The other thing that jumps out about the stupidity of this decision is that, and the court damn well knows this because it’s been argued in front of them, is that if the current government decides that someone isn’t eligible for birthright citizenship, the current government is also renditioning people immediately to torture prisons. So the people who would be harmed may never get a chance to file a lawsuit, because they’re no longer here, no longer can communicate with lawyers, and may be tortured or dead by the time a court could hear their case. The other side of the case is the United States Government. They have no particular urgency that would require them to avoid a preliminary injunction. They will continue to exist, to still be here, and to not be tortured or killed prior to a regular court hearing about citizenship.
So the court also forgot their basic law that injunctive relief is meant to prevent immediate harm before the case can be heard in full, and is supposed to be determined not just by law and precedent but also by the criteria of harm and urgency.
Ok, Justice Jackson and I are on the same wavelength. I swear I hadn’t read her dissent when I wrote the above:
But their claim is that Executive Order No. 14160 violates the Constitution. If the court agrees with them, why on Earth must it permit that unconstitutional government action to take effect at all?
I hadn’t made my mind up about Justice Jackson yet, but I really like this dissent. It doesn’t wade neck deep into legal arcana. It just uses common sense, logic, basic history, and plain language.
In response to today’s Supreme Court ruling that potentially opens the door for partial enforcement of the executive order, LDF has joined immigrants rights’ advocates in filing a new nationwide class-action lawsuit challenging the Trump administration’s executive order restricting birthright citizenship.
Oh he can fuck right off. Exactly which side and which branch of government and which DOJ and whose followers are threatening judges? This isn’t a “both sides” thing!
“The danger, of course, is somebody might pick up on that, and we have had, of course, serious threats of violence and murder of judges just simply for doing their work,” said Roberts, who was speaking to a conference organized by the 4th US Circuit Court of Appeals. “I think the political people on both sides of the aisle need to keep that in mind.”
Oh, they are, on both sides. On the left with horror, on the right with glee, but both keeping it in mind. Some day these guys will realize they cannot intellectualize away getting into bed with fascists. I only hope it is soon enough for the rest of us.
The activities of the Supreme Court that wrapped up this week give us enough evidence to answer the question: No. It’s time to cross the courts off the list of Potential Saviors of the American Democratic Experiment. The court’s ruling in Trump v. CASA, limiting the ability of lower courts to issue national injunctions that stop bad laws from going into effect while they are being litigated, contains enough information for us to draw the reasonable conclusion that it is time to look elsewhere for hope.
This is not so much because of the legal reasoning of the case (which some of those legal analysts insist is not so bad!). Nor is it even because of the tangible negative impact of the ruling, which in practical terms is going to allow the administration to declare that it is going to do wildly unconstitutional things like “end birthright citizenship” and then just do them while the slow and imprecise gears of litigation grind on for years and years. It is because of the fact that the Supreme Court knows the political situation, understands the risks of handing Trump power, and, with that knowledge, continues to decline to stop him. The court’s insistence that it is a source of philosophical legal reasoning rather than dirty politics has always, of course, been bullshit, but that makes this case even scarier—because it means that the Republican justices on the court stared Trump’s rising dictatorial nature in the face, considered the possibility of restraining him, and decided not to do it.
They are checking out of the game. If Trump has not crossed a red line sufficient for the Supreme Court to rein him in already, then the red line is so far away that we will all be in prison before he reaches it.
I read the linked article. Jesus. It’s written by a Harvard Law professor who acknowledges that the decision is wrong, points out exactly why and how it’s wrong, but then goes on to argue that “Well, it’s not really so bad because there are probably ways around it. Maybe. Unless the majority agrees with Alito’s concurrence.” There is no end to some people’s insistence on continuing to view Trump and his allies as if they are just normal politicians and all of this is just normal partisan politics.
The whole ideology of “it can’t happen here” is pretty strong. But institutions are man-made things, and institutions can fail if people let them…
[ETA] It strikes me as part of that is based on the problem that many academics and people elite enough to get a voice in papers like Bloomberg, etc tend to have (which is often a criticism of academics and isn’t entirely wrong) in that they often view events through the abstract rather than the material. It’s a problem that many leftist academics try to correct for by employing a materialist worldview, but that’s not always a guarantee against that kind of abstraction.
The whole abstraction thing seems be a problem with “originalism”, despite it’s pretensions to basing their rulings in “original” meaning and history of whenever a law was passed. It seems based on an ideology and works backwards from there, damn the real world consequences for actual humans.
The Bloomberg article did have a good critique of originalism, until it followed it up with “but it’s not that bad.”:
The opinion itself is a classic example of the madness of originalism — the notion that the Constitution and US laws should be interpreted according to what they meant when enacted — not in light of contemporary reality. Barrett framed the issue in the case as whether the Judiciary Act of 1789 — one of the first laws passed by Congress after the ratification of the Constitution — would have allowed federal judges to issue universal injunctions at the time in light of English practice. She then asked if English courts of equity had any power analogous to the issuance of universal injunctions — and answered in the negative.
The first problem with this analysis is that the role of the judiciary and the realities of legal decision-making today are radically different from the circumstances of 1789. That’s true of the US — and even more true if the US is to be compared to 18th-century Britain.
The most crucial difference is that since 1803 and the famous Marbury v. Madison decision, US courts have had the power to declare laws and executive actions unconstitutional, a power the English courts didn’t exercise and that wasn’t explicitly granted by the Constitution. When a court rules a law unconstitutional, there is no good reason for the executive branch to be able to implement it anywhere — a point emphasized by the two dissents in the case, one by Justice Sonia Sotomayor and the other by Justice Ketanji Brown Jackson.
Trump’s birthright citizenship executive order is a perfect example. It’s obviously unconstitutional — as the dissenters stated and the majority didn’t deny. So why should the executive branch be able to enforce it anywhere once a court has ruled that it can’t be enforced within that court’s jurisdiction? Originalism misses the bus here because it ignores the evolution of the judicial power to allow the negation of unconstitutional laws and policies.
I mean, I’m sure HE’LL be fine, so none of us should worry! /s
But it’s this kind of thing really worries me. People unable to see past their belief that our systems are strong enough to withstand this kind of sustained assault by bad actors - they could be, but they could also not be. Just a cursory understanding of the post-Civil War landscape will show that - if reconstruction saw real progress on integrating Black Americans into the body politic, the backlash was violent and severe, and it took decades to bend that arc back toward justice.
Blind faith in institutions just isn’t helpful right now. And this is why we need historians, cultural scholars, social scientists, literary critics, artists, writers, etc… Of course, people in those fields can have problematic views and blindspots, too, but there tends to be at least an understanding that there is a horizon of possibilities in both the positive and negative direction. Being historically minded is especially important, because if there is an “iron-clad law of history” it’s that things change, and that change is not always in the direction of more freedom, more progress, etc. You can count on change, but you can’t count on what that change will be.
IMHO, it can be summed up as “I will be fine, my family will be fine, so it’s certainly not that bad.” It’s just Neimöller all over again. The inability to learn from history is maddening! (He said to the historian, ducked and ran away…)
Seriously, though, it absolutely is. I think it’s the way most of us understand history - as something to be viewed “objectively” and outside of ourselves, rather than as ourselves being products of that history, of the world we live in being the result of historical processes that shape the world we’re in now. History is often taught as something that happened to “others” who are not us, hence it has nothing really to do with us, other than for us to marvel at it, or shake our heads about… “those” people aren’t as enlightened as “us” and they made mistakes that we won’t make… this is often despite the mindset that learns from that history… How we… objectify events like the Holocaust is a prime example. We lean on ideas like the “sonderweg” (special path of Germany that made it seem impossible in other places, despite their being deep histories of antisemitism across Europe), and the singularity of the holocaust, that it’s a lesson learned that could never be repeated… It does not help that we’re told that we can never compare that to other historical events. The holocaust is so unique, we can’t compare it to the Armenian genocide, or Cambodia, or Rwanda, or Yugoslavia… But if we can’t compare and contrast such events against each other, and see where there is historical overlap and similarities or where they diverge, how can we possibly think through the various ways that genocide or ethnic cleansing can be possible in the future.
I think part of the problem is that many people learn their history, not from historians, or books, or lectures, etc, but from films, both fiction and non-fiction, which reify the very notion of objectification of the past that is a problem… If the holocaust is merely a form of entertainment (sad and depressing entertainment) that elides the complexities of such an event and how actually happened, if it’s down to individuals making choices, and not down to historically specific conditions that we can understand, name, and identify in other times/places, then how can we possibility see it as something that COULD happen again, to any number of groups hated for no reason other than their very existence.
Within hours of the Supreme Court’s ruling, we filed a nationwide class-action lawsuit against President Trump’s executive order restricting birthright citizenship.
