Supreme Court Upholds Birthright Citizenship Amidst Concerns of Judicial Agenda

The recent 5-4 decision by the U.S. Supreme Court upholding birthright citizenship was eagerly awaited and a relief. This ruling demonstrates the Court’s acknowledgment of some boundaries to its shift away from liberal American legal principles. While the court has issued several reactionary decisions this year, striking down the constitutional guarantee of citizenship for those born in the U.S. would have been akin to reversing Roe v. Wade. Such a move would have involved using judicial power to remove a universally recognized right, unlike the creation of privacy rights for abortion which was previously undefined. Thankfully, it was deemed too much of an overreach.

Despite this, the court’s majority remains focused on replacing individual rights with traditionalist rights. Their stance is clear, advocating for gun rights while opposing rights for gays and immigrants. This year has seen significant setbacks for these groups. The court permitted the Trump administration to limit asylum seekers’ entry into the U.S. and end protections for those already here. It struck down conversion therapy bans, legalized discrimination against gays by businesses, restricted healthcare access for transgender individuals, and upheld bans on transgender athletes.

These actions align with the court’s wider goals, including restricting abortion rights, weakening environmental regulations, and facilitating oligarchy. Recently, the court has eased avenues for big money in politics and increased the president’s ability to dismiss federal employees.

Chief Justice John Roberts’ opinion suggests the court restrained itself from abolishing birthright citizenship due to potential backlash. Legally, the Trump administration’s stance challenging birthright citizenship conflicted with the foundational understanding of American identity. The Constitution ensures citizenship for “all persons born” in the country, with Trump arguing that the phrase “subject to the jurisdiction thereof” excluded children of undocumented immigrants. However, the jurisdiction clause was intended to exclude diplomats’ children, foreign invaders, and tribes not subject to U.S. law. Trump’s logic implied illegal immigrants were not under U.S. jurisdiction, contradicting actions like arrests and deportations.

The court’s decision illustrates its recognition of Trump’s flawed position, offering hope of a non-partisan judiciary. However, the judicial counterrevolution continues. Midterm elections pose the next potential step in reversing progress. If the Supreme Court remains inactive, similar to its response following the 2020 presidential election, the Trump administration may discredit any democratic victories as “fake news.”

For years, Trump has sought to undermine trust in the electoral process. Despite numerous studies and court cases, no substantial evidence of widespread voter fraud exists. Isolated incidents do not alter this fact. The Supreme Court must prevent Trump from leveraging such falsehoods to manipulate the midterms.

Extra support for federal judges during election periods is crucial. Judges should resist dismissing cases on procedural grounds and prioritize ruling on fraud claims. Above all, the Supreme Court should address pivotal cases decisively. Had the court validated the 2020 results clearly, the Capitol attack might have been avoided. This year, the Supreme Court might again be central in preventing a repeat.

Thomas G. Moukawsher, a former Connecticut complex litigation judge, has expressed these views. He was a leader within the American Bar Association and authored “The Common Flaw: Needless Complexity in the Courts and 50 Ways to Reduce It.” These opinions are solely those of the author.