How to read the Supreme Court: It’s the neoliberalism, baby, except for Ketanji Brown Jackson

What a look-see at the Court's various opinions over the course of the year reveal about what it's about and where we are

Stepping back from today’s Supreme Court rulings to consider the broad cast of the year, there seem to be three main areas in which the Court significantly pushed back on Trump. They are: 1) independence of the Fed; 2) tariffs; 3) birthright citizenship.

As it happens, these were three of Trump’s biggest challenges to prevailing conservative and Republican orthodoxy. And on each one, he failed.

How to read that failure?

I think the simplest explanation is that the Roberts Court is, above all, a neoliberal Court. Trump’s challenge to free trade and independent monetary policy—as well as the idea of the United States being a nation of the people who are born there, not a nation of blood but a nation of birth—simply proved a bridge too far for six of the nine justices, two of whom were appointed by Trump.

On other issues—most critically, the expansion of presidential power, and to a lesser degree, restrictions on voting rights (I say “to a lesser degree” because most of that work of restricting voting rights had already been done to a significant degree before this Trump term)—the Court had virtually no issue with Trump. There’s a reason for that: unlike the tariffs or independence of the Fed or birthright citizenship, expansive presidential power and restrictions on voting rights are issues that were well within the mainstream of conservative politics, that conservative litigators, law professors, activists, and judges have been working out for at least a half-century.

While I have no illusions that this Court will serve as a check on state repression or preserver of civil rights and civil liberties, I do think the Court is functioning as previous Supreme Courts have functioned: namely, as a preserver and marker of the boundaries of the existing political regime. If we say that we are still living within the Reagan/neoliberal regime, we should expect the Court to maintain that regime, just as the Warren and even, to some degree, the Burger Courts did with the New Deal and the Great Society. Once those regimes collapse, as they did with Jimmy Carter and Ronald Reagan, the Court’s function changed.

This year’s rulings, with its combination of wins for Trump and genuine defeats for Trump, continues in that tradition. Spelled out in terms of ideological substance, it is a tradition that will not blink before repressive state power, unless that power violates the basic capstones of neoliberal capitalism: no tariffs, no political control over monetary policy, no fundamental redefinition of the nation such as to preclude, now and forever, the children of immigrants.

On birthright citizenship, I was struck by two opinions: Roberts’s majority opinion and Jackson’s concurring opinion.

In his majority opinion, Roberts writes:

In a Nation of immigrants—an “asylum for mankind,” in Thomas Paine’s words—jus soli’s broad scope took on particular importance.”

It’s a strong claim, with reverberations extending far beyond this case. It affirms three values, all of which are at variance with Trump and Trumpism: the right of asylum, the United States is a nation of immigrants, and jus soli (the proposition citizenship depends on where you are born, not who your parents are). It’s too bad the Court didn’t remember any of these principles in the two immigration/presidential power cases it decided last week. Even so, it’s striking to see their affirmation here.

As always, Jackson remains the most interesting justice on the Court, at least to me. No one has resisted the Trump regime more strongly, but more important, no one has articulated a vision of left liberalism for the future the way she has.

As she often does in her opinions, Justice Jackson takes aim at Clarence Thomas. She takes the fight against him, and all conservatives, exactly where it needs to be fought. I’ll just give her the floor:

Even worse, JUSTICE THOMAS’s telling elides the entire point of the Second Founding: The Reconstruction Amendments were an anticaste, antisubordination reset for the Nation, not a mere spot treatment for the dark stain of slavery.

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That bears repeating: Freed Blacks did not advocate for a unique set of rules that catered only to their situation. Nor did they seek to advance their own position relative to, or at the expense and exclusion of, other marginalized groups. 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 united destiny.’ The firmest foundation for freedom would require an anticaste reset—’both for his sake and for ours’—and would benefit all.

During his U. S. Senate candidacy, Abraham Lincoln developed a similar vision. In the lead-up to the now-famous Lincoln-Douglas debates, Lincoln explained that the promise of liberty and equality in the Declaration of Independence ‘was held sacred by all, and thought to include all.’ Lincoln expressly and intentionally linked the fate of Black Americans and immigrant groups (’among us perhaps half our people who are not descendants at all’ of the Founders), and noted that the Nation’s future hinged on a universal definition of citizenship that excluded neither. He explained that the Declaration’s promise that ‘all men are created equal’ was the ‘electric cord . . . that links the hearts of patriotic and liberty-loving men together,’ regardless of race or descent.

The case was made. First, there was war. And then, the delegates’ (and Lincoln’s) universalist view of citizenship made its mark on the Constitution.”

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As I have shown in this opinion, the Fourteenth Amendment is not color-blind; rather, its core principle is that our Nation does not tolerate racial caste—i.e., the systemic subordination that many (even some who opposed slavery) had wished to perpetuate after the Civil War. So, the architects of the Second Founding did not think or pretend that race didn’t matter. Quite to the contrary, they understood that race made an enormous difference to the lived experiences of all concerned—and to the fate of our union. Indeed, it is for that very reason that a radical restructuring was required....

Putting a finer point on this: When colonizationists objected to changing their norms to accommodate the equal citizenship and rights of freedmen, freed Blacks and their allies organized to push for a Constitution that would bring their own antisubordination vision to fruition. That kind of ambitious transformation—nothing less than the remaking of the soul of a Nation beset by rank, entrenched race-based prejudice and inequity—did not come for free, or purely by the say-so of those who claimed to be ‘color-blind.’ It required heavy lifting, a fundamental shift—the very thing for which the Fourteenth Amendment stands: a repudiation of the notion that there is a ‘superior, dominant, ruling class of citizens,’ and a willingness to see, and strive to eliminate, all remaining vestiges of historical subjugation....

Thus, even in cases where the protagonist was not a Black American, this Court’s Fourteenth Amendment cases have focused, at bottom, on the same universal liberty and equality interests that motivated the Fourteenth Amendment itself. The question is (and always has been): Does the affected individual or group enjoy equal dignity? And the correct answer is (and has always been) to heed the Fourteenth Amendment’s universalist, antisubordination command. Our Nation did not undergo something as profound and world-shifting as ‘Reconstruction’ for naught.

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Freed Blacks fought for the shared humanity of all people. And the Great Emancipator eventually foresaw that the only path forward that could prevent a return—in any form—to slavery and race-based subordination was to link the fates of all.

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Ultimately, then, it is the Government and JUSTICE THOMAS who have ‘repurposed the Fourteenth Amendment.’ By ignoring that our Constitution stands firmly against caste and subjugation—on all axes and in all manners—they deny the clear, universalist vision shared and proclaimed by the Fourteenth Amendment’s Framers: to ‘rebuild a shattered empire . . . to plant deep and solid the corner-stone of eternal justice, and to erect thereon a superstructure of perfect equality of every human being before the law.’