How the Supreme Court's Reactionary Majority Capitulated to Trump -- Again

Two more egregious departures from the Constitution and the rule of law, as the high court's six-member Trump faction reverts again to absurd reasoning that ignores precedent, recent and historic

By Robert B. Hubbell Today’s Edition

On Friday, the Supreme Court released five opinions in its term-ending extravaganza, an annual tradition that is quickly becoming known as “Christmas in July for Trump.”

Four opinions were drafted by members of the reactionary majority and adhered strictly to the MAGA agenda. But two cases are egregious departures from the Constitution and the rule of law. They continue the Roberts Court's willingness to set aside the rules of logic, legal doctrine, and judicial precedent to award Trump whatever outlandish relief he is seeking.

Candidly, it is difficult not to be discouraged when the US Supreme Court has fully capitulated to Trump. Federal district courts have ruled against Trump 96 percent of the time, and the U.S. Supreme Court has consistently reversed the decisions of the district courts to hold in favor of Trump.

That mismatch would be inexplicable in a system where judges were applying the law to the facts in a fair manner. The only explanation is that the Supreme Court’s reactionary majority is applying a not-so-secret judicial doctrine: Presume a Trump victory and then reason backward to support the outcome that favors Trump.

As Philip Rotner described the situation in The Bulwark, “In less polite terms, the stink of political activism is all over this Court.”

The “Trump Wins No Matter What Doctrine” leads to absurd reasoning that ignores longstanding and recent precedent alike. It also results in nearly incomprehensible remedies that create confusion for the lower courts.

Before addressing the Supreme Court’s opinions issued on Friday, I want to address a relatively common (and understandable) reaction by readers. As one long-time reader and steadfast grassroots activist wrote,

Robert—it gets worse by the day. Cruelty, cruelty, cruelty (birthright). I'll be dead before this is fixed. It's heartbreaking; sickening and so dispiriting.

The reader’s feelings are reasonable and understandable. Indeed, it would not be human not to share in those feelings to some extent.

When faced with inevitable feelings of disappointment, it is helpful to recognize that we are not guaranteed a front-row seat to the day of democracy's redemption. I wrote the reader as follows:

If our task is to hold back the forces of darkness long enough so that others can be victorious in the future, that is a noble and sacred duty that others have performed for us.

Yes, the capitulation of the Supreme Court is disheartening, even sickening.

But whatever happens, we must not quit, we must not relent. We stand on the shoulders of those who came before us, those who fought to bring us safely to this moment, knowing that they might not enjoy the fruits of their labor.

We must repay our debt to them by refusing to surrender even when the outlook is dim and we feel beleaguered.

Friday was a tough day because the Supreme Court confirmed its complicity in Trump's attack on the rule of law. The insult stings all the more because Trump's co-conspirators are justices of the Court whose solemn duty is to protect and defend the Constitution.

Despite feelings of disappointment and cynicism, we cannot give up. Defeat is not an option. Accepting that truth, our task is to resist with every fiber of our being. The tide has turned already; the period of rehabilitation will be long and arduous. But it won’t happen unless we persist. Stay strong and keep the faith!

Birthright citizenship fiasco. The Constitution provides that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

Trump signed an executive order ending birthright citizenship prospectively for children born in the United States to non-US citizens—an order that contradicts the plain language of the Constitution and a century of legal precedent.

Dozens of plaintiffs, including several states, sued, asserting that the birthright citizenship order was unconstitutional. Every court that considered the matter ruled that the executive order was unconstitutional to the extent that it limited birthright citizenship. Three district courts granted nationwide injunctions prohibiting the executive order from taking effect.

On Friday, Justice Amy Coney Barrett issued a procedurally complex, muddled opinion that raised more questions than it answered. But at bottom, Barrett’s opinion ruled that in most cases, district courts did not have the jurisdiction to issue nationwide injunctions.

As a result, Trump's executive order is now in effect in some states, while it has been enjoined in other states. [The exact number of states in each category depends on the state of residence of individual plaintiffs.] Thus, a child born to non-US citizen parents in New Jersey will be a US citizen, while a child born in Texas to non-US citizen parents will not be a US citizen.

Although the Court did not consider the merits of Trump's executive order limiting birthright citizenship, it is difficult to see how the ruling does not portend an eventual ruling that birthright citizenship can be limited by an executive order that adds words to the definition of birthright citizenship not contained in the plain text of the Constitution.

The portion of the opinion relating to the availability of nationwide injunctions—and possible workarounds, such as class actions—is complex and incomplete.

District Courts are now scrambling to determine how they will implement Barrett’s shoddy opinion. For a full explication of the legal complexities, I recommend Steve Vladeck’s One First (Substack), an article entitled, What Does the Birthright Citizenship Ruling Portend?

Putting aside the procedural mess created by Barrett’s opinion, the gravamen of the opinion rewards Trump's lawlessness.

He issued a blatantly unconstitutional executive order that has now been given effect in dozens of states because the Supreme Court contorted itself to give Trump another victory that undermines the rule of law.

Philip Rotner gets it right in his article in The Bulwark, Ignoring Substance, SCOTUS Permits Lawlessness. Rotner writes:

Once again, the Court chose to sidestep substance. The issue according to Justice Amy Coney Barrett, who wrote the opinion of the Court, was not whether Trump’s order was unconstitutional but whether the federal judiciary could stop him from implementing it on a nationwide basis.

Paying only lip service to the proposition that “no one disputes that the Executive has a duty to follow the law,” Justice Barrett skipped by that thorny problem with a judicial ‘never mind’: “The birthright citizenship issue is not before us” (in the birthright citizenship case), she pronounced. Maybe, she avers in a footnote, that issue will present itself some future day.

But for now, legal or illegal, constitutional or unconstitutional, there’s just nothing the courts—or apparently anybody else because if not the courts, who?—can do about it, except on a narrow, individual-by-individual basis.

Any justice of the Supreme Court interested in defending the Constitution would (and should) say, “Whoa! Forget about the procedural question; the substance of Trump's order violates the plain language of the Constitution. We cannot permit it to take effect because to do so would inflict injury in contravention of the Constitution’s guarantees.”

See Robyn Nicole Sanders, Slate, The Supreme Court's birthright citizenship case gets history very wrong. (Noting that the Supreme Court in Brown v. Board of Education imposed a nationwide remedy rather than limiting the ruling to the plaintiffs before the Court.)

But because the Court is insistent on granting Trump victories whenever possible, the reactionary justices ignored the substantive elephant in the room and decided the case on a novel and illegitimate basis that involved truncating the jurisdiction of federal courts.

If there is a silver lining, it is this: Barrett’s “clear as mud” procedural remedy will likely lead to chaos and thousands of lawsuits, class actions, and news stories about children born within miles of one another under similar circumstances, some of whom will be citizens and some of whom will not be citizens.

Americans have a strong sense of fairness.

And to paraphrase Philip Rotner, the outcome in the birthright citizenship case stinks of political activism. I have little hope that the reactionary majority will change its mind. I have great hope that tens of millions of Americans will finally wake up to the fact that a president's ability to appoint Supreme Court justices can have a major impact on their lives—and is a reason to show up and vote!

Religion in the classroom. In an opinion by Justice Alito motivated by homophobia, the reactionary majority created a new right for parents to opt out of any public-school curriculum that contradicts their religious beliefs. See Dahlia Lithwick and Mark Joseph Stern in Slate, Samuel Alito’s “Pride Puppy” ruling is a disgrace to the Supreme Court.

Alito describes books that present stories of loving couples who happen to be same sex as follows:

The storybooks, however, are designed to present the opposite viewpoint to young, impressionable children who are likely to accept without question any moral messages conveyed by their teacher’s instruction. The storybooks present same-sex weddings as occasions for great celebration and suggest that the only rubric for determining whether a marriage is acceptable is whether the individuals concerned “love each other.”

As explained by Mark Joseph Stern,

The problem, of course, is that parents don’t traditionally have an individual veto over public education. Parents do not get to dictate exactly what is and is not taught in the classroom. And one of the goals of public education is to expose children to different kinds of ideas and different kinds of people that they wouldn’t normally see.

Yet, on Friday, the Supreme Court decreed that parents have a brand-new First Amendment right to veto their children’s exposure to materials that violate their own religious beliefs. If the parents don’t like gay people, then their kids must be “opted out” from seeing a book featuring gay people in the classroom. The kids have to stand up and walk out while the teacher reads Uncle Bobby’s Wedding. . . .

That is a violently stigmatizing message, and it’s one the Supreme Court just enshrined into the First Amendment.

In the aftermath of Dobbs, the Supreme Court is intent on chipping away at LGBTQ rights and dignity.

Everyone who is related to, knows, or loves an LGBTQ person should be alarmed. The reactionary majority will not be satisfied until it has imposed conservative Christian values on all Americans, based on the Court’s (mis)interpretation of selected passages of the Bible.

The Constitution explicitly forbids that outcome. Every American should be outraged and alarmed by the creeping theocracy emerging from the Roberts Court.

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