The Supreme Court will not save us.
Not this conservative Supreme Court, which was brought to you by an unholy partnership between Donald Trump and Mitch McConnell.
Not yet, anyway. And maybe never.
If there were any doubt about that, the 6-3 conservative majority made it absolutely clear with its end-of-term decision Friday barring federal district judges from issuing nationwide injunctions against Trump’s executive orders — even if these EOs are blatantly unconstitutional — while litigation is still pending.
Like, of course, Trump’s order to end birthright citizenship, which is guaranteed in the plainest of plain languages in the very first sentence of the 14th Amendment to the Constitution. If only the rest of the Constitution — say, the 2nd Amendment — were written so clearly.
So far during the Trump restoration, the federal courts have often played an important role in stopping some of Trump’s most blatant lawlessness in his march toward authoritarianism. But, eventually, all that matters is what the Supreme Court rules.
And here we are. Not knowing where we are, or where we’re headed — but rightfully fearing the worst.
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SUBSCRIBEColorado Attorney General Phil Weiser says the court’s ruling does not apply, in the short term at least, to Colorado, which has, along with 21 other states, challenged Trump’s order. Some of the judges ruling in favor of those states, and of other plaintiffs, were those who issued the nationwide stays.
Three of these cases are pending before the Supreme Court, which could have just ruled on the obvious unconstitutionality of Trump’s order and saved a ruling on nationwide injunctions — which have been the bane of presidents from both parties — for another, less urgent time. That is, if there ever is a less urgent time.
From Weiser’s reading — and that of most others — the ruling would apply only to people in those states, mostly red states, which haven’t sued. I know. That makes almost no sense.
This is red vs. blue America law writ large in Amy Coney Barrett’s decision. This is, as many have noted, a recipe for chaos — separate laws for separate states, affecting separate babies, all born in America, in profoundly separate ways.
It may have occurred to you, as it did to me, that this sounds a lot like separate but unequal.
As liberal Justice Ketanji Brown Jackson wrote in a separate dissent to Barrett’s ruling, the “decision to permit the Executive to violate the Constitution with respect to anyone who has not yet sued is an existential threat to the rule of law.”
Yes it is.
Liberal Justice Sonia Sotomayor read her dissenting opinion from the bench. Barrett, who sometimes sides with the more liberal justices, had ruled that there was a way around her ban on nationwide injunctions, which was to turn these cases into class-action suits. It’s a workaround, a cumbersome one, said Sotomayor, but one that is already bearing fruit.
The ruling won’t go into effect for 30 days from the decision. In that time, we’ll see lawsuits brought in at least some red states from advocacy groups and we’ll see class-action suits that could apply nationwide.
But this case will apply to many of Trump’s lawless executive orders. Sotomayor wrote the “gamesmanship” in Trump’s order “is apparent and the Government makes no attempt to hide it. Yet, shamefully, this Court plays along.”
By playing along, she means that the ruling is “open invitation for the Government to bypass the Constitution” in a long list of Trump’s controversial executive orders.
And so Sotomayor’s dissent concludes: “With the stroke of a pen, the President has made a ‘solemn mockery’ of our Constitution. Rather than stand firm, the Court gives way. Because such complicity should know no place in our system of law, I dissent.”
It’s easy to offer outrageous examples wherein the federal courts could be hamstrung. What if Trump were to issue an order that only Republicans could vote? Or that Democrats can’t buy electric vehicles? Or if, from some future president, RFK’s dangerous anti-vaccine rulings applied only to Republicans? Yes, they’re outrageous. But so was the court’s ruling on presidential immunity.
My guess, and just about everyone’s guess, is that in the next Supreme Court term, starting in October, the court will do the right thing and say that Trump’s executive order on birthright citizenship is unconstitutional.
As I said, it couldn’t be more plainly stated. It’s Trump’s notion that this amendment was written only to guarantee that babies born to slaves would be citizens. Of course, the amendment could have said that. It doesn’t. It doesn’t come close to saying that. And there have been Supreme Court rulings protecting citizenship for those of, say, Chinese descent, which was then applied to all children born on American soil, whether migrants or visitors or whatever.
But maybe the Supremes won’t overturn Trump’s order. Can we be sure with this court, which just ruled, in a brief, unsigned decision, that Trump can continue, for now, the practice of snatching and grabbing migrants — whether here legally or not — and sending them off, with no hearing, to countries to which they have absolutely no ties. Whether they could be tortured in some far-off gulag does not seem to be of concern to the court.
The court didn’t rule on the legality of the practice. And for the same reason that it didn’t rule on the constitutionality of ending birthright citizenship by executive fiat.
Instead, they put off these critical rulings to give Trump a “giant” win, as he described it, which could come before eventually the Supremes put the hammer down, if ever so gently, while possibly leaving loopholes large enough for even Trump to jump through.
This is what I feared — that the justices would somehow, in their wisdom, decide to split the baby. That sound you hear is Solomon weeping.
And so the Supremes bowed, ever so cravenly, to Trump while putting off, maybe forever, ruling on, you know, the rule of law.
Let’s see. Thirty days from now would put us in late July. That’s when Trump could deport newborns whose parents don’t have the right papers. The court meets again in October, which doesn’t mean it would rule immediately. It could wait until the end of next June, a year from now.
And so we wait. Gov. Jared Polis called it “a sad day.” Sen. John Hickenlooper said the court’s decision was wrong and “runs counter to our nation’s values.” Sen. Michael Bennet, who’s running for governor against Weiser in the Democratic primary, said “Coloradans are protected from today’s SCOTUS ruling. I am grateful.”
As Weiser points out in his interview Friday with Media Matters, this ruling does have a direct impact on Colorado, even if the ruling is favorable to the state.
As an example: It affects migrants who move to Colorado from, say, Utah, where newborns of migrant parents who aren’t here with proper papers wouldn’t be citizens. Could they then be deported from Colorado? Or would they now be able to claim citizenship? What if you’re born legally in Colorado and then the family moves to Idaho, would the child lose citizenship?
I mean, how much chaos should we expect?
Most states don’t require hospitals to ask whether parents are undocumented. Some forbid it. But who’s going to keep track now and how? It’s estimated that as many as 250,000 are born in the U.S. each year to undocumented parents and visitors who have overstayed their visas.
And would Trump, after 30 days, really deport a newborn whose parents don’t have papers? He wouldn’t, I’d like to think. Or at least I’d like to hope.
I mean, I also hope we’re not that far down the line yet. But who can be sure?
By a 6-3 margin, the Supreme Court said we couldn’t be sure of anything — and instead warned us that it seemed more concerned about Trump’s rights as president than ours as U.S. citizens and residents.
Is that the court we should trust to save us? I don’t believe so.
In fact, unless or until the Supreme Court proves otherwise, I’d say there’s no reason for anyone to.
Mike Littwin has been a columnist for too many years to count. He has covered Dr. J, four presidential inaugurations, six national conventions and countless brain-numbing speeches in the New Hampshire and Iowa snow. Sign up for Mike’s newsletter.
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