether you're a man or a woman and that issue continues,

01:29:19.280 you just have to have the physical that you have to have anyway.

01:29:21.780 So there's no looking under the skirt to determine what's there.

01:29:25.980 Again, this is fear mongering.

01:29:27.860 It's something that has been working quite well for the last six years and actually even

01:29:32.240 before then.

01:29:32.920 And again, it's just an attempt by radical individuals that are trying to impose a gender

01:29:38.400 ideology on all Americans.

01:29:40.320 And in the end, it's going to hurt women and girls the most.

01:29:44.520 Here is this is ABC's Devin Dwyer.

01:29:49.080 This is where their focus is in the wake of this historic opinion.

01:29:52.460 Stop 53.

01:29:53.560 And Devin, earlier we watched your story on Becky Pepper Jackson, who is at the center

01:29:57.160 of one of these cases.

01:29:58.440 Any reaction from the family yet?

01:30:00.300 No reaction just yet, Diane, from the family.

01:30:02.660 But no doubt they're devastated.

01:30:04.120 When I talked to Becky late last year, I asked her if she would continue to play with the boys if this law was allowed to take effect.

01:30:12.340 And she said no, because she is not a boy.

01:30:15.840 She's never identified as a boy.

01:30:17.720 She has identified as a girl since third grade, and she's never gone through male puberty.

01:30:23.020 So this is a big disappointment for her, 16 years old.

01:30:26.200 She actually just won the state championship in West Virginia in in shot put.

01:30:33.640 This is we get this every time.

01:30:36.540 There's just the language.

01:30:37.700 It really is an issue, Kristen.

01:30:39.160 They're trying to confuse their audience.

01:30:41.580 If you say she cannot play in girls sports, people are confused. 0.94

01:30:46.840 If you say he cannot, they get it. 0.98

01:30:50.140 I want to be careful with my words, because in this particular case,

01:30:54.600 BPJ is a child and that child deserves to be treated with dignity and respect and needs to

01:31:00.200 be listened and talked to and cared for in how he is dealing with gender dysphoria or gender

01:31:07.080 confusion. But we also know this is a social contagion as well. And I want to focus on Adalia

01:31:12.400 Cross, who we represent, who has been harassed, who has been bullied, who can demonstrate that

01:31:18.540 BPJ is more than aware of his own physical anatomy when he threatened to stick it in our client,

01:31:23.540 in the locker room and when he displaced her from being able to advance to further competition

01:31:29.440 and when he has taunted her as a result because she was the one person in the school that said

01:31:35.360 this isn't right and she came clean on what was actually happening not only in the losses but in

01:31:40.760 the locker rooms in the hallways of the school and yet the school did absolutely nothing nothing

01:31:46.420 when she complained they said they were going to do an investigation never got back to her with

01:31:50.800 the results never protected her. So again, I this is a win for women's sports in these 27 states.

01:31:58.340 And we need to take it as that. But it's also a win for biological truth, because the court

01:32:02.960 recognizes there is such a thing. There is men and there are women and they deserve to be able 0.79

01:32:08.600 to be celebrated in their differences. Well, well said. I mean, I mean, amazingly, ABC didn't

01:32:16.020 include those details in its report about BPJ. We talked about him when you came on after the

01:32:22.620 Supreme Court argument, just some more examples of his behavior. He, okay, about two to three

01:32:31.260 times per week, BPJ would look at Adelaide, your client in this case, and say, quote, suck my dick. 1.00

01:32:39.840 There were usually other girls around who heard this. I heard BPJ say the same thing to my other 1.00

01:32:44.660 teammates, she testified. BPJ made other more explicit sexual statements that felt threatening

01:32:50.300 to her. Writing, at times, BPJ told her quietly, forgive me, audience, but this is the quote,

01:32:57.040 I'm going to stick my dick into your P word. And BPJ sometimes added, and in your ass as well. 1.00

01:33:04.140 Sorry, these are the quotes. These comments were disturbing and caused me deep distress. Of course, 0.99

01:33:09.000 they would. BPJ made these vulgar comments toward me in the locker room, on the track,

01:33:14.360 and in the throwing pit for discus and shot put. I felt confused and disgusted when I heard these

01:33:20.020 vulgar and aggressive comments. It was especially confusing because I was told that BPJ was on the

01:33:24.400 team because he identifies as a girl, but the girls on the team never talked like that. And

01:33:31.280 that's, that's what we know is that if you actually are, you know, in that teeny tiny 0.55

01:33:38.280 percentage of Americans who has true gender dysphoria and you're a man, you know, pretending

01:33:44.640 to be a woman, the last thing you would ever do is mention the D you don't, you don't want to draw

01:33:52.740 attention to the fact that you are actually a male. You definitely don't want to talk about

01:33:56.560 your anatomy. It just puts the lie to the whole charade. I don't know what BPJ's problem is,

01:34:02.140 but I'm going to guess it originates with the mother because it does nine times out of 10

01:34:05.820 who's pushing some sort of weird woke agenda on their child. That's just my own speculation.

01:34:10.780 But none of this makes it into the news reports. Kristen, none of it.

01:34:15.600 You're absolutely right. And when it comes to the legal issue of how men and women identify

01:34:20.820 and the inherent physical differences and how they play out on the field, you know, that that's not

01:34:25.520 necessarily relevant to the court's decision of what the threats are, but I think it's relevant

01:34:30.280 to the American public. I think it's relevant to recognize these are not isolated cases.

01:34:35.440 I mean, we represent right now a 16-year-old girl in Washington state who was sexually assaulted

01:34:39.880 while having to wrestle a boy who she understood to be a girl. Sexually assaulted, digitally

01:34:46.100 penetrated. Yes, we saw that. This is not that unusual anymore. And it is, it's time for us to 0.98

01:34:53.300 say enough is enough. We're going to protect our kids. You're not going to cancel us. You're not

01:34:57.560 going to shun us from being able to speak the truth. But we should be protecting our girls

01:35:02.620 and celebrating. There's nothing wrong with being a girl. There's nothing to be embarrassed about.

01:35:07.220 And we should have our rights to be able to play and not be sidelined in our own sports and our

01:35:12.520 activities. And we shouldn't have our kids transition to school behind our backs, which

01:35:17.140 there are cases going on right now. And we shouldn't have states essentially pushing our

01:35:21.740 kids down the trans path. I want to read some of the dissent from the three women. There are four

01:35:30.360 women on the Supreme Court. One is Amy Coney Barrett, who sided with the majority. But the

01:35:34.920 three libs are female and really didn't have a care for you, Maddie. They had not a care for 1.00

01:35:40.780 Adelaide. They didn't have a care for any of the girls who are going to be affected by this decision.

01:35:45.820 They write, today the court holds that neither Title IX nor the Equal Protection Clause protects

01:35:49.860 BPJ's ability to participate in sports. I agree that the Title IX claim fails, they say,

01:35:58.360 although on a narrower basis, as for the equal protection claim, the majority at this stage of

01:36:03.620 litigation gets the answer wrong. This litigation implicates deeply sensitive, contentious,

01:36:08.660 and evolving issues. These circumstances demand exercising judicial restraint,

01:36:12.260 not rushing to answer conclusively difficult questions without sufficient evidentiary

01:36:16.940 development. In opting otherwise, the majority extends great sympathy to those it favors,

01:36:21.880 the young cisgender girls and women who play sports. I share that sympathy. Playing sports

01:36:27.020 can lead to benefits that are immeasurable, and many are understandably invested in ensuring that

01:36:31.260 competition stays fair and safe. Because the majority, however, inflicts a hardship on those

01:36:36.340 it disfavors without giving them the fair and full opportunity the Constitution requires to litigate

01:36:42.020 their contentions, I respectfully dissent and goes on from there. So again, the focus on not

01:36:49.780 the girls, but those pretending to be them and taking issue with just how much scrutiny these 1.00

01:36:57.620 bands would warrant. What would be your message, Maddie, to those three women who seem to want you 0.96

01:37:05.380 to pack up your athletic bag and go away like a good girl who's inclusive and kind?

01:37:12.020 Um, my thoughts would be that when it comes to athletics, it really is more than just

01:37:20.080 competing.

01:37:21.300 Um, it's more, it's, it, it's truly paved my entire life to become what it has become.

01:37:28.860 And it will continue to because of the scholarship that I got when I was 18 years old.

01:37:33.760 Um, everything I've gained education from that.

01:37:36.960 Right.

01:37:37.180 And I'm going to use that every single day.

01:37:38.760 one day I hope to be a mom and I can raise an educated kid because I have an education

01:37:42.480 and to to take that away from women and leave them with nowhere else to go is just so heartbreaking

01:37:51.500 that someone would support that because had that been the case had the case had the decision

01:37:57.020 been the other way women would be sidelined in their sports women would be barred from the 0.81

01:38:02.000 experience that I was fortunate enough to have even though I competed against a male and but

01:38:08.320 instead we protect that and so i'm just so grateful that we do and that we recognize that

01:38:12.220 and that has been what has come out because that is that is truth and that is what is important

01:38:18.080 is that we do protect these opportunities because women have nowhere else to go if we don't

01:38:22.540 and to look at the true harm that's there when all everybody can compete in athletics

01:38:28.100 we determine that it matters be where it is fair let me say that so we it matters

01:38:35.420 where we compete to make it fair and that's what this decision does it lets everybody compete have

01:38:41.400 you been talking to your your friends like that your you know other girls who are involved in

01:38:45.480 litigation or women who have been supporting you along the way today like what's the reaction been

01:38:49.220 oh man it's we're real excited like like i said i can't even express in words um the joy that i

01:38:56.720 have i just get emotional um six years of this like led up to today and i think that's a big

01:39:02.100 part of it is how long we've been involved and we got involved when the whole world was against us

01:39:06.840 we were the first collegiate lawsuit and there was nobody except the Connecticut girls and this was

01:39:13.080 taboo we were silenced and everything we didn't have as much support as we currently do and to

01:39:18.880 know that we've made it we've waited we've gone through a lot over the last six years to get here

01:39:24.340 and to know that we were listened to

01:39:27.020 and to end in a victory is just amazing.

01:39:33.680 Yeah, and called all the names, I'm sure.

01:39:36.760 I mean, it was just a couple of years ago, Kristen,

01:39:39.140 that we were looking at the women on the UPenn swim team

01:39:42.320 being told by their Ivy League university

01:39:45.940 they needed to go get therapy

01:39:48.900 if they had a problem with Will Thomas,

01:39:52.960 who now goes by Leah,

01:39:54.340 swimming against them in their sport. And you look at this picture, Kristen, you tell me,

01:40:00.900 I really think, I'm grateful to Leah Thomas because I think Leah Thomas was a game changer

01:40:08.020 in this whole debate. Look at the size of him against the other girls. No normal human could

01:40:15.920 look at this picture or his performance in the pool where he was a middling male, but the top

01:40:20.940 female alleged um so many body lengths ahead of the fellow swimmers who were female and say that's

01:40:28.600 fair and say i support it i just think he was a complete game changer and i'm genuinely grateful

01:40:35.280 that that those poor women at upenn had to go through that i'm sorry for them but i'm grateful

01:40:39.720 to them uh because i i don't i'm not sure we'd be where we are today if that hadn't happened

01:40:44.680 i think you're right i mean it brought the issue from away from the high school girls

01:40:49.440 onto a national stage that was even bigger.

01:40:51.940 But I also want to recognize that, you know,

01:40:55.580 all of us have played different roles,

01:40:57.620 whether it's the platform that you've used

01:41:00.200 to bring this issue to other people's attention,

01:41:03.320 whether it is, again, the attorneys general.

01:41:06.960 Like you talked about the moment that we were in

01:41:08.700 and Maddie talked about how difficult it was to stand. 0.95

01:41:11.180 Imagine putting your political career on the line

01:41:13.440 in a moment where you didn't really know

01:41:15.760 which way it was going to go.

01:41:16.860 And that's what Attorney General Labrador

01:41:18.720 and Attorney General McCuskey have been doing along the line as they've been leading it.

01:41:23.480 And also to think about the detransitioners that have come out since Leah Thomas, the story hit.

01:41:30.000 And we're starting to see parents come forward and say, this is harming our children. 0.99

01:41:34.760 So I am hopeful we've turned the corner.

01:41:36.900 I'm hopeful that the U.S. Supreme Court is helping us to do that in their lane.

01:41:41.180 But man, we all need to man our stations in this point and drive this decision and the implications home.

01:41:46.220 Mm hmm. So what what can be done on the other states? You know, I mean, what what's the

01:41:54.740 litigation route to to get help to the girls who are in those remaining states?

01:42:00.520 Well, right now, Alliance to Pending Freedom has two cases that are pending in blue states.

01:42:04.640 One is in Minnesota. You may remember the headlines of the male softball player that

01:42:11.760 competed and they won a state championship and there's also a case in Connecticut that we talked

01:42:18.160 about where there's those three and now it's four track athletes that were beaten by two boys

01:42:22.820 displacing a number of girls taking 17 records displacing our client from four state championships

01:42:29.560 those cases are ongoing and the arguments there that title nine again as the court said today

01:42:35.820 it's about ensuring equal opportunities and that there are inherent physical advantages

01:42:41.440 that the male body has over women and girls.

01:42:44.900 And so in that instance, we will continue to make the case that Title IX protects all

01:42:50.780 of the women, all of the girls across this nation.

01:42:53.820 And I believe we will win and we will not stop until we do.

01:42:57.140 But when you say, what can we do?

01:42:59.680 These policies come about as through school boards, right?

01:43:03.160 They're through people we elect, through our school boards, through hearings and those

01:43:06.640 kinds of things.

01:43:07.220 So every dad, every mom should be stepping up to the plate and insisting in those states 0.99

01:43:12.460 that the policy be changed.

01:43:14.220 We're already seeing the IOC, you know, the Olympic Committee, the NCAA, they're all turning

01:43:19.600 on it.

01:43:20.240 We need to go forward and insist that our local schools do as well.

01:43:24.320 Yes, I completely agree with that.

01:43:26.780 There needs to be an acknowledgement, a ruling from the Supreme Court that Title IX means

01:43:31.800 boy, no boys in girls sports.

01:43:34.180 that it requires that equal opportunity requires that the girls not be forced to compete against

01:43:40.300 boys, biological boys, whatever. But what are the odds of the high court getting there,

01:43:46.340 which is definitely a step beyond where they are today? I don't think that the odds are

01:43:50.860 insignificant. I mean, these cases have already gone up on appeal in both of these states in the

01:43:55.120 federal court system and because they were dismissed and now they the appellate court

01:43:58.900 reinstated them. They're back in the trial courts going to trial. So they're on their way up through

01:44:03.220 the system. And we will continue to press until the court resolves the issue. And I think there

01:44:08.300 are, there's some good language in this case. Yes, the court said, we're not touching that

01:44:12.480 question of whether states must do so. But when we know eight in 10 Americans support the right

01:44:18.000 of equal opportunities for women, and we know that the court has said Title IX requires equal

01:44:23.240 opportunities and that there are physical differences between men and women, I think

01:44:26.940 we're well on our way to eventually get that ruling. But the most important thing about this

01:44:31.080 is why should we depend just on the lawyers for it

01:44:33.980 when the American public can stand in their school boards

01:44:37.240 and in the places that they're called to

01:44:39.160 to insist that these policies change?

01:44:42.000 Amen.

01:44:43.140 Thank you.

01:44:44.360 Thank you so much, Maddie.

01:44:46.580 Congratulations and thank you.

01:44:48.840 Kristen, you really are a national heroine.

01:44:50.880 God bless you.

01:44:51.720 Thank you.

01:44:52.100 Everybody should seriously consider donating

01:44:53.880 to ADFlegal.org.

01:44:55.580 Is that what it is?

01:44:56.260 ADFlegal.org?

01:44:56.940 Yes, thank you.

01:44:58.520 Thanks.

01:44:59.120 Do it.

01:44:59.720 Do it.

01:45:00.060 support you completely god bless you both congratulations thank you thank you we've had

01:45:05.860 brand dove on this show she's an irish 14 year old she was when we had her on she's probably 16

01:45:10.840 or 17 now and i just want to read the poem that got her booked on the show in part in the time we

01:45:16.860 have i am not a dress we are women we are warriors of steel woman is something no man will ever feel

01:45:26.180 Woman is not a skill that any man can hold.

01:45:28.480 Woman is our word, and it is ours alone.

01:45:31.760 I am not a dress to be worn on a whim.

01:45:34.300 A man in a dress is nonetheless a him. 0.93

01:45:37.120 Women are not simply what we wear.

01:45:38.920 If this offends you, I do not care.

01:45:41.760 I am not an idea in any man's mind, and my purpose in life is not to be kind.

01:45:46.820 So when my rights are trampled every day of the week, I will not stand by being docile and meek.

01:45:52.680 I am not defined by sexist eyes.

01:45:54.540 there is more to a woman than that shallow guise. That guise of dresses, bikinis, and skirts, 0.96

01:46:00.960 those clothes are not what a woman is worth. I am not a bitch, a turf, a whore, a slag, 1.00

01:46:06.480 hysterical, a witch, a slut, a hag. No, I am a woman. I'm a female who will not let her rights 1.00

01:46:12.220 be put up for sale. I am not defined by what men are not. So to hell with cis misogynistic rot.

01:46:18.100 I'm a woman. I'm not a subset of my sex. If this makes me a dinosaur, so be it. I'm a T-Rex. 1.00

01:46:25.980 It goes on from there. It's amazing. We'll post it on megankelly.com.

01:46:31.820 Congratulations to girls and women today.

01:46:36.000 Thanks for listening to The Megyn Kelly Show. No BS, no agenda, and no fear.

01:46:40.780 BetMGM, home of the two-up early payout, presents Footy Prime.

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01:47:17.060 All right, full-time force. Craig, who stood out?

01:47:19.560 Brazil's lime cheesecake started bright, didn't let up.

01:47:22.100 Nah, for me, Italian cappuccino was the standout in the box.

01:47:25.160 But if we're talking decadent performance, that's all France.

01:47:27.980 Chocolate creme brulee had the richest finishes.

01:47:30.380 Canadian fireworks really showed up big too.

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01:47:34.760 Gave me chills.

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The Megyn Kelly Show - June 30, 2026

Supreme Court BOMBSHELLS： Against Trump on Birthright Citizenship, WIN For Protecting Female Sports, with Mike Davis, Alan Dershowitz, and Kristen Waggoner ｜ Ep. 1350

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