Decompiling Oppression #142
Sam McVeety
The Supreme Court wrapped up another term last week, and while there is plenty of bad news to go around, perhaps the most frustrating opinion was in Trump v. CASA. Notionally about birthright citizenship, it was Justice Barrett's turn at the wheel for this one, and rather than address the blatant unconstitutionality of a ban on birthright citizenship, a 6-3 majority decided that universal injunctions were the more pressing issue to address, punting entirely on the merits of the case.
It is true that universal (alternatively, "nationwide") injunctions have been on the rise in recent years. They have been a tool for plaintiffs of all political stripes to attempt to block policy not just in their local jurisdiction, but nationwide, until the relevant court has a chance to consider the matter more fully. What's notable, though, is that the Court decided to pass on these injunctions until now (that is, through the Obama, Trump I, and Biden administrations). The fact that the Court chose this case (again, obviously unconstitutional and contemplating obvious harms) to make its stand on stemming universal injunctions is bizarre.
It's also not inherently bad for there to be a ruling on procedural grounds like this. The Court routinely rejects cases that lack standing (like the mifepristone case), where an actual "injury in fact" has not occurred. This has the practical effect of limiting the number of lawsuits brought on hypothetical or speculative harms, which can be a good thing. When the Court dismisses a case on procedural grounds, it returns the case to lower courts without setting any sort of precedent regarding the actual content ("merits") of the case. With this case, though, the merits should be absolutely clear, and the Court's refusal to simply say so is equal parts cowardly and unsettling. It is certainly a far cry from the bedrock clarity of Justice Marshall's ruling in Marbury:
It is, emphatically, the province and duty of the judicial department, to say what the law is.
The practical effect of this ruling is that we will see a checkerboard of rights and protections start to emerge, as fewer injunctions allow policies from Congress and the Executive to go into effect. It is uncharted legal territory: if the Order goes into effect, where an undocumented person gives birth (and whether the Order has been challenged in that jurisdiction) might determine whether their child has citizenship. Kavanaugh is quick to stipulate that the Court is here to step in if anything truly bad were to happen, but as we can see from its handling of this particular case, the Court's barometer for such harms isn't exactly reliable or reassuring.
There's another dynamic here, where the Court continues its vichification, acting like it can somehow keep its hands clean by too-clever rulings like CASA. It doesn't say that birthright citizenship is unconstitutional, but it doesn't not say it either. One can imagine the middle-right wing of the Court convincing themselves that they are somehow not complicit in illegal actions like this, but make no mistake: their decision not to decide is a statement all its own. Not only that, but the legal regime that this ruling ushers in will only further the aforementioned fracturing of protections, creating chaos and confusion that complements the administration's ongoing war against a shared reality.
Still, we can choose how we respond to this moment. I am reminded of the urgent truth from the ACLU of Alabama, that some people are already living under Project 2025, and have been for years. These are places where resistance has always been a necessity of survival, and it is never too late to remember that all of our fates are in fact intertwined. I am reminded of places like Spokane, Washington, providing necessary resources to neighboring Idahoans as medical and social services continue to disappear.
Perhaps there will be unexpected consequences from all this, as the overreach of the current moment forces us to practice the interdependence that will guide us forward. Closer to home, this kind of solidarity (and joy) was was on full display last weekend at Seattle's Trans Pride, with Monse (formerly) from WAISN, Scott from SURJ, Ashley from Washington Bus, Alexis from Council, Jamila from Pride Foundation, and Jaelynn and Angel from LRP all in attendance. The courts will not save us; we will.
Here are this week's invitations:
Personal: What does living with uncertainty feel like for you?
Communal: How can we build strong connections between communities while still respecting what makes each of them unique and special?
Solidarity: Support WAISN and their work to defend immigrant and refugee communities from deportation while advocating for meaningful, systemic change.
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