Now Is the Time to Intensify Our Agitation

Neither Congress nor SCOTUS will save us. We must check MAGA’s madness.

In the final decisions of this term, the Supreme Court issued a 6-3 ruling today that is a troubling capitulation to MAGA’s madness. Trump will no doubt welcome this decision as an invitation to continue his extreme abuses of the power. We must meet it with a firm determination to intensify and embolden our agitation.

First, the decision itself: the Court did not rule on Trump’s claim that he can unilaterally disregard the 14^th amendment to the US Constitution. Instead, they said a district court judge does not have the authority to issue a nationwide injunction against Trump’s Executive Order that denies birthright citizenship to all people born in the United States – a fundamental right guaranteed by the 14^th amendment. But if there is not a nationwide injunction against Trump’s denial of birthright citizenship, then states that have not challenged it could begin to try to enforce it after the 30-day period the Court allowed before its ruling goes into effect. Technically speaking, this case is far from resolved.

Nevertheless, federal district court injunctions against Trump’s Executive Orders have been a principal shield against Trump’s most extreme and illegal actions. Today, the Supreme Court majority acted to remove that shield. Justice Ketanji Brown Jackson’s dissent makes clear what is at stake for all of us: “if this country is going to persist as a Nation of laws and not men, the Judiciary has no choice but to deny it.”

It is especially ominous that the Court majority is willing to open this door for an authoritarian in a case challenging Trump’s disregard for the 14^th amendment. A centerpiece of the Reconstruction amendments that were passed after the Civil War ended race-based chattel slavery in America, the 14^th amendment is not only basis for birthright citizenship; it is also where we find the guarantee of equal protection under law in the US Constitution. Since 1935, “equal justice under law” has been etched in stone across the face of the building where the Supreme Court meets to hear cases. The 14th amendment gave the civil rights movement, the women's movement, the LGBTQ movement, and the disability movement a way to stop the abuses of racist politicians and presidents. The court has folded on a critical process issue in a case that is about the very heart of our Constitution.

While the Court hasn’t ruled yet on Trump’s denial of birthright citizenship, it is willing to say that a district court ruling can’t stop implementation of Trump’s executive orders nationwide until the constitutionality of his order is settled. This is akin to their Shelby decision which said that voting law changes no longer have to be pre-cleared in states with a long and documented history of voter suppression. We have a decade of experience to show us what political extremists will do when they are allowed to abuse their power while we challenge them in court. Today’s decision means we could have different basic rights depending on the states we live in – a morally compromised situation like the one we were in as a nation before the Union won the Civil War and guaranteed citizenship to all people who had formerly been enslaved as property in some states. This history, of course, is why we have a 14th amendment.

After months of watching Republicans in Congress refuse to do anything to check Trump’s abuses of power, it is disheartening to see the Supreme Court majority abdicate the responsibility of the judiciary in this way. While the fox is in the hen house, the Court has acted to force the hens off of our roosts. It is not unreasonable to conclude that we are all in grave danger.

Still, dire as the threat is, we cannot despair. This is a moment to remember those who came before us. During the abolition movement, when the Supreme Court ruled that a Black person in this country did not have any right that a white person was obliged to respect, Frederick Douglass taught us that moments of extremism like this can serve to build up the movements that will ultimately end injustice. In the face of the Court’s monstrous Dred Scott decision, Douglass declared that we must “intensify and embolden our agitation.”

In fact, he said a decision this bad might actually serve to awaken those who’ve not yet recognized that We the People are the ones who must act to reclaim America.

Yes, the decision is terrible. Yes, we are all now more vulnerable than we were yesterday. But we cannot shrink back. Now is the time to stand together, embrace unlikely alliances, and build the power we need to take back a government of the people and by the people. The darkest hour is always the one that comes just before the dawn. May this extremism unite us in a movement that can reconstruct the political architecture of this country that we love.

---

Moral Monday in DC will be on the Supreme Court steps this coming Monday, June 30th, at 11am. Please help us spread the word and make plans to join us in-person or online.