A Court Without the Range

The Reconstruction Court 2.0

“O for a Supreme Court which shall be as true, as vigilant, as active, and exacting in maintaining laws enacted for the protection of human rights as in other days was that Court for the destruction of human rights!” -Frederick Douglass

The conservative majority on the Supreme Court wrapped up the term with a decision that allowed the court to check off as complete several long-standing targets of the right-wing legal movement. In Trump v. Casa[i], the much-anticipated decision in the case challenging the authority of a federal district court to issue a nationwide injunction against President Trump’s attempt to limit by Executive Order the 14^th Amendment guarantee of birthright citizenship to certain children born in the U.S. to non-citizen or permanent resident parents. Birthright citizenship is set forth in the very first sentence of the 14^th Amendment. It was recognized as necessary of ensuring the citizenship of Black people – both formerly enslaved and free – and to the project of eliminating a caste system in our country. Birthright citizenship set our nation on the path of building a multi-racial democracy grounded in principles of equality and justice. Its Framers fully understood that it would apply to the children of non-citizen migrants.[ii] As historian Martha Jones explained, “birth was the great equalizer.”[iii]

But no matter. This case provided opportunities for the Supreme Court to advance an agenda that it has grown increasingly sloppy at hiding. By striking down nationwide injunctions, the Court furthered its determination to free up this President to exercise virtually unlimited power. More than a unitary executive, this conservative Court imagines an unfettered executive. Indeed even old school unitary executive adherents must be taken aback by this majority’s extension of the executive’s power to allow the President to flagrantly violate express guarantees of citizenship under the Constitution. I say “this” President, because the Court’s hands-off approach to nationwide injunctions issued against Biden Administration initiatives (student loan forgiveness, moratorium on new oil and gas leases) makes clear that it is only Republican Presidents – or maybe only President Trump – who the conservative justices believe must free from the constraints of district court orders.

The Court’s immunity decision two years ago – which essentially freed up President Trump to commit crimes while in office with lifetime criminal immunity (for “official acts”) was an obvious tell is of a piece with this agenda.[iv]

But at the center of the nesting doll of conservative agenda items this case presented, was another tasty favorite – the opportunity to further weaken the guarantees of the 14^th Amendment. This has been an evergreen project of conservative Supreme Court justices since 1873, when the Supreme Court gutted the privileges and immunities clause of the 14^th Amendment,[v] and an ongoing project of the broader conservative movement. Trump v. Casa – presented to the Court by the Trump Administration in the cloak of a nationwide injunction case, allowed the conservative majority to weaken the birthright citizenship clause and hide its hand (“the applications do not raise – and thus we do not address – the question whether the Executive Order violates the Citizenship Clause or Nationality Act” of the 14^th Amendment”).[vi]

By acquiescing to the Administration’s context-free presentation of the nationwide injunction issue, the Court facilitated the Administration’s clear intention of “gaming the system,” and “bypass[ing] the Constitution” to “violate countless individuals’ constitutional rights.”[vii] The Court was well aware of this likely consequence if the nationwide injunction were lifted.

At oral argument, Justice Kagan confronted the Solicitor General with what she suspected would be the Administration’s pathway to applying the EO and avoiding Supreme Court review of its constitutionality if the nationwide injunction were lifted. “[I]n a case like this,” Kagan explained, “the Government has no incentive to bring this case to the Supreme Court because it’s not really losing anything. It’s losing a lot of individual cases which still allow it to enforce its EO against the vast majority of people to whom it applies.”[viii]

Even class action, which the SG suggested, is the proper way for plaintiffs to style the case if they want nationwide relief would not have the power to thwart the Administration’s plan. Potential victims in states like Texas and Florida where federal courts are likely to be more hostile to class certification, and where state Attorney Generals are unlikely to bring claims challenging the EO would be left to bring individual cases seriatim while the Administration takes action to remove infants and toddlers born to non-citizen and non-permanent resident parents from our country. And the Solicitor General admitted at oral argument that he will challenge any efforts to certify classes in this case. The Supreme Court itself has been hostile to class actions – especially nationwide class actions.

The additional effect of the decision is to set up a patchwork system of birthright citizenship in our country – a clear and flagrant violation of the letter and spirit of the 14th Amendment.

And we must not forget this. The conservative majority issued this decision even as we are fed the daily image of violent raids by masked ICE agents and the deportation of migrants to third-party countries where human rights abuses are rampant. Should we expect these masked ICE agents to appear at the homes of infants born after the Executive Order takes affect (in 30 days) demanding that new non-citizen parents turn over their newborns to be deported to unknown places? Or at hospital maternity wards? It sounds like a nightmare, but one that has been facilitated by the Court’s decision.

Can we count on the law to constrain the Administration? Well certainly not when the legitimacy and power of district courts are being hammered by the conservatives on the Court. We have seen the Administration’s defiance of district court orders; DOJ lawyers standing up in court and suggesting that a district court judge’s verbal order is not really an order; false representations to federal courts about evidence that would support deportation, and worst of all, a rhetorical campaign by Trump, Republican members of Congress and their supporters encouraging the view district court judges who rule against the Administration are illegitimate and lawless.

The conservative majority on the Supreme Court appears untroubled by the cynicism, manipulation, and flagrant cruelty of the Administration’s approach to its brazen effort to violate core constitutional guarantees afforded to “all persons” in our country. To the contrary, the Court’s decision in Trump v. Casa encourages more of the same.

Obviously, the Court should never have decided to hear this case without the question of the EO’s constitutionality squarely before it. But context and consequences are an annoyance to this Court. That’s of course the rub that explains the majority’s harsh language towards Justice Jackson. In her dissent in Stanley v. City of Sanford, Florida just a week prior, Justice Jackson had announced her refusal to “abide” the “narrow-minded approach” of the conservative majority’s decision-making that “closes its eyes to context, enactment, history and legislature’s goals.”[ix]

Here again in her dissent in Trump v. Casa she admonished the majority for their tunnel vision, describing its decision-making as “so caught up in the minutiae of the Government’s self-serving, finger-pointing arguments that it misses the plot. Jackson goes there - expressly identifying who will be harmed by this decision: “the poor, the uneducated and the unpopular – i.e., those who may not have the wherewithal to lawyer up and will all too often find themselves beholden to the Executive’s whims.”[x]

What we are witnessing from Justice Jackson is a full-on challenge to the jurisprudential, interpretative, and professional limitations of the majority of the justices on this Supreme Court. If they take it personally, they should. She is exposing the deficiency and perhaps inability of her conservative colleagues to engage in a judicial decision-making that is robust, complex, mature, and accountable.

Of course, it is so much easier to just plug a constitutional or statutory right or exercise of power into the old “history and tradition” machine and announce the answer. Which begs the question, if this is how the Court operates why do we need actual judges on the Supreme Court? Increasingly the Court’s decision-making suggests that an AI program could well handle its cases and produce the same result. Why include the touch of human intellect, vision, anticipation, and accountability in judicial decision-making when we can simply plug cases into an algorithm?

What this conservative majority is revealing about itself is worth all of us taking a pause to assess. It is not just that the conservative majority is ideologically driven and captured. It is not only that they appear to be fully onboard with Trumpism, whatever the damage to our republic. What we are facing is a conservative majority that is unwilling, but also quite possibly unable to integrate jurisprudential rigor with intellectual, moral, and imaginative capacity. Or to wrestle with accountability.

This majority is not just conservative. It has grown careless and uninterested in the consequences of its decision-making. And it presents its cold calculation and limited judicial range as virtue.

As difficult as it is to absorb the ugly scope of this decision, the majority is hammering home how egregiously we – the legal profession and the United States Senate in exercising its confirmation power - have erred over decades in identifying and evaluating what makes an accomplished lawyer qualified to sit on the Supreme Court. And that is a good thing.

If we survive this devastating period as a republic (and perhaps improbably, I believe we will), our profession and future Senates will need to confront this. If we ever again have an opportunity to improve the Supreme Court, we should be looking for a change in not only personnel or ideological balance, or even in the low-hanging fruit of imposing an enforceable ethics code. But we need a change in the qualifications we deem relevant to the confirmation evaluation. We will need to find ways to assess the imaginative capability, moral grounding, mature accountability, and fealty to democratic principles, of anyone seeking a seat on the Supreme Court.

A majority of the justices on the current court simply do not have the range. They have the pedigree. But they are ill-equipped and ill-prepared to engage with the scope of the responsibility of sitting on the most powerful court in the world – to see past the narrow set of agenda issues they have been ticking off with glee since achieving a six-member supermajority in 2020. This is why their reasoning and opinions grow increasingly sloppy.

I take no pleasure in saying this. But it is clear that we have our very own “Reconstruction Supreme Court.” Between 1873 and 1896 the Supreme Court so devastated and battered the 14^th Amendment – sometimes directly, sometimes through tortured interpretation and sleight of hand, that they birthed a system of legal apartheid that rendered Black people second-class citizens for generations to come. We have no reason to believe that this Court is not doing similar damage to the power and promise of the 14^th Amendment. And our very democracy, along with the lives of real, actual people are being devastatingly affected as a result.

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Frederick Douglass, The Civil Rights Case: Speech at the Civil Rights Mass-Meeting Held at Lincoln Hall, October 22, 1883, reproduced in Phillip S. Foner, The Life and Writings of Frederick Douglass, Volume IV (International Publishers, 1955) at pp. 392-403.

[i] https://www.supremecourt.gov/opinions/24pdf/24a884_new_5426.pdf

[ii]

[iii] https://www.theatlantic.com/ideas/archive/2018/10/birthright-citizenship-was-won-freed-slaves/574498/

[iv]

[v] See Slaughterhouse Cases, 83 U.S. 36 (1873).

[vi] Trump v Casa at pp. 3-4.

[vii] Trump v. Casa, Justice Sotomayor (dissenting) at p. 40.

[viii] https://www.supremecourt.gov/oral_arguments/argument_transcripts/2024/24a884_c07d.pdf, at p. 50.

[ix] Stanley v. City of Sanford, Florida, Justice Jackson (dissenting) at p. 2.

[x] Trump v. Casa, Justice Jackson (dissenting) at p. 14-15