Republicans might very well have been handed their next political “fight for a generation,” according to one prominent legal scholar, and Democrats risk facing a familiar failure if they choose to ignore it.
The Supreme Court on Tuesday, amid several rulings otherwise favorable to him, dealt President Donald Trump a major loss, shooting down his effort to end birthright citizenship via executive order, with the majority noting that a constitutional amendment — in this case the 14th — cannot be undone in such a manner. The judgement decision was 6-3. The ruling stirred up rancor among Republicans, with House Speaker Mike Johnson already putting forward the longshot possibility of ending birthright citizenship via a new amendment.
Despite this ostensible loss, other legal experts have nonetheless sounded alarms about the ruling, particularly because of how close the constitutional vote was, 5-4, compared to the judgment. Moira Donegan, a reporter for The Guardian, noted in a BlueSky post that such a close verdict could be read as “an invitation to try again.” Justice Brett Kavanaugh, who voted against Trump in this case on the judgment but dissented in the constitutional vote, teased as much, suggesting that he would be open to flipping his vote if Congress passed a statute on the matter.
Elsewhere, Elie Mystal, a prominent justice correspondent for The Nation and MS NOW, went a step further, warning that this ruling had set up the next generation-spanning political battle for American conservatives, likening it to the decades-long fight to undo Roe v. Wade. He further urged Democrats not to assume that the matter is settled for the time being.
“With this ruling, the birthright issue is not going away,” Mystal wrote in a BlueSky post. “The right hasn’t really begun organizing around getting rid of the citizenship clause. Like [Roe v. Wade], this will be their fight for a generation. And if the Democrats just say ‘we won’ and ignore it, like Roe, the Republicans will eventually win.”
MS NOW anchor Chris Hayes had a similarly dire take on the implications of the close decision, warning that it opened up a dangerous new path for changing the U.S. Constitution.
“The thing you need to understand is that there are 2 (TWO) different method [sic] for amending the constitution,” Hayes posted to BlueSky. “1) The process laid out in the Constituton itself (conventions, or 2/3’s of both houses followed by 3/4 of states ratifying). OR 2) find five votes on the Supreme Court. This is exactly what happened after the reconstruction amendments were added to the constitution and then, basically, deleted by the Plessy court.”