In an op-ed in the New York Times, Prawf  Stephen Vladeck makes the point that, even though Trump appears certain to lose the birthright citizenship case argued before the Supreme Court, he’s already won.

If anything was clear during Wednesday’s Supreme Court oral argument in the birthright citizenship case, Trump v. Barbara, it’s that President Trump is going to lose. The justices’ questions were skeptical enough to suggest that somewhere between six and eight of the justices will hold that Mr. Trump’s executive order purporting to limit birthright citizenship is unlawful, whether because it violates an immigration statute Congress enacted in 1940 and updated in 1952, the citizenship clause of the 14th Amendment, or both.

It’s generally perilous to believe that the questions posed during oral argument reveal what the outcome will be, as justices often challenge arguments only to later take the position that they appeared challenge. It’s a way to test arguments rather than reveal votes. But based on yesterday’s oral argument, the questions posed appear overwhelmingly to demonstrate that the majority of justices rejected the specious arguments that John Eastman, and hence Trump, and thereafter the MAGA faithful, found powerful. They were neither textual, relevant nor historically sound, even though they’ve been sold to, and bought by, the gullible and clueless.

But losing on the merits, Vladeck explains, leaves the procedural status a chaotic fiasco.

The real question we should be asking is whether this case will come to be the exception going forward, not the rule — and whether the government will, in the future, simply stop appealing its lower-court losses all the way to the nation’s highest court.

Recall that the Supreme Court first tackled the birthright citizenship executive order last spring. Initially, the issue the justices took up was not whether Mr. Trump’s order was lawful; it was whether the three Federal District Courts that had blocked its implementation had exceeded their authority by having their rulings apply on a nationwide basis. In a 6-to-3 decision handed down in June, the Supreme Court’s Republican appointees all said “yes,” and substantially limited the ability of Federal District Courts to issue so-called nationwide injunctions.

When a lower court issued a nationwide injunction, it compelled the government to appeal lest its attempt to fundamentally change the law by executive decree was stymied in its entirety. Instead, It would require every affected individual, unless there was a class action, to sue for the  individual vindication of their constitutional rights. If a person doesn’t sue and win, Trump gets his way no matter how wrong, unlawful or batshit crazy his Executive Order.

All the government need do to maintain the efficacy of an EO is not appeal and force every individual to find a lawyer, pay for a lawyer, endure the delay and burden of litigation and prevail to achieve the same end as the original litigant. Stupid and crazy, but effective from the government’s perspective. And the Solicitor General, John Sauer, refused to commit to appealing every government loss so as to obtain a Supreme Court ruling that would have universal application. Although, I might add, even an ersatz commitment doesn’t mean it would happen. Honoring commitments isn’t exactly a strength of this administration.

Vladeck’s point is both correct and important, but it’s not the only win Trump gets to take away from this case. A decade ago, the notion that the birthright citizenship clause of the Fourteenth Amendment didn’t mean what it said would have been considered to outlandish and ridiculous as to have been laughed out of court. It would never have made its way to the Supreme Court. But now it has.

The Supreme Court did not have to take the case. It refuses cert for the vast majority of cases it deems unworthy of its time. While the Court might have considered the nationwide injunction aspect of the case an issue in need of resolution, it could have nipped the birthright citizenship aspect in the bud at the time it ruled on the shadow docket. But it did not. Instead, it took this crackpot theory and gave it the legitimacy of an issue worthy of the time of the Supreme Court.

Does this mean that Trump can, in essence, rewrite the Constitution by Executive Order in any way he pleases and be taken seriously? At least seriously enough to wreak havoc with society and enjoy the veil of legitimacy when the Supreme Court gives it an airing as if it might possibly be sound?

Notably, Trump has issued Executive Order making the burning of the American flag a crime, Texas v. Johnson notwithstanding. Trump has also issued an Executive Order putting the federal government in charge of state elections, Article I, Section 4, Clause 1 notwithstanding. Are these ridiculous unlawful and ultra vires declarations suddenly legitimate? Trump has demonstrated little interest in complying with lower court orders under the misguided belief that any court lower than the Supreme, stocked with justices he believes owe him, has no authority to prevent the great and powerful president from doing as he pleases.

By taking the birthright citizenship case and hearing it as if it has any legitimacy whatsoever, the Supreme Court has fed the beast and sowed doubt as to what Trump can get away with unless and until the Big Bench says no. And if Trump never takes it to the Supreme Court, there is a good chance he can do anything he pleases, just as he says.