The Supreme Court headline is not what you think

Chief Justice of the Supreme Court John Roberts with Associate Justice Sonia Sotomayor on March 7, 2024. SHAWN THEW/Pool via REUTERS

One might draw a direct line from recent Supreme Court news to Nebraska’s fertile plain. One might also wish some of its details were better.

As it often does for news junkies this time of year, SCOTUS dominated front pages and topped broadcasts for several days in the runup to the end of its term, June 30. Chief among a handful of anticipated opinions was the high court’s rejection of the Trump administration’s attempt to end birthright citizenship.

That decision was a relief for those of us incredulous that the idea of erasing the citizenship clause of the 14th Amendment with the stroke of a pen was even a thing. Or that the High Court, through the appeals process, was even entertaining the “argument” that the nation’s 158-year principle of citizenship may be invalid.

It was not the headline, however.

No, the newsy leviathan that called for a 96-point bold typeface was that four of the justices thought a president’s executive order could eclipse the plain language of the Constitution. If you’re keeping score at home — and you should be — here it is: “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.”

The citizenship clause of the 14th Amendment wasn’t enough for justices Gorsuch, Thomas, Alito and Kavanaugh, although the latter did vote with the 6-3 majority, citing federal law rather than Constitutional limits.

The math is distressing. We were essentially one vote from a president, with the blessing of the highest court in the land, being able to put the kibosh on an Amendment to the U.S. Constitution, which, last anyone checked, is a permanent part of the document, not some B Side of the Supreme Law of the land. Consider this slippery slope: Birthright citizenship today, freedom of speech tomorrow, the right to worship as you please next week, that whole privacy thing soon erased, ad nauseum.

Go ahead, roll your eyes at my angsty vision of falling skies. But while you do, consider that ending birthright citizenship was an idea only at the fringes of public debate just a few years ago. Nor does the SCOTUS decision appear to resettle what had been settled law for 158 years and affirmed more than a century ago. Now the president wants Congress to pass legislation to undo the 14th Amendment, a law, if passed, that would also be a Constitutional non-starter.

As you know, the Constitution can only be changed through the amendment process, a two-step exercise starting with proposing the change and then ratifying it, as set down in Article 5. Congress, with a two thirds vote, can propose, but it takes three quarters of the states to ratify. Big hurdles for good reasons.

Still, maybe we should have the debate. Nebraskans deserve to know who, among their quintet of representation, believes in the permanence of the Constitution, even though a passing glance at American history reveals that no Amendment is absolute and reasonable limits exist. That’s why, for example, speech protections do not extend to the incitement of violence or defamation and search and seizure rights may be mitigated by “exigent circumstances.”

Those are conditions, however, not the erasure of an entire clause from an Amendment.

Another recent SCOTUS headline may render moot a Nebraska group’s effort to amend the state’s Constitution with a sports rule that would have affected fewer than 10 Nebraska high school students in the last eight years. The High Court said two states, West Virginia and Idaho, can ban transgender girls from participation in girls’ sports in any public school. Twenty five other states, including Nebraska, have similar laws on the books, so in practice the court’s decision may simply apply to them, too.

Amending Nebraska’s Constitution appears to be no big deal. We do it regularly, 240 times at last count, a number surpassed only by Texas, Oregon and South Carolina.

Regardless of whether the effort to amend Nebraska’s Constitution goes forward, SCOTUS’s decision on transgender athletes should cover the concerns of those who have worked to keep trans kids from competing. They argue, with some merit, that it’s about fairness. Plus, they want to keep girls and women in sports safe, also a commendable aim.

There is this, however: Those of us with daughters, granddaughters, nieces and female family friends wonder just who — and how — is determining the “gender eligibility” of athletes, especially if it is questioned after say, a long home run, a particularly vicious spike or a new record in the 200-meter freestyle? Will that be keeping girls and young women safe?

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