The Fix: To Hell With the Court

A Supreme Court that enables authoritarianism does not deserve to rule.

As another Supreme Court term comes to an end, it is hard to decide which of its abominable decisions was the worst. Which entailed the most egregious assault on rights? Which involved the most dishonest reading of the law? Which displayed the most contempt for the separation of powers?

Was it Trump v. Wilcox, in which the Court blessed President Donald Trump's dismissal of two senior officials without cause in blatant disregard of past precedent and statutory law?

Was it United States v. Skrmetti, in which the conservative majority pretended that explicit discrimination on the basis of sex is not, in fact, discrimination on the basis of sex?

Maybe it was Department of Homeland Security v. D.V.D. which authorizes the administration to deport noncitizens to violent, repressive countries without any opportunity to contest the decision before a judge?

Fortunately, D.V.D. does not permit the deportation of just anyone; it only applies to people whom a judge has already deemed eligible for removal.

Nevertheless, judges often decide that deportable persons cannot be transferred to their countries-of-origin due to the threat that they might face torture.

According to the Supreme Court’s ruling in D.V.D., however, the government can still deport such individuals to a third country—without allowing them to challenge that decision. It can do so even if the country in question is one where the defendant might conceivably endure mistreatment and was chosen for that purpose to fulfill Stephen Miller’s weird psychosexual fantasy.

Deporting people to places where they are likely to endure human rights abuses violates the Convention Against Torture, an international treaty which Congress ratified decades ago and whose implementation it passed numerous laws to facilitate. Thanks to the Supreme Court, the Trump administration is now free to ignore it.

Suspending the Constitution

But perhaps the Court’s most reprehensible decision of late was Trump v. CASA. In this case, the Roberts majority looked at the birthright citizenship clause of the Fourteenth Amendment and decided, “nah.”

The Fourteenth Amendment guarantees citizenship to anyone born in the US. Its language could not possibly be clearer. It states: “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.”

Enacted after the Civil War, the amendment’s immediate purpose was to grant automatic citizenship to the formerly enslaved. Nevertheless, its framers were explicit that the right applies to anyone born in the US, African-American or not.

In line with his aim to remake America as a white nation, Trump signed an executive order the very day he was inaugurated that declared the birthright citizenship clause null and void.

Given the order’s blatant unconstitutionality, three different federal judges subsequently issued nationwide injunctions barring it from taking force.

The administration then appealed to the Supreme Court, where it can expect a sympathetic hearing on any action, however illegal, which shits on the rights of Brown people.

To be clear, there was nothing stopping the Court from ruling on the legality of Trump's order. Still, it chose not to. For that would have put the Republican justices in a bind: Either affirm the Fourteenth Amendment, which they have long endeavored to undermine, or pretend that it does not say what it plainly does, thereby debasing themselves before the entire legal community.

To avoid this tradeoff, the majority decided that it would say nothing about the order’s constitutionality, at least for now. Instead, it would rule only on whether federal judges have the authority to enact nationwide injunctions of the kind that had prevented the order from going into effect.

One could make a valid case that such injunctions should be disallowed. But as Sherrilyn Ifill explains, the Court chose a hell of a time to do it.

Ifill, a civil rights attorney who heads the Fourteenth Amendment Center for Law and Democracy at the Howard University School of Law, cannot see any legitimate basis for

this majority’s extension of the executive’s power to allow the President to flagrantly violate express guarantees of citizenship under the Constitution. I say “this” President, because the Court’s hands-off approach to nationwide injunctions issued against Biden Administration initiatives (student loan forgiveness, moratorium on new oil and gas leases) makes clear that it is only Republican Presidents—or maybe only President Trump— who the conservative justices believe must [be] free from the constraints of district court orders.

In other words, the same justices who were fine with nationwide injunctions under President Biden suddenly discovered they were unconstitutional the minute they constrained Trump from doing a racism.

Fancy that.

The CASA ruling permits the Trump administration to disregard a fundamental Constitutional right. To be sure, it cannot deny birthright citizenship throughout the land. It can only do so to noncitizens who have not filed suit against the administration and to the residents of states whose (Democratic) governments have not challenged the executive order in court. For all other noncitizens, however, birthright citizenship no longer exists.

Are you a baby born to a noncitizen family in California? You are in luck, as you will receive automatic US citizenship just as the Fourteenth Amendment requires. That is because the State of California has already sued to stop the order from taking effect.

Were you instead born in Texas, whose attorney general is a Republican prick who endorses Trump's vile bigotry? If that is you, I am sorry to tell you that you are fated to grow up stateless, without any of the privileges that the Constitution affords to citizens. You can even be deported, at least until the Roberts majority gets around to deciding that Trump's unconstitutional order actually is unconstitutional.

As you might imagine, the Court’s liberal justices pulled no punches in condemning the decision. “No right is safe in the new legal regime the Court creates,” proclaimed Sonia Sotomayor in a withering dissent. CASA, she wrote, “renders Constitutional guarantees meaningful in name only.”

Ketanji Brown Jackson was equally unsparing, warning that the ruling “is an existential threat to the rule of law.”

Ifill, of Howard University, concurs, while also highlighting how the Roberts majority is facilitating Trump's lawless, authoritarian behavior. The administration, she observes, “is pretty flagrantly playing in the face of district court judges, defying orders, subverting the district court, and lying to district courts. The Supreme Court is aware of all this and they seem not to be bothered by it.”

“Time and time again,” notes Madiba K. Dennie of Balls & Strikes, “a district court judge orders the Trump administration to follow the law, the administration asks the Court to let it keep breaking the law, and the Court grants the administration’s request.”

In sum, at the same time that it has ignored the Constitution and disregarded statutory law, the Roberts majority has selectively hobbled Democrats while enabling Trump and his party to destroy the republic.

No Confidence

Legal scholars are having a tough time explaining to their law students why they should lend the Supreme Court any credibility at all. This is not a new development. In 2008, Larry Kramer resigned as Dean of Stanford Law School in response to the Court’s decision in District of Columbia v. Heller.

Heller amounted to a wholesale rewriting of the Second Amendment. The amendment grants the right to bear arms not to anyone who wants a gun but only to the members of a “well regulated Militia.” Heller ignores this text, along with decades of judicial precedent, and grants the right of gun ownership to anyone who meets the regulatory requirements of their state.

“I couldn’t stand up in front of the class and pretend the students should take the court seriously,” Kramer said of the decision.

But that was almost twenty years ago. Now, a growing number of scholars are at their wits’ end. “While I was working on my syllabus for this course, I literally burst into tears,” Rebecca Brown of the University of Southern California recounted. Brown, who has been teaching law for 35 years, “couldn’t figure out how any of this makes sense. Why do we respect it? Why do we do any of it?”

“Flat-out bonkers,” Sandy Levinson, a professor at the University of Texas law school, remarked on Clarence Thomas’s 2022 decision in New York State Rifle & Pistol Association Inc. v. Bruen. Bruen went even further than Heller by effectively banning all laws restricting gun ownership. “I try to imagine, what if this were a seminar paper?” he said of Thomas’s distorted reasoning.

Lee Epstein, of the University of Southern California, agrees. “It sounds almost crazy when you put it that way, doesn’t it?” he said of Bruen. He was referring to Justice Thomas’s historically illiterate effort to identify a precedent for the decision in English common law. “It’s made-up history. No sense of judicial humility.”

The general public might lack these scholars’ expertise. But it can still recognize the Court’s unapologetic hypocrisy, glaring dishonesty, and shameless corruption for what it is.

Over the past few decades, Gallup has surveyed respondents in more than 160 countries on their views of their judicial systems. A December poll found a stunning drop in public confidence in America’s judiciary, which declined a full 24 percentage points from 2020 to 2024, down from 59 to 35 percent.

Only nine other countries in the entire history of the poll have experienced sharper falls than the US.

Annals of Disgrace

The shameful record of the Court in its most recent term is consistent with its equally ignominious decisions in previous years.

One of many such examples was its evisceration of the Voting Rights Act, the most important legislative act in American history. Its passage in 1965 marked the fulfillment of the Constitution’s century-old promise of multiracial democracy.

Alternatively, consider the Court’s decision in Trump v. United States (2024). By granting Trump a get-out-of-jail-free card for his many crimes in his first term, it repudiated the core principle underpinning the American experiment: that the people shall not be subject to elected kings.

Or take Dobbs v. Jackson (2022), which ruled that people who become pregnant do not enjoy the rights that the Constitution plainly affords them.

It is evil enough to force those who consented to have sex give birth against their will. But consigning them to die preventable deaths by bleeding out in hospital parking lots? Or making child rape victims carry their assailants’ offspring to term? That is downright barbaric.

The extraordinary burden pregnancy imposes on a person, much less that involved in raising a child, makes abortion bans impossible to defend—at least if one accepts that women are actual people as opposed to “incubators with mouthparts,” to borrow Elie Mystal’s eloquent framing.

In Allow Me to Retort: A Black Guy's Guide to the Constitution, Mystal, the justice correspondent for The Nation magazine, argues compellingly that forced birth is indefensible under any circumstances. It is indefensible on moral grounds. It is indefensible on “originalist” grounds, meaning as a doctrine that the Founders would have endorsed. And it is indefensible on Constitutional grounds.

Contrary to the conceit of Republican Supreme Court justices, Mystal says, one cannot possibly argue that the Constitution’s drafters somehow valued the lives of the unborn:

Don’t you dare fix your lying mouth to tell me that these people who condemned their own progeny to bondage and torment, for the sin of being conceived in the womb of a colored woman—a woman they would continue to work and rape while she was pregnant with their child—gave one damn about the health and safety of “the unborn.”

But that is not all. For not only are abortion bans inconsistent with the Founders’ priorities; they violate the Constitution itself. Forced birth, by any reasonable standard, flouts the Eighth Amendment’s prohibition against cruel and unusual punishment. It likewise contravenes the Thirteenth Amendment’s ban on forced labor.

And let us not forget the Fourteenth Amendment, which guarantees equality under the law. If, again, we accept the principle that women are people, as men are, Mystal contends, then we can hardly deny reproductive freedom to one of those categories while affording it to the other.

We Don’t Need the Supreme Court

Most Americans, especially those who came of age during the late twentieth century, view the Supreme Court as an important, if flawed, guarantor of individual rights. But this perception stems from a relatively brief period in the middle of the century when the Court, under Chief Justice Earl Warren, actually fulfilled its liberal, egalitarian potential.

This era, which lasted from 1953 to 1969 and also encompassed a handful of years that followed, was the one that gave us such hallowed decisions as Brown v. Board of Education (1954), which ended racial segregation; Loving v. Virginia (1967), which legalized interracial marriage; and Roe v. Wade (1973), which made abortion the law of the land.

But as we will see next time, the Supreme Court did not advance freedom and inequality during the rest of its history. Far from it, in fact; it enabled the powerful and abetted their assault on human dignity.

In this regard, the Roberts Court has further—and radically—brought the judiciary back into line with its sordid past. It has taken the promise set forth in America’s founding documents and made a mockery of it.

Those of us who take this promise seriously are under no obligation to respect a reactionary judicial cabal that pisses on it year after year. By enabling Trump’s bid for dictatorship, the Court’s rightwing majority has relinquished any legitimate claim to rule over us.

Fortunately, there are remedies that can check its excesses—ones that will not only prove effective but, in a post-Trump world, become increasingly realistic. Next time, we will consider what these remedies are.

Now Reading

Timothy Snyder, for Thinking About…, on how concentration camps and slave labor might be coming to America.

John Ganz, for Unpopular Front, on the implications of Trump's attack on birthright citizenship.

Anne Applebaum, for The Atlantic, on what happens when Trump's revolution runs into obstacles.

Spencer Ackerman, for Zeteo, on the racist moral panic over New York mayoral candidate Zohran Mamdami.

Robert McCoy, for The New Republic, on the astounding expansion of ICE that is in store now that Trump's budget bill has passed.