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Two American university professors Friday warned the "noxious" Supreme Court can no longer be saved.
Harvard law professor Ryan Doerfler and Yale law professor Samuel Moyn wrote an opinion piece published by The Guardian about how the high court's legitimacy has been increasingly damaged under President Donald Trump's second term. Conservative justices have handed Trump and the MAGA movement a number of wins, including overturning of Roe v. Wade, "what remains of the Voting Rights Act," and losing its "nonpartisan image."
The role of the court has shifted and with the conservative majority, the liberal justices had previously "proceeded as if their conservative peers would continue to take their own institution’s legitimacy seriously."
But over the last several months, that has also changed.
"Yet with the conservative justices shattering the Supreme Court’s non-partisan image during Trump’s second term, liberals are not adjusting much," Doerfler and Moyn wrote. "The liberal justices – Ketanji Brown Jackson, Elena Kagan and Sonia Sotomayor – have become much more aggressive in their dissents. But they disagree with one another about how far to concede that their conservative colleagues have given up any concern for institutional legitimacy. Encouragingly, Jackson pivoted to 'warning the public that the boat is sinking' – as journalist Jodi Kantor put it in a much-noticed reported piece. Jackson’s fellow liberals, though, did not follow her in this regard, worrying her strategy of pulling the 'fire alarm' was 'diluting' their collective 'impact.'"
By now, Trump has used a "shadow docket" of emergency orders to his advantage and to advance his policies.
"Similarly, many liberal lawyers have focused their criticism on the manner in which the Supreme Court has advanced its noxious agenda – issuing major rulings via the 'shadow' docket, without full-dress lawyering, and leaving out reasoning in support of its decisions," according to the writers.
Critics have argued that the conservative-majority Supreme Court, including Trump's appointees, has used the shadow docket to issue consequential rulings on controversial issues like abortion, voting rights, and immigration with minimal explanation or public deliberation, effectively allowing the court to reshape law through expedited procedures that bypass traditional briefing and oral argument requirements.
Now, "progressives are increasingly converging on the idea of both expanding and 'disempowering' federal courts and looking to see how to shake up the status quo."
"Rather than adhere to the same institutionalist strategies that helped our current crisis, reformers must insist on remaking institutions like the US supreme court so that Americans don’t have to suffer future decades of oligarchy-facilitating rule that makes a parody of the democracy they were promised," Doerfler and Moyn wrote.
"In Trump’s second term, the Republican-appointed majority on the Supreme Court has brought their institution to the brink of illegitimacy. Far from pulling it back from the edge, our goal has to be to push it off," the writers added.

New evidence is emerging that could deal a major blow to President Donald Trump's case for stripping birthright citizenship to the children of immigrants.
The president has asked the U.S. Supreme Court to restore “the original meaning” of the 14th Amendment, which his lawyers argued in a brief meant that “children of temporary visitors and illegal aliens are not U.S. citizens by birth," but new research raises questions about what lawmakers intended the amendment to do, reported the New York Times.
"One important tool has been overlooked in determining the meaning of this amendment: the actions that were taken — and not taken — to challenge the qualifications of members of Congress, who must be citizens, around the time the amendment was ratified," wrote Times correspondent Adam Liptak.
A new study will be published next month in The Georgetown Law Journal Online examining the backgrounds of the 584 members who served in Congress from 1865 to 1871. That research found more than a dozen of them might not have been citizens under Trump’s interpretation of the 14th Amendment, but no one challenged their qualifications.
"That is, said Amanda Frost, a law professor at the University of Virginia and an author of the study, the constitutional equivalent of the dog that did not bark, which provided a crucial clue in a Sherlock Holmes story," Liptak wrote.
The 14th Amendment states that "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," while the Constitution requires members of the House of Representatives to have been citizens for at least seven years, and senators for at least nine.
“If there had been an original understanding that tracked the Trump administration’s executive order,” Frost told Liptak, “at least some of these people would have been challenged.”
Only one of the nine challenges filed against a senator's qualifications in the period around the 14th Amendment's ratification involved the citizenship issue related to Trump's interpretation of birthright citizenship, and that case doesn't support his position.
"Several Democratic senators claimed in 1870 that their new colleague from Mississippi, Hiram Rhodes Revels, the first Black man to serve in Congress, had not been a citizen for the required nine years," Liptak wrote. "They reasoned that the 14th Amendment had overturned Dred Scott, the 1857 Supreme Court decision that denied citizenship to the descendants of enslaved African Americans, just two years earlier and that therefore he would not be eligible for another seven."
"That argument failed," the correspondent added. "No one thought to challenge any other members on the ground that they were born to parents who were not citizens and who had not, under the law in place at the time, filed a declaration of intent to be naturalized."
"The consensus on the 14th Amendment’s citizenship clause has long been that everyone born in the United States automatically becomes a citizen with exceptions for those not subject to its jurisdiction, like diplomats and enemy troops," Liptak added.
Frost's research found there were many members of Congress around the time of the ratification of the 14th Amendment who wouldn't have met Trump's definition of a citizen, and she said that fact undercuts the president's arguments.
“If the executive order reflected the original public meaning, which is what the originalists say is relevant,” Frost said, “then somebody — a member of Congress, the opposing party, the losing candidate, a member of the public who had just listened to the ratification debates on the 14th Amendment, somebody — would have raised this.”
