The Supreme Court has engaged in a lively discussion regarding the possibility of extending imminent relief nationwide, sparked by attempts to limit Trump’s stance on birthright citizenship.
The debate centers on the constitutionality of Trump’s order and the administration’s adherence to established court precedents. The notion of “universal” injunctions has garnered both criticism and support from various judicial perspectives.
Here are five key points drawn from the discussions.
Concerns among conservatives about universal injunctions
Some conservative justices expressed worries about the increasing prevalence of national injunctions, pointing out that these legal tools weren’t part of the nation’s early history and have recently been directed primarily at presidential actions.
Justice Clarence Thomas questioned lawyers on this topic, noting, “We survived until the 1960s without a universal injunction.” His comments sparked an acknowledgment from D. John Sauer, a lawyer representing Trump, who said those injunctions were indeed rare even back then, really escalating after 2007.
During the George W. Bush administration, six national injunctions were recorded, which doubled to 12 under Obama, and surged to 64 during Trump’s first term. Interestingly, during Biden’s administration, the number fell back to 14, while Sauer indicated that Trump faced 40 injunctions in his second term alone, surpassing Biden’s tally.
Some justices proposed that universal injunctions might be replaced by existing federal rules that permit class actions under specific circumstances. Trump’s last appointee, Justice Amy Coney Barrett, questioned the practical implications of such changes.
Justice Brett Kavanaugh, another Trump appointee, noted that if they succeeded at this procedural stage, it might lead to a flurry of lawsuits filed across different jurisdictions.
Liberal justices advocate for national relief
On the other hand, liberal justices supported the idea of a nationwide injunction. Justice Elena Kagan raised concerns about the legality of Trump’s executive order, questioning whether individuals affected by the order would need to file their own suits.
Justice Ketanji Brown Jackson expressed worry about creating a “catch-me-if-you-can” legal environment, emphasizing that such a system seems inconsistent with the rule of law.
Sauer countered, saying that the current legal landscape has indeed reached that “catch-me-if-you-can” scenario.
Jeremy Fagenbaum, a top appeals lawyer from New Jersey representing several states, raised practical concerns about how citizenship status could shift between cities, specifically referring to the area between Philadelphia and Camden.
Justice seeks clarity on the 14th Amendment
While the Trump administration hasn’t explicitly asked the Supreme Court to evaluate the constitutionality of the executive order, the discussions reveal an underlying desire from justices on both sides to address the matter broadly.
Justice Sonia Sotomayor was particularly assertive, suggesting that if there are fears regarding the legality of the executive action, a certificate should not be granted yet. Several justices noted that lower courts have consistently ruled against Trump, which would require the administration to take its arguments to the Supreme Court.
Kagan, drawing from her own legal background, expressed skepticism about whether they could secure a Supreme Court review. Sauer argued for the need to let the courts work through the 14th Amendment issues, anticipating that if the administration loses, an appeal would follow.
Throughout the proceedings, no justice spoke in favor of Trump’s order.
Key figures present at the Supreme Court
This significant debate brought many prominent personalities to the court. Several Democratic attorneys general from states like New Jersey and Connecticut attended the hearing, with Connecticut’s AG emphasizing that citizenship is inherently tied to being born on American soil.
Meanwhile, Trump allies, including Deputy Attorney General Todd Blanche, were also present in unusual appearances, alongside John Eastman, a lawyer who played a role in Trump’s attempts to overturn the 2020 election results.
Eastman voiced his belief that the historical arguments supporting Trump’s executive order were stronger than those presented by some justices.
The ongoing rule of law theme
A prominent theme emerged regarding the Trump administration’s willingness to ignore court orders, raising the specter of a constitutional crisis. Even in the face of pressure from Kagan, Sauer hesitated to commit fully to not enforcing Trump’s restrictions on citizenship, citing “general practice” while acknowledging potential “exceptions.”
This led Kagan to probe further, asking if the administration would honor a decision against Trump’s orders once a definitive ruling was made, to which Sauer responded affirmatively.
