The Supreme Court’s 5-4 decision last month in Trump v. Barbara declaring birthplace citizenship a constitutional right — authored by Chief Justice John Roberts and supported by Justice Amy Coney Barrett and the court’s three liberals — elicited a wave of pointed conservative criticism.
The critiques began in the case’s dissents. Justice Samuel Alito called the ruling “a serious mistake.” Justice Clarence Thomas said it “devalues” citizenship. Even conservative legal scholars who admire Roberts and Barrett acknowledge that Thomas’ historical analysis of the 14th Amendment was far more compelling than the thin originalism of the chief’s opinion. Movement conservatives, for their part, are outraged by the decision, which they feel was not only wrong, but wrong in the peculiarly Roe-ish way of extra-constitutionally placing a legitimate political question outside the reach of the nation’s elected lawmakers.
The Republican legal establishment has tried to defend — or at least downplay — Roberts’ ruling and Barrett’s vote. Their arguments — that Barbara only upholds the status quo or that the ruling is #akshually Donald Trump’s fault — have utterly failed to assuage conservatives’ frustration. Indeed, they seem only to be exacerbating the MAGA right’s sense of elite legalistic betrayal. It is urgently important for Republican decision-makers — on Capitol Hill, in the Trump administration, and especially in the originalist/textualist conservative legal movement — to understand why — and what to do about it.
The heart of the dispute is the question of what the Supreme Court is. In the intellectual fantasies of many originalist, textualist lawyers, the court is an apolitical, judicial umpire — merely calling balls and strikes, in Roberts’ famous framing. In the real world, however, the court (very much including the Roberts Court) is America’s unelected super-legislature, redrawing the strike zone however and whenever they please.
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