This year's Supreme Court term ended with a string of bangers, beginning with Louisiana v. Callais where the Court held that partisan gerrymandering is Constitutionally acceptable because "vast social change has occurred throughout the country and particularly in the South, which have made great strides in ending entrenched racial discrimination," cresting with Mullin v. Doe where the Court held that the Trump administration did not act from racial bias when it revoked TPS status for all covered Haitians even though the Court admitted that President Trump "broadly denigrate[d] ... Haiti ... as [a] hellish place[] in which to live" and made "some statements malign[ing] Haitians who have come to the United States," and culminating in Trump v. Barbara where the Court said that the 14th Amendment says what it says (as they said 128 years ago) so people born here are citizens but people who read cases for a living are still nervous. Does that all make sense? No? Let me explain, or at least sum up.
As I said here several times before, the Constitution says whatever five out of nine middle-aged-to-elderly judges think it says. People don't like that, so SCOTUS typically, or at least used to, coalesce around an opinion that all nine would sign for majorly important Constitutional issues. Cases like Brown v. Board of Education, Loving v. Virginia, US v. Nixon, Trump v. Anderson. For whatever reason that didn't happen this term--everyone went all YOLO and did whatever the hell they want. If you're interested in deep analyses go read David French in NYT or any of the myriad articles on The Bulwark and The Atlantic. If you prefer something more passive but still insightful you can watch this. I'm keeping it Gheorghe.
Callais will make your head spin. Writing for the majority, Justice Alito said that states may draw congressional districts on a partisan basis without running afoul of the Voting Rights Act of 1965 despite holding in 2019 that political gerrymanders "present a 'political question' and [are thus] nonjusticiable—outside the courts' competence and therefore beyond the courts’ jurisdiction." And they allowed Louisiana to implement their new congressional map immediately even though mail-in voting had already started and their 2007 decision in Purcell v. Gonzalez says you can't do that. Fortunately, racial gerrymanders are still impermissible, but race is, of course, a proxy for party alignment. There is one Black Republican senator (Tim Scott) and he is only the fourth ever. Two of the other three (Hiram Rhodes Revels and Blanche K. Bruce) served in the 1870s back when the GOP was the party of Lincoln and the third (Edward Brooke) served on behalf of Massachusetts from 1967-1979. According to Gemini, "There are 61 Black members serving in the U.S. House of Representatives, including two Delegates. This figure includes 57 Democrats and 4 Republicans." So if you see a Black legislator on TV, chances are greater than 90% that they're a Democrat. And when you dilute the Democratic vote there's a good chance you're also diluting the Black vote.
Despite all that, Justice Alito remarkably thinks racism isn't that big of a deal in federal elections anymore. Or maybe he's just racist, I don't know. What I do know is that this Court has torn down the Voting Rights Act starting with Shelby County v. Holder in 2013 and I think their mission is complete. I'll let you form your own views on the motivations.
Justice Alito continued to be remarkable in Mullin v. Doe, a case involving the withdrawal of Temporary Protected Status for Haitians. This withdrawal required two things in order to be Constitutional. First, the relevant statute required the Department of Homeland Security's Secretary to make a "determination" that conditions in Haiti no longer satisfy the statutory requirements supporting TPS. Second, don't be racist. I think the administration failed at both but they won because reasons.
The "determination" aspect required Kristi Noem to do some stuff that she didn't do but Alito just waived his hands at it, claiming that the statute doesn't allow courts to review the determination. This is horseshit. Plaintiffs weren't asking for a review of the determination's conclusion, they were asking for a review of whether Noem followed the process required to form a proper determination. Even more ridiculous: Alito tacitly admitted that Donald Trump and Kristi Noem publicly expressed racist views towards Haitians but concluded that their statements weren't "overtly racial, and in substance all expressed policy views that could rest on race-neutral justifications." I guess thinly veiled racism is ok? Racism covered up by nothing more than two pasties is just fine? Justice Kagan called bullshit on this horseshit and spelled out some of the slurs. I won't repeat them but you can see them on page 46 of the PDF.
I don't know how to reconcile Alito's statement that racism isn't a problem anymore in Callais with his rebuke of Trump's words in Mullin ("poverty and deprivation are no reflection on character, and there is no justification for denigrating the character of Haitians who suffer from and bear no responsibility for their country’s ills"). Or to be more succinct, how is racism a non-issue when the President of the United States says racist stuff?
There were other cases I didn't like this term but they don't surprise me. Brett Kavanaugh, SCOTUS's most famous girls' basketball coach, took pen in hand for West Virginia v. B.P.J., holding that West Virginia may prohibit transgender girls from playing in girls' sports leagues. This isn't a great outcome for transgender girls but it keeps the issue with the states and that's pretty typical for a court of six Republican appointees (or at least it was back on Earth 1.0 before Trump). Situations likely exist where transgender girls should be allowed on girls' teams (like when the girl in question used puberty blockers before puberty) but no one wants SCOTUS making those rules. Let local leagues figure it out. If you're looking for a silver lining, Justice Kavanaugh applied the "intermediate scrutiny" standard of review and that's good, especially for future cases involving more existential transgender issues.
It also comes as no surprise that Chief Justice Roberts wrote Trump v. Slaughter and Trump v. Cook. Both involve separation of powers principles and a conservative hobby horse called the "unitary executive theory" which holds that the President has control over all Executive branch officials, allowing him to fire any of them at his pleasure. If you want to learn more about the unitary executive theory (or fall asleep) you can read this (I had to read it in law school and I don't recommend it). C.J. Roberts is a big fan, given his Reagan/Bush 41/Bush 43 origin story, so he and the five other Republican appointees decided to expand the President's power, allowing him to fire officials from independent agencies. SCOTUS said the President couldn't do this 90 years ago in Humphrey's Executor v. United States but hey, what's precedent and stare decisis when you have a two-thirds majority on the Court! To put a fine point on it, Roberts wrote in Slaughter "If anything more is left of Humphrey’s, we overrule it." (Emphasis in original). Importantly, Roberts wrote in Cook that this does not apply to governors of the Federal Reserve. I don't know why and neither does Roberts or anyone else on the Supreme Court, aside from the need "for the stability and success of the U.S. and world economies." So the unitary executive is all well and good so long as it doesn't play with the Justices' money.
Trump is therefore free to destabilize everything else. The silver lining here is that it's now easier to undo almost all of Trump's agency appointments in the future (assuming we ever have another fair and free election and a Democrat wins). But as with Calais and Mullin, there are some intellectual inconsistencies.
My favorite recent case is Trump v. Barbara where six Justices held that the 14th Amendment provides birthright citizenship. This should've been a really short opinion because this issue was decided in 1898 in United States v. Wong Kim Ark. At the oral argument, Justice Kavanaugh asked counsel for Barbara "if we did agree with you on Wong Kim Ark, that could be just a short opinion, right, that says the better reading is Respondents' reading, government doesn't ask us to overrule, affirmed?" And that approach makes sense. There are many different ways to interpret the law, but this Court loves originalism which is where the Justices follow what the statute's authors intended when they wrote the law. As a result they treat the Constitution like stone tablets handed down by God and try to divine its meaning through blood sacrifice and other ritualistic undertakings. Helpfully, Wong Kim Ark was decided only 30 years after the 14th Amendment was ratified so the Justices interpreting it knew exactly what its authors intended. Originalism! Just do what those guys did and knock off early.
As a practical matter, we all learned of the Constitutional guarantee of birthright citizenship in middle school, so again, open and shut. I never heard anyone question it until we put this dildo back in the White House.
The opinion is 6-3 in favor of birthright citizenship, but only five Justices based that decision on the 14th Amendment. Kavanaugh invalided Trump's executive order in light of 8 U.S.C. §1401(a), a federal statute that implements the 14th Amendment to provide birthright citizenship. Remarkably (I can't stop using that word!), Kavanaugh thinks that Wong Kim Ark is good law but still would've upheld the executive order under the 14th Amendment despite what he said at oral argument. This means that only five justices think the 14th Amendment provides birthright citizenship--with one changed vote it could be taken away by a mere act of Congress (i.e., revoking 8 U.S.C. §1401(a)). So if one of the septuagenarians in the majority (Roberts or Sotomayor) keel over today and Trump puts Jeanine Pirro on the Court, birthright citizenship is over. That's bonkers.
The dissents are mostly upset about the practice of "birth tourism," where foreigners travel to the US to give birth so their child will be a citizen. I can see why this would grind a racist's gears but Gorsuch, this fucking guy.
Here's what he had to say:
Besides addressing temporary visitors, the order also denies the benefits of citizenship to children born in this country to parents who make their permanent home here, but do so in defiance of federal immigration laws. The government insists that aspect of the order can survive any possible legal challenge, too, because individuals can secure domicile in this country only if they do so in compliance with federal law.
About that, however, I harbor doubts. Perhaps Wong Kim Ark does not squarely foreclose the government’s position. After all, that case addressed a child born to parents who lawfully resided in this country. Still, I wonder: Is a child born here to parents who have long chosen to make this Nation their permanent home not a citizen under the Fourteenth Amendment solely because his parents’ presence violates statutory law? If those parents are not domiciled here, then where are they domiciled? And if the answer is nowhere, how can we reconcile that conclusion with this Court’s longstanding recognition that every person is domiciled somewhere? See Desmare v. United States, 93 U.S. 605, 610 (1877). Because the executive order is not facially invalid, these questions may not be properly before us. But their answers are undeniably important to a Nation committed to a view of citizenship open to all children born here to parents who can call this country their home.
Now is exactly the time to address this question Neil. Everyone else did! You should too.
How do I reconcile all this? Easy. The Republican appointees have interpreted Justice Robert Jackson's maxim "We are not final because we are infallible, but we are infallible only because we are final" as a call to YOLO instead of to humility, compromise and order. They have no fucks to give. Which I guess is a classic Republican thing. Happy Fourth!
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