Injunctions and Birthright Citizenship at the Supreme Court – Q&A

The Supreme Court heard oral arguments in what has been called an odd case on Thursday, May 15. It’s actually three cases combined – Trump et al. v. CASA Inc. et al.; Trump et al. v. Washington, et al.; and Trump et al. v. New Jersey et al. – all triggered by President Donald Trump’s executive order changing the nature of birthright citizenship, and justices weren’t asked to consider the merits of the president’s order. Rather, they were asked to limit the ability of district courts – the lowest on the federal judicial ladder – to issue universal injunctions against the executive.

We’re joined by Liberty Nation News Legal Affairs Editor Scott D. Cosenza, Esq. to explain just what’s going on in the Supreme Court in terms anyone can understand.

A Special Case for the Supreme Court?

James Fite: SCOTUSBlog’s Amy Howe wrote a great article a few days ago laying out the background information for these cases. In it, she pointed out how unusual it is for the Supreme Court to hold oral arguments on May 15 – about two weeks after what would normally have been its last oral argument of the term. To quote Howe directly, she said that “it suggests that at least some of them did not want to wait until the fall, when the case might have otherwise been argued, to hear and decide the government’s request.”

If nothing happens, the injunctions stand. So, does this accelerated timeline suggest a specific outcome?

Scott D. Cosenza, Esq.: I don’t think so. I think the timeline suggests more of an urgency to deal with the many challenges to Trump’s governance. Whether they find these injunctions are proper or not, settling the issue for a while seems to be what’s most important.

James: You wrote a piece recently for Liberty Nation News in which you referred to this case as odd. What’s odd about it?

Scott: This case has no “question presented.” A question presented is the issue the court asks the advocates to argue about, and it clearly defines what needs to be addressed by the court’s decision. Instead, the government brings what it calls a “modest request” that the court restrict the scope of preliminary injunctions. So, the justices may address only the propriety of orders in these cases regarding birthright citizenship, or they may more broadly address the issue of nationwide injunctions by district courts.

James: What were your biggest takeaways from Solicitor General John Sauer’s arguments and the back-and-forth with the justices?

Scott: Justice Sonia Sotomayor’s hostility toward him as a presenter jumped out at me – it was shocking, and even Chief Justice John Roberts had to intervene and ask that she let him finish his thoughts.

Jim: Yeah, I know the section you’re talking about. I pulled the transcript afterward just to compare word counts. Justice Sotomayor hit General Sauer with rapid-fire questions without letting him finish even one sentence of his answers for a solid five questions. He barely got five words in at any one time – at most – before the next interruption. Across those five questions alone, she uttered 84 words to his 22. And that was just the most extreme example; she interrupted him quite often throughout his presentation. But what about the others?

Scott: Yes, there’s certainly no doubt where Sotomayor will rule on this case. Justices Elena Kagan and Ketanji Brown Jackson, on the other hand, seem more interested in searching for an actual answer to what the remedy is for people who want to assert their rights. Does everyone facing deportation have to get a separate lawyer to challenge removal efforts? Justice Jackson asked this question directly. Sauer’s response was that the opposite is actually true – the government has to do the running around to fight one case after the other.

James: One thing that kept coming up throughout the arguments was the option of class action lawsuits as an alternative to nationwide, universal injunctions. What’s the practical difference here? Why does the distinction matter?

Scott: Class action status is much harder to get than an injunction. A judge can issue an injunction in a ruling, but for plaintiffs to gain class action status, they have to meet strict requirements. Many plaintiffs prefer to seek an injunction for that simple reason: It’s easier.

James: Alright, Scott, it’s that time again: Let’s have some healthy speculation. When do you expect a decision from the court on these cases?

Scott: As a rule, the Supreme Court finishes up its casework before breaking for the summer. There have been exceptions, but usually that falls before July 1. Last year, the court issued three rulings on July 1, then came back on August 15 to deliver one more.

If justices take a typical amount of time on these cases, we’ll see a ruling in about six weeks. Given the nature of the injunctions, however, my bet is we will have a decision much sooner than that.

James: Now, for a more interesting wager: How do you think they’ll rule?

Scott: Justices Amy Coney Barrett, Elena Kagan, and John Roberts are the ones I think will decide these cases. The other justices seem to have their minds made up already and will probably follow the politics of the party whose president appointed them. So, those sent to the bench by Democrats will likely want to keep the injunctions against the Trump administration specifically, and uphold universal injunctions in general. The Republican-appointed justices, however, will likely favor overturning these specific injunctions as well as making a ruling that articulates a more restrictive standard for district courts before entering an injunction in the first place.