In dissenting opinions, Justices Sonia Sotomayor and Ketanji Brown Jackson excoriated the Supreme Court’s Friday ruling on birthright citizenship, which restricts courts’ ability to keep the Trump White House from carrying out its lawless orders.
At issue was whether lower courts can issue “nationwide injunctions” halting Trump’s anti–birthright citizenship order from being enforced against anyone, and not just those challenging the order in court or living in a jurisdiction where it’s being challenged.
While not acknowledging the constitutionality of the executive order, which denies automatic citizenship to children born on U.S. soil to undocumented immigrants and those with temporary status, the majority opinion stated that such injunctions “likely exceed the equitable authority that Congress has given to federal courts.”
Justice Sotomayor had choice words for this ruling, which seemingly provides Trump powerful ammunition in his attacks on civil liberties. She was joined by Justices Elena Kagan as well as Jackson, who also wrote a dissenting opinion.
“No right is safe in the new legal regime the Court creates,” Sotomayor’s dissent read. “Today, the threat is to birthright citizenship. Tomorrow, a different administration may try to seize firearms from lawabiding citizens or prevent people of certain faiths from gathering to worship.”
Sotomayor used an analogy to illustrate the absurdity of granting the government’s request to strike down nationwide freezes on plainly unlawful orders: “Suppose an executive order barred women from receiving unemployment benefits or black citizens from voting. Is the Government irreparably harmed, and entitled to emergency relief, by a district court order universally enjoining such policies? The majority, apparently, would say yes.”
Sotomayor torched her conservative colleagues for caving to Trump: “With the stroke of a pen, the President has made a ‘solemn mockery’ of our Constitution,” she wrote. “Rather than stand firm, the Court gives way. Because such complicity should know no place in our system of law, I dissent.”
Jackson began her dissent by noting she agrees “with every word of Justice Sotomayor’s dissent,” and decided to file hers to emphasize that the court’s ruling poses “an existential threat to the rule of law.”
Trump’s request to do away with universal injunctions, Jackson wrote, “is, at bottom, a request for this Court’s permission to engage in unlawful behavior” and “to continue doing something that a court has determined violates the Constitution.”
In granting that wish, Jackson wrote, the majority has permitted Trump to act not unlike a monarch, giving “the Executive the go-ahead to sometimes wield the kind of unchecked, arbitrary power the Founders crafted our Constitution to eradicate.”
By placing “the onus on the victims to invoke the law’s protection,” the court has created circumstances in which “a Martian arriving here from another planet would … surely wonder: ‘what good is the Constitution, then?’”
The court’s decision marks “a sad day for America,” Jackson said, requiring judges, faced with Trump’s lawlessness, “to look the other way” and permit “unlawful conduct to continue unabated.”
“Perhaps the degradation of our rule-of-law regime would happen anyway,” she wrote. “But this Court’s complicity in the creation of a culture of disdain for lower courts, their rulings, and the law (as they interpret it) will surely hasten the downfall of our governing institutions, enabling our collective demise.”
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