Those of us who cover the US supreme court are faced, every June, with a peculiar challenge: whether to describe what the supreme court is doing, or what isclaimsthat it is doing.
What the supreme court says it was doing in Friday’s6-3 decisionin Trump v Casa, Inc, the birthright citizenship case, is narrowing the power of federal district judges to issue nationwide injunctions, in deference to presidential authority. The case effectively ends the ability of federal judges on lower courts to issue nationwide stays of executive actions that violate the constitution, federal law, and the rights of citizens. And so what the court has actually done is dramatically expand the rights of the president – this president – to nullify constitutional provisions at will.
The ruling curtails nationwide injunctions against Trump’s order ending birthright citizenship – meaning that while lawsuits against the order proceed, the court has unleashed a chaotic patchwork of rights enforceability. The Trump administration’s ban on birthright citizenship will not be able to go into effect in jurisdictions where there is no ongoing lawsuit, or where judges have not issued regional stays. And so the supreme court creates, for the foreseeable future, a jurisprudence of citizenship in which babies born in some parts of the country will be presumptive citizens, while those born elsewhere will not.
More broadly the decision means that going forward, the enforceable rights and entitlements of Americans will now be dependent on the state they reside in and the status of ongoing litigation in that district at any given time. Donald Trump, personally, will now have the presumptive power to persecute you, and nullify your rights in defiance of the constitution, at his discretion. You can’t stop him unless and until you can get a lawyer, a hearing, and a narrow order from a sympathetic judge.
“No right is safe in the new legal regime the Court creates,” writes Justice Sonia Sotomayor, in a dissent joined by the court’s other two liberals. Justice Ketanji Brown Jackson, writing separately, adds that the decision is “profoundly dangerous, since it gives the Executive the go-ahead to sometimes wield the kind of unchecked, arbitrary power the Founders crafted our Constitution to eradicate”. She also calls the ruling an “existential threat to the rule of law”.
The case concerns anexecutive orderby the Trump administration, issued the day that Trump returned to office, purporting to end birthright citizenship – in defiance of the 14th amendment. When immigrant rights groups, representing American newborns and their migrant parents, sued the Trump administration to enforce their clients’ constitutional rights, a nationwide injunction was issued which paused the Trump administration’s plainly illegal order from going into effect while the lawsuit proceeded. These injunctions are a standard tool in the arsenal of federal judges, and an essential check on executive power: when the president does something wildly illegal, as Trump did, the courts can use injunctions to prevent those illegal actions from causing harm to Americans while litigation is ongoing.
Nationwide injunctions have become more common in the Trump era, if only because Trump himself routinely does plainly illegal things that have the potential to hurt people and strip them of their rights nationwide. But they are not used exclusively against Republican presidents, or in order to obstruct rightwing policy efforts.
Throughout the Obama and Biden administrations, Republican appointed judges routinely stymied their policy agendas with national injunctions; the Roberts court blessed these efforts. But once Donald Trump returned to power, the court adopted a newer, narrower vision of judges’ prerogatives – or at least, of the prerogatives of judges who are not them. They have, with this ruling, given Donald Trump the sweeping and unprecedented authority to claim presumptive legality of even the most fundamental of American rights: the right of American-born persons to call themselves American at all.
Part of why the supreme court’s behavior creates dilemmas for pundits is that the court is acting in with a shameless and exceptional degree of bad faith, such that describing their own accounts of their actions would mean participating in a condescending deception of the reader.
In her opinion for the conservative majority, Justice Amy Coney Barrett says that the court is merely deferring to the rights of the executive, and ensuring that the president has the freedom to do what the voters elected him to do. Putting aside the ouroboros-like nature of the majority’s conception of electoral legitimacy –that having received a majority of Americans’ votes would somehow entitle Donald Trump to strip them of the rights that made those votes free, meaningful, and informed in the first place – the assertion is also one of bad faith. Because the truth is that this court’s understanding of the scope of executive power is not principled; it is not even grounded in the bad history that Barrett trots out to illustrate her point about the sweeping power of other executives in the historical tradition – like the king of England.
Rather, the court expands and contracts its vision of what the president is allowed to do based on the political affiliation of the president that is currently in office. When a Democrat is the president, their vision of executive power contracts. When a Republican is in office, it dramatically expands. That is because these people’s loyalty is not to the constitution, or to a principled reading of the law. It is to their political priors.
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Another danger of reporting the court’s own account of itself to readers is this: that it can distract from the real stakes of the case. In this decision, the court did not, technically, reach the merits of Trump’s absurd and insulting claim that the constitution somehow does not create a birthright entitlement to citizenship. But in the meantime, many children – the American-born infants of immigrant parents – will be denied the right that the 14th amendment plainly guarantees them.
The rightwing legal movement, and the Trumpist judges who have advanced it, have long believed that really, this is a white man’s country – and that the 14th amendment, with its guarantees of equal protection and its vision of a pluralist nation of equals, living together in dignity across difference – was an error. Those babies, fully American despite their differences and their parents’ histories, are squirming, cooing testaments to that better, more just future. They, and the hope that they represent, are more American than Trump and his crony judges will ever be.
Moira Donegan is a Guardian US columnist