Arguments and Severed Horse Heads: The Supreme Court and Birthright Citizenship

Yesterday the Supreme Court heard arguments in Trump v. Barbara whether Trump’s Executive Order stripping birthright citizenship from children of non-citizens was constitutional.  Every lower court hearing cases regarding the Order ruled that it was unquestionably unconstitutional. The arguments before the justices of our country’s highest court should have taken on the patina of well worn rituals and procedures. However, it was far from normal.

Last year, at an initial hearing before the Court, the a majority of justices kept an injunction on the order in place, staying the implementation of Trump’s Order indefinitely.  The vote was 6-3.  Not shocking, given a radical core of conservative justices seem hell bent on overturning everything that smacks of small “l” liberal governance.  The Court could have left the appeals court in ruling in place, basically saying that the lower court’s ruling was sound.  They did not.  Instead, a least four justices voted to hear the case.

Yesterday, in an unprecedented move, Trump attended the oral arguments. His attendance, for all intents and purposes, was a direct attack on the separation of powers enshrined in our Constitution.   Trump did not stay for all of the arguments, leaving after the first hour.  His message sent, I think.  

Most of the justices, it seemed, were skeptical of the government’s argument that birthright citizenship should be limited.  The government’s argument hinged on the words “subject to the jurisdiction thereof” and the word “domicile” in the seminal 1898 Supreme Court ruling United States Wong Kim Ark.  Their arguments rehashes of earlier losing arguments.  This should be a slam dunk case, but it isn’t.

In a previous post, I predicted with despair that Trump and the government would prevail.  I thought perhaps I was wrong and was heartened when the justices in a 6-3 vote kept the injunction in place.  That signaled the government would most likely not prevail in court.  Yet, I worried that at least four justices wanted to hear the case.  

This case should not be a nail biter.  It has been settled law for 128 years.  But with today’s Court consisting of a super majority of conservatives with a hard-core troika of ultra radical conservative justices, anything is possible.  

Enter Trump.  No sitting president has ever attended oral arguments at the Supreme Court. It is unseemly and I think an assault on the doctrine of the separation of powers.  His presence was like a dog pissing on a tree, marking its territory.  Trump was marking his Order and signaling to everyone, ‘do not rule against me and my Order.’ It was designed, I argue, to intimidate the Justices that are on the fence, so to speak.  That is Barrett and Gorsuch.  Like the Godfather movie, Trump was the decapitated horse’s head laying at the foot of the bed.  A warning of bloody consequences. 

I would not be surprised that folks acting on Trump’s orders engage in a campaign of intimidation, influence, and ever terror against Barrett and Gorsuch in the coming weeks. He will use similar tactics that he has already used on his other perceived enemies.  His no holds bar attack on the Chair of the Federal Reserve is just one very recent example.  DOJ investigations, insinuations of wrongdoing, grand juries, threats of impeachment against other federal judges.  This will get nasty.

Even though many of the justices seemed skeptical in whole or in part of the government’s arguments; to include the Chief Justice Roberts, the majority opinion is far from settled.  The final vote is in doubt in my mind.  Congress abdicated to Trump.   Will the Supreme Court do so as well?   Surrendering the Judicial Branch to Trump, so that he can hang its stuffed head next to all gold and gild in the Oval Office.   That is to be seen.