On whether SCOTUS can read
Ninety minutes after this post goes live, the U.S. Supreme Court hears arguments in three consolidated cases as part of its “so-called ‘shadow docket’ – only to be set for oral arguments,” Amy Howe writes at SCOTUSblog. But is what’s really on the docket the court’s remaining credibility?
A nationwide injunction
Howe explains:
Though the dispute comes to the justices through challenges to Trump’s effort to end birthright citizenship, the primary issue before the court on Thursday is whether lower-court judges can issue what are known as universal injunctions to block an order nationwide. With a universal injunction, a federal judge (or several in this case) can bar the government from enforcing an executive order – or, in another case, a law or policy – anywhere in the country. The Trump administration, which has been blocked by many such injunctions in recent months, argues that the practice is unconstitutional.
As in, how dare any lowly judge interfere with my princely decries?
The cases at issue center on whether a judge anywhere can block nationally Trump’s executiove orders. Specifically, the executive order Trump signed on January 20 to end birthright citizenship for children born on U.S. soil. The Fourteenth Amendment is not explicitly at issue this morning, but it’s language is explicit. Through his actions against noncitizens since reclaiming the Oval Office, Trump means to void the entirety of Section 1: birthright citizenship, “due process” and “equal protection”:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Birthright citizenship has been upheld since first challenged in United States v. Wong Kim Ark (1898) and in over a century of subsequent decisions.
Howe continues:
There are three cases, which the court will hear consolidated as one on Thursday: Trump v. CASA, filed by immigrants’ rights groups and several pregnant women in Maryland; Trump v. Washington, filed in Seattle by a group of four states; and Trump v. New Jersey, filed in Massachusetts by a group of 18 states, the District of Columbia, and San Francisco.
Trump lost in all three cases. Then-Acting Solicitor General Sarah Harris, in an extraordinary move, filed an emergency action to block the lower court rulings upholding the 14th Amendment rather than file a petition for review. Instead of attack the amendment head on — the Constitution by defintion cannot be unconstitutional — Trump is looking for a way to neuter it. The administration argues that each aggrieved individual must bring her/his own birthright (or any other) case to court. Several justices have indicated opposition to universal injunctions.
The Trump administration’s filings (which are virtually identical) acknowledge that the challenges to birthright citizenship “raise important constitutional questions with major ramifications for securing the border.” But its focus in the filings is not on whether Trump’s executive order violates the Constitution, but rather on the district courts’ use of universal injunctions.
The Constitution, the Trump administration argues, does not give federal judges the power to issue universal injunctions. Instead, the government contends, federal judges can only issue a judgment or order regarding the rights of the litigants in the case before them.
These kinds of universal injunctions, the Trump administration complains, “have reached epidemic proportions since the start of” Trump’s second term. Indeed, it writes, federal trial courts “have issued more universal injunctions” and temporary restraining orders “during February 2025 alone than through the first three years of the Biden Administration.” The large number of universal injunctions, the government says, has impeded the executive branch “from performing its constitutional functions before any courts fully examine the merits of those actions, and threatens to swamp this Court’s emergency docket.” (Notably, the president has issued far more executive orders in this period than any president in recent history.)
An alternative, the government suggests, would be for people who would be affected by the executive order to try to file a class action challenging the order and (among other things) seek temporary relief for the entire class. Doing so, the government observes, “avoids the asymmetric stakes of nationwide injunctions:” A ruling in a class action “binds the whole class,” but if one challenger loses its bid for a nationwide injunction, that “does not stop others from trying again.”
We will see at 10 a.m. ET whether the justices address the issue at the heart of the matter or dodge it and simply decide whether threatened persons must defend their birthright citizenship on a case by case basis.
Not citizens, but bastards
Over at The Ink, Anand Giridharadas takes this issue personally:
I am by birth and by right an American. I do not wish to change this fact, and I will not surrender to those who would change it for me.
I was born in Cleveland, Ohio, a place I invariably think back to on those rare occasions when someone says, “Go back to your country.”
Cleveland? You want me to go back to Cleveland?
And, yes, I was born as the thing now being argued over nationwide: a birthright citizen. Which is to say, my parents were not yet American citizens when they had me.
He continues on how biurthright citizenship makes ours “a nation of becoming”:
Legal writers more knowledgeable than I have explained why Trump’s attack on birthright citizenship is both perilous and, legally speaking, hogwash. I want to make a different point, borne of my experiences in America and outside of it. Birthright citizenship is not only a profound legal foundation of the United States. It is a cultural idea that does as much to make America feel like America as any other thing.
Trump and his ilk consider such Americans bastards.
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