By Pierre Tristam
The U.S. Supreme Court today ruled in a trio of landmark decisions that birthright citizenship remains a right, that schools may ban transgender girls from participating in girls’ sports, and that limits on the amounts of money political parties can spend in coordination with a candidate for federal office are unconstitutional, thus further and broadly deregulating one of the last remaining guardrails in campaign finance.
The 6-3 birthright citizenship decision, which drew on unusual alliances on the court, is a blow to the Trump administration, invalidating an executive order by the president and nullifying his administration’s attempts to scale back citizenship and naturalization rights. The decision preserves rather than alters the legal landscape for immigrants.
“If Congress intended to limit American citizenship to the children of those domiciled in the United States, nothing in the succinct language of the Citizenship Clause conveyed that design,” Roberts wrote.
Chief Justice John Roberts wrote the opinion, with Justices Brett Kavanaugh and Amy Coney Barrett from the conservative wing, and all three liberal justices–Elena Kagan, Sonia Sotomayor, Ketanji Brown Jackson–joining. Justices Neil Gorsuch, Samuel Alito and Clarence Thomas each filed a dissenting opinion.
In a concurrence blistering to the dissenters, Jackson grounded her arguments in history, as Roberts had, but from a very different perspective. “The Reconstruction Amendments were an anticaste, antisubordination reset for the Nation, not a mere spot treatment for the dark stain of slavery,” she wrote of the amendments, like the 13th, 14th–at issue in today’s decision–and 15th ratified during the brief dozen-year period of Black political ascendance after the Civil War, until 1877. “Freed Blacks did not advocate for a unique set of rules that catered only to their situation… Instead, those whose gatherings helped galvanize the push for full equality understood that ‘A diverse origin does not disprove a common nature, nor does it disprove a common destiny.'”
In an unstinting broadside against Trump and his conservative allies, Jackson concluded: “The ultimate irony is that for all the talk about the detestable Dred Scott decision, the Government and the principal dissent propose a return to its core tenet. Their bottom line is that, for certain people, being born on American soil will not suffice to confer citizenship.”
Thomas questioned the majority’s interpretation of history and narrowed the meaning of citizenship to “people who were born in this country and called it home” rather than “for the children of all foreign birth tourists and illegal aliens.”
The transgender athletes decision returns participation standards in school and college athletics to what had been an expected norm until the last generation. But it is a defeat for transgender rights, and it upends efforts by sports associations to devise methods that could broaden participation without undermining athletes’ achievements.
The decision on campaign finance will, like the Citizens United decision of 2010, have the most far-reaching consequence of the three in everyday campaign matters that affect fundraising and spending, largely benefiting bigger donors at the expense of grassroots contributors.
Associate Justice Elena Kagan argued that the 6-3 majority in the campaign finance decision “jettisons a rule needed to protect our democracy’s integrity… To count on disclosure to prevent corruption is as much as to give up on the goal itself. Which is, sad to say, what this Court does today.”
The court in a divided decision ruled that schools may determine girls’ and women’s eligibility to play sports based on biological sex under Title IX, the federal civil rights law that prohibits sex-based discrimination. The term “sex” “cannot plausibly be interpreted to refer to anything other than biological sex,” the court ruled, with all nine justices agreeing to that part of the decision. But a 6-3 court ruled that the equal protection clause of the 14th Amendment was not violated, with Justices Jackson, Kagan and Sotomayor dissenting.
The case addressed West Virginia and Idaho rules that maintained female sports teams for biological females.
“The ordinary meaning of the term ‘sex’ at the time of enactment in the early 1970s was biological sex and not gender identity, particularly in the sports context,” Kavanaugh wrote in his majority opinion. Kavanaugh has coached girls’ sports for years.
“And as to competitive fairness,” he wrote, “allowing biological males to play on women’s and girls’ sports teams can put female athletes at a serious disadvantage. That is because sports are generally zero sum. Allowing a biological male athlete to compete on a girls’ team necessarily displaces or disadvantages a female athlete—replacing her on the roster, knocking her out of the starting lineup, reducing her playing time, depriving her of a medal, and the like. That hard reality of sports cannot be ignored or swept under the rug.”
Title IX schools are eligible for federal funding. “Nothing in Title IX clearly and unambiguously alerts funding recipients that they are prohibited from restricting a school-sponsored sports team to biological women or girls,” Justice Gorsuch wrote in a concurring opinion.
The decision is not a surprise. Twenty-seven states, the International Olympic Committee, the United States Olympic and Paralympic Committee, and the NCAA, have banned all biological males from competing in women’s and girls’ sports.
Nevertheless, “”This litigation implicates deeply sensitive, contentious, and evolving issues,” Sotomayor wrote in her dissenting opinion. These circumstances demand exercising judicial restraint, not rushing to answer conclusively difficult questions without sufficient evidentiary development…. “Yet in an opinion unencumbered by fact or law, the majority today cuts off that process prematurely, deciding instead that B. P. J.’s case must end now.”
Kavanaugh noted in his conclusion that “”No student-athlete on either side of the issue, whether a biological female or transgender, deserves to be ostracized or vilified.”
The campaign finance decision explicitly overrules a 2001 precedent, arguing that fewer restrictions preserve election integrity, noting that a majority of states allow unrestricted coordinated expenditures between parties and candidates, without evidence of corruption. “”Importantly,” the majority decision found, “disclosure does not stand on its own. Rather, the combination of the base contribution limits plus the earmarking rules plus the disclosure requirements together serve the Government’s anti-circumvention interests here—without unduly restricting core political party speech.”
In dissent, Kagan argued that wealthy donors can now use joint fundraising committees to channel unlimited amounts through political parties to pay a candidate’s bills directly, “thus enabling a party to serve as an alternative checking account for a campaign. As a result, a donor will be able to give a party as much as half a million dollars (as compared to the $7,000 he can give directly to the candidate) to cover the candidate’s bills.”
The decision all but eliminates campaign finance limits. “I’m not sure what to call a remnant of a remnant, but that is what the Court has left today,” Kagan wrote. “And the result will be what Justice Breyer warned of: a legal regime increasingly unable to stop political corruption, and thus to preserve our institutions’ democratic legitimacy.”
R.S. says
I will never understand all the brouhaha about transgendered or gendered sports. I have always felt that, say, in sumo wrestling, a very heftily built female would have a serious advantage over a slightly built male. Perhaps we should rethink the entire classification system and use weight or biological age or height or whatever to classify athletic groups. The silliest thing about this debate is to set it as the gauge for whom to vote for at an election.