A corrupted Supreme Court sinks to new lows

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With another Supreme Court term having drawn to a close, the rest of us begin the hard work of living under the profoundly anti-democratic decisions issued by the Court’s right-wing majority.

To be fair, under Chief Justice John Roberts, the conservative justices were rolling back civil rights and rewarding powerful interests long before Donald Trump descended his golden escalator in 2015. But the MAGA era — and the three Trump appointees to the Court — has resulted in a new, gruesome project: giving Trump whatever he wants.

This toxic combination of bigotry and fealty has created a Court that uses all its might to attack the less powerful while coddling those who already have it all — particularly Donald Trump.

It’s a Court with a very clear vision of who matters and who needs protection.

A dystopian interpretation of the Constitution

The majority opinion in Trump v. CASA, the birthright citizenship case, was honestly inevitable, a culmination of all the ways in which the conservative justices have warped the Court in order to serve Trump. Indeed, the Court’s previous term will go down in infamy as the one in which they gave Trump a permission slip to do whatever he wants by inventing sweeping presidential immunity.

One year later, Trump needed his reliable pals on the Supreme Court to step in on the birthright citizenship case because four federal district courts and three federal appeals courts had enjoined him from implementing his executive order eliminating birthright citizenship. That shouldn’t be a surprise, or even remotely controversial. There’s simply no world where an executive order can undo the Fourteenth Amendment’s guarantee of birthright citizenship, and since the order was so obviously unconstitutional, the lower courts issued universal, or nationwide, injunctions to block the policy.

Law for lawlessness Leah Litman · May 26 Read full story

Those nationwide injunctions stopped Trump from stripping citizenship from babies, even in states that were eager to let him do so. Twenty conservative states filed an amicus brief urging the Court to let Trump’s executive order go into effect.

But the conservatives on the Court didn’t feel like grappling with whether Trump’s executive order was unconstitutional. Indeed, they very much want you to know that the administration’s requests did not ask the Court to rule on the birthright citizenship issue at all. Heavens, no. This is just about whether lower courts can issue universal, or nationwide, injunctions.

This is, to put it charitably, a self-serving lie, a way for the conservatives to soothe themselves, to pretend they aren’t responsible for Trump turning the immense machinery of his immigration crackdown on literal babies. No, all they did was strip the lower courts of the ability to issue universal injunctions. Of course, once those injunctions are narrowed, the administration is free to get started on its plans to deprive babies of citizenship anywhere the narrower injunctions don’t apply.

Justice Ketanji Brown Jackson’s dissent calls this exactly what it is:

The Executive has not asked this Court to determine whether Executive Order No. 14160 complies with the Constitution. Rather, it has come to us seeking the right to continue enforcing that order regardless-i.e., even though six courts have now said the order is likely unconstitutional. What the Executive wants, in effect, is for this Court to bless and facilitate its desire to operate in two different zones moving forward: one in which it is required to follow the law (because a particular plaintiff has secured a personal injunction prohibiting its unlawful conduct), and another in which it can choose to violate the law with respect to certain people (those who have yet to sue).

As the party asking for a stay of the lower court injunctions, the administration had to show it would suffer irreparable harm if it was not allowed to immediately start enforcing the executive order. That harm is also supposed to be weighed against the harm to the plaintiffs. The Court blows this off, basically saying that the plaintiffs in the case won’t be harmed because they would be protected by a narrower injunction. But that’s disingenuous and the conservative justices know it. The issue isn’t whether the specific plaintiffs are protected, but what harms all people affected by the policy will suffer if Trump is allowed to proceed.

Justice Sonia Sotomayor’s dissent explains that babies who would be subject to Trump’s order “will face the gravest harms imaginable.” The order bars the federal government from issuing any citizenship documents, such as Social Security numbers, to babies born to non-citizen parents. Without that, Sotomayor notes, the child cannot qualify for any public services. And because the order also strips birthright citizenship from children born to parents here legally, but only temporarily, parents can face a situation where their baby can be deported even as the parents remain in the country lawfully.

So, immigrants and their children face the loss of the privileges of citizenship, a patchwork nightmare where a baby may be a citizen in one state but not another, and the very real threat of deportation. What harms does the administration face if it has to wait a few months while litigation proceeds? According to the majority, the mere act of enjoining the government is a form of irreparable injury because Trump can’t enforce the order against people who weren’t a party to the case.

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