Alternate Universe: A (Sort of) Independent Supreme Court

After years of playing stooge to Donald Trump and enabling his crusade to undermine democracy and create an authoritarian United States, the Supreme Court has recently showed glimmers of recognition that they actually bear some responsibility for the nation’s descent. With the exception of Justices Thomas and Alito, both of whom behave as if they more belong on a court of the Inquisition than the one on which they currently sit, the Court, to the surprise of many, has taken some baby steps toward the center.

Most recently, the Court refused to hear an appeal by a Massachusetts middle school student, Liam Morrison, who claimed his free speech rights were violated when the school demanded he not wear a t-shirt that read, “There Are Only Two Genders.” The school administration gave him the choice of changing the shirt or going home. Morrison went home. Shortly thereafter, he returned with a different t-shirt, this one reading, “There Are CENSORED Genders.” The school would not allow that one either.

The free speech argument used as precedent Tinker v. Des Moines Independent Community School District, a 1969 decision that allowed students to wear black arm bands to school as a protest against the Vietnam War. Still, Morrison lost both in district court and the court of appeals. At the Supreme Court, with the exception of Thomas and Alito, the justices also apparently recognized the difference in the two cases. In Tinker, students were protesting government action, while here, Morrison was seen as attacking and demeaning a personal characteristic of his fellow students. The surprise is that the personal characteristic was gender orientation, right at the top of conservatives’ hit list.

Thomas’s dissent was especially interesting. Here was a justice who has forcefully advocated ignoring precedent whenever it conflicted with his own ideology, as he did with Roe, but now he wrote, “Unless and until this court revisits it, Tinker is binding precedent that lower courts must faithfully apply.”

Sure.

Speaking of which, the Court recently heard an emergency appeal by the Trump administration to set aside a number of local court rulings that blocked his executive order revoking birthright citizenship and overturning two centuries of precedent.

The government’s petition did not go to the merits of Trump’s directive, but rather whether a judge in one jurisdiction could initiate a “universal order” blocking enforcement of the measure across the entire nation. This is the sort of case in which the Court has repeatedly sided with Trump’s transparent attempts to expand executive power far beyond what those who drafted the Constitution had in mind.

The justices are unlikely to side with him here.

During the arguments, although Thomas questioned the use of universal orders, even he did not defend the administration’s incredibly weak underlying thesis. Trump has claimed that because the 14^th Amendment reads, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof,” children of those here illegally are not actually under the jurisdiction of the United States, but instead of the country from which their parents had fled, what is referred to as jus sanguinis, “law of blood.”

The United States, however, has always been a jus soli nation, “law of soil,” where citizenship is determined by where one is born, not where one’s forebears were. Although that standard was upheld in United States v. Wong Kim Ark in 1898, what is not widely known is that the principle that anyone in our nation is subject to our jurisdiction predates the 14^th Amendment and was first enunciated in 1812 by revered Chief Justice John Marshall.

In Schooner Exchange v. McFaddon, Marshall left little doubt. “The jurisdiction of the nation within its own territory is necessarily exclusive and absolute,” he wrote. “It would be obviously inconvenient and dangerous to society, and would subject the laws to continual infraction and the government to degradation, if…individuals…did not owe temporary and local allegiance, and were not amenable to the jurisdiction of the country.” Thus anyone in the United States, regardless of how they arrived, is indeed subject to United States jurisdiction, which includes parents here illegally. With that, Marshall has let the air out of Trump’s balloon.

The justices seem to be aware that overruling Harry Blackmun in Roe is one thing, but overruling John Marshall quite another. Justice Gorsuch, referring to the coming case on the merits of the executive order, asked the Solicitor General if the administration intended to appeal to the Supreme Court “when it lost” in appeals court, not “if.” While the Solicitor General replied, “Yes, absolutely,” if he lost,” given the tone of the recent hearing, birthright citizenship seems as if it will remain the law of the land.

A third case is St. Isidore of Seville Catholic Virtual School v. Drummond, in which, to the shock of many on the right, the Court refused to annul a lower court decision that forbade Oklahoma from using public funds to create a charter school under the aegis of the Catholic Church. This wasn’t a clear victory, since the vote was 4-4, with Amy Coney Barrett recusing herself for reasons she did not share with the public.

But that recusal alone is telling. This is a Court where Clarence Thomas did not recuse himself from a case in which his own wife had an interest. Barrett’s recusal in this one gave the Court cover, at least temporarily, and also meant that at least one of the conservatives, likely the Chief Justice, sided with the liberals. There is no telling how Oklahoma or the Church will fare when the case is reformulated, as it is sure to be, but even this temporary setback for the frequently trotted out and essentially bogus notion of “religious liberty”—bogus because giving liberty to one religion often means taking it from another—is significant.

Make no mistake. These and other decisions against Trump’s wilder ideas are indeed baby steps. This Court is not going to magically become liberal. But (most of) the justices seem aware they have lost a good deal of legitimacy and appear eager to try to get it back.

That Trump will do everything he can to ignore or end-run the judiciary, as he did in the Kilmar Abrego case, is a given. But open defiance of the Supreme Court might be too much, even for him.

Given the sad state of our present government, the best we can hope for is a holding action until November 2026, when, if the stars align and the economy tanks, Congress might be in play. The Supreme Court might help just a teeny little bit in achieving one.