The Supreme Court on Thursday seemed open to lifting a series of nationwide orders blocking President Donald Trump from enforcing his birthright citizenship policy, even as several of the justices wrestled with the practical implications of allowing the government to deny citizenship to people born in the US.
After more than two hours of argument, it was uncertain how a majority of the court might deal with those two competing interests.
Some key conservatives suggested that the groups challenging Trump’s order might look to other types of lawsuits to stop the policy from taking effect. Other justices suggested the court might be willing to quickly review the questionable constitutionality of Trump’s birthright citizenship order.
At least part of Trump’s argument appeared to find purchase on the conservative court: That lower court judges were too frequently shutting down the president’s policies with too little review.
But that left several of the conservatives questioning what to do, in the meantime, with Trump’s policy, which appears to conflict directly with the text of the 14th Amendment.
Here’s a look at some of the key takeaways from the argument:
Kavanaugh, a key vote, suggests class-action lawsuits instead
Justice Brett Kavanaugh, a member of the conservative wing, suggested that class-action lawsuits would suffice for allowing the challengers to Trump’s executive order to get broad relief from the courts. He brushed away the suggestion from challengers that relying on class certification as a tool raises many of the same issues as nationwide injunctions the president is complaining about.
It’s a technical point, Kavanaugh acknowledged, but a potentially important one. Part of what Kavanaugh seemed to be saying was that there was another way for the groups challenging Trump to quickly shut down the order. Chief Justice John Roberts, who was relatively quiet throughout the course of the arguments, repeatedly stressed that the courts, including the Supreme Court, could move “expeditiously.”
When judges certify a class, they must consider who would be affected by the court’s ruling. That’s a higher hurdle to clear than simply reviewing the policy for its likely legality and shutting it down.
The Trump administration has pointed to class-action lawsuits as being the proper vehicle for courts to issue orders that would broadly block enforcement of an unlawful presidential policy while the issue travels up higher courts. Liberal justices on Thursday, and conservative Justice Amy Coney Barrett, grilled Solicitor General D. John Sauer on the possibility that the administration would fight in court against a request for class certification in this case.
But Kavanaugh seemed to cast doubt at one point on whether the administration would prevail in its efforts to oppose class certification. By the end of the arguments, the class actions as an alternative were front-and-center on Kavanaugh’s mind.
Liberals pepper Trump attorney on practical impact
The court’s three liberals battered Sauer with questions about how rolling back nationwide injunctions would work in practice. They quickly sought to move the debate beyond the Trump’s administration assertion that its request was “modest.”
Justice Ketanji Brown Jackson pressed Sauer on whether his opposition to a universal injunction in the citizen birthright case could lead to requiring every individual to file their own lawsuit in the case.
“The real concern, I think, is that your argument seems to turn our justice system, in my view at least, into a ‘catch me if you can’ kind of regime,” Jackson said, “where everybody has to have a lawyer and file a lawsuit in order for the government to stop violating people’s rights.”
The court’s conservatives engaged with that discussion less but several nevertheless raised the issue.
Barrett questions why merits aren’t before court
Barrett, who has emerged as a key vote in several cases this year involving the Trump administration, pressed Sauer about why the government is avoiding the merits of the birthright citizenship issue.
Her line of questioning drew an important concession from Sauer, who acknowledged the legal arguments defending the merits of Trump’s order were “novel” and “sensitive.”
“So this one isn’t clear cut on the merits?” Barrett asked.
Barrett, who has occasionally joined her liberal colleagues in some hot-button cases, also pressed Sauer on why the administration is opposed to a nationwide injunction but generally willing to accept a class-action judgment that would likely have the same effect.
Sauer responded with two points: First, securing a class action can be more difficult. Second, a class-action judgement would require challengers to put more skin in the fight. In other words, if the members of class action lost, they would collectively also be bound by the decision the same way the government is.
“So they’re taking a grave risk, so to speak, by proceeding through a class action and it has this symmetry where the government is bound if we lose, they are bound if we don’t lose,” he said. “And that’s very, very important distinction.”
How soon will the court rule?
In the run up to the arguments, there was significant debate about what the case is actually about: Was it about judicial power, and the ability of lower courts to block a president or the practical impacts of allowing this president to enforce this order?
Throughout the debate on Thursday, it was clear that many of the justices were also having difficulty separating those two issues.
Even though the case has reached the Supreme Court in an emergency posture, it’s not clear how long it will take the justices to resolve it. The last time the court held arguments in an emergency case, an appeal dealing with environmental regulations, it took the justices several months.
Given the complications involved in the birthright case, it’s possible the court will need until the scheduled end of its term next month.
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