The Supreme Court Has Issued The Worst Decision Since The Dred Scott Case (1857)
What happens when the Trump Six ignores the very text of the document they are supposed to interpret?
After reading the Court’s summary of Trump v. CASA, Inc. (a consolidated case that involved 23 states as well), I decided to listen to the 5-4 podcast covering this case, finding myself simultaneously relieved (that my internal analysis was correct) and horrified (of the implications of that analysis). I began writing this piece, only to find myself equally as horrified by the same justices allowing the dismantling of the Education Department, again, without any sort of lawful procedure. That action flies in the face of the clear text of Article II, Section II of the Constitution and subordinate statutes regarding Cabinet departments…but the CASA case is worse, which is why I’ll be spending time on this.
This is, without question, the worst Supreme Court decision of all time. It is worse than Dred Scott (1857), a case that has reigned supreme as the peak example of terrible jurisprudence for over a century. That is not hyperbole. That is not sensationalism. It’s a cold statement of fact, and here is why.
Dred Scott, authored by the execrable Chief Justice Roger Taney (winner of the 5-4/Balls and Strikes Worst Supreme Court Justice of All Time award), declared that any freed Black person did not retain their freedom should they cross south of the Missouri Compromise line. It further ruled that no such person held citizenship in the United States. It was such a bad decision Jefferson Davis probably blushed reading it. The end result clashes in border states between slave catchers and anti-slavery activists, culminating in John Brown’s raid on Harpers Ferry in 1859 to gain arms that could be used to free slaves. The Civil War followed soon thereafter. It was, without question, a miserable ruling in the annals of American history.
And yet, it did not go this far.
As bad as the Taney decision is/was, what he did not do was give away the authority of the courts. He did not give away the power of Congress. He did not say that the executive, e.g. the President, was the almighty arbiter of all that is lawful. John Roberts and company, meanwhile, keep writing these decisions that they pretend are temporary, but by their very inaction to rein in a President off the deep end, allow Donald Trump to commit illegal acts that are difficult, if not impossible, to reverse. Their decision opens with this ludicrous statement of “fact”: The issue raised by these applications—whether Congress has granted federal courts authority to universally enjoin the enforcement of an executive order—plainly warrants this Court’s review. That’s not the issue here at all! The issue is that the injunction is preventing the execution of an executive order removing a Constitutional right from citizens. It is shameless to a degree I did not think possible from anyone outside of Justices Alito and Thomas. It gets worse.
The Government is likely to succeed on the merits of its claim that the District Courts lacked authority to issue universal injunctions.
Really? Why would that be? As noted in your own opinion, MAGA Six, the government has asked for this reconsideration many times across administrations on both sides. What changed? You six justices are the same people who’ve been together nearly five years. There have been repeated requests against injunctions, including injunctions filed by plaintiffs who had no standing whatsoever, and the MAGA Six said, “nah, we’re good, injunctions can stand nationwide,” denying us things like student loan relief. Meanwhile, now, plaintiffs who will be harmed by the basic denial of citizenship that the Fourteenth Amendment, Section 1 grants them without exception are told, “um, so about those nationwide injunctions? We think they’re bad now.”
It would be trite to simply point out that this is gross politicking by the five men of the MAGA Six (at least Justice Barrett attempted to provide a legal framework in her own concurrence). That much is obvious to anyone with a functioning, non-pundit-poisoned brain. The real danger is from what was not said and what was not decided. What was not confronted in this case was whether the executive order declaring birthright citizenship null and void in certain instances is constitutional. The MAGA Six knows it is not, but because they want to support the MAGA Chieftain politically, they won’t tell him that. Therefore, they release this veneer of legalese claiming to only rule on the merits of nationwide injunctions being lawful when issued at the district court level, but by claiming that such an injunction “irreparably harms the administration” by not allowing it to carry out the President’s order, they are directly implying that the President’s ability to do whatever he wants supersedes the constitutional rights of Americans.
The authors of the Emancipation Amendments (13th-15th) knew that there would be attacks on the citizenship of the newly freed slaves, and so they clearly wrote in the 14th Amendment, “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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” It doesn’t say “all men” or “all white people” or “all people who came through our byzantine immigration processes.” In 1865, there was no such thing as illegal immigration. Until we began to impose racist quota systems on immigration in the early 20th century, there still was nothing illegal about immigration in any form. Any attempt by Donald Trump, Stephen Miller, the MAGA Six, etc, to retroactively reword this makes a mockery of their “originalism” legal theories and of the meaning of language. It says what it says. That’s what is so dangerous about arguing that it doesn’t.
Beyond that, whether the MAGA Six realize it or not, they have also made themselves irrelevant. Without question, this is the most dangerous presidential action in history. The Supreme Court removed the one brake on Trump’s power by allowing him to proceed with revoking citizenship. If the President’s desires are greater than our rights, if he cannot face prosecution for illegal acts “made in the course of his actions as chief executive,” if he can revoke citizenship on his say-so, then he doesn’t need to listen to the courts ever. Why would he stop if the Court decides to do its job this fall and order a halt to any removal of citizenship? They’ve given him no reason to by allowing him to start in the first place!
Proponents of this decision will say we shouldn’t be concerned, that the executive order only applies to “illegals.” You know, the same way the Nazis told people not to worry about the camps, it was only for the Communists and Socialists, then it was for the Jews, and then it was for anyone who criticized Der Führer. The American concentration camps are being built. Donald Trump can ignore anything this feckless Congress or these spineless MAGA Six justices say, do as he pleases, deport people to violent countries with murderous dictators at a whim, and use the newly expanded ICE as his personal army to disappear anyone who even says boo. Los Angeles is still occupied by militarized thugs snatching people left and right, while the “immigration czar” Tom Homan, a wannabe Hermann Goering if you ever saw one, claims “People need to understand ICE officers and Border Patrol don't need probable cause to walk up to somebody, briefly detain them, and question them ... based on their physical appearance."
The autocracy is here, and you can thank the MAGA Six Justices for removing the final barrier to it.