Dem
47
GOP
53
The Supreme Court finished its term yesterday, unloading the three remaining decisions on its docket. None of the decisions is going to gladden the hearts of liberals.
First up is the biggest decision of the day, and probably the whole term, namely the Court's ruling in the birthright citizenship case Trump v. Barbara.
Before we explain the outcome, let us remind readers of the context here. The United States has granted jus soli citizenship (a.k.a. birthright citizenship, or citizenship conveyed by virtue of having been born in the U.S.) for its entire existence. That tradition extends, in fact, to the colonial era, and is common among "New World" countries. This is because children back then were often born to parents of different nationalities, and/or to parents whose "paperwork" was somewhere between "thin" and "non-existent." Granting citizenship based on place of birth made things a lot tidier.
In 1868, the Fourteenth Amendment was added to the Constitution. Its purpose was to convey citizenship to Black Americans, nearly all of who had been born in the United States, and nearly none of who had been born to citizen parents, since enslaved people could not be citizens. The fellows who wrote the Fourteenth Amendment chose their words very carefully, beginning the text thusly: "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."
That qualifying clause, "subject to the jurisdiction thereof," was crafted to exclude three types of people. The first was Native Americans (who were later folded into the mix, by the Indian Citizenship Act of 1924). The second was children of diplomats, who are citizens of the country their diplomat-parent represents. The third was the children of invading armies (something that has never actually been an issue, though in 1868 they just couldn't be sure).
It is worth noting that the two latter groups, whose legal status has not changed since 1868, are very clearly not subject to the jurisdiction of the United States, up to and including that they are not subject to American law. If John Diplomat Jr. assaults an American, then he is going to be tried under the laws of his country, by the courts of his country. If John General Jr. assaults someone, then he is going to be tried under the laws of his country, by the courts of his country (assuming he is tried at all). By contrast, if John Immigrant Jr. assaults an American, he is going to be tried by a U.S. court under U.S. law, because he is subject to the jurisdiction of the United States.
Beyond the basic logic laid out here, we know exactly what the authors of the Fourteenth Amendment intended because we have records of their discussions in the halls of Congress, not to mention drafts of the earlier versions of the Fourteenth Amendment. Nonetheless, back in the late 19th century, xenophobes tried to latch on that "subject to the jurisdiction thereof" bit to argue that if someone is born in the U.S. to non-citizen parents, that person is subject to the jurisdiction of their parents' country, and so is NOT subject to the jurisdiction of the United States. This interpretation was put to the test in United States v. Wong Kim Ark (1898). In their decision, the Fuller Court—the exact same court that had ruled 18 months earlier that segregation was fine and dandy—said that "subject to the jurisdiction thereof" excludes only Natives and the children of diplomats and soldiers, and that everyone else born in the U.S. is, and always been, a citizen.
Barbara, then, is 21st century xenophobes taking a bite at the apple that eluded 19th century xenophobes. And the decision should have been the easiest 9-0 slam dunk in recent memory. But that is not how this Court works. And so, the decision was actually 6-3 or 5-4, depending on how you count, to retain birthright citizenship.
The five justices who voted for the status quo are Chief Justice John Roberts, Associate Justice Amy Coney Barrett and the three liberals. The three justices who supported Donald Trump's "right" to eliminate birthright citizenship are Associate Justices Samuel Alito, Neil Gorsuch and Clarence Thomas. The vote that can be counted either way is that of Associate Justice Brett Kavanaugh, who concurred in part and dissented in part. He agreed with Alito, Gorsuch and Thomas on the key issue, that the Fourteenth Amendment does not convey citizenship to everyone born in the United States. However, he agreed with the majority that Trump's executive order was not lawful. Kavanaugh's reason for thinking so is not that Trump violated the Fourteenth Amendment, but instead that the President ran afoul of 8 USC 1401(a), which was adopted by Congress in 1952.
The obvious implication here is that if Congress passes a law stripping birthright citizenship, then that law will have at least four votes from the current Supreme Court. If they write the law just right, maybe they can peel off a fifth. Alternatively, if Republicans can replace one of the three liberals with a dyed-in-the-wool conservative, then that could be the fifth vote.
Just in case anyone currently leading the Republican Party missed the point, Thomas and Alito went to great pains to write out marching orders. Roberts' majority opinion is 7,801 words. By contrast, Alito's dissent is 11.594 words, while Thomas' is a staggering 27,477 words. Click on the link above to read them; they are a blow-by-blow rundown of the various (mostly racist) arguments against jus soli citizenship, like "these people aren't truly loyal to the United States" and "birthright citizenship encourages 'birth tourism.'" The two dissents also clue conservative lawyers in on what legal arguments they should be making, including that Kim Wong Ark actually supports the conservative point of view.
Oh, and as a bonus, on Monday, reporters noticed that Thomas was paying a visit to Capitol Hill, a place that Supreme Court justices should not often need to be. The Justice refused to explain why he was there, but pointedly demurred when asked if he was there to meet with anyone. A few Republicans claimed Thomas was there to see the House physician, which is... odd, if true.
In any event, whether they followed the trail of bread crumbs laid out by Alito and Thomas, or they got there on their own, the leaders of the Republican party have figured out that the next front in this fight is ostensibly the halls of Congress. Donald Trump got on his white-makes-right social media platform and sent this out:
The Supreme Court upheld Birthright Citizenship, which is too bad for our Country, but we can easily make it up in Congress through Legislation, with the support of the President, that has now been determined during this process. No long and unwieldy Constitutional Amendment is necessary! Congress should start TODAY to work on ending expensive and unfair to our Country, Birthright Citizenship. They will have my Complete and Total Support! President DONALD J. TRUMP
And Speaker Mike Johnson (R-LA), speaking to reporters after the decision was announced, added this:
I will say, I'm very disappointed in that outcome. I think it subjects the country to serious challenges going forward, and we'll have to deal with it as Congress... Birthing tourism, they call it: A trend where people come and you just come on to the soil and have your child and then they're able to avail themselves of the welfare state and everything else.
With Johnson, of course, you can never be sure how much he is saying what he really thinks, and how much he is just performing for his boss at 1600 Pennsylvania Avenue.
Politically, the immediate question is how this will affect Trump's interactions with Congress. There is already an existing bill that would eliminate birthright citizenship; it is the Birthright Citizenship Act of 2025, and was introduced in the House by Rep. Brian Babin (R-TX) and in the Senate by Sen. Lindsey Graham (R-SC). There is no chance of this legislation becoming law, in part because there are at least some Republicans who would oppose it and in part because it would never overcome a filibuster. But let us imagine that Trump and/or some of the Freedom Caucusers begin to treat the Birthright Citizenship Act the way they have been treating the SAVE Act—"If Congress doesn't pass this NOW, we are taking our balls and going home!" It could grind things to a halt (and see below for more), and could also force a lot of members into very uncomfortable votes.
The slightly less immediate, but still pretty immediate, political question is what the Democrats do with all of this. Last week, a poll from Quinnipiac found that 70% of Americans support birthright citizenship. Perhaps more importantly, people who are themselves birthright citizens, or who are family/friends of birthright citizens, will be very motivated to protect birthright citizenship. Will the Democrats start pointing out: "Birthright citizenship is one Supreme Court justice, or a few filibuster-hating senators away from going the way of the dodo"? Could be effective.
One last thing. The right-wing media was, by and large, enraged by the Barbara decision, and they have reached something of a consensus as to who the real villain is here. Megyn Kelly, who once tried to develop a reputation as a fair-minded moderate, derided Barrett for "constantly" siding with the liberals. The Daily Wire's Matt Walsh slammed the Justice as a "DEI Hire." Soon-to-be-former Rep. Nancy Mace (R-SC) said Barrett should be removed from the Bench. Interestingly, Roberts has voted against the right-wing position more times this week (and this term) than Barrett has. Wonder what the difference is between them? Hmm....
The second decision of the day, meanwhile, was in National Republican Senatorial Committee v. Federal Election Commission. With that oh-so-familiar 6-3 vote, breaking down along the usual ideological lines, and Kavanaugh writing for the majority, the Court overturned its own decision, in 2001's Federal Election Commission v. Colorado Republican Federal Campaign Committee. As a result, political parties will now be allowed to coordinate openly with candidates for office.
As with Citizens United, the majority concluded that this was fundamentally a First Amendment issue, and that limits on party-candidate coordination are a violation of donors' free-speech rights. Why they weren't a violation of free-specch rights 25 years ago was not explained. Kavanaugh further observed that if the political parties are weakened, it "distort[s] the political system." Because if there's one thing we can all agree on, it's that the two political parties that have had a near-total duopoly on power for the last 165 years or so just aren't strong enough.
Boiled down to the nitty-gritty, before yesterday, it was the case that a person wanting to support a candidate could give $3,500 per election to that candidate. Most successful candidates go through a primary and a general election, for a total of $7,000, or if there's also a runoff, the total is $10,500. Now, it is the case that a person wanting to support a candidate can give the candidate that $7,000/$10,500 and can also give their political party close to half a million dollars more to potentially spend on that candidate.
If you are someone who wants well-off Americans to have less influence in politics, then this decision is bad news. However, it remains to be seen exactly how impactful it will really be. Note the following:
At the moment, the RNC has considerably more money in the bank than the DNC. So, the popular prediction yesterday was that, in the short-term, the Supreme Court's decision will benefit the Republicans more than the Democrats. That may be true, though we'll soon see if the DNC's hauls pick up, given the new spending environment. It is also the case that 100,000 small donors tend to be more useful than 100 fat cats, since the small donors can give again and again. And, thanks in no small part to Act Blue, the Democrats are far better situated with small donors than the Republicans are. The overall point here is that we'll have to take a "wait and see" approach before we reach any firm conclusions about how impactful this decision really is, and exactly who is helped by it.
And that, finally, brings us to the third decision, which addressed two cases, one from West Virginia and one from Idaho, namely West Virginia v. B.P.J. and Little v. Hecox. This decision broke down along—wait for it—partisan lines, with Kavanaugh writing for the 6-3 majority.
The finding here, which was the most predictable of the day, is that trans girls do not have the right to play girls' sports. Kavanaugh and the five other conservatives concluded that, for Title IX purposes, the word "sex" refers to biological sex assigned at birth. Ipso facto, if you were a declared to be a boy when you were born, you are a boy for Title IX purposes, and so cannot claim sex discrimination if you get kicked off a women's team.
Advocates for trans rights noted a couple of silver linings in the decision, which just so happened to come down on the final day of Pride Month. The first is that the Court did not strike down Bostock v. Clayton County which means that sexual orientation and gender identity remain protected classes for purposes of Title VII of the Civil Rights Act of 1964. The second is that the Court did not bar trans girls and women from competing in girls' and women's sports, which means that those states that want to allow such participation are allowed to continue doing so, at least for now.
That said, the Supreme Court nonetheless gave the green light to anti-trans discrimination in education. In red states, schools from kindergartens through universities are going to crack down on trans girls'/women's participation in sports, and are also going to insist that trans students of both male and female varieties use the "correct" restrooms, as indicated by the gender on their birth certificates. Meanwhile, schools in blue states and communities will try to hold the line, but will undoubtedly face lawsuits from both private individuals (students and parents), and possibly from the federal government. This will also give the Trump administration more leverage in its phony quid pro quos, where the White House insists that [school X] turn its back on trans students, or else [funding Y] will be canceled. This is a semi-phony quid pro quo because part of the point is to cancel the funding and part is to feed red meat to the base. The trans part merely serves as a convenient way to make that happen, and a good way to get voters—even many independent left-leaning voters—angry.
Back in 1944, in the Korematsu case (also decided 6-3, incidentally), there were a trio of fiery dissents, from Associate Justices Frank Murphy, Robert H. Jackson, and Owen Roberts. The overarching theme of the three dissents, addressed to the justices' six colleagues, was, "You people are nuts, and history will judge you harshly." That trio did not live to see themselves proven right, as all three had passed away by 1955. These days, the equivalent trio is Kagan, Associate Justice Sonia Sotomayor and Associate Justice Ketanji Brown Jackson. Jackson's pretty young, at 55, and some of the decisions unspooled this week are considerably more out of step with middle America than Korematsu was. We would not be surprised if the most junior justice lives long enough to enjoy a satisfaction that eluded Murphy, Jackson and Roberts. (Z)