Birthright citizenship tests the Supreme Court counterrevolution | Opinion

This week’s 5-4 U.S. Supreme Court ruling upholding birthright citizenship was much anticipated but it’s still a relief to see. It shows that the Court majority recognizes at least some limits to its counterrevolution against decades of liberal American jurisprudence.

The court issued a number of reactionary rulings this year, but if it had struck down the constitutional guarantee of citizenship for those born here, it would have amounted to a reverse Roe v. Wade. Instead of using raw judicial power to create a privacy right to abortion that was previously unknown, it would have used raw judicial power to take away a birth-based citizenship right that was universally known. Apparently, it was an abridgment too far.

Still, there’s no doubting the court majority’s agenda. It’s about replacing emerging individual rights with traditionalist rights. Guns are good. Gays and immigrants are bad.

And, indeed, gays and immigrants are taking it in the neck. This year, the court allowed the Trump administration to bar asylum seekers from entering the country and end humanitarian protections that allowed others to stay. The court has already struck down conversion therapy bans, legalized discrimination against gays by businesses, allowed opt-outs in the provision of health care access for transgender patients—and this week it upheld bans on trans athletes.

These rulings join the court’s other counterrevolutionary attacks on the liberal legacy, including limiting abortion, gutting environmental regulation and, most dangerously, eliminating safeguards against oligarchy and tyranny. In that regard, this week, the court further smoothed the way of big money into politics and expanded the number of federal employees the president can fire on a whim.

So why did the court, in an opinion written by Chief Justice John Roberts, restrain itself—by a one-vote margin—from eliminating birthright citizenship? Perhaps the optics were just too bad. As a legal proposition, the Trump administration’s attempt to abandon birthright citizenship contradicted a bedrock assumption about who was an American. The Constitution guarantees citizenship to “all persons born” in the United States. President Donald Trump argued that the qualifier “and subject to the jurisdiction thereof” meant that the children of illegal immigrants were excluded.

But it has been settled for long over a century that the jurisdiction provision was written to exclude the children of diplomats, foreign invaders and sovereign Indian tribes not subject to American law. In effect, Trump wanted the court to believe that illegal immigrants are not subject to American law—that the U.S. has no jurisdiction over them—even while he keeps arresting and deporting them.

With the court recognizing the absurdity of Trump’s position, there is some hope that the Supreme Court isn’t willing to be wholly partisan. But make no mistake. The counterrevolution rolls onward. Its next stop on the road to turning back the clock may come with the midterm elections. If the Supreme Court sits on its hands the way it did after the 2020 presidential election, we may find the Trump administration declaring any democratic wins just more “fake news.”

For years, Trump has been trying to undermine faith in American elections. Despite study after study and court case after court case, no evidence of the pervasive fraud he and his MAGAphones shout about exists. And a few episodic examples can’t change this rock-solid reality.

The Supreme Court shouldn’t let Trump get away with using these lies to steal the midterm elections. The court should make sure the federal judiciary has extra judges with extra support staff behind them on duty at courthouses on election night and into the next days. Those judges may find it tempting to get rid of some of the cases by finding they were brought by the wrong person in the wrong court and the like. They should resist these temptations. They should seek out chances to say whether fraud happened instead of chances to avoid such rulings.

Most important, the Supreme Court should take up the key cases and say in a loud, clear voice if it finds Trump’s fraud claims true or false. Had it vocally validated the 2020 election results in this way, there may never have been an attack on the U.S. Capitol. This year, the Supreme Court may hold the key to preventing a second one.

Thomas G. Moukawsher is a former Connecticut complex litigation judge and a former leader within the American Bar Association. He is the author of the book, The Common Flaw: Needless Complexity in the Courts and 50 Ways to Reduce It.

The views expressed in this article are the writer’s own.