The Supreme Court Didn’t Rule on Birthright Citizenship — It Ruled on Judicial Restraint

Let’s cut through some noise and mainstream media clickbait. Yesterday’s 119 page Supreme Court decision isn’t about whether children born on U.S. soil to undocumented parents are citizens under the 14th Amendment.

It doesn’t uphold or strike down the President’s executive order on birthright citizenship.

It doesn’t change the law of citizenship for anyone. Because thus far, the case hasn’t even been heard on merits. We can all speculate (and in February, I did) what may happen before a court when argued. In this case — and in many, many other nationwide injunctions — the district court granted sweeping nationwide relief without even hearing arguments from the Government at all. The plaintiffs ran in, filed their complaint, asked for an emergency halt, and the judge signed off. No briefing. No evidence from the other side. No cross-examination. No defense of the federal policy.

That’s the judicial equivalent of convicting someone without a trial.

Thankfully, the Supreme Court put its foot down on a simple — but incredibly important — question: Can one district judge, hearing a case brought by “five” plaintiffs, block an entire federal policy nationwide, in a forum shopped, emergency hearing, before anyone has even argued the merits and in many cases, before the government has even submitted a brief on the topic?

Finally and with great relief, the Supreme Court has said “No.”

Here’s why this matters: Courts exist to provide relief to the parties before them — the people who actually brought the lawsuit. If those plaintiffs face immediate harm from an “executive order”, a judge can temporarily block the order for those plaintiffs, giving time to brief, argue, and eventually decide whether the order is constitutional. That’s called a temporary injunction. But that’s not what’s been happening.

Instead, a handful of plaintiffs forum-shop their case into a friendly district judge — usually one known for a strong ideological bent — and that judge, without even hearing the other side or demanding briefing on the merits, issues a nationwide preliminary injunction, and recently without following the rules of Federal Civil Procedure and certifying a class action lawsuit under rule 23, as the law demands. In essence, one judge in one case reads a complaint from “The ACLU” on behalf of a hand selected plaintiff they pick and the judge thinks “man, that’s seems bad, I’m going to apply my ruling to every single illegal pregnant mother in the country and block the implementation of this new federal policy in all 50 states, and give the lawyers time to write some briefs and we will look at it next year.” Not surprisingly, that’s not how the lower federal and appellate courts are supposed to work.

If, down the road, a policy is ruled unconstitutional on the merits and upheld on appeal, then that becomes the law of the land. But nationwide injunctions before any merits hearing allow a single trial judge to short-circuit the entire system and override the elected executive branch for everyone, everywhere. Moreover, IF a temporary injunction DOES make sense, it’s the Supreme Court that should make that decision, not a judge in Massachusetts.

That’s what the Supreme Court called out today. Justice Barrett, writing for the majority, was crystal clear:

“When a court concludes that the Executive Branch has acted unlawfully, the answer is not for the court to exceed its power, too.”

In other words, even if you think the government is breaking the law, that doesn’t give you a blank check to become a super-legislator. Judges are supposed to protect their plaintiffs — not appoint themselves the national guardian.

Justice Kavanaugh, concurring, made the point even sharper. He called nationwide preliminary injunctions an “interim before the interim” — skipping over every safeguard that usually protects nonparties and the national interest. He wrote:

“A default policy of off‑loading to lower courts the final word on whether to green‑light or block major new federal statutes and executive actions for the several‑year interim until a final ruling on the merits would seem to amount to an abdication of this Court’s proper role.”

Translation: it is this Supreme Court’s job to decide whether a nationwide block is appropriate. Not a random district judge picked because they’ll rubber-stamp a quick nationwide halt.

Kavanaugh reminded everyone that if the lower courts always impose these nationwide injunctions, federal law risks becoming a chaotic patchwork. One trial judge in one state should not dictate federal policy from coast to coast. That’s the Supreme Court’s job to settle, after real legal arguments. Yay! Logic and the law!

Contrast that with cases like the CDC eviction moratorium, which I hated equally. However, that policy stayed in place until the Supreme Court could weigh in on whether the agencies had authority. Ask your landlord… there was no nationwide stay.

That is the distinction. And that is why the Supreme Court drew a hard line today. The lower courts have been acting like they’re the final word, but Kavanaugh made sure to remind them:

“One of this Court’s roles, in justiciable cases, is to resolve major legal questions of national importance and ensure uniformity of federal law.”

So here’s the takeaway: Today’s ruling does not decide birthright citizenship. It does not bless the executive order. It does not change the law on who is a citizen. It simply tells lower courts: you protect the parties in front of you, but you do not get to decide national policy for everyone until the full merits have been argued, appealed, and decided.

That is not partisanship. That is how the rule of law is supposed to work.

And in a year when we’ve seen endless examples of forum-shopped, judge-made national policy, that’s a needed reminder that judges are supposed to judge — not govern.

That’s what elections are for.