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amy coney barrett
With Its Birthright Non-Decision, the Supreme Court Chickened Out and Left a Mess Behind
Barrett and the conservative majority produced a complicated and confusing procedural ruling that leaves the executive order in legal limbo.
Jul 10, 2025
Just how bad is the Supreme Court’s June 27 decision on birthright citizenship? Among progressive and liberal commentators, the thinking is surprisingly mixed. Some assert that Trump v. CASA “couldn’t be more disastrous” and will leave the Trump administration with “blood on its hands”; others see “silver linings” in the ruling.
The reason for the diverse reactions is simple: The 6-3 majority decision written by Justice Amy Coney Barrett didn’t address the underlying issue in the case—the constitutionality of President Donald Trump’s executive order ending birthright citizenship under the 14th Amendment for the children of undocumented immigrants. Instead, Barrett and the conservative majority produced a complicated and confusing procedural ruling that leaves the executive order in legal limbo, intact for now but subject to further litigation.
As I have written before, Trump’s birthright order defies the plain text of the very first sentence of the 14th Amendment. Known as the “Citizenship Clause,” the sentence reads: “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.”
Had Barrett and her confederates not ducked the underlying issue of the executive order’s constitutionality, they would have been forced either to rewrite the Citizenship Clause to uphold the order—a step even they apparently are not yet prepared to take—or invalidate a centerpiece of the MAGA mass deportation agenda.
The executive order stunningly disregards these easily understood words, proclaiming that the amendment “has never been interpreted to extend citizenship universally to everyone born within the United States,” but was adopted only to repudiate the Supreme Court’s infamous Dred Scott decision that denied citizenship to Black Americans.
But while repudiating Dred Scott was the immediate impetus for crafting the Citizenship Clause, the Senate and the House debates in 1866 extended far beyond that notorious decision.
The clause was introduced in the Senate by Jacob Howard of Michigan on May 30, 1866, as an add-on to the draft of the 14th Amendment formulated by the House. The clause tracked similar language contained in the Civil Rights Act of 1866 and followed the general principles of English common law and the ancient doctrine of jus solis (the “law of the soil’’)—the principle that all those born within the geographic boundaries of a nation are citizens at birth. (More than 30 countries today recognize the doctrine, including the United States, Canada, and Mexico. Great Britain modified its nationality law in 1981.)
In his introductory remarks, Howard noted the phrase “subject to the jurisdiction” of the United States meant that the citizenship clause would not apply to the children of ambassadors or foreign ministers, the children of occupying foreign soldiers, or to the offspring of Native Americans who claimed allegiance to tribal governments, but that the clause would “include every other class of person,” regardless of race or descent. (Native Americans were accorded citizenship by legislation passed in 1924.)
The citizenship clause, Howard said, “settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States.”
Trump’s executive order also contradicts the court’s precedent opinions dating back to the landmark 1898 case of United States v. Wong Kim Ark, which recognized the citizenship of a man born in the U.S. to parents who at the time were subjects of the Chinese Emperor but domiciled in California. That case and other later decisions demonstrate the inclusive nature of the Citizenship Clause.
Had Barrett and her confederates not ducked the underlying issue of the executive order’s constitutionality, they would have been forced either to rewrite the Citizenship Clause to uphold the order—a step even they apparently are not yet prepared to take—or invalidate a centerpiece of the MAGA mass deportation agenda.
In the end, they chose to do neither.
But they still managed to hand Trump the next best thing to a total victory. Barrett’s ruling granted the administration’s request for a “partial stay” (or pause) on three nationwide preliminary injunctions that had been issued by three federal district court judges—which blocked the birthright order from taking effect anywhere in the country—and sent the cases back to the district judges for further consideration to weed through and apply the jurisprudential mess that Barrett left behind.
In a tortured analysis that New York Magazine’s Chas Danner called “an originalist fever dream,” Barrett limited the court’s review to the sole question of whether, under the Judiciary Act of 1789, federal courts have the authority to issue nationwide, or “universal,” injunctions. The act was one of the first laws passed by Congress after the ratification of the Constitution, and in modified form remains on the books in Title 28 of the United States Code. And as Barrett noted, it is the Judiciary Act that has endowed federal courts with jurisdiction over “all suits… in equity,” and that “still today… authorizes the federal courts to issue equitable remedies,” such as injunctions.
As an originalist, Barrett interprets the Constitution and federal statutes rigidly according to their text and their “original public meaning,” discounting evolving legal norms and practices as well as contemporary social values and needs. When it comes to universal injunctions, however, originalists have a problem. No federal statute, including the Judiciary Act, explicitly authorizes judges to issue nationwide injunctions, but no statute prohibits them from doing so.
In the absence of any guidance from the 1789 act, Barrett and the majority revved up their originalist wayback machine to examine how the English High Court of Chancery operated at the time of the founding, asking if that court issued forms of equitable relief analogous to contemporary universal injunctions. “The answer,” she wrote, “is no.” Equitable remedies at the time of the founding, she concluded, could provide “complete relief between the parties” to a lawsuit, but “complete relief is not synonymous with universal relief” that applies throughout an entire country.
But then, in another confusing twist, Barrett offered the aforementioned silver linings, writing that legal challenges to Trump’s birthright order might proceed under the Administrative Procedures Act, or as class actions, or in lawsuits brought by individual states seeking relief on behalf of their own residents, which 22 states to date have joined. Barrett left it to the district courts to determine which of these alternative legal avenues might suffice, and she gave them 30 days to do so before the executive order takes effect.
In a blistering dissent, Justice Sonia Sotomayor charged that Barrett’s opinion “kneecaps the Judiciary’s authority to stop the Executive from enforcing even the most unconstitutional policies” and that “newborns subject to the Citizenship Order will face the gravest harms imaginable,” jeopardizing their “chance to participate in American society… unless their parents have sufficient resources to file individual suits.”
In another scathing dissent, Justice Ketanji Brown Jackson blasted Barrett’s opinion “as an existential threat to the rule of law.”
Trump, by contrast, hailed the court’s decision, boasting that it will unblock other items on his political agenda that have been stymied by district court injunctions.
In the meantime, attorneys in the CASA case have amended their complaint to proceed as a class action, and New Jersey Attorney General Matthew Platkin has expressed confidence that broad injunctions stopping Trump’s executive order can still be enforced in lawsuits filed by state governments.
Whether the new legal maneuvers succeed remains to be seen. None would be necessary if the Supreme Court had stood up to Trump and done its job in the first place.
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Split Supreme Court Won't Allow First Religious Public Charter School in US
Although another case could soon come before the high court, the ACLU still welcomed that, for now, "public schools must remain secular and welcome all students, regardless of faith."
May 22, 2025
Public education and First Amendment advocates on Thursday celebrated the U.S. Supreme Court's refusal to allow the nation's first religious public charter school in Oklahoma—even though the outcome of this case doesn't rule out the possibility of another attempt to establish such an institution.
"Requiring states to allow religious public schools would dismantle religious freedom and public education as we know it," Cecillia Wang, national legal director of the ACLU, said in a statement about the 4-4 decison. "Today, a core American constitutional value remains in place: Public schools must remain secular and welcome all students, regardless of faith."
Wang's group and other partners had filed a lawsuit over St. Isidore of Seville Catholic Virtual School on behalf of parents, faith leaders, and public school advocates. Her colleague Daniel Mach, director of the ACLU's Program on Freedom of Religion and Belief, declared Thursday that "the very idea of a religious public school is a constitutional oxymoron."
The new one-page opinion states that "the judgment is affirmed by an equally divided court," which means the Oklahoma Supreme Court's June 2024 ruling against St. Isidore remains in place. There are nine members of the U.S. Supreme Court, but Justice Amy Coney Barrett—who is part of its right-wing supermajority—recused herself from this case.
"While Justice Barrett did not provide an explanation for her recusal, it may be because she is close friends with Nicole Stelle Garnett, a professor at Notre Dame Law School who was an early adviser for St. Isidore," The New York Times noted. "Although justices sometimes provide reasons when they recuse themselves, they are not required to do so."
Law Dork's Chris Geidner warned that "a new challenge not requiring her recusal could easily return to the court in short order—especially now that the court has shown its interest in taking on the issue."
In this case, as Common Dreams reported during oral arguments last month, Chief Justice John Roberts appeared to be the deciding vote. Geidner pointed out Thursday that while it seems most likely that he sided with the three liberals, "even that could have been as much of a vote to put off a decision as a substantive ruling on the matter."
Some groups happy with the outcome in this case also highlighted that the battle is expected to continue.
"This is a crucial, if narrow, win for constitutional principles," Freedom From Religion Foundation (FFRF) co-president Annie Laurie Gaylor said in a statement. "A publicly funded religious charter school would have obliterated the wall of separation between state and church. We're relieved that, at least for now, the First Amendment still means what it says."
"The fight isn't over," Gaylor added. "The forces trying to undermine our public schools and constitutional freedoms are already regrouping. FFRF will continue to defend secular education and the rights of all Americans to be free from government-imposed religion."
Leading teachers unions also weighed in with both an amicus brief submitted to the high court and Thursday statements.
"Educators and parents know that student success depends on more resources in our public schools, not less. Yet for too long, we have seen anti-public education forces attempt to deprive public school students of necessary funding and support," National Education Association president Becky Pringle said Thursday. "We are gratified that the Supreme Court did not take the radical step of upending public education by requiring states to have religious charter schools."
American Federation of Teachers president Randi Weingarten also welcomed that the high court on Thursday let stand the Oklahoma decision, "which correctly upheld the separation of church and state and backed the founders' intention to place religious pluralism over sectarianism."
"We are grateful that it upheld the state's highest court's clear and unambiguous ruling to preserve and nurture the roots of our democracy, not tear up its very foundations," Weingarten said in a statement. "We respect and honor religious education. It should be separate from public schooling."
"Public schools, including public charter schools, are funded by taxpayer dollars because they are dedicated to helping all—not just some—children have a shot at success," she stressed. "They are the bedrock of our democracy, and states have long worked to ensure that they remain secular, open, and accessible to all."
This article has been updated with comment from the National Education Association.
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Abortion Pills Aren't Uncomfortable; Censorship Is
Here's my message to The Times-Picayune and every other institution that finds truth "uncomfortable": Get comfortable with discomfort. Because abortion pills aren't going anywhere.
May 22, 2025
So here's what happened.
We—Mayday Health, an abortion education nonprofit—tried to buy a newspaper ad in The Times-Picayune of New Orleans. The ad featured just a few words: "Abortion pills are more popular than ever. Thanks, Amy" with a photo of Amy Coney Barrett, who was born in New Orleans.
The Times-Picayune of New Orleans, Louisiana said… no. They refused to publish.
They sent us a rejection letter assuring us that they "support First Amendment free speech," of course. They just find our particular speech too "uncomfortable."
Uncomfortable.
Let me tell you about uncomfortable.
Uncomfortable is 900,000 Louisiana women of childbearing age waking up in a state that treats their uteruses like crime scenes. Uncomfortable is pregnant Kaitlyn Joshua bleeding through her jeans in a Louisiana hospital parking lot because doctors were too scared of criminal repercussions. Uncomfortable is driving five hours across state lines for healthcare that used to be 10 minutes away. Uncomfortable is a group of Louisiana Republicans investigating a New York-based doctor for legally shipping pills to patients in the state—prosecutors hunting doctors for simply providing care.
In trying to end abortion access, Barrett accidentally revealed just how determined Americans are to control their own bodies. (Thanks for nothing, Amy.)
Louisiana already had one of the highest maternal mortality rates in the nation before this medieval abortion ban. Black and Native American women die here at rates that would make developing countries blush. And now? Doctors turn away women with pregnancy complications because providing necessary care might land them in a state prison.
So yes, Amy Coney Barrett voted to overturn Roe v. Wade. Yes, clinics shuttered overnight from coast to coast. But here's what nobody saw coming: When you eliminate physical access to abortion care, people don't simply accept defeat. They fight for their reproductive freedom. Today, more Americans are ending pregnancies with pills delivered to their mailboxes than ever before—not because it's ideal, but because it's necessary. The data is unequivocal; Abortion rates have actually risen since Roe fell in 2022, though countless people still face dangerous barriers to care. In trying to end abortion access, Barrett accidentally revealed just how determined Americans are to control their own bodies. (Thanks for nothing, Amy.)
But The Times-Picayune finds our ad uncomfortable. The Times-Picayune chose comfort over truth. They chose to protect their readers from reality, rather than prepare them for it.
Here are the facts The Times-Picayune doesn't want you to read: Abortion pills work. They're Food and Drug Administration-approved. They're safe. And—here's the kicker—they're available by mail in all 50 states, including Louisiana. Right now, as you read this, about 8,000 women per month in abortion-banned states are getting these pills delivered to their doorsteps.
I run Mayday Health. We're the people who put up billboards and buy ads and generally make powerful people squirm by stating the obvious. Like the time we put up three billboards in Jackson, Mississippi that read "Pregnant? You still have a choice." When Mississippi's attorney general tried to intimidate us with subpoenas, we didn't blink. We bought 20 more billboards and ran a state-wide TV ad. We turned their threats into a marketing campaign about abortion pills.
When Spotify rejected our audio ads about abortion pills, claiming we violated their policies, we posted a Tweet thread called the "Spotify Rapist Playlist," a list of convicted felons whose music is still available to stream. A week later, Spotify admitted their "ad reviewer made an error." (Spotify ultimately rejected our ads, and we ended up going on Pandora).
We've danced this dance before. The powerful get nervous when they think they have something to lose.
Here's what kills me: The same people who spread complete bullshit about abortion—that it causes breast cancer, that fetuses feel pain at six weeks, that women regularly use it as birth control—these people get full-page spreads. But a few words of truth about FDA-approved pills? Too spicy for the newspaper of record in the Big Easy.
Amy Coney Barrett and her robed colleagues said they were giving the power back to the states, back to the people. Noble, right? Except how are people supposed to make informed decisions when newspapers won't even print basic medical facts?
The truth is simple: Abortion bans don't stop abortions. They stop safe abortions. Women have been ending pregnancies since before we figured out how to make fire, and they're not stopping anytime soon. The only question is whether they'll have accurate information to aid them in the process.
We're not backing down. Mayday Health will keep taking out ads, conducting undercover investigations into fake crisis centers, flying airplane banners over MLB games, driving digital billboard trucks to fake crisis pregnancy centers, building pop-up abortion stores in Texas, and spreading information to rape crisis pregnancy centers. Because while The Times-Picayune worries about its comfort level, Louisiana women are out here living in the real world—a world where information isn't just power, it's survival.
So here's my message to The Times-Picayune and every other institution that finds truth "uncomfortable:" Get comfortable with discomfort. Because we're not going anywhere, and neither are abortion pills.
How's that for uncomfortable?
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