The Trump administration’s blatant disregard for court orders is not winning it any favor with the Supreme Court.
Justice Elena Kagan called out the government’s attorneys Thursday, flaming Justice Department officials for being “dead wrong,” while asking the administration to explain why they would bring a case they had uniformly lost in lower courts to the nation’s highest judiciary.
“Why would you take the substantive question to us? You’re losing a bunch of cases,” Kagan said, referring to the government’s emergency application to proceed with its attempts to ban birthright citizenship. “Why would you ever take this case to us?”
“Well in this particular case we deliberately have not presented the merits to this particular court on the scope of remedies, because of course that makes it a clean vehicle where the court doesn’t have to look at—” started U.S. Solicitor General D. John Sauer.
“You are ignoring the import of my question,” Kagan interrupted. “I’m suggesting that, in a case in which the government is losing constantly, and nobody else is going to appeal, it’s up to you to decide whether to take this case to us. If I were in your shoes, there’s no way I’d approach the Supreme Court with this case.
“So you just keep on losing in the lower courts, and what’s supposed to happen to prevent that?” she continued.
“We have an adversarial system,” Sauer said, claiming that another circuit court could take the case.
But Kagan appeared offended by the idea, noting that nobody opposing the administration is going to lose this case—so long as they can afford to bring the case at all.
“You need somebody to lose, but nobody is going to lose in this case. You’re going to have individual by individual by individual, and all those individuals are going to win, and the ones who can’t afford to go to court, they’re the ones who are going to lose,” Kagan said. “This is not a hypothetical. This is happening out there, right? Every court has ruled against you.”
Birthright citizenship is baked into the Fourteenth Amendment, which guarantees citizenship to everyone born or naturalized on U.S. soil. Donald Trump attempted to end the constitutionally enshrined right, mere hours after he was sworn in, by claiming that children born to immigrants on temporary visas or who are in the country illegally should not be entitled to birthright status. Trump’s unconstitutional order has since been blocked by multiple judges in multiple court circuits.
The Justice Department’s case is an effort by the administration to curb their lower court rulings, hoping to stymy their losses on birthright cases by winning a ruling that judges can only block orders related specifically to the people or areas involved.
Kagan further pressed the government to explain—in a “hypothetical” situation, in which it issued an illegal executive order—how the court system could stop it. Sauer suggested that a class action could be certified in the case, though Kagan rebutted that the government would argue there is no appropriate class to certify under the federal rules of civil procedure. Sauer agreed.
As another option, Sauer suggested that the government would have every individual affected sue the action, drawing the shock of the court.
Sauer’s arguments drew contempt from justices on both ideological sides of the court—even the ones appointed by Trump himself. Justice Brett Kavanaugh pressed Sauer into a corner, forcing the solicitor general to admit that the Trump administration doesn’t even know how it would enforce its birthright citizenship order.
The solicitor general also threw Justice Amy Coney Barrett into disbelief as Sauer argued that Trump has the “right” to disregard legal opinions that he doesn’t personally agree with.
“Did I understand you correctly that the government reserved its right to not follow a Second Circuit precedent, say, in New York, because you might disagree with the opinion?” asked Barrett.
“Our general practice is to respect those precedents, but there are circumstances when it is not a categorical practice,” Sauer said.
“This administration’s practice? Or the long-standing practice of the federal government? And I’m not talking about in the Fourth Circuit. Are you going to respect—I’m talking about within the Second Circuit, and can you say that it’s this administration’s practice or long-standing?” Barrett said.
“As I understand it, long-standing practice at the Department of Justice,” Sauer said, eliciting surprise from the conservative justice.
“Really?” asked Barrett.
U.S. Solicitor General D. John Sauer: “The tools that are provided to address hypotheticals like this…”Justice Kagan: “This is not a hypothetical. This is happening out there, right? Every court has ruled against you.”Sauer: “We’ve only had snap judgements on the merits…” pic.twitter.com/GuhNGASIWR
— CSPAN (@cspan) May 15, 2025
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