A Few Somewhat Random Reactions to the Court’s Latest Term, Part Two: Movement Conservatism Drops All Pretense

The US Supreme Court's just-completed term will go down as another bloodbath for American constitutionalism, for the rule of law, and even for basic decency.  In yesterday's Part One of this two-part column, I explained that my goal is not to provide a "summary of the term" analysis along the lines that Professor Dorf has already done so well.  Instead, I have collected a few stray threads within various cases that might provide useful ways to think about what is happening and is likely to happen in the near future.

Yesterday's entry promised a long list of such stray threads, but in fact my first two examples were more than enough to fill a column (and then some).  Those two examples included a good outcome (Chatrie v. U.S., a Fourth Amendment case the Professor Matthew Tokson nicely analyzed in three posts on this blog) and one with a very bad outcome (Mullin v. Al Otro Lado, in which the Roberts Six played with words to negate a duly enacted statute).

To understand how insane that latter case's holding is, one need only understand that Congress enacted a law providing that when a person comes to the US and asks for asylum, the US must process their claim.  That is, a person who makes it through whatever harrowing journey was needed to arrive at the border can walk up and present themselves to US border officials and say, "I want to do this the right way, so I'm here to provide the information necessary for you to process my asylum request."  The Court's MAGA-fied supermajority, however, held that if US border officials cleverly set up barriers such that the would-be applicant cannot say that he was ever "in" the US, then no such process is required by law.  So much for all the work that Congress did in setting up and providing funding for processing such applications.

In any event, the outcomes of other cases this term were often at least as absurd and politically transparent.  Picking up from where I ended with yesterday's first two examples, I will continue with two additional reactions:

 

(3) Roberts's facile wordplay becomes even more ridiculous. 

Just as it used to seem telling to point to the rank hypocrisy coming from conservatives regarding practically everything (so-called states' rights in abortion cases quickly giving way to calls for a nationwide ban post-Dobbs being the most obvious example), it once seemed useful to mock John Roberts's infamous and obviously disingenuous claim during this confirmation hearing that he would only "call balls and strikes."  By now, however, revisiting that obvious lie feels as useful as pointing out that, say, Donald Trump used to promise that he would release his taxes.

What does still seem relevant is that the Chief Justice somehow manages to have reached age 71 without ever growing out of his sophomoric attempts at cleverness.  In the terrible Slaughter decision (holding that Trump can fire any administrator without cause, even those whose positions were set up by statute to be politically insulated, which Professor Dorf analyzed here), he gave us another example of his 15-year-old alter ego at work: 

To "discharg[e] the duties of his trust," the President must have the assistance of officers he can trust. Although it is up to the Senate to decide whether to confirm those with whom the President would prefer to work, neither Congress nor the courts may saddle him with those with whom he cannot work. Subordinates who exercise the President's power are subject to removal by him.

Gee, what a naked policy argument from an avowedly principled conservative in a constitutional case!  And, I might add, it is not even a very good policy argument, relying at best on wordplay deliberately confusing two meanings of the word “trust.”

 

To be a bit less sarcastic, the point is that there might indeed be good reasons for a President to be able to fire commissioners, but that is not what the Court should have been deciding in that case.  And the fact is that any President can be "saddled .. with those with whom he cannot work," for example when a Vice President loses the President's favor.  And the Senate could continue to refuse to confirm nominees for any position, leaving the President with the choice of going without a confirmed appointee or working with someone that the Senate deems acceptable but the President hates.

 

Heck, Roberts himself wrote the majority opinion in Trump v. Cook, which carved out an exception to Slaughter for the Federal Reserve.  Why?  Reasons.  The bottom line, however, is that the President must discharge his duties of trust when it come to the nation's monetary policy while being "saddled with those with whom he cannot work."  Trust me.

But all of that is a sideshow, because my point here is that Roberts apparently believes that he can use the word "trust" as if it has only one meaning: the president has "duties of trust," so he must be able to "trust" the people he works with.  I wonder what Roberts thinks his Trusts and Estates course in law school was all about.

 

Moreover, am I the only person who heard echoes of another infamously dishonest Roberts quote, from 2007's Parents Involved?  For those who might have somehow forgotten, he intoned: "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race," which he followed up in 2023's Students for Fair Admissions with this: "Eliminating racial discrimination means eliminating all of it."

Right, because as so many people have noted (and returning to full sarcasm mode), all we have to do is ignore all of the discrimination in the world and then say that we have stopped discriminating.  But that is the height of legal genius compared to Roberts’ trust/trust deception in Slaughter.

I often point out that one can easily sniff out the arrogance of power by paying attention to how weak an argument is.  Roberts does not feel the need to defend his silly wordplay, because he has the votes.  Even so, it does not say good things that he somehow feels the need to insult everyone's intelligence with drivel like this.

Roberts and his cohorts are what movement conservatism has inflicted upon us, and they feel so unfettered that they openly cited a 17th Century witch hunter when overturning women's reproductive rights.  At least Roberts himself did not sign onto that one, but as Professor Dorf pointed out a few years ago, the other Bush v. Gore alums most emphatically did.  Indeed, they apparently participated in adding it to the final decision.  And as long as we are still not sure whether Mitch McConnell has yet passed on, I would be remiss if I failed to note his role in creating this Court.

 

(4)  Living constitutionalism and birthright citizenship

In Trump v. Barbara, the birthright citizenship case, five justices said that the Constitution means what it says.  The other four were willing to engage in atextual, ahistorical, and anti-precedential gamesmanship to find the opposite.  The odd-man-out of those four was Brett Kavanaugh, who said that birthright citizenship is not required by the Constitution but is required by current statute.  That is no less insane, because he can only get there by mangling the Fourteenth Amendment along with a longstanding precedent (a ruling that was not "egregiously wrong," by the way).

Here on Dorf on Law, in "We are All Constitutional Pluralists Now: Just ask Justice Brett Kavanaugh," Professor Segall wrote an excellent piece exposing Kavanaugh's opportunistic use of non-originalism in his Barbara concurrence/dissent.  Ending that column, Professor Segall drew from some of his own scholarship and wrote: "Justice Kavanaugh's descriptive account of how judges decide constitutional cases is spot on. They apply old principles to new facts based on modern imperatives.  ...  If you do not believe me, listen to Justice Kavanaugh."

I would amend that conclusion in what I think is a very friendly way (although Professor Segall certainly can take the floor to respond, if I misunderstood).  Here is my version of that last sentence: "If you do not believe me, listen to the version of Justice Kavanaugh who wrote in Barbara, a version that will disappear as soon as it's useful for him to pretend to be an originalist again."

On the substance, however, Kavanaugh is simply bad at trying to be a pluralist.  His argument, if one can call it that, to show that the Fourteenth Amendment is not dispositive in the case is based on his observation that there are already some exceptions to who qualifies for birthright citizenship: children of foreign diplomats, of invading armies, and so on.  He then claims that the Constitution must live and breathe, and therefore that the exceptions are not "a closed set trapped in amber" (internal quotation marks omitted), which in turn supposedly means that Congress could add to the list recognized in Wong Kim Ark.

This would be B+ work (maybe A-) from a 2L struggling to break free of fake originalism, so it is not terrible.  Where he goes wrong, however, is his claim that the exceptions—"for 'children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory' and 'children of members of the Indian tribes'" are "disparate."  He then claims that the "only apparent principle unifying the four disparate exceptions ... is that the parents in all of those varied circumstances were not U. S. citizens and were citizens of other nations, whether tribal or foreign."

OK, so the only unifying principle is that the parents are not US citizen, I guess.  But the genuine unifying principle is found in the Fourteenth Amendment itself, which says that children who are subject to the jurisdiction of the United States are citizens.  The children of foreign diplomats are not subject to US jurisdiction (as people who are harmed by them quickly learn to their dismay), nor are the children of occupying armies, nor are the children of indigenous peoples.  And children "born on foreign public ships" fail even the "born or naturalized in the United States" premise of the Amedment itself.  Kavanaugh tries to mock the majority's invocation of "the fiction of extraterritoriality," but in fact we engage in such fictions all the time.  Territory itself is a legal fiction.

One supposes that Kavanaugh might be graded on a curve, because he clearly is often in over his head.  After all, he is the author of the fateful words that are now being used to justify "Kavanaugh stops": "The interests of individuals who are illegally in the country in avoiding being stopped by law enforcement for questioning is ultimately an interest in evading the law.  That is not an especially weighty legal interest."  In other words, Kavanaugh is back at Day One of 1L, struggling to understand that "rights of the accused" is not a synonym for "criminals' rights."  This is simply shocking, but it should no longer surprise.  Kavanaugh surely spends his time with people who think that "only guilty people are arrested" and that the Warren Court wanted to set obviously guilty people loose on the populace.

Again, movement conservatism is on full display here.  Kavanaugh's predecessor on the Court wrote a fantasy-land opinion in 2002 that claimed that people of course feel "free to leave" a bus that had been boarded by law enforcement agents, because the officers did not literally block the aisle or stand in the doorway.  People will surely feel free to walk out, right?

These four examples of dangerous legal reasoning -- two in cases with good outcomes, two in bad -- are of course hardly an exhaustive list of what one can find in the most recent term's output from the six Republican appointees.  Taken together, however, they offer an indication of just how much nonsense we can find in bad and good decisions alike.  They also remind me why I am now almost completely on board with Professor Segall's long-held view that the US Supreme Court is not a court at all.

In other words, Amy Coney Barrett's assurance "that this court is not comprised of a bunch of partisan hacks" has never been more difficult to believe.

- Neil H. Buchanan