This courtroom sketch depicts the Republican administration's top Supreme Court lawyer, Solicitor General D. John Sauer, making arguments before the U.S. Supreme Court in Wshington on April 1. U.S. President Donald Trump is seated right.Dana Verkouteren/The Associated Press
Debra Thompson is a contributing columnist for The Globe and Mail.
Keeping true to the pattern of this unprecedented presidency, U.S. President Donald Trump made a surprise appearance during oral arguments at the Supreme Court on Wednesday, a first for a sitting president.
The case before the court, Trump v. Barbara, is about the constitutionality of birthright citizenship. One of Mr. Trump’s first executive orders, “Protecting the Meaning and Value of American Citizenship,” challenged the extension of the 14th Amendment to all persons born on American soil, upending decades of established jurisprudence.
The Supreme Court justices appeared to be skeptical of the argument that the 14th Amendment does not apply to everyone born in the United States and thus should exclude undocumented migrants and those with legal temporary status, like students and visa holders. This skepticism alone, perhaps, could explain Mr. Trump’s presence at the court. Maybe Mr. Trump meant to lend the gravitas normally associated with the office of the President of the United States to a legal argument that is far-fetched, at best.
But there is a broader logic at work here, one that extends beyond the debate over birthright citizenship. In true “art of the deal” fashion, Mr. Trump is all about signals, intimidation, bravado, aggressiveness, and unpredictability. His appearance was meant to signify something. But what?
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This could be a grand distraction from the other recent ineptitudes of his administration: the war with Iran, skyrocketing gas prices, stalled homeland security funding, the unceremonious dumping of former Secretary of Homeland Security Kristi Noem, forced retirement of U.S. Border Patrol commander-at-large Gregory Bovino, and ouster of attorney-general Pam Bondi, and as always, the Epstein files, to name but a few. Even with his open hostility to any media outlet besides Fox News, Mr. Trump has an intimate understanding of how to change headlines.
Some legal experts suggested that Mr. Trump’s presence could have been an intimidation tactic specifically aimed at his three appointees, Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett; a visceral reminder of who put them there, not unlike a mob boss’s sit-down. Mr. Trump has demonstrated time and again that he expects fealty from those who have benefited from his position as President. Just last month, Mr. Trump called Justices Gorsuch and Coney Barrett “an embarrassment to their families” because they voted with the majority and ruled that Mr. Trump’s imposition of tariffs were beyond the scope of his power.
Or Mr. Trump could be signalling another showdown between the executive and judicial branches. Congress has largely failed to be an effective check on presidential power, lengthy government shutdowns and TSA lines notwithstanding. The judiciary, on the other hand, is more of a mixed bag. In response to decisions against his administration, Mr. Trump has railed against judges who rule against him and the judicial review of executive actions. In doing so, Mr. Trump questions the legitimacy of – and need for – judicial independence, casting disagreement with central tenets of democratic accountability as populist defiance.
Relatedly, while Mr. Trump’s appearance was one kind of signal, his departure was another. Mr. Trump abruptly stood and left the Supreme Court while the American Civil Liberties Union’s lawyer, Cecillia Wang, went back and forth with the justices about key questions such as whether the children of undocumented immigrants or temporary visitors should receive automatic American citizenship. Judges must evaluate both sides of the argument. The President need not; Mr. Trump (foolishly, inadvisedly, sometimes unconstitutionally) acts unilaterally.
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But Mr. Trump’s appearance is most likely an appeal to the MAGA base. Immigration is still a cornerstone of Mr. Trump’s domestic policy agenda. Birthright citizenship is tied tightly to MAGA’s priorities of reducing all immigration pathways, securing borders, and reinvigorating an ethnonationalist understanding of American identity.
It’s an ideological ploy. According to the Pew Research Center, though 95 per cent of Americans believe that citizenship should be granted to the U.S.-born children of legal immigrants, there is a near-even split on whether the same should hold true for the children of parents who immigrated illegally. The partisan divide on this issue is stark: just 25 per cent of Republicans and Republican-leaning independents support birthright citizenship for undocumented migrants, compared to 74 per cent of Democrats or Democratic-leaning independents.
Whatever the intention driving Mr. Trump’s brief appearance at the Supreme Court, the performance is the point. It seems unlikely that the Court will overturn the constitutional order at the behest of a power-hungry president. It is much more likely that the real consequences lie elsewhere – in normalizing a vision of presidential power that treats the Supreme Court, one of the last vestiges of democratic normalcy, as a stage for political theatre rather than an independent arbiter of constitutional meaning.