Welcome back, Deadline: Legal Newsletter readers. The final opinions handed down each Supreme Court term provide a chance for reflection on where the court is at and where it’s going. A stark view of the Roberts Court comes from within the court itself, where dissenting justices hold up a mirror to the majority’s power. One word used in dissents that bookended the week stood out: “lawless.”
Justice Sonia Sotomayor started the week by calling out the Republican-appointed majority for “rewarding lawlessness.” Joined by Justices Elena Kagan and Ketanji Brown Jackson on Monday, Sotomayor lamented the court’s unexplained shadow-docket decision to ignore the Trump administration’s defiance while approving its quest to speed up deportations without due process.
Then in Friday’s birthright citizenship case, Sotomayor’s dissent for the Democratic appointees exposed the majority’s latest farce. In a decision by Trump appointee Amy Coney Barrett, the court granted the government’s bid to curb nationwide injunctions, which trial judges had issued against President Donald Trump’s birthright citizenship order (because it’s “blatantly unconstitutional,” as a Reagan-appointed judge put it). Notably, the administration didn’t ask the justices to approve the legality of Trump’s order or even to fully unblock the injunctions.
Why not seek more aggressive relief from a sympathetic court? “The answer is obvious,” Sotomayor wrote Friday. “To get such relief, the Government would have to show that the Order is likely constitutional, an impossible task in light of the Constitution’s text, history, this Court’s precedents, federal law, and Executive Branch practice,” the Obama appointee wrote.
So, the administration took a procedural half-measure that deliberately avoided resolving the underlying issue — and the majority was happy to oblige. Litigation will now continue in the lower courts, with needless uncertainty looming over when and how the justices will finally rule on Trump’s bid to upend the constitutional guarantee of automatic citizenship for people born on U.S. soil.
With Barrett and company approving that “gamesmanship,” as Sotomayor called it, Sotomayor observed that the majority invited open defiance of the Constitution. “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,” she wrote. Justice Jackson furthered the ‘lawless’ theme in her own dissent. Writing for herself, the Biden appointee critiqued the court’s “creation of a zone of lawlessness,” one that she said “will disproportionately impact the poor, the uneducated, and the unpopular — i.e., those who may not have the wherewithal to lawyer up, and will all too often find themselves beholden to the Executive’s whims.” Have any questions or comments for me? Please submit them on this form for a chance to be featured in the Deadline: Legal blog and newsletter.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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