The Supreme Court Upholds The Constitution. Barely.

from the and-perhaps-not-for-long dept

Look, 5-4 Supreme Court decisions count just as much as 9-0 ones, and a 5-4 decision getting it right is still a win, but for a number of reasons, the 5-4 decision in Trump v. Barbara, regarding the issue of birthright citizenship is terrifying.

This isn’t a complicated issue. This isn’t an issue that should even be before the Supreme Court at all. The text of the Fourteenth Amendment is crystal clear:

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.

The history of the Fourteenth Amendment and every single damn case about this particular issue from after it was added to the Constitution until now has been abundantly, ridiculously clear: anyone born in the US is a US citizen. The only exception is kids of diplomats who are not considered “subject to the jurisdiction thereof.” The whole question of whether a child born in the US to foreign-born parents is a citizen was settled clearly in 1898 in US v. Wong Kim Ark and literally no one has seriously questioned this issue at all since then.

Until a group of freaking racists took over the White House and wanted to drum up hatred of foreigners and anyone not white. The Stephen Miller-led White House issued a hilarious/terrifying executive order pretending to overrule the clear meaning of the Fourteenth Amendment. That executive order was quickly challenged, and a year and a half later, the Supreme Court has ruled that the Fourteenth Amendment means what everyone knew it meant from the beginning. But just barely.

Chief Justice John Roberts, joined by Justices Amy Coney Barrett, Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson, issued what should have been a 9-0 one page ruling saying “yes, we can fucking read the plain text of the Fourteenth Amendment, and it says exactly what it says, and no, the President can’t overturn that by executive order, no matter how racist he is.”

Instead, in the past 17 months or so, a whole industry of grifting academics came out of the woodwork to manufacture, from absolutely nothing, made up claims that the interpretation of the Fourteenth Amendment was in dispute. Justices Gorsuch, Thomas, and Alito used that shoddy scholarship, among other things, to justify their arguments that Stephen Miller is somehow right about the Fourteenth Amendment not applying to a situation where it clearly applies.

Justice Kavanaugh “concurred” in part on the judgment, but not on the basic Constitutional interpretation, which is the whole ball game.

Kavanaugh’s faux-concurrence is particularly insane, given that one of the reasons we hear from the conservative wing of the Supreme Court regarding things like the Second Amendment and abortion rights is that due to “history and tradition,” we have to interpret these parts of the Constitution as they were originally interpreted, not based on any changes in the world. Except, here, Kavanaugh is suddenly, magically, stupendously, a believer in the “living Constitution” where he gets to rewrite the meaning based on different circumstances.

Could you imagine Kavanaugh writing this in a case about gun control, for example:

The original constitutional principles do not change absent a constitutional amendment, but the relevant principles— both the rules and exceptions alike—must be faithfully applied not only to circumstances as they existed in 1787, 1791, and 1868, for example, but also to modern situations that were unknown or unanticipated by the Constitution’s Framers.

Kavanaugh now insists that these “modern situations” include the rise in undocumented immigration to America that means we need to completely revise our understanding of the Constitution. Somehow “modern situations” don’t apply to things like assault weapons as compared to muskets when we’re talking about the Second Amendment.

Jay Willis at Balls and Strikes gets the situation exactly right:

The fact that Trump’s nakedly xenophobic attack on birthright citizenship earned four votes—four fucking votes—is a national embarrassment, and a heart-stoppingly frightening signal about what may lie ahead if Trump (for any reason) gets to replace Roberts or one of the liberal justices in 2027 or 2028. The upshot of Barbara is that, as a country, we are but one MAGA dead-ender away from a Court that is willing (and maybe excited) to undo Reconstruction, just as soon as Republican politicians bring a case that will allow them to do it. 

For more than two centuries, the Court has proclaimed itself to be the ultimate authority on the law, with the unreviewable power to say what it means, no matter how unpopular its rulings might be. These days, what passes for “courage” from the Court is an opinion that makes clear to Trump that there is a limit to the justices’ willingness to allow him to unilaterally amend the Constitution, but that he is really, really close to persuading them to get rid of it.

Willis also points out that, even if the majority ruling got this correct, tons of people had to suffer for a year and a half waiting for what should have been dismissed out of hand:

Trump v. Barbara is the stupidest Supreme Court case in recent memory: the nation’s nine fanciest lawyers spending God knows how many hours pondering a question about the Fourteenth Amendment’s meaning that a bright sixth-grader could have answered without difficulty in roughly 30 seconds. The fact that a bare majority of the Court eventually arrived at the howlingly obvious, so-simple-it-feels-like-a-trick-question result—and only after months of forcing noncitizen parents to wonder if their children would soon be rendered stateless—is not evidence of the justices’ boundless intellect or analytical rigor. It is a damning indictment of an institution that is teetering on the brink of stuffing the entire enterprise of constitutional governance in the garbage.

And, there is fear among many that this 5-4 ruling is just a prelude to something way worse. Elie Mystal at The Nation makes this point clearly:

Trump tried to change the definition of citizenship by executive fiat in clear opposition to the text of the 14th Amendment, and he almost got away with it. This time. And we know there will almost certainly be a next time; the Supreme Court loves to give Trump multiple bites at the apple whenever he is trying to graft bigotry onto the Constitution.

As has happened in the past, the dissents laid out the road map for how Trump or future bigots might get around the Citizenship Clause. Trump tried to take out both children of people with temporary status (like people on work visas) and children of people without proper status (like people who have overstayed travel visas or crossed the border in secret), and that appears to have been his mistake. The dissenters have different arguments for why the children of people who have temporary status should be denied rights than for why children whose parents are out of status (or never had status) should be denied those rights. It’s possible, even likely, that if Trump attacks these two groups separately, he’ll squeak his way to five votes on one or both fronts.

Yes, a 5-4 decision is still a win and it still counts in the books as a win, but the fact that Republicans like JD Vance are already salivating about how they just need to put one more MAGA-brained Justice on the Court and they get to overturn the Fourteenth Amendment as soon as possible should be a warning to everyone who actually believes the Constitution should be seen as saying what it clearly says.

In that video, JD Vance admits that MAGA is just salivating about getting another vote on the Supreme Court to try again on this issue. He literally says, if they can get one of the five Justices who signed onto the majority off the Supreme Court before Trump leaves office, he hopes they can get someone else on instead who will flip the vote.

As Moira Donegan notes, a “5-4 ruling on birthright citizenship is an invitation to try again.” And they will try.

This kind of ruling is why the entire judicial system needs a radical rethink, and quickly. As we’ve seen this week, the Supreme Court is clearly broken. And a 5-4 decision, while still a win for common sense and the plain reading of the Constitution, feels like a hollow victory — one that is likely not long for this world without a radical change to the way the Supreme Court functions.

Filed Under: 14th amendment, birthright citizenship, brett kavanaugh, donald trump, jd vance, john roberts, stephen miller, trump v. barbara