The birthright citizenship case is unusual, and not only because it is not really about birthright citizenship. At the case’s argument in May, the justices mostly focused on whether injunctions entered by three federal trial judges blocking President Trump’s plan to end the practice were too broad.
But when the court set this case down for argument, it did not grant review of a petition. That meant it was hard to know the precise question before the court.
That’s because the case lacked the “question presented” that must appear on the first page of petitions seeking Supreme Court review. When the justices agree to hear a case, they do so to resolve the question on the petition.
But in this case, the court did something quite unusual: It agreed to hear arguments on three emergency applications seeking partial stays of the injunctions. Such emergency applications do not typically include a “question presented” page, and the three at issue in the birthright citizenship cases did not.
Such applications, moreover, are all but uniformly handled by the justices based only on written filings, without oral argument. Not this time.
The case was unusual in another way. The justices scheduled arguments at a special session of the court, in May, about two weeks after the last day for argument noted on the court’s annual calendar.
Hearing arguments on days other than those on the court’s calendar is rare, though there have been scattered exceptions. The court added a day last year in April, for instance, to consider the case on presidential immunity.
Hearing arguments after April is especially uncommon. There were arguments in May 2020, as the coronavirus was raging and the justices questioned lawyers by phone. But even those arguments concluded on May 13.
Indeed, it has not been since 2010 that the court heard an argument so late in the term, which as a formal matter lasts from the first Monday in October until the day before the following one. That year, the justices scheduled a special session in September to hear a second argument in the Citizens United campaign finance case, acting fast because the law at issue required the court “to expedite to the greatest possible extent” any challenges.
Adam Liptak covers the Supreme Court and writes Sidebar, a column on legal developments. A graduate of Yale Law School, he practiced law for 14 years before joining The Times in 2002.
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