In a scathing dissent against the Supreme Court’s birthright citizenship decision on Friday, Justice Sonia Sotomayor is clear about what just happened: The Trump administration set a trap for the court, and the conservative justices walked right into it.
In January, President Donald Trump signed an executive order undoing birthright citizenship, a right that is guaranteed in the 14th Amendment. Numerous plaintiffs—including 22 states—filed suit, and three separate lower-court judges found that the order was blatantly unconstitutional. Each of them issued nationwide injunctions that prevented the executive order from taking effect anywhere across the country.
The Trump administration appealed up to the Supreme Court, and at oral argument in May, it presented the case as a chance to consider whether nationwide injunctions themselves are unconstitutional. That framing paved the way for the high court to allow Trump to violate the 14th Amendment in half of U.S. states —without seeming, on paper, as if it were making a decision about the amendment at all. It also allowed the conservative supermajority to take away one of the judiciary’s main tools for upholding the law.
On Friday, the Supreme Court’s conservative justices gave Trump what he wanted: They decided that the three nationwide injunctions apply only to the plaintiffs, effectively limiting birthright citizenship to those 22 states and the District of Columbia, two immigrants’ rights groups, and four pregnant women.
“The gamesmanship in this request is apparent and the Government makes no attempts to hide it,” Sotomayor writes. “Yet shamefully, this Court plays along.” And by doing so, Sotomayor notes, her conservative colleagues—three of whom Trump installed in his first term—are creating a “new legal regime” in which all of our rights are at risk.
Here are some of the most cutting lines from Sotomayor’s dissent, which Justices Elena Kagan and Ketanji Brown Jackson joined.
Oftentimes, legal issues arise that require judges to read between the lines of the Constitution and make assumptions about what the Framers intended. Sotomayor argues that birthright citizenship is simply not one of those issues, as it clearly states: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” And the 14th Amendment includes the equal protection clause, which also affirms that citizenship does not discriminate based on race, sex, ethnicity, religion, or, as Sotomayor notes, parentage.
“Suppose an executive order barred women from receiving unemployment benefits or black citizens from voting. Is the Government irreparably harmed, and entitled to emergency relief, by a district court order universally enjoining such policies? The majority, apparently, would say yes.” Sotomayor points to a 2009 decision, Nken v. Holder
Sotomayor also criticized the majority’s decision to accept this case under the court’s shadow docket, which it has been doing numerous times for the Trump administration as it appeals lower-court decisions it doesn’t like: “Our emergency docket is not a mechanism for an expedited appeal.”
“This Court endorses the radical proposition that the President is harmed, irreparably, whenever he cannot do something he wants to do, even if what he wants to do is break the law.” The federal government attempted to argue that it will suffer irreparable harm by not being able to enforce Trump’s executive order. But, Sotomayor argues, this is not possible, since the executive branch doesn’t have the right to enforce an order that’s clearly unconstitutional. The power to issue executive orders doesn’t permit any president to “rewrite the Constitution or statutory provisions at a whim.”
The bottom line, Sotomayor says, is that “the injunctions do no more harm to the Executive than the Constitution and federal law do.”
“A majority that has repeatedly pledged its fealty to ‘history and tradition’ thus eliminates an equitable power firmly grounded in centuries of equitable principles and practice.”
In her dissent, Sotomayor calls attention to how the conservative justices—who say they are committed to interpretations of the Constitution supported by history and tradition —have a very selective reading of history when it suits them. In the majority’s opinion, they rule that universal injunctions “likely exceed the equitable authority that Congress has granted to federal courts.” But Sotomayor explains that federal courts have long exercised their authority to enjoin state and federal laws, including in cases dating back to the 19th century. In fact, “the majority does not identify a single case, from the founding era or otherwise, in which this Court held that federal courts may never issue universal injunctions or broaden equitable relief that extends to nonparties,” Sotomayor writes.
“To allow the Government to enforce [the birthright citizenship executive order] against even one newborn child is an assault on our constitutional order and antithetical to equity and public interest.” Sotomayor argues that the equities at stake in the birthright citizenship executive order should alone force the court to rule against the federal government in this case. Newborns are poised to face “the gravest harms imaginable,” as they are set to lose one of the most vital rights afforded to them under the Constitution. Citizenship is an integral part of American society and enables parents to provide for their children via public programs like Medicaid and food stamps.
The only chance infants now have left, the justice writes, is if “their parents have sufficient resources to file individual suits or successfully challenge the Citizenship Order in removal proceedings.” That’s because the majority has left only one option for immigrants who were not part of the initial wave of lawsuits and now stand to be affected by Trump’s order: file a class action lawsuit.
“The Court’s decision is nothing less than an open invitation for the Government to bypass the Constitution. ... No right is safe in the new legal regime the Court creates. 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.” Within hours of the court releasing its decision, the president held a press conference and confirmed that his administration will “promptly file ” to move forward with actions that lower-court judges have blocked. Since the beginning of this year, judges have launched numerous nationwide injunctions against the Trump administration’s unlawful executive actions, including one blocking Trump’s rescission of foreign aid and cutting off funding to schools with DEI initiatives.
Now, without nationwide injunctions as a check on the president’s power, we’re entering uncharted territory.
“The rule of law is not a given in this Nation, nor any other,” Sotomayor writes in her dissent. “It is a precept of our democracy that will endure only if those brave enough in every branch fight for its survival.”
Shirin Ali is an associate writer for Slate.
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