NERMEEN SHAIKH: This is Democracy Now!, democracynow.org, The War and Peace Report. I’m Nermeen Shaikh in New York, with Amy Goodman in Geneva, broadcasting from the U.N. Human Rights Council.

The Supreme Court’s term ended Friday with a decision that promises to further expand the power of the president. The case, Trump v. CASA, looks at President Trump’s effort to end birthright citizenship, a well-established constitutional right, with the stroke of a pen, an executive order. The court did not rule on the merits of the case. Instead, the 6-to-3 majority weighed in only on the authority of lower courts to restrain presidential power through the use of universal injunctions. Justice Amy Coney Barrett wrote for the majority. The decision will also clear the way for other presidential policies previously blocked by universal injunction to go ahead, barring other legal means are found to prevent them from doing so. President Trump acknowledged the broad implications the ruling would have on his agenda at a press conference on Friday, where he also thanked the justices in the majority.

PRESIDENT DONALD TRUMP: So, thanks to this decision, we can now properly file to proceed with these numerous policies and those that have been wrongly enjoined on a nationwide basis, including birthright citizenship, ending sanctuary city funding, suspending refugee resettlement, freezing unnecessary funding, stopping federal taxpayers from paying for transgender surgeries, and numerous other priorities of the American people. … This is a decision that covers a tremendous amount of territory, but I want to just thank again the Supreme Court for this ruling. It’s a giant. It’s a giant. And they should be very proud, and our country should be very proud of the Supreme Court today.

AMY GOODMAN: Justice Sonia Sotomayor wrote for the three justices in the minority. She said, quote, “No right is safe in the new legal regime the Court creates. Today, the threat is to birthright citizenship. Tomorrow, a different administration may try to seize firearms from law-abiding citizens or prevent people of certain faiths from gathering to worship. … Because I will not be complicit in so grave an attack on our system of law, I dissent,” Justice Sotomayor said.

In a separate dissent, in some of the strongest language of the term, Justice Ketanji Brown Jackson warned the ruling poses an existential threat to the rule of law. She writes, quote, “This Court’s complicity in the creation of a culture of disdain for lower courts, their rulings and the law (as they interpret it) will surely hasten the downfall of our governing institutions, enabling our collective demise,” the justice wrote.

And in another 6-to-3 decision, Mahmoud v. Taylor, the majority sided with elementary school parents in Maryland who objected to storybooks with LGBTQ+ characters at their children’s elementary school.

To discuss these decisions and the impact of the Supreme Court term, we’re joined by two guests. Dahlia Lithwick writes about the courts and the law for Slate. She’s host of the podcast Amicus. She’s joining us from Tel Aviv. And Chase Strangio of the ACLU joins us in our New York studio.

Let’s go to Dahlia first. Your overall response to the last day of the term and the decisions? And specifically talk about birthright citizenship, what exactly this means.

DAHLIA LITHWICK: It’s good to be with you, Amy.

I think that the best way to characterize this is another in a long, long series of Supreme Court aggrandizement of the Supreme Court itself. And, you know, we’ve seen this theme. Last year, we saw it in the case doing away with Chevron deference. We saw it in the case granting immunity to Donald Trump for the bulk of the acts involved in the January 6th insurrection. The court has for a long time now — the Robert six have set themselves up as the deciders.

And the really frightening new twist in that plot this turn has been the court’s willingness to attack district courts, to attack lower federal trial courts, as they attempt to be the only remaining bulwark, right? We have a supine Congress. The only thing that has stopped more than two dozen lawless Trump initiatives has been the district courts. And this decision comes — this birthright citizenship decision comes as the kind of low watermark of the court failing to stand up for Article III judges who are doing their jobs around the country, and saying, “You know what? In the end of the day, they can’t do the only thing that has worked to stop Trump. And moreover, we’ll decide if and when some other pathway to get to the courts is permissible, too.” So, we have an imperial court that has created an imperial presidency, and in so doing, it has really cut off at the knees the entire judiciary below.

NERMEEN SHAIKH: Dahlia, could you also explain the significance? They have focused, the Trump administration, on one phrase in the 14th Amendment, which is, quote, “subject to the jurisdiction thereof.” Why is that important?

DAHLIA LITHWICK: Well, it’s not important, and there’s very, very little scholarship supporting it. And historically, we know that the drafters and the ratifiers of the 14th Amendment didn’t think that it means exactly what the Trump administration and critics of birthright citizenship say it means, which is, you know, that if there is any other place that might have jurisdiction over you, then you don’t have birthright citizenship. That was explicitly rejected as an idea. The idea of birthright citizenship was not if any other entity in the world has jurisdiction over you, then you are not necessarily a citizen. Not only was it rejected by the ratifiers, it was rejected in case law time after time and rejected in statutory enactments of protections of birthright citizenship. So there’s no meaningful argument for it, but it’s being kind of cherry-picked as the way of saying that if any other country in the world has some jurisdiction over you, then you are not necessarily a citizen of the United States.

And I want to be very, very clear about this. Scholarship rejects this interpretation, case law, statutes. It is not a plausible theory. And I would add, the court didn’t even address that question, the merits of that question. They simply said, “We’re closing the courthouse door to injunctions. Find some other way to get this urgently important question before the court.”

AMY GOODMAN: And overall, Dahlia, why you were so incensed? In everything I saw, from your podcast to your writings on Friday, what you were most horrified by, birthright citizenship being one decision, but the overall framework that the court is using?

DAHLIA LITHWICK: Right. I mean, I think that we have to be very, very clear to see this in context — right? — because this is not, and it is certainly possible — if you read Justice Amy Coney Barrett’s majority opinion, you can read it as a very lawyerly, civil pro professor’s very, very abstract theoretical application of originalism to the idea that universal injunctions are a recent invention. They didn’t exist at the founding. Therefore, they cannot be a means of remediation of problems.

But the problem is — and you flagged this in the introduction — this comes in a context, right? This comes in a context where the court has systematically, including last week, the same week that the court took away the ability for judges to use universal injunctions, they also — on their shadow docket, on their emergency docket, they undermined a judge, Judge Murphy, in a case that had to do with deportations to third countries. They have undermined Judge James Boasberg, who’s been trying to rule on renditions of people to El Salvador. So, this is part of a long progression of going after lower court judges for doing what lower court judges do.

And the reason, if you look at it in that larger context, and, I would add, in the context of, “Oh, come back and do this as a class action” — right? — “Do this as a 23(b) class action, and maybe the court will entertain it,” this is the same court that for more than 10 years has made it more and more difficult to bring a class action. So, you have the court that is saying Donald Trump, who’s going after law firms that are helping people who are trying to seek relief, Donald Trump, who is signing an executive order that on its face is unconstitutional, Donald Trump, who is absolutely incentivizing people to go after lower courts — all of that is then sort of fed through this lawyer machine and made to look very sanitized. And what you are hearing in that cri de coeur from Justice Jackson in dissent, from Justice Sotomayor in dissent, is he has done something that he knows to be absolutely unlawful — it was unlawful by design, it was done as an executive order by design — and now he’s made it impossible to cure it.

And if you can’t look at it through the lens of what is actually happening, and, finally, I would say, through the lens of a Supreme Court 6-3 majority that gave Donald Trump immunity last year, then this is, as an abstraction, a useful conversation about universal injunctions, but it is not, without all that context, and it is not, without the context that the Biden administration asked the court to do something about universal injunctions, and the court wasn’t interested. Suddenly, when Donald Trump wants to do what Donald Trump wants to do, this is an exigent matter. And to blinker yourself to all of those realities and then say this is the correct conclusion, I think, is a bridge too far.

NERMEEN SHAIKH: So, let’s bring in Chase. First, if you could respond to what Dahlia has been saying, and then the other crucial decision in Mahmoud v. Taylor? What are the implications of that?

CHASE STRANGIO: Yeah, so, I mean, I absolutely agree with Dahlia. This is a very chilling moment, and I think we should heed the two dissents and take their words very seriously. As an advocate, of course, we’re ready to go into court, and in some cases, we already have certified class actions against Trump policies, and we will continue to try to get that relief every single way that we can. But we have to take seriously what is happening from this Supreme Court.

And then, in Mahmoud v. Taylor, we have a situation in which there is an ELA, English language arts, curriculum that includes a series of LGBT books, really books that have LGBT characters, and all opt-outs were eliminated. So, that included religious opt-outs, but any other opt-outs. And I think what’s chilling about this case from the 6-3 majority is the way in which they talk about LGBTQ people. They cast these books as coercive simply because they have LGBT characters. And their examples are things like two men getting married and people celebrating the marriage. That is the coercion, the fact that people are happy about a marriage and the fact that there are trans characters in these books. So, we should follow also this court, that has continually cast LGBTQ people as a viewpoint and an ideology, not as a community that exists.

NERMEEN SHAIKH: Well, I’m afraid we’re going to have to leave it there, Chase Strangio, co-director of the American Civil Liberties Union LGBTQ+ Project, and Dahlia Lithwick, who covers the courts and the law for Slate.

Coming up, in the Human Rights Council in Geneva, a Sahrawi tent of cultural resistance has been erected, made from the dresses of 19 Sahrawi human rights defenders from the occupied Western Sahara. Back in a minute.

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NERMEEN SHAIKH: “El Aaiun Is on Fire” by Mariem Hassan, the late Sahrawi singer from Western Sahara.