“Disaster looms”: Justice Jackson’s warning for the country

Once upon a time, there was a president who wanted to be king. His Congress was acquiescent. The high court approved. But lower federal courts held firm to the rule of law. Time and again, they blocked the president from seizing power and violating the nation’s laws. So the president turned to the justices on the Supreme Court for a favor: please stop these meddlesome little courts from getting in my way. And then one day in June, the Supreme Court granted his wish.

This is what happened on Friday in a case about birthright citizenship before the United States Supreme Court. The Trump administration’s blatantly unconstitutional executive order from January denying birthright citizenship to the children of certain classes of immigrants quickly ran up against lower court judges, who prohibited the Trump administration from violating one of the country’s most sacred Constitutional rights.

The administration used this case as a vehicle to ask the Republican-appointed majority on the Supreme Court to protect it, and not only in this case, from all universal injunctions, which judges issue to block potentially illegal government actions on a nationwide basis. The six GOP appointees that form a right-wing majority acquiesced, finding that universal injunctions likely exceed the powers of the lower courts. As a result, no matter how brazenly unconstitutional a presidential act may be, the courts generally cannot protect anyone who does not personally sue or is unable to join a class action lawsuit.

“No right is safe in the new legal regime the Court creates,” Justice Sonia Sotomayor wrote in her dissent, which was joined by her fellow Democratic appointees, Justices Elena Kagan and Ketanji Brown Jackson. “Today, the threat is to birthright citizenship. Tomorrow, a different administration may try to seize firearms from law abiding citizens or prevent people of certain faiths from gathering to worship… That holding renders constitutional guarantees meaningful in name only for any individuals who are not parties to a lawsuit.” When the Constitution and the president face off, the Constitution falls.

“The Court’s decision is nothing less than an open invitation for the Government to bypass the Constitution,” Sotomayor warned. “The Executive Branch can now enforce policies that flout settled law and violate countless individuals’ constitutional rights, and the federal courts will be hamstrung to stop its actions fully.” This is the new America.

This case, called Trump v. CASA, is the second time in a year that the Supreme Court has ended its term with a ruling that threatens American democracy to its core. On July 1, 2024, the Supreme Court granted presidents broad criminal immunity for official acts, pushing the evolution of the presidency further toward monarchy. Dissenting from that decision, the three Democratic-appointees warned that America’s very system of government was eroding. One year ago, it was the president in his personal capacity whom the Republican justices placed above the law. Today, those same six justices place the president’s prerogatives above the legal and constitutional rights of everyone else.

Justice Jackson, in her own dissent, digs into the profound threat this decision poses to the rule of law by, in effect, exempting the president from following it. Whether or not this decision has the practical effect of denying birthright citizenship to children born on US soil, Jackson warns, this decision has altered our system of government and, sooner or later, may destroy it. “Disaster looms,” she warns. If a court cannot command the executive to follow the law, then there exists “a zone of lawlessness within which the Executive has the prerogative to take or leave the law as it wishes, and where individuals who would otherwise be entitled to the law’s protection become subject to the Executive’s whims instead.” This is, of course, not how democracy works. But it is, now, the law of the land in the United States.

Jackson’s dissent is meant to explain the precise ways the majority’s decision undoes our system of government, by pulling back from the power-sharing structure the Framers crafted and replacing it with the monarchical system they had just cast off. The Framers hoped that the ambitions of each branch would cause them to zealously check the excesses of the others. But, under Trump, the other branches channel their ambitions not through their own power, but fealty to his.

“In this country, the Executive does not stand above or outside of the law,” Jackson writes. But her dissent is also a warning that this is becoming less true. A year ago, the Republican appointees exempted the president from the dictates of criminal law. Now, it suggests that even if a court finds the administration’s actions likely illegal or unconstitutional, it can continue to enforce them against those who haven’t challenged the action in court, either individually or as part of a class action. As a result, the president rises beyond the bounds of the law, and individuals slip from the embrace of its protection.

But as the old saying implies, if first they come for those without lawyers, then they will come for the rest of us. A partial king will seek to become a complete ruler. “I have no doubt that, if judges must allow the Executive to act unlawfully in some circumstances, as the Court concludes today, executive lawlessness will flourish, and from there, it is not difficult to predict how this all ends,” Jackson wrote. “Eventually, executive power will become completely uncontainable, and our beloved constitutional Republic will be no more.”

The nation’s highest court could have said no to this eventuality. But today, it said yes.