What the Supreme Court did was far more dangerous than ending birthright citizenship

30 June

Amy Coney Barrett before the Senate Judiciary Committee on September 6, 2017 (CSPAN)

No, the Supreme Court did NOT strike down birthright citizenship in the decision handed down Friday, Trump v. Casa et.al. Instead, the Republican majority voted to purposefully sidestep the merits and substance of the birthright citizenship question and decided to treat the case as a procedural issue.

The result of the 6-3 ruling along partisan lines? The Roberts court just gave Trump unfettered power to continue s---ting on the Constitution.

As a 30-year federal litigator, I am outraged. I don’t see how the rule of law can survive this decision, especially at a time when our executive is so clearly and demonstrably unhinged.

What the partisan majority did

Focusing on equitable authority to issue injunctions instead of the 14th Amendment right to birthright citizenship, the Roberts court elevated procedure over substance.

As explained in the dissent, the majority opinion “ignores entirely whether the President’s Executive Order (on birthright citizenship) is constitutional, instead focusing only on the question whether federal courts have the equitable authority to issue universal injunctions. Yet the (Executive Order’s) patent unlawfulness reveals the gravity of the majority’s error and underscores why equity supports universal injunctions as appropriate remedies in this kind of case.”

What the Republican majority did was far worse — and far more dangerous — than ending birthright citizenship:

Held: Universal injunctions likely exceed the equitable authority that Congress has given to federal courts. The Court grants the Government’s applications for a partial stay of the injunctions entered below, but only to the extent that the injunctions are broader than necessary to provide complete relief to each plaintiff with standing to sue. Pp. 4–26.

Translation: they struck down nationwide injunctions, the main tool federal courts have used to stop Trump from bulldozing the Constitution. Their shameful decision is NOT limited to the birthright citizen question; it applies without limitation. It gives Trump license to trammel every law, every clause, and every amendment to the Constitution.

Writing for the partisan 6-3 majority, Coney-Barrett continued:

The Court’s early refusals to grant relief to nonparties are consistent with the party-specific principles that permeate the Court’s understanding of equity. “[N]either declaratory nor injunctive relief,” the Court has said, “can directly interfere with enforcement of contested statutes or ordinances except with respect to the particular federal plaintiffs.” Doran v. Salem Inn, Inc., 422 U. S. 922, 931. In fact, universal injunctions were conspicuously nonexistent for most of the Nation’s history. Their absence from 18th and 19th century equity practice settles the question of judicial authority.

It's Dobbs déjà vu all over again

Just as these same partisan hacks did in Dobbs to erase abortion rights that had been in existence for 50 years, they are erasing the history of nationwide injunctions, focusing on what happened in the 1700s and 1800s instead of the last 100 years.

Nationwide injunctions have been used in the U.S. for over 60 years. They are the strongest and surest remedy to keep elected officials from violating federal law or the Constitution. Now, in service to Trump, that remedy has been removed, that protection for the little guy has been erased.

From Sotomayor’s dissent: “The gamesmanship in this request is apparent and the Government makes no attempt to hide it. Yet, shamefully, this Court plays along. A majority of this Court decides that these (birthright) applications, of all cases, provide the appropriate occasion to resolve the question of universal injunctions and end the centuries-old practice once and for all. In its rush to do so the Court disregards basic principles of equity as well as the long history of injunctive relief granted to non-parties.”

Translation: Everyone who wants to stop Trump from illegally harming them now has to sue, and appear personally before the court, or join a class action, which can take years to certify. I defended class actions for over 15 years — they are an expensive, time-consuming and cumbersome way to try to fight back against the government.

Sotomayor ‘s outrage is also palpable. She continues: “In partially granting the Government’s remarkable request, the Court distorts well-established equitable principles several times over. A stay, this Court has said, “‘is not a matter of right,’” but rather “‘an exercise of judicial discretion….For centuries, courts have “close[d] the doors” of equity to those “tainted with inequitableness or bad faith relative to the matter in which [they] seek relief… Yet the majority throws the doors of equity open to the Government in a case where it seeks to undo a fundamental and clearly established constitutional right. The Citizenship Order’s patent unlawfulness is reason enough to deny the Government’s applications.”

Hear, hear. I second, third, fourth and fifth amendments that. This horrific, legally absurd, and grossly partisan decision comes just as Trump’s goons are becoming more and more violent.

They are physically tackling Democrat officials to the ground. Bored ICE agents on power trips are attacking brown people on the streets, in parking lots, in restaurants, beating them in front of their children.

The Roberts court is aware of what Trump is doing; the justices don’t live in caves and presumably are well-read. They know exactly what is happening, but have shamefully chosen to look away and let Trump do his worst AFTER they gave him immunity to break criminal laws.

Justice Jackson’s dissent hit it hard: “The Court’s decision to permit the Executive to violate the Constitution with respect to anyone who has not yet sued is an existential threat to the rule of law. It is important to recognize that the Executive’s bid to vanquish so-called “universal injunctions” is, at bottom, a request for this Court’s permission to engage in unlawful behavior. When the Government says “do not allow the lower courts to enjoin executive action universally as a remedy for unconstitutional conduct,” what it is actually saying is that the Executive wants to continue doing something that a court has determined violates the Constitution— please allow this. That is some solicitation. With its ruling, the majority largely grants the Government’s wish. But, in my view, if this country is going to persist as a Nation of laws and not men, the Judiciary (had) no choice but to deny it.

The Roberts Court will will have blood on its hands within the week. This decision will be cited in history books explaining how the fall of America’s rule of law converted the world's strongest democracy into a fascist autocracy.

That is if history books are even allowed in five years.

NOW READ: This lifelong Republican was always wrong — until now

Sabrina Haake is a columnist and 25+ year federal trial attorney specializing in 1st and 14th A defense. Her Substack, The Haake Take, is free.

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