How Brett Kavanaugh paved the way for Trump’s brazen Supreme Court defiance

President Donald Trump greets Supreme Court justices after addressing a joint session of Congress, March 4, 2025. Image via Screengrab / PBS.

More often than not, the U.S. Supreme Court's 6-3 right-wing supermajority has been favorable to President Donald Trump's positions — from presidential immunity in Trump v. the United States to overturning Roe v. Wade with Dobbs v. Jackson Women's Health Organization. But Trump remains bitter over High Court decisions that weren't favorable to him, angrily railing against rulings on tariffs and birthright citizenship and looking for ways to get around rulings he doesn't like. And according to Slate's Alex Romero, Justice Brett Kavanaugh — the second of three conservative justices Trump appointed during his first term — helped pave the way for the president's defiance of SCOTUS.

"Last week," Romero explains in analysis for Slate, "President Donald Trump continued his defiant stance against the Supreme Court's birthright citizenship decision from earlier this summer, firing off two new executive orders about which people born in the U.S. should be declared citizens. Despite losing at the Supreme Court on the legal issue in late June, the Trump administration remains committed to twisting a long-settled constitutional question into a tool to keep Black and brown people out of American life. The conservative legal movement, at first skeptical of Trump's original executive order attacking birthright citizenship, has now fully embraced the cause. And the cause's survival can all be traced back to our Supreme Court's unwillingness to give the Trump administration the overwhelming legal defeats it deserves."

In Trump v. Barbara, the High Court struck down the president's executive order on birthright citizenship, which most of the justices said was protected by the U.S. Constitution's 14th Amendment. But many liberals and progressives, along with some right-wing Never Trump conservatives and libertarians, argued that the ruling could have been much more emphatic — and that it was way too close for comfort.

"It's not unusual for President Trump to try to ignore or twist a legal ruling on an issue he lost on," Romero observes. "The better question is why he thinks the effort will succeed. After all, there are other areas where Trump has quietly retreated after a court loss or public outcry. The reason the president persists is that despite all this history, text, and precedent, only five of the nine justices read the 14th Amendment as protecting birthright citizenship in Barbara. The narrowness of that margin was and continues to be a scandal. Justice Brett Kavanaugh sided with Justices Neil Gorsuch, Clarence Thomas, and Samuel Alito in saying they would rule that the Constitution does not protect birthright citizenship for children of immigrants who don't have permanent legal status or are temporary visitors."

Romero continues, "Kavanaugh, in a separate opinion joined by nobody, thought the executive order only contradicted a federal statute that Congress could change. Let's be clear: This Court was one vote away from doing Dred Scott for yet a new group of people who lack political power. All in defense of an order that has been rightly condemned as 'blatantly unconstitutional.' Barbara….is also a symptom of a Court that operates in a lopsided manner that favors the administration. This is especially true in the immigration context."

From Your Site Articles