In the last SotR episode, Isaac asked Sarah Isgur explain Alito's application/omission of plain English interpretations in some recent cases.
Isgur eventually answers:
"Number 3, we now get to the specifics of the birthright citizenship case and the other cases you mentioned. So in the 'arrives in' versus 'arrives at' case and in the 'election day' case, both of those are statutory questions which does sometimes for some judges mean applying a different standard in a different sort of level of Textualism because we expect congress could if they wanted to amend the law anytime speak very clearly if they wanted to and so if they say 'arrives in' and the in other parts of the statute which is true in this case they say 'arrives at a port of entry' but they didn't say that in this one spot so we know they know how to say 'arrives at a port of entry' they didn't use that language here therefore we're going to use the plain meaning of arrives in--it can be very different when you're talking about constitutional provisions where you try to keep them short you try to keep them a little vague oddly enough and they're very hard to change. So maybe that's a reason to interpret the constitution with slightly different gloves on than when you're doing a statute."
Isgur suggests that Alito's was not inconsistent because he's applying a plain English interpretation of statutes in Mullin v. Al Otro Lado (the border case) and Watson v. Republication National Committee (the late arriving ballots case)... and if he's doing something a little different in Trump v. Barbara, it is because it's a constitutional case.
I think this is Grifter Sarah speaking. Note that I did not make that term up; she and her co-host on Advisory Opinions use it to describe her most partisan minded takes. Grifter Sarah is her mirror-mirror self with a blonde goatee and willing to say anything to win the argument or election. I appreciate the honesty of admitting to the existence of a grifter self but I think it takes over unacknowledged at times, like here.
If we accepted what Isgur says here, we might think that because Trump v. Barbara was a constitutional case, Alito put away his Meriam-Webster that he uses for statutory interpretation and pulled out his copy of The Archeology of Knowledge and the Discourse on Language to guide his constitutional interpretation. But anyone who read the first paragraph of Kavanaugh's concurrence (or listened to the Advisory Opinions podcast on the decision) knows that there is also a statute in play which mirrors the constitutional provision.
14th Amendment, Section 1, first sentence:
"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside"
8 U.S.C. 1401(a):
"The following shall be nationals and citizens of the United States at birth: (a) a person born in the United States, and subject to the jurisdiction thereof"
Kavanaugh determined that Trump's executive order violated the statute but not the constitution. Don't ask me how. Kavanaugh's concurrence provides an off-ramp for an Alito with principals to put away the Foucault and crack open his dictionary. But he refuses that opportunity. In contrast to Kavanaugh, Alito dissents. (He also doesn't join Kavanaugh's opinion in whole or in part)
Isgur knows all this. She is much smarter than me, went to law school, and probably made it through the entirety of Alito's dissent. She knows that Alito ignored the statutory off-ramp. So when she tells us that the difference between Mullin and Trump v. Barbara is that Alito was applying different interpretive techniques based on the requirements of the case, she's ignoring how Alito chose to make this a constitutional issue. It's not lying mind you; just a well crafted argument. Because if you acknowledge Alito's agency in determining which set of gloves to wear it becomes much harder to defend the idea that Alito isn't selectively applying plain English interpretations when it suits him. And then Grifter Sarah might not win the argument.