A corrupted Supreme Court comes within one vote of killing birthright citizenship

The Supreme Court was widely expected to end their term with a showy ruling defending birthright citizenship, the fundamental right of any human born in the United States to be considered a citizen automatically from birth, without having to go through any bullshit proving their loyalty or heritage or that their parents were approved-of by the forces of the state. Enshrined as the 14th Amendment in the wake of the Civil War, it is a presumption so ingrained into our laws and culture that at this point many Nth-generation Americans simply have no way to prove their citizenship. They can, with a birth certificate, prove they were born here. But they likely have no records proving that their parents were approved of at the precise moment of that birth.

So the Supreme Court was supposed to close out a term stuffed with arch-conservative atrocities gutting all our other rights with a pompous 7-2 ruling asserting that no, an administration cannot simply strip your very citizenship out from under you with ratfuckery about your paperwork, not even if Stephen Miller wants to very very much, and everyone was supposed to celebrate it as proof that the Court majority is not solely a group of partisan hacks who decide cases by looking for which side their movement allies are on and then backfilling their arguments for why that side wins.

Look there, they would say. We slammed the door shut on the most authoritarian-pilled, history-erasing, genocide-adjacent and Orwellian argument yet for why conservatives should get to go on a violent purge of the citizenry as their little treat. We are not total hacks, not when it comes to such clear-cut, plainly written Constitutional guarantees. We are not willing to go to gutter extremes. There is no reason to think the court needs reforming, no reason to add on new rules or new justices in an attempt to dilute its transparent corruption, and everyone should calm down and start respecting us again.

But they couldn't do it. They couldn't find a 7-2 majority (Alito and Thomas will be hacks even long after they have died) willing to tear up an anti-birthright citizenship argument that the rest of the legal community considered so illiterate and dishonest that its handful of advocates are now the subject of national mockery. They couldn't find a 6-3 majority willing to say without caveat that the Constitution says what it says and what everyone has agreed that it's said since our nation put Dredd Scott in its rearview mirror.

No, they were barely able to muster the bare majority needed to temporarily beat back the fascist rights-stripping that until they themselves took notice of was solely the domain of gutter racists and aspirational fascists. It was a 5-4 case; we were one vote from national pogrom.

I will let actual legal experts make the case for just how extraordinary a lunatic you would have to believe to take the supposed legal arguments against the 14th Amendment seriously, just as they have from be beginning of this shitshow of a case. Mark Joseph Stern:

Yet on Tuesday, four justices resisted that obvious conclusion. Justice Kavanaugh wrote that Trump’s executive order is unlawful under a federal statute that mirrors the 14th Amendment, but not under the amendment itself; he asserted that temporary or unauthorized immigrants today are “relevantly similar” to foreign ministers in 1868, so Congress could deny their children birthright citizenship if it wished. Meanwhile, Justices Thomas, Alito, and Gorsuch would have upheld the order against the plaintiffs’ facial challenge, holding that it is not unlawful in its entirety. Thomas and Gorsuch would have written words into the amendment that are not there, requiring parents to have “domicile” in the United States and “primary allegiance” to its government in order for their offspring to receive birthright citizenship. Alito argued that a child must not be “subject to any foreign power” to receive the promise of the 14th Amendment—so if their parents’ foreign citizenship gets passed on by descent, they do not become U.S. citizens at birth.

All of these views would have radically curtailed the constitutional promise of birthright citizenship, creating a permanent caste of people—many stateless—who are born in the U.S. but unable to exercise basic rights of citizenship. They would be vulnerable to detention and removal simply because of their parents’ immigration status, deportable to a foreign nation in which they have never set foot. The implementation of this scheme would be ghastly: As the Trump administration already acknowledged, it would require officials to interrogate parents just after birth, forcing them to supply sufficient proof of “domicile” and “allegiance,” and denying their children citizenship if this proof could not be produced. Infants could be deported shortly after birth. Those who remained would have to live in the shadows, never able to legally work or secure basic protections of lawful residency.

All of these premises are of course facially insane. It is the stuff of dystopian fiction; it would immediately turn the nation into a police state in which every birth would be investigated as a potential crime scene. It would pull Dredd Scott back up from the list of worst Supreme Court blunders ever and hang it over the door of every federal courtroom.

Miller would get his way, with just one more vote, and ICE agents would be stationed at every delivery room in the country, just as they've stationed themselves outside courtrooms now. And you would not be safe, either. You could become a target of an administration functionary's petty wrath, your name jotted down in one of the countless enemies lists that this administration produces and names Antifa or Supporters of Terrorists or Insufficiently Appreciative of the Curative Powers of Beef Tallow.

Four members of the Supreme Court would like summary removal of citizenship to be added to the government's arsenal of weapons against you. An agent could come to your door, and tell you that your citizenship was in question. Can you prove that your parents had "allegiance" to the United States, supposed citizen? Can you prove that they had that allegiance on the day of your birth?

Could you?

So we have gone from a case that Supreme Court watchers considered a freebee, an easy stomping of fascist desires that would let the court scuttle off for the summer with a little ribbon on their chests to prove that they are not rancid extremists who would wreck anything for the sake of Dear Leader and the Leaderettes, to a by-the-teeth decision that could swing the other way with the replacement of a single justice.

Or Roberts could well have come up with one of his no-exceptions exceptions that affirmed the 14th Amendment while carving out a tiny little piece of it—his specialty, after all—declaring that there would of course have to be exceptions made to deny citizenship to certain groups, a hole through which the rest of the amendment would slowly drain out until in a decade there was nothing left of that one, either.

We remain that close to the gutter extreme version, even after court watchers near-unanimously assured us that this was all such quackery that only the most unserious justices would sign their names to it.

So it turns out that court reform is very much needed after all. It turns out to be even more needed than we thought; it turns out that this court, after a decades-long conservative project to pack it with reliable ideologues who will do whatever backfilling is necessary to make sure wealth and power trumps law and common good wherever those conflicts arise, is just one vote away from not being able to find its ass with two hands and a flashlight.

The members of the court have been on a public tear of late, grousing in public appearances that they do too have dignity and principles and that it is an outrage to suggest otherwise. Roberts in particular once staked his stewardship on cobbling together decisions that proudly (and barely) hold back from granting the most frothing and absurdist ideological demands, just so he could point to them and boast that the court didn't go as far as that so clearly we are all just nonbiased rule-followers here.

But the court is no longer able to maintain that facade. They can't do it; the belief in rank oligarchy, the obsession with ethnic purge—the court's majority believes so strongly in each project that it can no longer find members willing to take one for the team, willing to pull back from doing the extremist things so that the charade of integrity can be at least partially maintained.

The court's willingness to manipulate dockets to allow Republican-backed moves to become fait accompli, its contempt of even their own precedents, the chastising of lower courts for following its newest precedents to the letter without realizing that they are not supposed to apply in cases where conservatives are at odds with them, is too blatant to ignore, and now the court has gorged itself on its own self-regarding corruption to the point where even the fundamental birthright of your and my citizenship is something the court majority considers a close question.

The court left us with a five-alarm fire on our hands, and opposition to the country's fascist remaking must, without question, focus on paring down the ability of these giddy arsonists to harm us. Court packing is by far the easiest; impeachment is likely impossible.