TomDispatch authors don't usually have much in common with Donald J. Trump, but here's an exception. TomDispatch regular Liz Theoharis recently visited the Supreme Court to hear a case on immigrant asylum that her organization, the Kairos Center, was involved in and that was before those justices. And no, Donald Trump, as you might imagine, wasn't sitting with her that day, since his idea of asylum, American-style, is just to let people from "nice" countries like Denmark and White South Africans into the United States.
But he did recently become the first president ever to attend oral arguments there on a case about birthright citizenship." He lasted about an hour and 20 minutes, a long time indeed for our twitchy president, listening to Solicitor General D. John Sauer lay out the government's case against (of course, against!) birthright citizenship. (After all, who wants the babies of undesirable visitors, not from Denmark or White South Africa, to instantly become American citizens? And who would want to listen to a lawyer from the American Civil Liberties Union lay out such a case?)
On leaving, he promptly posted this on Truth Social: "We are the only Country in the World STUPID enough to allow 'Birthright' Citizenship!" (Well, even though at least 32 other countries offer similar versions of birthright citizenship, we certainly do know how Justice Trump would have voted, don't we?)
His presence was undoubtedly meant to court (so to speak) his own conservative justices and the other three conservatives there and yet every sign seems to indicate that, Trump be damned, the Supremes are likely to rule against him on that particular case. ("That could be just a short opinion," commented Justice Brett Kavanaugh.) Sadly enough, as Theoharis makes all too clear today, those justices may not faintly do so when it comes to the issue of asylum in this country. But let her explain. Tom
Give Me Your Tired, Your Poor"
The Case for Asylum in These Less Than United States
In late March, I sat in the gallery of the Supreme Court for the first time in my life. Throughout my 30 years of grassroots anti-poverty work, I've joined countless protests and vigils outside the Court. In 2018, I was even arrested and held in detention for praying on its palatial steps. Now, I was seated with a clear view of the nine justices of the nation's highest court. I was there as a guest of immigrant rights lawyers, as their team made oral arguments in Noem v. Al Otro Lado, the most significant case on the right to asylum in decades.
In February, the Kairos Center (the organization I direct) authored an interfaith amicus brief on that very case, alongside 31 denominations and organizations representing faith traditions practiced by billions worldwide. Those groups, including the Alliance of Baptists, the Council on American-Islamic Relations, the Episcopal Church, the Evangelical Lutheran Church in America, Hindus for Human Rights, the Latino Christian National Network, the Presbyterian Church (U.S.A.), Reconstructing Judaism, the Union for Reform Judaism, the Unitarian Universalist Association, the General Synod of the United Church of Christ, and the General Board of Church and Society of the United Methodist Church, joined together to declare that our societal obligation to provide for persecuted outsiders is a universally shared moral principle.
Although the case has largely flown under the public radar, there is indeed a lot at stake. Filed on behalf of asylum seekers, Noem v. Al Otro Lado focuses on the legality of a 2018 Trump border policy blocking access to the U.S. asylum process for people arriving at the border with Mexico. Immigrant rights advocates argue that such a turnback policy, under which immigration officers physically stop people seeking safety at official border crossings from setting foot on U.S. soil, flouts decades of settled federal immigration law and our society's most deeply held legal and moral values.
For more than a century, the government has been required to undertake a legal process of inspection when people seek asylum at official ports of entry along the U.S.-Mexico border (as they must inspect all noncitizens seeking admission to the United States). That requirement is supposed to ensure that this country doesn't send vulnerable people back into danger without first allowing them to seek protection. A wide range of immigration lawyers and legal experts argue that the first Trump administration's turnback policy, euphemistically called "metering," directly undermined the government's responsibility to process such asylum claims. As a result, vulnerable children, families, and adults were regularly forced to remain indefinitely stranded in perilous conditions in Mexico.
Although the turnback policy has not been in effect since 2021, when the Ninth Circuit Court of Appeals declared it unlawful, the Trump administration has asked the Supreme Court to review the case. Should the government win (which is all too possible given the hyperpartisan nature of the current Court), the consequences are sure to be grave and far-reaching. The Department of Homeland Security would have the legal backing to turn away untold thousands of desperate people at the border, potentially clearing the way for even more expansive border closures, while further intensifying the jingoistic nationalism that defines the Trump administration. Alongside other landmark cases this term, like Trump v. Barboza, in which the government seeks to undo the constitutional right to birthright citizenship, the results of Noem v. Al Otro Lado are likely to reveal the lengths to which the Supreme Court is willing to backstop the president's assault on democracy, including accelerated attacks on the rights of vulnerable populations.
The day I was there, the existential stakes of that case and the larger societal crisis in which it was unfolding did not seem to concern the court's conservative justices. I had the words of George Washington (written in 1788 to the radical Dutch republican Francis Van der Kemp) in my mind as I sat in the gallery: "I had always hoped that this land might become a safe & agreeable asylum to the virtuous & persecuted part of mankind, to whatever nation they might belong."
Unfortunately, having heard the statements and reactions of some of the judges, I fear that the majority of the Supreme Court may no longer agree with that foundational vision for this country.
Courtroom Friezes and Draconian Law
The first thing that struck me on entering the Supreme Court gallery were the stone friezes on the walls of the room. Designed by Adolf Weinman more than a century ago, those large marble reliefs, featuring what he called the "great lawgivers of history," tower over the space. Among them are prominent religious figures like Moses (holding a scroll of the Ten Commandments), King Solomon, Confucius, and a rendition of the Prophet Muhammad (that is entirely unrecognizable). The friezes also include Roman Emperor Octavian (otherwise known as Caesar Augustus, Jesus's great nemesis), French King Louis IX (leader of the seventh and eighth crusades), and Draco (a Greek jurist whose legacy lurks in the word "draconian" because of the extreme measures he took to punish minor offenses).
As I stared at those figures, I reflected on the message they convey about the complex civilizational lineages from which the Supreme Court and our legal system derive their authority. In our amicus brief, we reflected on those varied lineages as they pertain to the right to seek asylum:
(Note: You can view every article as one long page if you sign up as an Advocate Member, or higher).
Post Article Comment and Rate This Article
