Initially wary of Trump, Roberts and Barrett offer the president his biggest win of the Supreme Court term

By Joan Biskupic, CNN Chief Supreme Court Analyst

(CNN) — Chief Justice John Roberts chastised President Donald Trump early on in his second term, and Justice Amy Coney Barrett pointedly questioned whether his administration would adhere to court orders.

But their public wariness of Trump was fleeting.

And on Friday, Roberts enlisted Barrett to write the opinion that dissolved one check on the president’s executive power, whether to end birthright citizenship or to enforce policies overhauling the federal government and encroaching on individual rights.

The decision, which played out dramatically in the white marble courtroom with dueling statements from Barrett and dissenting Justice Sonia Sotomayor, buttressed a pattern:

The six-justice conservative majority has aligned with Trump’s agenda in his second term. That largely arises from the justices’ own desire for expansive executive authority, be it over migrant deportations or the firing of the heads of independent agencies.

Moreover, as the high court took up LGBTQ and other social policy dilemmas in the regular session that ended Friday, the majority adopted Trump administration’s positions.

By the same 6-3 vote Friday, the justices sided with religious parents in Maryland who sought to keep their elementary school children from reading certain LGBTQ books in public schools. The same six conservatives last week also voted to uphold state bans on gender care for trans youths under age 18.

On the most closely watched cases since Trump retook office, arising as part of the justices’ annual session or on its emergency docket, the president’s legal team prevailed.

In his press conference on Friday after the ruling on his effort to end birthright citizenship, Trump thanked individual justices in the majority, saying of Barrett, “I just have great respect for her. I always have. And her decision was brilliantly written today – from all accounts.”

(Trump previously criticized Barrett behind closed doors for not sufficiently supporting his legal positions.)

The high court’s embrace of Trump’s legal positions contrasts with a general resistance of lower court judges who in the early months of Trump’s second presidency have blocked dozens of his executive orders. Some judges have also commented about his larger quest for power.

“An American President is not a king,” one Washington, DC-based US district court judge wrote in an early challenge to Trump.

Friday’s ruling, combined with a decision last year that gave the president substantial immunity from prosecution, amplifies the power of the American presidency more than ever.

“The other shoe has dropped on executive immunity,” Sotomayor said as she read excerpts of her dissent from the bench Friday.

Dueling statements from the bench

When the justices opened their final session at 10 a.m. Friday, they had six cases yet to be resolved in the term that had begun last October. Because the Trump dispute was widely seen as the most significant of the batch, it was easy to presume that Roberts or another senior justice would be the author. And that would mean – because the justices announce their daily decisions in order of reverse seniority – the opinion would come later in the hour.

But that presumption was immediately disproved when Roberts, who controls most assignments, announced at the outset that Barrett was the author of Trump v. CASA.

Trump’s third appointee from his first White House term, Barrett is the most junior justice of the six-member right-wing bloc. Rarely would a junior justice gain a case of such import, and the move appeared be a sign of Roberts’ confidence in Barrett and likely desire to continue working in tandem with a justice who has at times straddled the middle and controlled the outcome of cases. (The others who voted in the majority on Friday were Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh.)

Friday’s controversy traced to January 20, Trump’s first day back in office, as he rejected the entrenched understanding of the citizenship clause and proposed to exclude from automatic citizenship babies born of parents in the country unlawfully or on temporary visas, such as tourists or students.

Several lower court judges blocked enforcement of the order, on preliminary findings that it was unconstitutional, and the Trump administration appealed to the Supreme Court. The administration did not seek a decision on the constitutionality of the order proposing to deny passports and other documents to children born to people without citizenship.

Rather, it wanted the high court to declare that US district court judges lacked the power to issue sweeping “universal injunctions” against Trump policies as they were litigated. Such injunctions have been invoked to block a challenged policy not just as it would be applied to the parties in a case but to prohibit its enforcement throughout the country.

In recent decades, US district court judges have increasingly applied such injunctions to prevent – on a preliminary basis – arguably unconstitutional policies from being enforced while the merits of legal challenges are resolved.

Seated at her usual place on the bench, to Robert’s far right, Barrett said the judges who had imposed the nationwide injunctions in the birthright citizenship cases had exceeded their authority.

Looking to 1789 and the power first conferred on federal courts, she described judges’ authority in such disputes over presidential action as “flexible … not freewheeling.”

“Some say that the universal injunction ‘give(s) the Judiciary a powerful tool to check the Executive Branch,’” she elaborated in her written opinion. “But federal courts do not exercise general oversight of the Executive Branch; they resolve cases and controversies consistent with the authority Congress has given them. When a court concludes that the Executive Branch has acted unlawfully, the answer is not for the court to exceed its power, too.”

As Barrett spoke in the courtroom, detailing arguments in her usual composed, professorial style, most of her colleagues looked out at the hushed spectators and betrayed no reaction.

But as Barrett finished her announcement, Sotomayor voiced her objections – and passionately. As she began to read excerpts from her dissent, the senior-most liberal justice pulled her chair up closer at the mahogany bench and leaned forward.

She spoke for 20 minutes, twice as long as Barrett. (Dissenting justices typically leave their protest to their written statements; an oral dissent from the bench is used to convey a more urgent opposition to the majority’s position.)

Normally, Justice Gorsuch is in the seat between Barrett and Sotomayor, but he was not on the bench Friday. So, as Sotomayor spoke, she was in Barrett’s direct line of sight. Barrett’s jaw was set as she listened intently to the dissenting justice condemn the majority for a decision that “kneecaps the judiciary’s authority” to stop the president from acting unconstitutionally.

And as Barrett asserted that the justices were not addressing the merits of Trump’s ability to outright lift birthright citizenship, Sotomayor deliberately put the focus on that drive to undo a principle dating to America’s founding.

Sotomayor referred to the notorious 1857 case of Dred Scott v. Sandford, in which the Supreme Court had held that Black people could not be citizens, and noted that the 14th Amendment, ratified in 1868, remedied that court action. (The citizenship clause of the amendment says, “all persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside.”)

Speaking broadly about the new unchecked freedom a president would now experience, Sotomayor declared, “No right is safe in the new legal regime the Court creates.”

Barrett and the other justices in the majority were plainly unmoved by arguments from the dissent. In fact, the liberal justices made few inroads in major cases in the recent session, especially when they involved Trump policies.

Sotomayor, joined by liberal Justices Elena Kagan and Ketanji Brown Jackson, have been blunt in their disdain not only of the administration but their conservative colleagues who’ve enabled it.

They contend the majority’s decisions have encouraged the administration to defy lower court orders, as in last Monday’s case siding with the Trump administration as it rushes to deport certain migrants to countries other than their homeland, including places like South Sudan.

“This is not the first time the Court closes its eyes to noncompliance, nor, I fear, will it be the last,” dissenting Sotomayor wrote, joined by the two other liberals. “Yet each time this Court rewards noncompliance with discretionary relief, it further erodes respect for courts and for the rule of law.”

6-3 conservative majority dominates

There were some early signs of compromise on Trump’s aggressive immigration policy, notably under the wartime Alien Enemies Act. And even some conservatives questioned whether the administration would abide by mounting lower court orders.

In May 15 oral arguments over enforcement of the Trump birthright order, Barrett queried US Solicitor General D. John Sauer, Trump’s top lawyer before the Supreme Court, regarding his suggestion that the administration might not be bound by all court orders.

“There are circumstances when it is not a categorical practice,” he said, referring to lower court rulings.

“Really?” Barrett said but then, seemingly trying to win assurance of regard for judicial orders, pivoted to a hypothetical scenario involving the high court itself.

“You would respect the opinions and judgment of the Supreme Court,” she asked. “You’re not hedging at all with respect to the precedent of this court?”

“That is correct,” Sauer said.

For his part, Roberts, who has long championed an expansive theory of executive authority, has given the administration positions the benefit of the doubt – even as he has seemed apprehensive of the chief executive himself.

In March, after Trump declared in a social media post that a federal judge handling a migrant deportation case “should be IMPEACHED,” Roberts issued a statement implicitly rebuking him. “For more than two centuries, it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision. The normal appellate review process exists for that purpose.”

But that that was three months and many court decisions ago. And in the meantime, a 6-3 split, with the chief justice leading and Barrett at his side, has taken hold, exemplified in Friday’s decision.

At his press conference afterward, Trump was bursting with praise.

He recognized each justice in the majority by name: “I want to thank Justice Barrett, who wrote the opinion brilliantly, as well as Chief Justice Roberts and Justices Alito, Gorsuch, Kavanaugh and Thomas – great people.”

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