Supreme Court helps Trump turn early losses into wins

Birthright citizenship recently survived a Supreme Court challenge. Issued just days before the nation celebrated its 250th birthday, the ruling was something to celebrate.

But pro-democracy Americans should not be lulled into triumphalism. The threat to the 14th Amendment, which guarantees citizenship by birthright, is far from over, both from this Supreme Court and from Donald Trump. As they have with a range of issues across his two administrations, Trump and the larger right will continue to push the boundaries of the law and long-standing institutional norms to ensure favorable rulings from the Supreme Court’s conservative majority.

We have already seen this disciplined, patient strategy put into practice. During Trump’s first term in office, he experienced setbacks at the Court that stymied his radical MAGA agenda. But now, as he approaches the middle of his second term, the president is riding high on a series of judicial wins. In a relatively short period of time, his losses have become successes.

Nowhere is this more clear than with his travel ban. Just a week after his inauguration in January 2017, Trump signed an executive order that restricted citizens of predominantly Muslim countries from entering the United States. The courts intervened and stopped what had become known as his “Muslim ban.” Undeterred, the administration kept modifying the order by adding non-Muslim countries and waivers. One year later, in the 5-4 decision Trump v. Hawaii, the Supreme Court upheld Trump’s action.

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On June 30, the Supreme Court’s conservative majority advanced this project when it endorsed de facto ethnic cleansing in a 6-3 ruling, ending the temporary protected status of Haitians and Syrians, and potentially hundreds of thousands of other people, who are in the United States because it is too dangerous to return home. Circumventing the intent of Congress, the Court also gave the Trump administration the power to turn away people who have reached America’s borders before they can even apply for refugee status.

In challenging such established precedent, the president no doubt felt the wind at his back from the Court’s 2024 decision in Trump v. United States, in which the right-wing majority ruled that former presidents are immune from prosecution for “official acts” committed in office. During his first term, that expansive view of power was checked repeatedly by the courts and other institutions. But the president’s persistence paid off and resulted in a ruling that effectively enshrined into law what Trump and many conservatives had long sought: an extreme version of the unitary executive theory, the idea that a president has nearly unlimited power over the executive branch.

They have also seen some movement on one of Barack Obama’s marquee policies: Deferred Action for Childhood Arrivals. DACA, which temporarily protects undocumented people who entered the country illegally as minors, has also been targeted by the right as part of their incremental approach to enacting Trump’s MAGA governing and legal agenda. The Court ruled in 2020 that DACA was protected, but only on procedural grounds because the Department of Homeland Security, the 5-4 majority found, had overreached by acting in a cruel and arbitrary way. In Trump’s second term, the administration has paused DACA for people from banned countries and appears to be intentionally delaying applications as a practical way of neutering the law. According to the American Immigration Council, recipients have also been “increasingly targeted for detention and deportation.”

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During the president’s first term, independent agencies and other watchdogs were one of the few guardrails that slowed his radical efforts to remake the federal government. That check has also been slowly removed.

When he took office in 2017, Trump began targeting the Consumer Financial Protection Bureau, which was set up in the wake of the 2008 financial crisis. In March 2020, the Court ruled in a 5-4 decision that during the bureau’s creation by Congress, its director had been given power that should rest with the president. While the CFPB was allowed to continue, its director could now be removed under the president’s executive authority. When Trump returned to power, he replaced the director and transformed the bureau into an agency that more closely aligned with the interests of the financial and technology industries, instead of as an advocate for the average American as Congress had originally intended.

Six years later, the Supreme Court went further in Trump v. Slaughter, which gave the president the unprecedented power to remove the heads of independent agencies, including the Federal Trade Commission, at will. This means that Trump now has his hands on nearly every lever of the federal government, and is free to bend it to his own ends.

Trump used a clever tactic to finally achieve this victory. He fired FTC Commissioner Rebecca Slaughter, even though he had no legal grounds to do so. Slaughter sued, and a district judge ordered she should be reinstated.

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In a procedural move that the Trump administration has more fully weaponized in the second term to take over the Consumer Product Safety Commission and the National Labor Relations Board, the case made it to the Supreme Court’s emergency docket, or so-called “shadow docket”, while the legal fight was still playing out in the lower courts. Within four days the Supreme Court had stayed the lower court’s order, meaning Slaughter was essentially removed from her position. The action was retroactively confirmed when the conservative majority decided against her, and overturned a 91-year-old precedent in the process.

The Court has also gutted one of the most fundamental ways that Americans get justice. In 2025, the right-wing majority ruled that injunctions by lower courts do not apply nationwide. In practice, this means that only the parties named in a case can get immediate redress. During Trump’s first term, such injunctions were one of the main tools that slowed down his MAGA crusade, including with the travel ban.

By changing a fundamental pillar of American law and political culture, one that was used to great success during the Civil Rights Movement, the Court’s Republican-appointed justices gave Trump and his successors a gift that will have a huge impact on future generations.

This is another example of how the two sides in this struggle are usually not even playing the same game, or are even on the same terrain. The left generally thinks in terms of election cycles and winning the day or week. But the right sees in terms of years, decades and beyond.

This strategy of testing the law and institutions, then losing, and then revising and trying again until the barrier is broken or sufficiently bent to exploit, is not coincidental.

This strategy of testing the law and institutions, then losing, and then revising and trying again until the barrier is broken or sufficiently bent to exploit, is not coincidental. Nor is it secondary to how Trump and other authoritarians in failing democracies think about power. It is also what they will do with the issue of birthright citizenship.

In his dissent, Justice Brett Kavanaugh effectively laid out a road map to victory. While he agreed that Trump’s executive order ending birthright citizenship was unlawful, it was not, the justice reasoned, because the order violated the 14th Amendment. Kavanaugh instead argued that it violated a separate federal statute. This was essentially an invitation from a sympathetic right-wing justice to Congress to rewrite the law altogether. The administration and congressional Republicans are all but certain to follow this cue to get the long-term result they desire. This is how they have won before, and it is how they intend to win again.

Pro-democracy Americans need to learn from that patience. They need to develop a vision that goes beyond immediate short-term victories, that sees the law not as an abstract thing or principle, but as a means to shape power relationships and achieve material gains. Perhaps most importantly, they need to learn to not be deterred by immediate losses. There is a big difference between a battle and a war, and the right has internalized this understanding. They have created the infrastructure and marshalled the resources for an intergenerational struggle.

The Supreme Court’s decision to uphold birthright citizenship is a real win, and it deserves to be celebrated. But do not mistake one battle for the entire war. America’s democracy is still losing that war, badly. Victory will be won only when its defenders learn to fight with the same patience, discipline, focus, vision and tenacity as the forces trying to tear it down.

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