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SOTOMAYOR IN DISSENT: NONE OF OUR RIGHTS IS SAFE  
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Shirin Ali
June 27, 2025
Slate
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_ The three dissenting justices use stark language to frame the
threat: “The Court’s decision is nothing less than an open
invitation for the Government to bypass the Constitution. ... No
right is safe in the new legal regime the Court creates.” _

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In a scathing dissent
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the Supreme Court’s birthright citizenship decision
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Friday, Justice Sonia Sotomayor is clear about what just happened: The
Trump administration set a trap for the court, and the conservative
justices walked right into it.

In January, President Donald Trump signed an executive order
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birthright citizenship, a right that is guaranteed in the
14th Amendment. Numerous plaintiffs—including 22 states—filed
suit, and three separate lower-court judges found that the order was
blatantly unconstitutional. Each of them issued nationwide injunctions
that prevented the executive order from taking effect anywhere across
the country.

The Trump administration appealed up to the Supreme Court, and at oral
argument in May, it presented the case as a chance to consider whether
nationwide injunctions themselves are unconstitutional. That framing
paved the way for the high court to allow Trump to violate the
14th Amendment in half of U.S. states
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seeming, on paper, as if it were making a decision about the amendment
at all. It also allowed the conservative supermajority to take away
one of the judiciary’s main tools for upholding the law.

On Friday, the Supreme Court’s conservative justices gave Trump what
he wanted: They decided that the three nationwide injunctions apply
only to the plaintiffs, effectively limiting birthright citizenship
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those 22 states and the District of Columbia, two immigrants’ rights
groups, and four pregnant women.

“The gamesmanship in this request is apparent and the Government
makes no attempts to hide it,” Sotomayor writes. “Yet shamefully,
this Court plays along.” And by doing so, Sotomayor notes, her
conservative colleagues—three of whom Trump installed in his first
term—are creating a “new legal regime” in which all of our
rights are at risk.

Here are some of the most cutting lines from Sotomayor’s dissent,
which Justices Elena Kagan and Ketanji Brown Jackson joined.

“FEW CONSTITUTIONAL QUESTIONS CAN BE ANSWERED BY RESORT TO THE TEXT
OF THE CONSTITUTION ALONE, BUT THIS IS ONE. THE FOURTEENTH AMENDMENT
GUARANTEES BIRTHRIGHT CITIZENSHIP.”

Oftentimes, legal issues arise that require judges to read between the
lines of the Constitution and make assumptions about what the Framers
intended. Sotomayor argues that birthright citizenship is simply not
one of those issues, as it clearly states: “All persons born or
naturalized in the United States, and subject to the jurisdiction
thereof, are citizens of the United States and of the State wherein
they reside.” And the 14th Amendment includes the equal protection
clause, which also affirms that citizenship does not discriminate
based on race, sex, ethnicity, religion, or, as Sotomayor notes,
parentage.

“SUPPOSE AN EXECUTIVE ORDER BARRED WOMEN FROM RECEIVING UNEMPLOYMENT
BENEFITS OR BLACK CITIZENS FROM VOTING. IS THE GOVERNMENT IRREPARABLY
HARMED, AND ENTITLED TO EMERGENCY RELIEF, BY A DISTRICT COURT ORDER
UNIVERSALLY ENJOINING SUCH POLICIES? THE MAJORITY, APPARENTLY, WOULD
SAY YES.”

Sotomayor points to a 2009 decision, _Nken v. Holder_
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Supreme Court ruled that issuing a stay on a lower court’s order is
“not a matter of a right” but “an exercise of judicial
discretion.” Yet, in accepting the Trump administration’s request
to consider nationwide injunctions while ignoring the merits of the
president’s birthright citizenship executive order, the court’s
conservative majority is rejecting any semblance of equity. Plus,
knowing that the order is patently unlawful simply gives more reason
to deny the federal government’s application for review.

Sotomayor also criticized the majority’s decision to accept this
case under the court’s shadow docket, which it has been doing
numerous times for the Trump administration as it appeals lower-court
decisions it doesn’t like: “Our emergency docket is not a
mechanism for an expedited appeal.”

“THIS COURT ENDORSES THE RADICAL PROPOSITION THAT THE PRESIDENT IS
HARMED, IRREPARABLY, WHENEVER HE CANNOT DO SOMETHING HE WANTS TO DO,
EVEN IF WHAT HE WANTS TO DO IS BREAK THE LAW.”

The federal government attempted to argue that it will suffer
irreparable harm by not being able to enforce Trump’s executive
order. But, Sotomayor argues, this is not possible, since the
executive branch doesn’t have the right to enforce an order that’s
clearly unconstitutional. The power to issue executive orders
doesn’t permit any president to “rewrite the Constitution or
statutory provisions at a whim.”

The bottom line, Sotomayor says, is that “the injunctions do no more
harm to the Executive than the Constitution and federal law do.”

“A MAJORITY THAT HAS REPEATEDLY PLEDGED ITS FEALTY TO ‘HISTORY AND
TRADITION’ THUS ELIMINATES AN EQUITABLE POWER FIRMLY GROUNDED IN
CENTURIES OF EQUITABLE PRINCIPLES AND PRACTICE.”

In her dissent, Sotomayor calls attention to how the conservative
justices—who say they are committed to interpretations of the
Constitution supported by history and tradition
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history when it suits them. In the majority’s opinion, they rule
that universal injunctions “likely exceed the equitable authority
that Congress has granted to federal courts.” But Sotomayor explains
that federal courts have long exercised their authority to enjoin
state and federal laws, including in cases dating back to the
19th century. In fact, “the majority does not identify a single
case, from the founding era or otherwise, in which this Court held
that federal courts may never issue universal injunctions or broaden
equitable relief that extends to nonparties,” Sotomayor writes.

“TO ALLOW THE GOVERNMENT TO ENFORCE [THE BIRTHRIGHT CITIZENSHIP
EXECUTIVE ORDER] AGAINST EVEN ONE NEWBORN CHILD IS AN ASSAULT ON OUR
CONSTITUTIONAL ORDER AND ANTITHETICAL TO EQUITY AND PUBLIC
INTEREST.”

Sotomayor argues that the equities at stake in the birthright
citizenship executive order should alone force the court to rule
against the federal government in this case. Newborns are poised to
face “the gravest harms imaginable,” as they are set to lose one
of the most vital rights afforded to them under the Constitution.
Citizenship is an integral part of American society and enables
parents to provide for their children via public programs like
Medicaid and food stamps.

The only chance infants now have left, the justice writes, is if
“their parents have sufficient resources to file individual suits or
successfully challenge the Citizenship Order in removal
proceedings.” That’s because the majority has left only one option
for immigrants who were not part of the initial wave of lawsuits and
now stand to be affected by Trump’s order: file a class action
lawsuit.

“THE COURT’S DECISION IS NOTHING LESS THAN AN OPEN INVITATION FOR
THE GOVERNMENT TO BYPASS THE CONSTITUTION. ... 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.”

Within hours of the court releasing its decision, the president held a
press conference and confirmed that his administration will
“promptly file
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to move forward with actions that lower-court judges have blocked.
Since the beginning of this year, judges have launched numerous
nationwide injunctions
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the Trump administration’s unlawful executive actions, including one
blocking Trump’s rescission of foreign aid and cutting off funding
to schools with DEI initiatives.

Now, without nationwide injunctions as a check on the president’s
power, we’re entering uncharted territory.

“The rule of law is not a given in this Nation, nor any other,”
Sotomayor writes in her dissent. “It is a precept of our democracy
that will endure only if those brave enough in every branch fight for
its survival.”

_SHIRIN ALI is an associate writer for Slate._

_Slate [[link removed]] is an online magazine of news, politics,
technology, and culture. It combines humor and insight in thoughtful
analyses of current events and political news. Choose the newsletters
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* SCOTUS
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* Justice Sonia Sotomayor
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* Elena Kagan
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* Ketanji Brown Jackson
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* 14th amendment
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* birthright citizenship
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