Is the Supreme Court really independent?
If the President ignores the Constitution and the Supreme Court enables him, where does that leave us?
This week, the Supreme Court is set to hear arguments in Trump versus CASA, Inc., the case in which the Trump regime looks to stop federal judges from issuing injunctions to halt the executive branch’s actions — specifically, the executive order titled “Protecting the Meaning and Value of American Citizenship” and meant to overturn the constitutional right to birthright citizenship. Trump wants to limit the powers of the federal courts so they’ll let him get away with ignoring the law. The very law that they’re reaffirming with stays because the Supreme Court has upheld it since 1898.
In any other era, that might make for an open-and-shut case. Executive orders aren’t laws, after all, and they hardly supersede the Constitution. But this all happens after Trump, asked by Kristen Welker on Meet the Press whether he was bound to “uphold the Constitution of the United States as president,” answered — chillingly, if unsurprisingly — “I don’t know.”
So… is there a backstop? Trump would, he told Welker, leave such things up to his “brilliant lawyers,” who would, “obviously follow what the Supreme Court said.” The Court has been more than willing to abdicate its responsibility to say much of anything to restrain Trump — like the Republican-controlled Congress, the Republican justices have done their part to undermine their own legitimacy. Chief Justice John Roberts last week defended judicial independence, but the federal judiciary’s record on reigning in Trump’s unconstitutional actions has been as mixed as the White House’s obedience to court orders.
Leah Litman, the University of Michigan professor of constitutional law, litigator, and co-host of the Strict Scrutiny podcast, has a new book out tomorrow. Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes takes a hard look at what the Supreme Court has become and how it got that way. In this guest essay, Litman looks into how the case is likely to go, where and how the Court might offer some pushback against the White House, but also how the Court might ultimately help Trump further retool the law in his image.
Birthright citizenship and the Supreme Court’s role in Trumpism
By Leah Litman
The Supreme Court is likely to reject the Trump administration’s request to implement their illegal attempt to strip birthright citizenship from some Americans. But that ruling to uphold the Fourteenth Amendment against a President intent on erasing it won’t change the fact that the Supreme Court helped get us to a point where a President is now attempting to subvert clear constitutional and statutory commands. The Court has enabled Donald Trump specifically and Trumpist politics more generally. Indeed, even when it comes to the Fourteenth Amendment, the Court has previously given Trump a pass.
Trump’s birthright citizenship executive order is, to put it mildly, wildly illegal. The Fourteenth Amendment, as well as a federal statute, say in no uncertain terms that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” In direct violation of those laws, Trump’s executive order would make it so some persons who are born in the United States aren’t citizens at all. (The “subject to the jurisdiction thereof” language doesn’t help the administration; it merely excludes persons who come to the United States under the auspices of another sovereign, such as the members of an invading army or an ambassador.)
The order is so unlawful the federal government lawyers haven’t even asked the Supreme Court to say the order is legal. Instead, they’ve resorted to procedural maneuvers to try to get the order (partially) into effect. The administration asked only that the Court say the lower court decisions in the cases, all of which invalidated the order, swept too broadly — and that the district court decisions can’t apply outside of the states that had elected to challenge the order. (It’s unclear how scoping the executive order like this would even be administrable.)
If the order is so unlawful that the Trump administration hasn’t asked the Supreme Court to bless it, why did the administration even think to attempt it? The answer to that question can be found, in part, at the Supreme Court itself.
Start with the Supreme Court’s immunity opinion from last summer: That carried a ton of water for the idea that the President is above the law. Indeed, the Court’s six Republican justices effectively put the President above the law when they held that Presidents pretty much cannot be subject to criminal prosecution for acts related to their official duties. While the decision in Trump v. United States concerned criminal prosecutions in particular, the Court’s reasoning suggested there are expansive, far-reaching zones of presidential power where the president’s powers are exclusive — meaning they are beyond the reach of any laws. Picking up on this signal, one Trump appointee on the U.S. Court of Appeals for the D.C. Circuit stated, after the Supreme Court’s immunity opinion, that presidents could not even be sued civilly — that is, where parties merely seek injunctions that order the president to stop illegal behavior (such as stripping Americans of birthright citizenship).
The Court also cleared the way for a Trump presidency, and everything that is now part of it. The Court slow-walked its resolution of Trump’s immunity claims in the federal election interference case. Special counsel Jack Smith originally asked the Court to take the case in December; the Court waited to do so until February, at which point it didn’t bother to schedule the case until April. The delay all but guaranteed that Trump would not face a trial on the election interference charges before the 2024 presidential election. The Court also undermined President Biden’s ability to govern, making the Democratic Party less appealing in the election. The Court nuked one of Biden’s most popular, and promised, policies — the measure to cancel student debt relief.
In the course of paving the way for a second Trump term, the Court resorted to watering down the protections of the Fourteenth Amendment, the same constitutional amendment that is at issue in the birthright citizenship case. Several states had attempted to disqualify Donald Trump from appearing on the 2024 presidential ballot because of Trump’s role in the Stop the Steal movement and the January 6 insurrection. The states pointed to Section 3 of the Fourteenth Amendment, which says that “No person shall hold” any “office … under the United States” if they “engaged in insurrection or rebellion against” the United States. Multiple state courts and secretaries of state concluded that the effort to overturn the results of a legitimate election, culminating in a riot that forced Congress to halt its proceedings, qualified as an insurrection or rebellion — which disqualified Trump from holding office again.
What’s stunning is that the Supreme Court didn’t disagree. It just said that states couldn’t enforce the Fourteenth Amendment provision disqualifying oath-breaking insurrectionists from office — at least without Congress telling the states they could do so. Basically, the Court made it so the President isn’t really subject to Section 3 of the Fourteenth Amendment at all, absent some affirmative congressional legislation saying he was.
The Court has also signaled that it is on board with many parts of Trumpism, and the Trumpist ideology, again with respect to the Fourteenth Amendment. The Court’s Republican Justices, together with the Trump administration, have signaled that they believe it is unconstitutional and a violation of the Fourteenth Amendment for laws to prohibit policies or practices that disproportionately disadvantage racial minorities. In a recent executive order, the President directed the United States to “eliminate the use of disparate-impact liability.” Disparate impact liability is the theory, codified in many federal statutes, that its entities cannot adopt measures that have disproportionately negative effects on racial minorities. The executive order insisted that disparate impact liability “violates” the Constitution” by denying “equal protection” of the law — i.e., that disparate impact liability discriminates on the basis of race in violation of the Fourteenth Amendment (or Fifth Amendment). The order claimed that disparate impact liability illegally “requires individuals and businesses to consider race” to avoid adopting policies that exclude racial minorities from employment.
Some of the Court’s Republican Justices have made similar claims about the Voting Rights Act, one of the many civil rights measures that imposes disparate impact liability. That is, the VRA prohibits some voting policies that do not mention race, but have the effect of disadvantaging racial minorities. The Court has on its docket a case that is attempting to make it unconstitutional for a state to try to comply with the VRA. In Louisiana v. Callais, a group of white voters is arguing that Louisiana’s efforts to draw districts that complied with the VRA, and did not disproportionately reduce Black voters’ political power, was unconstitutional because “Louisiana predominantly considered race” in drawing the maps.
When the Supreme Court heard this challenge in March, many of the Republican Justices signaled their hostility to the VRA’s disparate impact liability provisions. Justice Neil Gorsuch, for example, essentially previewed the Trump administration’s case against disability impact liability: “saying race is one consideration” “how do we square that with the Fourteenth Amendment’s promise that race should play no role” “in our laws”? Three years ago, Justice Gorsuch joined three other Republican appointees in suggesting the VRA might, indeed, be unconstitutional if it required legislatures to take race into account while redistricting. Justice Kavanaugh had demurred then, indicating he might be open to a slightly retooled constitutional challenge. If he goes along with it, could make five votes for the end of the VRA’s protections in redistricting — and for the Trumpist idea that the Fourteenth Amendment actually makes it illegal to try and restrict practices that negatively affect racial minorities.
Across a range of areas, the Court is poised to read into the Constitution many of the core tenets of Trumpism. Indeed, it has already done so, including when it glamorized the idea that the President is above the law, and not really subject to the Fourteenth Amendment (or at least parts of it). So the Court shouldn’t get a pass if and when it inevitably rules against some of what the Trump administration is trying to do.
Leah Litman’s new book is Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes
A programming note: More Live conversation this week!
Today, Monday, May 12, at 12:30 p.m. Eastern, we’re back with our resident scholar of authoritarianism, Ruth Ben-Ghiat, and we’ll also be joined by journalist Andrew Marantz. Then tomorrow, Tuesday, May 13, at noon Eastern, we’ll speak with former Secretary of Transportation Pete Buttigieg. On Wednesday, May 14, at 12:15 p.m. Eastern, we’ll talk to Senator Sheldon Whitehouse of Rhode Island. And then on Thursday, May 15, at 12:30 p.m. Eastern, we’ll welcome the return of messaging guru Anat Shenker-Osorio. You won’t want to miss any of these!
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I agree totally