A corrupted Supreme Court sinks to new lows
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.
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.
The conservatives also ignore how hard it would be to undo
these harms if Trump’s executive order is ultimately found unconstitutional.
Babies will already have been deported. Parents may have self-deported with
their child. Families may have relocated to a state covered by a narrower
injunction. Thanks to the administration’s scorched-earth method of litigating
cases, suing it is incredibly costly.
But none of that matters to the majority. To them, Trump’s
desires carry the day. He wants to be able to carry out his executive orders
and he doesn’t feel like waiting. For the conservative justices, that outweighs
families torn apart and the deportation of literal babies. It’s a stark
reminder that these justices care only for the powerful, and see injustice only
when the powerful are deprived of doing whatever they want. They are completely
untroubled that their ruling will cause harm grave harm to others.
At least in the birthright citizenship case they bothered to write an opinion. When the conservative justices decided to let Trump deport people without meaningful due process to whatever random countries are willing to stuff them in a gulag, they did so in a brief, unsigned, bloodless order that doesn’t even mention what the case is about.
As with the CASA case, it’s evident that
the right-wing justices do not see migrants as people who warrant the
protections of the law. The very real and very dangerous harms that can befall
someone deported to El Salvador’s notorious CECOT prison are not magically
undone if, years from now, the Court rules against the administration. Those
deportees won’t be able to easily make their way back to America if their
deportation was illegal, particularly given the administration’s stonewalling on
returning wrongfully-deported people even when ordered to do so by courts.
The CASA decision didn’t only eliminate the
nationwide injunctions in that case. Going forward, lower courts will generally
not be able to issue nationwide injunctions against the government in nearly
all circumstances. Additionally, the lower courts will have to narrow the
injunctions for all Trump policies that are currently blocked nationwide. Only
people who sue the government individually or as part of a class action
approved by the courts will be protected. This leaves the administration free
to impose Trump’s policies on everyone else. He doesn’t have to get Congress to
pass a law. He doesn’t even have to prevail in court. It’s an incredibly sweet
deal, particularly for an administration that has openly
defied court orders.
And just in case you were wondering if eliminating nationwide injunctions was specifically intended to rein in the lower courts and stop them from their pesky habit of ruling against Trump, here’s a fairly depressing statistic: Over at Data and Democracy, Adam Bonica found that between May 1 and June 23, lower federal courts ruled against the administration 94 percent of that time. In that same stretch, the Supreme Court ruled in Trump’s favor … 94 percent of the time.
It’s no wonder that the administration ignores lower court
holdings when all it needs to do is go ask the Supreme Court to reverse them.
And where the lower courts have actually grappled with the horrors of Trump’s
immigration policies and what that looks like for those who the administration
has targeted, the Supreme Court floats serenely above it all, paying no mind to
the actual people being hurt.
Some lives matter
Though the conservative justices stayed pretty busy this
term waging war on the lower courts and helping Trump wage war on immigrants,
they still had time to work on their project of enshrining homophobia and
transphobia into law. Lucky for them they had two cases this term that allowed
them to openly discriminate against LGBTQ+ people, even if it required them to
be flexible about how they apply the law.
Last week, in US v. Skrmetti, the Court’s
conservatives upheld a
Tennessee law banning gender-affirming care for minors. This required those
justices to ignore that every major American medical association says that
gender-affirming care is safe and that when transgender minors are denied
gender-affirming care, they experience high rates of depression and suicidal
ideation.
Upholding Tennessee’s law also required those justices to
ignore the wishes of parents who want their child to receive gender-affirming
care. Tennessee’s law contains no exception for minors to obtain that care with
parental approval. Indeed, Justice Clarence Thomas, in his concurrence, suggests that
parents may not even be able to provide informed consent for their child to
receive gender affirming care because doctors pressure them to start their
children on hormones.
“States might reasonably question whether, under such
conditions, parents consent is valid and consistent with ethical principles,”
Thomas wrote.
It’s not just that this relies on a nonsense moral panic,
one where medical professionals are so committed to forcing children to
transition that they will lie to parents to do so. It’s that the conservatives
so easily dismiss the wishes of parents as irrelevant. Essentially, if a state
cobbles together some rationale about how it knows what’s best for children, it
can dictate what kind of medical care children can receive, even if their
parents disagree.
However, when those parents are religious conservatives who
do not want their children exposed to the mere existence of LGBTQ people, the
Court’s right-wing justices suddenly remembered that a parent’s views must
override the government.
In Mahmoud v. Taylor, religious parents sued the Montgomery County Board of Education over its decision to include LGBTQ+-inclusive storybooks in its curriculum. Simply exposing their children to books with positive representations of same-sex couples, the majority determined, was “hostile” to the parents’ religious beliefs and exerted a “psychological pressure to conform” on their children. Going forward, school districts must have an opt-out policy that allows parents to object to any book they allege violates their right to direct their children’s religious upbringing.
Justice Sotomayor’s dissent notes that this is absolutely
unworkable for schools, as anticipating what might be seen as “hostile” to
someone’s religious traditions is near-impossible. Could parents object to a
picture book that positively portrays women’s achievements if their religion
teaches that women are not equal?
So, to recap: a state can pass a law prohibiting parents
from determining what medical care is best for their child, and that’s totally
fine. But if a school district has a policy of including LGBTQ+ storybooks in
its curriculum, parents must be free to shield their children from such
horrors.
This is not a functioning judiciary. It’s unsustainable to
have the nation’s highest court routinely undermine the lower courts in the
service of Trump’s agenda. It’s also unsustainable to have the nation’s highest
court so resolutely committed to dragging us into the past, of reversing the
civil rights gains of the last several decades.
When future historians grapple with how Trump managed to so
quickly and so thoroughly dismantle American democracy, the role of the Roberts
Court cannot be overstated. It’s not just that the Court’s conservatives have
blessed Trump’s worst efforts, though that certainly has contributed to Trump’s
success. It’s also that the Court’s conservatives share Trump’s deep disdain
for immigrants, for people of color, for trans kids, and are in no way
interested in pushing back on his attacks on them. It’s a match made in hell.
