You’ve seen our liveblog, which provides a detailed and technical look at today’s birthright citizenship oral arguments before the Supreme Court. I want to focus on a broad and critical issue. The Trump administration brought this to the Supreme Court. While the underlying or substantive issue is birthright citizenship, they were not seeking to have that issue resolved. They wanted the Court to address whether federal trial courts can issue national injunctions binding the hands of the incumbent administration.
That is not a made-up issue. Under Joe Biden, conservatives got great mileage out of a handful of game trial court judges who would go for basically anything right-wing lawyers came up with. But what the White House at least wants the Court to do is give it license to pursue its blatantly unconstitutional claims about birthright citizenship at least until the individual cases make their way to the Court for final resolution.
There was some question among the lawyers I spoke to whether the justices were basically in on this — a medium term license to violate the Constitution and deport American citizens — or whether they are so tightly sealed in their procedural big think bubble that they’re unable to grasp the bigger picture. I’m not really able to believe that anyone is that ignorant and credulous. But who knows? Maybe I underestimate the power of the bubble.
Whichever it is the whole spectacle points to the lateness and insufficiency of the heavily corrupted federal judiciary. The existence of birthright citizenship is not a real question. The matter is settled by the plain language of the 14th Amendment. It is also written using terms of art with clear meanings in English law. The current exercise is simply one of finding a few lawyers who will go to work with a dictionary to produce an alternate meaning in the hopes that five justices can be found who will pretend to believe it.
The assumption has been that even a court as thoroughly corrupted as this one can’t produce five votes for that. And that’s why the White House actually doesn’t want a decision on the merits. They want a year or two in which to pretend the 14th Amendment doesn’t exist.
Even the question lays bare a key feature of the judiciary over the last four months. We have months of unconstitutional actions in which the courts are focused on technical issues of standing and process and whatnot before the core issues are even addressed. We’ve seen this in the Alien Enemies Act cases where only in the last week or so have we seen judges, in some cases Trump appointees, say no: the White House’s whole argument about the Alien Enemies Act is false and so all the rest of the litigation and the claims are moot.
Why are we hearing this only four months in?
As a non-lawyer, let me reassure the lawyers that I know that the “technical” issues of standing and process are essential components of the rule of law. But the Court’s overriding charge is to stop violations of the Constitution — not just eventually but with alacrity. Perhaps we might say that when there is an active war on the Constitution, you need a wartime Supreme Court. And for reasons both of willful bad action and hideboundness, we simply don’t have one.
It’s true that, ideally, matters of great national import wouldn’t be decided by one or a few trail-court judges. In this case since the judges in question are blocking obvious and willful constitutional violations, it’s really not a problem. But if it is a problem, the answer is to settle the matter at a higher level, either permanently or with a higher level injunction. What the White House is looking for here is a delay or creation of a loophole for the purpose of committing more crimes against the Constitution. Let’s hope they don’t provide it. But again and again, that’s what we’ve seen, perhaps in less egregious ways, over the last four months.