Two guesses, and the first one doesn’t count: Who owns the courts?

NPR: Getty Images

Looked at one way, the case the Supreme Court heard today was hard to follow. Nominally, we were told, it was about Trump’s ugly and incredibly stupid executive order “ending” birthright citizenship, a right that is stated in plain English in the 14^th Amendment to the Constitution. But scratch the case a little deeper, and it wasn’t about birthright citizenship at all. It was about who the law applies to in this country, who has rights under the law, and ultimately, who gets to go into court to protect those rights.

According to the Trump administration, and to conservatives generally, there is one answer to those questions: the following people. In other words, whoever they say. That is the position taken by Trump’s Solicitor General, John Sauer. The issue at stake before the court today wasn’t the Constitutional right of birthright citizenship itself, but rather, who is entitled to that right. A series of cases around the country have resulted in several federal district court judges issuing rulings, usually temporary restraining orders, blocking Trump’s executive order from taking effect. Solicitor General Sauer, speaking for Trump, wants the court to rule that individual judges should not be able issue nationwide injunctions against Trump’s executive orders. You may have read reports of right-wing media complaining that district court judges should not be able to stymie presidential power, which according to Trump and a long history of conservative thought, should basically be absolute.

Trump’s lawyers told the court that if a judge issues an injunction, it should only apply in that court’s jurisdiction. In the case of birthright citizenship, that would mean that babies born to immigrant parents in, say, New Jersey, would have their right to citizenship recognized, because a judge issued an injunction against Trump’s order. But babies born in, say, Texas, would not, if a cherry-picked judge down there refused to issue a temporary restraining order against Trump’s executive order because he found that there is a likelihood that Trump’s executive order would be found Constitutional. Lawyers arguing on behalf of migrants who have given birth in this country pointed out how unworkable a system would be with rights existing in some jurisdictions but not in others. One of the justices pointed out that if the court rules with the Trump administration, it would create a system whereby each baby born to an immigrant family seeking birthright citizenship would have to hire a lawyer and sue for that right.

Which is precisely what the Trump administration wants, and what conservatives have wanted. The conservative justices on the court have ruled, or tried to rule, for years against class action suits, which establish a group of people who have been wronged in some way and allow them to sue to reverse the wrong that has been done to them, or sue for a Constitutional right that has been either denied to them or damaged in some way. Two of the conservative justices had the gall to argue today that the answer to the problem of the nationwide injunctions was class actions, so any injunction ordered by a judge would not apply nationally, or even jurisdictionally, but only to the “class” of people affected – in this case, the babies of migrants.

Presumably, the way that would work is that the Supreme Court rules in this case that judges cannot issue nationwide injunctions, but they can issue injunctions which apply to classes of people. That would give the court the opportunity to disallow future class action lawsuits when they would be filed on behalf of the class in question, the children of migrants seeking birthright citizenship.

It's even worse than that, Justice Kagan pointed out to Sauer today. If the Supreme Court rules that judges cannot enjoin the government nationally, that means the government can continue, wherever it is not enjoined, to deny birthright citizenship to migrant babies. But once the root case, on the Constitutionality of birthright citizenship, reaches the court, if the court finds that right exists – as it has for at least 100 years – that would create a situation where all the babies denied citizenship in the meantime would have to sue individually to gain the citizenship that had been wrongfully denied to them in the first place. This is the “irreparable harm” that injunctions seek to prevent, disallowing the government from doing something it knows is illegal and which will be overruled by the court eventually, but in the meantime creating an entire world of people who have been harmed by the government’s actions along the way.

This has been a conservative dream for decades. In Shelby County v. Holder, Justice Roberts wrote the egregious decision defenestrating Article 5 of the Voting Rights Act, which protected the rights of voters in states in the Deep South, (and in some jurisdictions elsewhere) by requiring “pre-clearance” from the Department of Justice before laws were passed that changed voting requirements on classes of people – read: Black people – who had historically been denied voting rights. One of these requirements, to produce photo ID’s in order to register to vote, had been stopped by the DOJ for nearly 50 years before the Shelby case. The day after that case was decided, Alabama imposed a voter ID requirement which reduced Black voting because the state knew that a percentage of the Black population did not have drivers’ licenses, the ID required to vote. People could still sue individually to gain the right to vote, but that had to happen on a case by case basis. No longer was the right to vote protected by the Department of Justice.

The 8^th Circuit Court of Appeals ruled yesterday in a voting rights case involving a different part of the Voting Rights Act, Section 2. A different panel of the same court had already ruled in 2023 that individuals could not sue privately under Section 2 to protect their voting rights because Section 2 does not “unambiguously” confer an individual right to vote. The decision by the 8^th Circuit yesterday went even further, saying that individuals cannot use use another federal Civil Rights law called Section 1983, which allows individuals to sue state governments to protect their civil rights. Section 1983 had been used in lawsuits to protect federal Constitutional rights, including the right to vote. The 8^th Circuit ruled that Section 1983 does not specifically confer the right for individuals to sue for voting rights, so the only entity that can sue under Section 2 is the Department of Justice under the order of the Attorney General.

The chances of the Donald Trump DOJ suing under Section 2 to protect the right to vote of any individual or group of individuals is exactly zero. So there goes any chance to enforce the right to vote under Section 2 of the Voting Rights act anywhere in the seven states of the 8^th Circuit: Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota.

Do you see what they’re up to? The Republican Party and conservatives have been after the Voting Rights Act since the day it was passed in 1965 because the people whose rights it restored, largely Black people in the South, were Democrats. Republicans and conservatives know that there aren’t enough of them to win national elections, so they have two choices: either come up with policies that appeal to a larger part of the American populace and thus win their votes, or work to limit the right to vote of the people who vote against them.

We know which choice they have made.

It’s all of a piece. Republicans look at migrant babies as little Democrats. If they are citizens, when they grow up, they’re going to vote for Democrats. So, the solution to the migrant baby problem is to deny them citizenship. If they’re going to lose when Trump’s executive order reaches the Supreme Court, where it is all but certain to be found unconstitutional, then they will create a miasma of separate jurisdictional nightmares imposing as many limits as possible on migrant babies to achieve citizenship under the 14^th Amendment.

Another way to accomplish the Republican dream is to limit people’s access to the courts where they can go to have their Constitutional rights upheld. They’ve got it done with the Voting Rights Act: make it difficult for people to go to court under Section 5 and Section 2 and every other section of the Voting Rights Act to protect their rights to vote.

It’s a numbers game. It’s a numbers game when it comes to how many conservative judges Republicans can get appointed to district courts, appeals courts, and of course, the Supreme Court. Who gets to use the federal court system is a numbers game. But it’s also a question of legal representation. That’s why Trump has gone after the big law firms. He wants to intimidate them so that they won’t take the pro bono cases they have historically taken that protect people’s constitutional rights. Prestigious law firms have been involved in lawsuits that have expanded the rights of same sex people to marry, protect the right of habeas corpus, protected the rights of immigrants who were subject to Trump’s original orders against travel from Muslim countries, and protected people’s rights to vote.

Trump doesn’t want these firms doing pro bono work for others, so he has pressured them to do pro bono work for himself. Numerous law firms have banded together and signed an agreement not to cave under Trump’s pressure. But he has already gotten almost a dozen firms to commit to doing nearly a billion dollars-worth of pro bono work for the Trump administration. What that pro bono work will consist of remains to be seen, but the chilling effect on law firms is already there, and with the Trump administration attempting at every turn to limit people’s access to the courts, having excellent legal talent on your side has become more essential than ever.

So who owns the courts? Nearly every time the Supreme Court opens its doors to the public for a hearing on a case that has reached its august chambers, that question will be at least be an issue, if not the issue. The words in the Constitution are only as meaningful as their enforcement, and right now, that is a major problem.