There's no way Kagan, Jackson and Sotomayor support Trump's attempt to reconfigure the 14th amendment. So only two of the other six need to join them. I think there's a high likelihood that Barrett does, a pretty good likelihood Gorsuch does, and a high likelihood that Alito does not. I think there's about a 50% chance that Roberts, Kavanaugh, and Thomas also join the opinion overturning the order.
So I'm essential predicting 6-3 or 7-2 overturning this nonsense.
That's probably a good way to bet. I have very little interest in what Alito says, and only slightly more in what Kavanaugh says, but I'm quite keen to learn not only how the other conservatives vote but what their reasoning turns out to be.
I hope you're right, Scott, but I think it'll be closer than that; I think Thomas is a lock, along with Alito, for supporting Trump's order, and Kavanaugh nearly so. I think you're correct that the best hope is for Barrett to join with Kagan, Jackson, and Sotomayor; after that, I'd put Gorsuch and Roberts about equal in their chance to flip.
5 years ago I would have put Thomas as a lock to join the "originalist" reading as his originalist jurisprudence has been nearly unimpeachable as long as I've been attending to the court. I have less confidence now that he hasn't been radicalized toward populism/Trumpism. It'll be a great test of his legacy which direction he comes down on this and I think he'll be aware of that. This is why I rate him at 50/50.
Well written, Noah. But note the words you used in your claim: "Finally, there’s the question of popular constitutionalism. Trump’s order explicitly interprets the meaning of the Constitution. Does that matter?....[I]f you are alive to the counter-majoritarian difficulty, and therefore believe the Court should be deferential to the elected branches, then perhaps it should matter to you." There are multiple legal and theoretical arguments which support "popular constitutionalism," which aren't always exactly the same as arguments for a "living Constitution" (the latter frequently is grounded in a kind of pragmatic/administrative theory rather than a democratic one). The kind of popular constitutionalism I find most persuasive actually would think it a VERY big deal that the interpretation is being issued by the executive branch, and not the the legislative one. I have no idea if the legal battles to come will get that deep into the weeds, but at this early moment, I think you're wrong to assume that, just because the losing side will wail about democracy (as obviously will happen; such rhetoric is probably inevitable) that therefore that just tells us something depressing about the state of democratic discourse overall. On the contrary, some popular constitutionalism, at least, has a very strong grasp of, and I think stand upon a very firm foundation of, democratic practice, while I can't imagine that those who will defend Trump's position will have either.
Yes -- I'm being a bit sloppy here in the interest of concision. The point of the pragmatism is to let the elected branches get on with their jobs -- but implicit in that, I think, is deference to the elected branches over the less-accountable judicial branch.
Your point about the executive versus the legislative branch, though, is a solid one -- particularly since there is legislation that uses the same language as the 14th Amendment. There's clearly room for the Court to take a middle path and say: *Congress* can reinterpret the 14th Amendment's Citizenship Clause with enabling legislation, but an executive order cannot similarly do so.
I think that's the only result that *wouldn't* trigger wailing about democracy, now that I think about it.
This way Trump can change the constitution by convention. Pretty underhanded to make him “King” and several other wants. at the same time wanting to exclude people who were born here.
The conservative justices will be far less sympathetic of Trump's EO than you expect. I don't even really see it getting on it's feet at the lower courts.
Here's a relevant law review article from (likely) the next conservative SCOTUS appointee:
Isn’t Marco Rubio a birth right citizen? Neither of his parents were citizens at the time of his birth. Does this disqualify Rubio from the presidency?
(1) Trump's executive order doesn't propose revoking anybody's citizenship; this is all about the future, not the past. So far, anyway.
(2) Trump's order also still grants birthright citizenship to children of women who are in the country legally, on long-term visas or green cards, even if they are not citizens. I don't believe Rubio's parents first arrived here without authorization, but even if they did their status would have been normalized after 1966 with the passage of the Cuban Adjustment Act.
There's no way Kagan, Jackson and Sotomayor support Trump's attempt to reconfigure the 14th amendment. So only two of the other six need to join them. I think there's a high likelihood that Barrett does, a pretty good likelihood Gorsuch does, and a high likelihood that Alito does not. I think there's about a 50% chance that Roberts, Kavanaugh, and Thomas also join the opinion overturning the order.
So I'm essential predicting 6-3 or 7-2 overturning this nonsense.
That's probably a good way to bet. I have very little interest in what Alito says, and only slightly more in what Kavanaugh says, but I'm quite keen to learn not only how the other conservatives vote but what their reasoning turns out to be.
I hope you're right, Scott, but I think it'll be closer than that; I think Thomas is a lock, along with Alito, for supporting Trump's order, and Kavanaugh nearly so. I think you're correct that the best hope is for Barrett to join with Kagan, Jackson, and Sotomayor; after that, I'd put Gorsuch and Roberts about equal in their chance to flip.
5 years ago I would have put Thomas as a lock to join the "originalist" reading as his originalist jurisprudence has been nearly unimpeachable as long as I've been attending to the court. I have less confidence now that he hasn't been radicalized toward populism/Trumpism. It'll be a great test of his legacy which direction he comes down on this and I think he'll be aware of that. This is why I rate him at 50/50.
Again, I hope you're right, but I'm not confident.
Well written, Noah. But note the words you used in your claim: "Finally, there’s the question of popular constitutionalism. Trump’s order explicitly interprets the meaning of the Constitution. Does that matter?....[I]f you are alive to the counter-majoritarian difficulty, and therefore believe the Court should be deferential to the elected branches, then perhaps it should matter to you." There are multiple legal and theoretical arguments which support "popular constitutionalism," which aren't always exactly the same as arguments for a "living Constitution" (the latter frequently is grounded in a kind of pragmatic/administrative theory rather than a democratic one). The kind of popular constitutionalism I find most persuasive actually would think it a VERY big deal that the interpretation is being issued by the executive branch, and not the the legislative one. I have no idea if the legal battles to come will get that deep into the weeds, but at this early moment, I think you're wrong to assume that, just because the losing side will wail about democracy (as obviously will happen; such rhetoric is probably inevitable) that therefore that just tells us something depressing about the state of democratic discourse overall. On the contrary, some popular constitutionalism, at least, has a very strong grasp of, and I think stand upon a very firm foundation of, democratic practice, while I can't imagine that those who will defend Trump's position will have either.
Yes -- I'm being a bit sloppy here in the interest of concision. The point of the pragmatism is to let the elected branches get on with their jobs -- but implicit in that, I think, is deference to the elected branches over the less-accountable judicial branch.
Your point about the executive versus the legislative branch, though, is a solid one -- particularly since there is legislation that uses the same language as the 14th Amendment. There's clearly room for the Court to take a middle path and say: *Congress* can reinterpret the 14th Amendment's Citizenship Clause with enabling legislation, but an executive order cannot similarly do so.
I think that's the only result that *wouldn't* trigger wailing about democracy, now that I think about it.
Let's hope for that, since clearly this is a bone which Trump and the MAGA true believers behind him are not going to let go of.
This way Trump can change the constitution by convention. Pretty underhanded to make him “King” and several other wants. at the same time wanting to exclude people who were born here.
The conservative justices will be far less sympathetic of Trump's EO than you expect. I don't even really see it getting on it's feet at the lower courts.
Here's a relevant law review article from (likely) the next conservative SCOTUS appointee:
https://www.gibsondunn.com/wp-content/uploads/documents/publications/Ho-DefiningAmerican.pdf
Isn’t Marco Rubio a birth right citizen? Neither of his parents were citizens at the time of his birth. Does this disqualify Rubio from the presidency?
(1) Trump's executive order doesn't propose revoking anybody's citizenship; this is all about the future, not the past. So far, anyway.
(2) Trump's order also still grants birthright citizenship to children of women who are in the country legally, on long-term visas or green cards, even if they are not citizens. I don't believe Rubio's parents first arrived here without authorization, but even if they did their status would have been normalized after 1966 with the passage of the Cuban Adjustment Act.
"Americans are citizens not by virtue of the blood in their veins, but by virtue of soil under their feet."
Extremely well put and entirely correct; although there are a lot of Americans who think otherwise (incorrectly).