By taking this case, the Supreme Court supermajority is once more abrogating fundamental rights. The post Supreme Court Fallout: The Birthright Citizenship Case and Autocracy appeared first on Washington Monthly.
In the case of Trump v. Casa, Inc., John Sauer, Trump’s former criminal lawyer and now Solicitor General, convinced the Supreme Court to uncouple the substantive right of birthright citizenship from the nationwide injunction necessary to vindicate the constitutional principle. Unable to deny, as much as some of the justices may have wanted to, the stern and familiar constitutional command that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States,” Sauer’s fancy footwork prevailed and got the Supreme Court supermajority, led by Amy Coney Barret, to allow that the right might be remedied by a party to the lawsuit, but no one else.
The controversy arose because Trump’s Executive Order No. 14160, Protecting the Meaning and Value of American Citizenship, identifies circumstances in which a person born in the United States is not recognized as an American citizen. Six lower federal courts held that the Executive Order was probably unconstitutional. How could they do otherwise?
The order, one of 143 Trump signed in the first 100 days of his second term in office (in the same period Trump 1.0, signed only 28 orders; Biden, 23; Obama, eight, and George W. Bush, 11), rubbishes not only the Constitution but also a statute of Congress, the acquiescence of presidents going back to Lincoln, and legal precedents that have upheld the right every time the issue has been presented.
The Supreme Court’s supermajority sits like six North Korean generals guarding Dear Leader. It has expanded the president’s criminal immunity to an alarming degree, thus enabling a second term and now allowing our own Dear Leader to scuttle a Constitutional mainstay.
The Court often, with some derisiveness, refers to the other co-equal branches of government as the “political branches.” This is because it is supposed to be aloof from politics. But their recent opinions and orders make the conclusion inescapable that they are divided as any legislature. They are politicians in robes talking past one another with no commitment to compromise. If you are ready for some real bile, read Justice Barrett’s scolding of Justice Ketanji Brown Jackson for abandoning her “oath to follow the law.” “Justice Jackson would do well to heed her own admonition,” she chided: ‘[E]veryone from the President on down, is bound by law.’ That goes for judges, too.” Or: “Justice Jackson decries an imperial Executive while embracing an imperial Judiciary.”
Jackson never embraced an “imperial Judiciary.” She did not suggest that judges are above the executive or the law. Justice Jackson argued that the executive is not above the law. It is not that one branch has supremacy over the other. The law has supremacy overall, and it is for the judicial branch to tell us what the law is. The other branches must adhere to its judgments.
In the case of birthright citizenship, it is rare that a provision of the Constitution is so explicit and requires so little judicial artistry in its interpretation. A mainstream textualist would conclude it says what it means and means what it says. Barrett never argued with this because she couldn’t, which is why Solicitor General Sauer chose to sever the issue of trial court remedy from this long-established right. Indeed, Barrett’s opinion explicitly states: “The principal dissent’s analysis of the Executive Order is premature because the birthright citizenship issue is not before us.” And it may never be because the government will inevitably lose in the piecemeal litigation that the Court has spawned and never appeal again to the Supreme Court for a definitive ruling. The plaintiffs in the individual cases won’t appeal. Usually, you don’t appeal when you have won.
The Court neutered the nationwide injunction; a remedy it had ample opportunity to tinker with during the Obama and Biden administrations, but declined to do so. In short, mifepristone, yes, gives them a nationwide injunction, and birthright citizenship is probably a right, but there is no remedy. Instead, as Garrett Epps put it in his brilliant Washington Monthly piece on this case: “The Court picked the worst possible case to consider that question dispassionately. Not only is the executive order itself grotesquely lawless, but the application of the Trump rule threatens administrative chaos as low-level officials puzzle over Trump’s cryptic wording and try to apply it to babies with valid birth certificates but whose parents may be here on student visas.” Please read Amy Coney Barrett and the Supreme Court Give Birth to a Disaster.
The equitable principle that what is “sauce for the goose is sauce for the gander” evidently has no place before this court. When I went to law school, we were taught a legal maxim at the core of our system. It is: “Where there is a right, there is a remedy” (ubi jus ibi remedium), meaning that if someone has a legally recognized right, the law should provide a way to enforce that right when violated.
The court made its heartless ruling in the birthright case on its infamous shadow docket, rendering it more challenging for hundreds of thousands of citizen plaintiffs who might be deported before they had a chance to get a lawyer to vindicate their rights. Barrett’s 6-3 opinion seriously diluted the right to justice by leaving without a remedy hundreds of thousands of natural-born infants out there whose parents were here illegally.
Trump lauded his “Big Win.” No wonder he thanked Chief Justice John Roberts at the State of the Union address, presumably not for Roberts’s chancellorship of the Smithsonian Institution.
Injustice pervades the shadow docket cases. Even though there is rarely an “emergency,” the Court cannot indulge itself in taking the time to put Trump cases on the merits docket where there would be a full briefing, oral argument, and careful deliberation. Trump’s cases get lightning-fast. shadow-docket treatment with interim orders, which in many cases become permanent. It rarely issues opinions in shadow docket cases. We know the outcome, not the reasoning. In short, bargain-basement justice. And they wonder why there is diminished respect for the institution.
In the just-ended October 2024 term, the Court considered 20 of Trump’s executive orders on the shadow docket and handed him victories in all but two: one involving the use of the Alien Enemies Act to deport Venezuelan men without due process, where they remanded the case to a lower court for further proceedings, and another involving the payment of $2 billion in foreign aid reimbursements for contracts and grants.
In almost all shadow docket cases, the Court’s interim order is sans opinion. In some cases, we don’t know which justices voted for the result and which didn’t. It’s as if, when it comes to a Trump executive order, the justices resemble masked ICE agents accomplishing an arrest anonymously.
The Constitution and Congress limit the executive power to exert physical force that directly threatens to deprive people of life, liberty, or property. I recently moderated a panel, “Guardrails on Democracy,” sponsored by the Hamptons Institute and the Common Good. The event was a sellout, with 300 people in attendance. The panelists, including the legal analyst Norm Eisen, bemoaned the increasingly porous restrictions on executive authority. Rome was not built in a day, nor is an autocratic state. We are headed for an era of arbitrary power, which the Supreme Court enables. As T.S. Eliot wrote: “Between the essence and the descent, Falls the Shadow.”
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