Washington Whispers: Supreme Subservience

By Jessie Seigel / Washington, D.C.

Under Donald Trump’s administration, the nation’s government has been turned into a full-fledged criminal enterprise. The law has become something Trump and his minions step around, ignore, or crush under foot.

While a number of district and appellate federal courts and some state courts are trying to hold the line against Trump’s lawlessness, the Scotus Six (John Roberts, Samuel Alito, Clarence Thomas, Neil Gorsuch, Brett Kavanagh, and Amy Coney-Barrett) are, in calculated fashion, issuing every backhanded opinion they can to aid and abet the Trump regime’s destruction of the Constitution. Their actions make them a knowing part of that enterprise.

The latest game of the Six is to ignore violations of the Constitution and, instead, prevent lower courts from stopping them. Thus, they enable the Trump regime to continue its illegal actions—in particular, enforcement of blatantly unconstitutional executive orders--for an interminable interim while the real issues concerning constitutionality ostensibly continue to be litigated.

Numerous district courts have issued injunctions to prevent the Trump Administration from carrying out actions that appear to violate the Constitution because it is likely that irreparable harm will occur if the action is not stopped until its legality is determined. For example, deporting people before a court determines whether or not the government has a legal right to deport them, thus denying those deported the due process required by the Constitution’s Fifth amendment.

For the survival of democracy, last week’s majority opinion in Trump v. Casa is the Court’s most egregious limitation of injunctions. It enables Trump to negate the Constitution’s definition of citizenship—the core of what makes America America.

The Fourteenth Amendment to the Constitution, in its very first section clearly states:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

This straight-forward language has also been upheld in Supreme Court case law for more than 125 years.

Everyone born here, except for Native Americans, has ancestors who were born elsewhere. By definition, America is a nation of immigrants and the children of immigrants. To negate that is to deny America’s essence.

Nevertheless, on January 20, Trump issued an executive order that falsely claims “the privilege of United States citizenship does not automatically extend to persons born in the United States.” His order denies citizenship to children born in the U.S. whether their parents entered the country illegally, or legally on temporary work and tourism visas.

If the country permits that game, it will open the door to denial of anyone’s citizenship. Was your mother an immigrant? How about your grandmother? Your great-grandmother?

District courts issued injunctions preventing Trump’s executive order from going into effect. Those injunctions applied to the whole country. On appeal, the government cleverly avoided arguing the legality of Trump’s order. Instead, it asked the Supreme Court to find the lower courts’ orders could only apply to the particular individuals before them. This would leave Trump free to apply his order nationwide to anyone who is not a party to those particular cases.

Without even a sly wink, Justice Coney-Barret, writing for the majority, found for Trump, maintaining the court was not deciding whether the executive order was constitutional, but only whether a single judge has the authority to issue universal injunctions.

In her dissent, Justice Sonya Sotomayor correctly assessed the majority’s stance, writing: “The gamesmanship in [Trump’s] request is apparent and the Government makes no attempt to hide it. Yet, shamefully, this Court plays along.” She added: “Until the day that every affected person manages to become party to a lawsuit and secures for himself injunctive relief, the Government may act lawlessly indefinitely.”

More broadly, Sotomayor warned: “The rule of law is not a given in this Nation, nor any other. It is a precept of our democracy that will endure only if those brave enough in every branch fight for its survival. Today, the Court abdicates its vital role in that effort.”

Justice Ketanji Jackson wrote a separate dissent in which she warned even more strongly of the demise of our democracy, stating: “I have no doubt that, if judges must allow the Executive to act unlawfully in some circumstances, as the Court concludes today, executive lawlessness will flourish, and from there, it is not difficult to predict how this all ends.”

Jackson added, “Eventually, executive power will become completely uncontainable, and our beloved constitutional Republic will be no more… this Court’s complicity in the creation of a culture of disdain for lower courts, their rulings, and the law (as they interpret it) will surely hasten the downfall.”

Jackson has spoken to the heart of the ongoing battle for democracy and the side the Scotus Six have taken in that battle.

It is refreshing—finally—to see the Court’s minority put aside an artificial collegiality and openly expose the majority’s actions for what they are.

To Ketanji Brown and Sonya Sotomayor, I say: Welcome to the fight!

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Jessie Seigel’s journalistic career began with the political Washington Whispers column, written for The Insider. Since The Insider ended its run in 2023, Seigel has continued the column as My Washington Whispers,

www.mywashingtonwhispers.com. In addition, Seigel has had a long career as a government attorney, has received two Artist’s Fellowships from the Washington, D.C. Commission on the Arts and Humanities for her fiction, has been a finalist for several literary awards, and has had two professional staged readings of her play Tinker's Damn, with another play, The Three Jessies, forthcoming in September. More on Seigel can be found at https://www.jessieseigel.com.