The Supreme Court’s decision striking down President Donald Trump’s executive order on birthright citizenship is a vital victory for the children and communities that would have been hurt. But let’s be clear: While Trump v. Barbara was a weighty case, it shouldn’t have been a hard one. And the decision does not make the court some guardian of multiracial democracy. This court has been taking a sledgehammer to it throughout this term.
In Barbara, the court faced this choice: Rewrite the Constitution, revive one of its most embarrassing precedents, overturn 130 years of its own decisions, disown the collective understandings of generations of presidents and federal lawmakers and endorse an overhaul of citizenship that would endanger hundreds of thousands of children. Or just follow the law.
Ultimately, the court chose to follow the law.
While Trump v. Barbara was a weighty case, it shouldn’t have been a hard one.
Chief Justice John Roberts’ opinion for the majority affirmed that the Fourteenth Amendment guarantees citizenship to all children born on American soil. This invalidated an executive order Trump issued the first day of his second term claiming to deny citizenship to babies born in the United States to noncitizen parents.
The flaws of that order were immediately obvious.
For one thing, Trump’s order was inhumane. It would have relegated hundreds of thousands of children to a new subclass without legal rights and protections and put them in danger of deportation. These children and their parents would have suffered greatly. American communities would have, too.
The order violated the Fourteenth Amendment’s plain language: “[A]ll 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 import of those words has been clear for 150 years: If you’re born here, you’re one of us.
The Supreme Court reinforced that understanding when it ruled in the 1898 case Wong Kim Ark that children of noncitizens born on U.S. soil got citizenship under the Fourteenth Amendment. Congress after Congress followed this rule. President after president did, too.
The order also contradicted the spirit of our Constitution. Trump effectively tried to return the country to the rule of Dred Scott. That infamous 1857 case stated that Black people could not be citizens because America was a white nation. It rested on the same logic as Trump’s order: that politicians get to choose who the people are and can extend or withdraw citizenship as they please. And it blessed a status quo that looks awfully similar to the one the Trump administration has tried to put in place: one in which noncitizens faced terror, violence and the risk of displacement, with little protection in the courts.
The Fourteenth Amendment was designed to wipe away Dred Scott and all it stood for. By guaranteeing birthright citizenship in the Constitution, the Fourteenth Amendment ensured that no judge or politician — even a president — could decide who is a citizen and who isn’t.
The majority opinion issued Tuesday traced birthright citizenship’s deep history, foreswore Dred Scott, affirmed Wong Kim Ark and closed on a soaring note, extolling the importance of birthright citizenship as a fundamental right and a “promise to every free-born person in this land.”
It was the right outcome in the present. But Barbara also marks a rare moment of restraint in this court’s ongoing anti-democratic rampage.
Notably, four justices refused to join the chief’s constitutional ruling. What should have been a unanimous decision had the narrowest possible majority. And their refusals are much more aligned with the typical bent of the court’s conservative supermajority. As they frequently do, the dissenters engaged in what the chief justice charitably called “revisionist” history to create constitutional complexity where none exists and suggest that the birthright guarantee is somehow less than sweeping. Justice Brett Kavanaugh’s concurrence built on those flawed historical narratives to offer a road map for a right-wing Congress to complete Trump’s failed job. Their writings are an unsettling reminder that we were one vote away from a ruling bringing back Dred Scott.
It was the right outcome in the present. But Barbara also marks a rare moment of restraint in this court’s ongoing anti-democratic rampage.
Such anti-democratic impulses have been seen in other majority opinions.
Just two months ago, the court pushed further in its yearslong campaign to dismantle the Voting Rights Act of 1965. That law secured responsive political representation for voters of color and made good on our constitutional commitment to a democratic government that meaningfully includes everyone. The Roberts Court had already weakened the VRA with its 2013 opinion in Shelby County and 2021 ruling in Brnovich. In April, it weakened the law further with the Callais decision, which has created virtually insurmountable barriers to lawsuits to prevent racial discrimination in redistricting and elections more generally.
Callais also marked a reversal of the Supreme Court’s earlier position on partisan gerrymandering. As recently as 2019, the court recognized that partisan gerrymandering was deeply wrong. Seven years later, the court has told lawmakers that they can draw maps that racially discriminate as long as they claim they’re engaged in partisan gerrymandering. Already, lawmakers across the country are ripping up maps and even invalidating already-cast votes to enact gerrymanders that lock in their partisan advantage and eliminate paths to representation for communities of color.
In Callais, in Milligan and in other cases assailing the civil rights order, the court is relying on a “colorblind” reading of the Constitution’s Reconstruction amendments that forbids any sort of differential treatment for a group of people because of their race. The idea doesn’t pass historical muster. It also runs against civil rights era laws and practices. But time and again, the Roberts Court has insisted that it’s unconstitutional to respond to racism against communities of color. This idea isn’t just ridiculous — it’s anti-constitutional, against the whole spirit of the enterprise.
And that’s not even getting into the string of recent opinions that have set immigration policy on an even grimmer and restrictive path.
In Barbara, the Constitution won out. But the bigger pattern is clear: Members of this court’s conservative supermajority have made it their job to bend the arc of the moral universe toward injustice.
The post The Supreme Court saved birthright citizenship — but Kavanaugh’s dissent is ominous appeared first on MS NOW.
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