Trump's 'hero' justice offers roadmap after Supreme Court rejects birthright order

Chief Justice John Roberts famously promised that he would run the highest court like an impartial umpire calling balls and strikes. Instead, Roberts and his fellow Republican appointees have studiously moved forward a radical agenda. This term, the justices in Roberts’ six-three majority not only advanced their priorities, they accomplished them. As a result, Americans now live in a different constitutional order. The court reshaped the government, shifting it away from a multiracial democracy and toward a racially-stratified autocracy.

The Roberts Court is predictable. Not because it follows the law, but because it never passes an opportunity to push its ideological vision. Once you know where Roberts and his colleagues want the country to go, you can figure out how almost every relevant case will end. The roadmap is simple.

First, Roberts and the majority fundamentally disagree with the premise that we have three co-equal branches of government. They believe in the idea of a “unitary executive” with total control over the machinery of government, with the justices themselves serving as the main check on the president. The biggest loser is Congress. Despite it being designed as be the most powerful branch, the court takes every opportunity to trample legislative authority. Second, this court has allies it seeks to help whenever it can, namely, the Republican Party, President Donald Trump, and the wealthiest Americans and the businesses they run. Finally, this majority is animated by a dislike of the Reconstruction amendments, civil rights laws, and using the laws or the Constitution to protect disfavored groups. If they have a chance to strike a blow to a minority group, they take it.

This term, the court didn’t move the ball down the field, they scored tournament-changing goals. In two major cases, Roberts and his allies can claim victories for the conservative movement decades in the making. The country is already feeling the consequences.

The message to Trump was clear: the law is not binding, and we will not stop you from ignoring it.

First, on April 29, the court effectively killed the 1965 Voting Rights Act, a law that for 61 years guaranteed racial minorities a political voice. In Louisiana v. Callais, the court ruled that states can gerrymander communities of color so that they never have a shot at electing their choice of representative. Not only did the court deal a death blow to the VRA, its ruling also took away Congress’ ability to enforce the 15th Amendment’s prohibition on racial discrimination in voting. The Reconstruction amendments are worth little if the court won’t enforce them and Congress can’t. Yet the Callais decision all but forecloses Congress’ ability to protect voters of color. “I can’t even imagine what statute Congress would enact protecting racial equality in voting, especially when it comes to dilution, that would survive a Supreme Court judgment that will rely on Callais,” said Berkeley law professor Bertrall Ross.

Some Republican-controlled states immediately set about eliminating majority-minority Congressional districts ahead of this year’s midterm elections, including in Louisiana, Alabama, and Tennessee. But that’s only the beginning. Not only will Congress grow whiter as GOP states, mostly in the South, draw Black and brown people out of power as they were free to do before the VRA, but so will state and local governments. Legislatures, school boards, municipal councils, states can now cut minorities out of all levels of government, rendering them, effectively, subjects rather than equal citizens.

In another case that is an earthquake to government, the court eliminated independent agencies in Trump v. Slaughter. This case fundamentally shifted the balance of federal powers in America, neutering Congress and handing vast new authority to the president. It’s an anti-democracy, pro-corruption decision that will affect everyone.

Since the country’s earliest days, Congress has had the ability to create what we now call independent agencies, insulated in various ways from direct presidential control. These proliferated in the 20th century as the federal government adapted to the exigencies of modernity. In 1935, the Supreme Court unanimously upheld the constitutionality of independent agencies whose members can only be removed by the president for cause, as opposed to political disagreement. Relying upon this decision, Humphrey’s Executor, Congress created dozens of independent agencies over the last 90 years, to regulate everything from major mergers to the safety of consumer products. Until Monday, these agencies were run by bipartisan, multi-member commissions whose members have removal protection.

But on June 29, the court’s 6-3 majority declared that the president can remove the heads of these agencies for any reason. It overturned Humphrey’s Executor and effectively handed all the powers of these agencies over to one man. It’s clear where this will lead: allies and donors can ask for favors when it comes to any regulatory decision that concerns them, and the president can reward them. Likewise, the president can weaponize these agencies, which were supposed to be insulated from presidential politics, for his own political and financial gain. If any commissioner chooses not to act at the president’s behest, Trump can simply remove them. In fact, the opinion may ripple down from the commissioners to the civil servants who work for them. The ruling’s logic, Justice Sonia Sotomayor warned in dissent, could lead the court to overturn civil service protections and herald a return to a spoils system.

The decision is not just a boon to corrupt government and presidential power, it is a body blow to Congress. The legislative branch is simply not equipped to make every regulation, decision, or adjudication necessary to carry out its laws. As a result, it created agencies to do that work. And in some cases, Congress determined the agencies should have at least some insulation from presidential control. By taking away that independence, the court has done violence to Congress’ ability to ensure its laws are followed. Lawmakers can still hold hearings if they are concerned about an agency’s actions, or even withhold funding, although doing that undercuts its ability to see that its laws are carried out. This decision is a “nuclear bomb for the separation of powers,” Georgetown law professor Steve Vladeck wrote. If the president doesn’t want to follow the law, there’s little Congress can do to enforce its directives.

In his majority opinion in Slaughter, Roberts lets his loathing for Congress spill onto the page. He chided Congress for “taking more power for itself” by creating independent agencies, and decried how they result in an “‘increased subservience to congressional direction.’” But ironically, it is the court that is grabbing power. The only explicit exception to its holding is the Federal Reserve Board, which the court claimed had a different history, but which was transparently an acknowledgment that placing the board’s monetary decisions under one man could destroy the economy. The 6-3 majority reserved the right to exempt other agencies from presidential control on a case by case basis, placing their own judgement about the necessity of independence over Congress’.

This disdain for Congress was a theme in three major immigration cases, in which the same GOP-appointed majority let the administration ignore laws passed by Congress commanding how the president should implement immigration laws. In a decision that will have massive human consequences, the majority allowed the Trump administration to eliminate Temporary Protect Status for Haitian and Syrian immigrants, even though, in the case of TPS for Haitians, the administration did not follow the rules Congress laid out to legally end such a designation. Now, Trump can unilaterally take legal status from some 1.3 million people without following the required process. The court’s message to the president was clear: the law is not binding, and we will not stop you from ignoring it. In a case over the rights of asylum seekers, the court ruled the administration doesn’t have to process asylum seekers as mandated by law if border officers can simply block them from physically stepping into the US. Finally, the court gave immigration officers more discretion to take away a lawful permanent resident’s green card at the border, a decision that, in Justice Ketanji Brown Jackson’s words, undermines the “benefits and security that come with having” that status. In all three cases, the president’s prerogatives took primacy over the law.

The court is a single vote away from undoing our nation of equals.

As if going after Congress’ ability to enact voting rights laws, to determine who carries out its laws, and the legitimacy of its immigration laws wasn’t enough, the court dealt a serious blow to its authority to enforce rules it attaches to its spending. Under the Constitution, Congress can spend money for the “general welfare,” which is called spending clause legislation. Sometimes these laws dole out money, but come with strings attached: Famously, highway funding requires states to set the drinking age at 21. But in a case called Landor v. Louisiana Department of Corrections, the 6-3 majority weakened Congress’ ability to enforce such rules.

One such spending clause law requires that prisons that receive federal funds respect inmates’ religious rights. In violation of this law, guards in Louisiana shaved the head of an incarcerated Rastafarian man, despite the religious dictate that he not cut his hair. The court found that the former inmate, Damon Landor, could not sue the guards. This will likely result in more disregard for prisoners’ religious rights. But the broader picture is even more troubling. “The Court reduces some of Congress’s greatest legislative achievements, federal laws that secure civil rights, environmental stability, healthcare, and more, to nothing more than the wheelings-and-dealings of an especially wealthy private party,” Jackson warned in her dissent. If Congress can’t enforce the terms of its spending, it has lost an enormous source of power, with victims left in the lurch.

On the final day of the term, the court struck down one of Congress’ last standing campaign finance rules, giving the wealthiest Americans another way to influence politicians. The ruling in NRSC v. FEC limits how Congress can guard against corruption through campaign finance regulations, and specifically allows wealthy donors to circumvent the $7,000 limit they can directly give to a candidate by routing over half a million to them through the party apparatus. As Justice Elena Kagan’s dissent warns, this promotes corruption, degrades our system of government, and substitutes the court’s judgement for Congress’. Again, because the biggest winners are Republicans and billionaires, and the loser is Capitol Hill, this 6-3 outcome was predictable.

Just as the Roberts Court has dedicated itself to destroying the VRA and ending independent agencies, it has likewise taken every opportunity to weaken campaign finance laws, allowing billions of dollars to flow into American elections, reorienting American politics toward rewarding the biggest donors. Callais, Slaughter, and NRSC v. FEC are all creatures of this 20-year agenda. All three cases rely almost exclusively on other Roberts court decisions. Again and again, they fail to find any help for their arguments that date back to before Roberts’ 2005 ascension to the high court. (The only exception is that Slaughter uses a 1926 case, Myers v. United States, but it’s a contrived reliance that takes the precedent beyond its bounds and ignores its deep and well-documented flaws.) The combined result of the rulings is stunning: these major cases have rolled back civil rights and reshaped the government in the image of the current permutation of this court.

The conservative bloc also continued its march against civil rights for minorities. Beyond Callais, the court upheld state laws that ban transgender women and girls from participating in school sports. The decision locks transgender girls and young women out of the educational and social benefits of athletic competition in 27 states with bans, continuing this court’s anti-transgender turn. But all girls and women are likely to be affected. The court’s reasoning would logically extend to laws that treat the sexes differently, enabling more laws that discriminate on the basis of sex.

Though the court gave Trump massive wins over the course of the term, it held back when it deemed the consequences too potentially damaging to the economy. These losses for Trump demonstrate an understanding of what is best for the president and his allies, even if he doesn’t agree. In particular, Trump claimed the power to impose emergency tariffs on any nation, as well as the power to fire governors of the Federal Reserve over flimsy allegations. Both would have enormous economic consequences that would imperil Trump’s reigning political coalition. So in two opinions, both by Roberts, the court struck down most of his tariffs, and it blocked his attempt to immediately remove Lisa Cook from the Fed. (The Cook decision was narrow, leaving the robustness of Fed independence uncertain.)

Hanging over the entire term was a case over the Trump administration’s attempt to take birthright citizenship away from the children of temporary visitors and undocumented immigrants. The policy, an executive order signed on Trump’s first day back in office, violates the first sentence of the 14th Amendment, which states unequivocally that “all persons born” in the country and subject to its jurisdiction are citizens. This sacred provision overturned Dred Scott and with it the era of inherited status. There is no American dream, the idea that anyone born here can get ahead through hard work, if all Americans are not born citizens on equal legal footing. Perhaps because this case struck at the heart of what this country is and what it stands for, it was widely presumed that a large majority would strike down Trump’s unconstitutional order and uphold the 14th Amendment.

But when the decision came down on June 30, it was shockingly close. A bare majority, 5-4, ruled that birthright citizenship applied to virtually all people born in the country. Though spared this time, the closeness of this case did not settle the issue but brought on more nativist, anti-immigrant agitation on the part of Trump and his allies. Justice Brett Kavanaugh invited Congress to limit birthright citizenship, writing that he believed lawmakers could redefine citizenship. The decision is a warning that the entire project of multiracial democracy and legal equality hangs by a thread.

The court ended a term in which it disempowered minorities and shifted power to the wealthy, to the president, and to itself, by unambiguously showing just how radical it is, a single vote away from undoing the basic tenet of a nation of equals. The court not only made radical changes to our system of government: it showed how much worse it could get.