The Supreme Court just agreed to hear a case challenging birthright citizenship, aka the Trump administration’s attempt to write a major portion of the 14th Amendment out of existence—and even if the bad guys don’t prevail here, all of this feels very not great.
Thus far in President Donald Trump’s second term, nearly every time the administration has lost big at a lower court, it has solved that problem by running to the Supreme Court. And why not? It’s been a super-successful approach thus far.
Since Trump took office on Jan. 20, 2025, there have been 23 shadow docket decisions in which the court grants or denies emergency relief while lower court litigation is still pending. The administration has prevailed, at least partially, in 20 of those, losing only three times. In seven of those decisions, the justices didn’t even bother to explain the ruling at all.
In a different world, we could take heart that literally every lower court that has examined whether Trump can just scribble birthright citizenship right out of the Constitution via executive order has said not just no, but hell no. In that imaginary other, better world, one could possibly assume that the Supreme Court took up the case only to provide a final, unappealable, nationwide ruling affirming those lower courts.
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However, the Supreme Court has made a regular occurrence out of telling the lower courts to go pound sand. Recall that it was a different challenge to Trump’s birthright citizenship executive order that the Supreme Court ruled on back in June.
There, the court completely kneecapped the lower courts, saying that they can generally no longer issue nationwide injunctions against the government for … reasons. The court’s conservatives were far more eager to put the lower courts in their place than to address the whole getting rid of the 14th Amendment part of things.
The other unnerving facet here is that there is no legitimate controversy over whether children born in the United States to non-citizens are citizens. This was a thing largely invented out of whole cloth by crackpot lawyer John Eastman, who was mostly alone in his nativist, racist crusade for years.
Too bad Eastman won’t be able to participate in this glorious affair, however, as he’s currently facing disbarment proceedings in California and suspended from practicing in Washington, D.C., thanks to his efforts to help Trump overturn the 2020 election.
Other academics took up the cause, however, allowing the Department of Justice to say that “[a] growing body of modern scholarship reinforces” the view that the 14th Amendment does not confer citizenship at birth to nearly everyone born here.
Fun fact: The “growing body” the DOJ is referring to here did not exist until after Trump issued his executive order purporting to ban birthright citizenship.
There are plenty of smart, cautious people who are not out here predicting doom, and that is comforting. Steve Vladeck, arguably the foremost authority on Supreme Court shadow docket shenanigans, has been tracking the birthright citizenship cases for months, and his take is that even the conservative justices will easily rule against the administration and that the administration knows it and is just going through the motions.
Aaron Reichlin-Melnick, a senior fellow at the American Immigration Council and no fan of the administration, also says that there is “just too much history, and too much law” against Trump’s position.
There’s also a very cynical reason to be hopeful, odd as that may sound. Chief Justice John Roberts, who was at least at one point very concerned about his legacy, could use this as an opportunity to slap Trump down as a way to say, “See? This court doesn’t just move in lockstep with Trump and give him everything he wants!” However, Roberts also invented a vast, sweeping immunity for Trump and, in the past year, has almost always joined his conservative colleagues in letting Trump elevate himself over the Constitution.
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Let’s face it: There’s also the issue that even if the Supreme Court were to rule against the administration here, it isn’t as if Trump isn’t going to try to find another angle or just straight-up deport children who are citizens regardless.
So perhaps doomering about the Supreme Court may not be warranted in this instance, but doomering about the Trump administration always is.
