The Supreme Court’s three liberal justices issued fiery dissents Friday in response to the conservative majority’s decision to let President Trump’s birthright citizenship executive order go into effect in some parts of the country.
Justice Sonia Sotomayor argued in a dissent joined by Justices Elena Kagan and Ketanji Brown Jackson that the decision that the majority played into the president’s hand by cutting back the ability of judges on lower courts to issue injunctions blocking Trump’s policies nationwide.
She noted the government has not asked for complete stays of the injunctions because, to get such relief, it would have to prove Trump’s order narrowing birthright citizenship for children born on U.S. soil who don’t have at least one parent with permanent legal status is likely constitutional.
“So the Government instead tries its hand at a different game,” she said, pointing to the Trump administration’s bid to tear down nationwide injunctions.
“The gamesmanship in this request is apparent and the Government makes no attempt to hide it,” she said. “Yet, shamefully, this Court plays along.”
Sotomayor argued the rule of law is “not a given,” and the high court “abdicates its vital role” in fighting for its survival in America today.
“With the stroke of a pen, the President has made a ‘solemn mockery’ of our Constitution,” Sotomayor wrote. “Rather than stand firm, the Court gives way. Because such complicity should know no place in our system of law, I dissent.”
She read her dissent from the bench, the second time this term she has done so.
In a separate, solo dissent, Jackson went a step further. She called the court’s 6-3 decision along ideological lines an “existential threat to the rule of law.”
“It is important to recognize that the Executive’s bid to vanquish so-called ‘universal injunctions’ is, at bottom, a request for this Court’s permission to engage in unlawful behavior,” Jackson wrote in her dissent. “When the Government says ‘do not allow the lower courts to enjoin executive action universally as a remedy for unconstitutional conduct,’ what it is actually saying is that the Executive wants to continue doing something that a court has determined violates the Constitution— please allow this. That is some solicitation.”
Jackson suggested the Constitution was designed to “split the powers of a monarch” between three governing branches to protect the American people from overreach. She said those core values are “strangely absent” from the majority ruling.
“With deep disillusionment, I dissent,” she wrote.
In the court’s majority opinion, Justice Amy Coney Barrett forcefully pushed back against Jackson’s suggestion the court shirked on its duty to protect the people from government overreach.
She said she would “not dwell” on Jackson’s argument, claiming it is at odds with “more than two centuries’ worth of precedent, not to mention the Constitution itself.”
“We observe only this: Justice Jackson decries an imperial Executive while embracing an imperial Judiciary,” Barrett wrote. “No one disputes that the Executive has a duty to follow the law. But the Judiciary does not have unbridled authority to enforce this obligation—in fact, sometimes the law prohibits the Judiciary from doing so.
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