Advisory Opinions - LIVE: SCOTUS Hears Birthright Citizenship Case

Episode Date: May 15, 2025

In a special live Advisory Opinions x SCOTUSblog crossover event, Sarah Isgur was joined by David French, David Lat, Zachary Shemtob, and Amy Howe (live from the Supreme Court), to react to the oral argument in Trump v. CASA, Inc. The question: Whether the Supreme Court should stay the district court’s nationwide preliminary injunction on the Trump administration’s executive order ending birthright citizenship. Advisory Opinions is a production of The Dispatch, a digital media company covering politics, policy, and culture from a non-partisan, conservative perspective. To access all of The Dispatch’s offerings, ⁠⁠⁠click here⁠⁠⁠. Learn more about your ad choices. Visit megaphone.fm/adchoices

What's better than a well-marbled ribeye sizzling on the barbecue? A well-marbled ribeye sizzling on the barbecue that was carefully selected by an Instacart shopper and delivered to your door. A well-marbled ribeye you ordered without even leaving the kiddie pool. Whatever groceries your summer calls for, Instacart has you covered. Download the Instacart app and enjoy $0 delivery fees on your first three orders. Service fees, exclusions, and terms apply. Instacart, groceries that over-deliver.

Ready? I was born ready. Hi everyone and special shout out to all of you who were just with us for two and a half hours on the live blog of those oral arguments. And a special thank you to Professors Will Bode and Amanda Tyler who joined us for that live blog. So let me set up what we were just doing and listening to in that oral argument. The Supreme Court, as we said, just listened to two and a half hours of oral argument on this emergency appeal, interim relief appeal. We can have a debate about what we're calling that docket in a few minutes,

related to Donald Trump's executive order on birthright citizenship. So, and by the way, since we normally do this as just a podcast, you guys don't see me read off all my tabs, but I do. I don't always have this stuff memorized. So the substantive part of that executive order was that when a person's mother is unlawfully

present in the United States and a person's father was not a United States citizen or lawful permanent resident at the time of said person's birth, or when that person's mother's presence in the United States was lawful but temporary and the person's father was not a United States citizen or lawful permanent resident at the time of said person's birth, they would not automatically get American citizenship as they do now. So it's that illegal presence or temporary presence would not have birthright citizenship automatically under the 14th amendment as we've been doing since the passage of the 14th Amendment in 1868. Now, we had a number of lower courts issue so-called universal injunctions,

nationwide injunctions, preventing this order from going into effect. The Trump administration then asked the Supreme Court to hear this, and what was so interesting was that in their briefing to the Supreme Court, they didn't actually ask the justices to weigh in on the meaning of the 14th Amendment or the history of birthright citizenship. What they asked for was for the justices to tell these lower courts, stop issuing these nationwide and universal injunctions. They don't have the power,

the constitutional authority to stop something from going into effect nationwide when, for example, I believe it's 18 states had actually been party to these lawsuits. What about in all of those, was it 28 states? Am I getting that wrong, Zach? I was just, yeah, it's funny. I was going between 18 and 28 as well.

Whatever. There's a whole lot of states that would get let's say- Whatever, there's a whole lot of states that would get the injunction, but there's also a whole lot of states and then wouldn't get the injunction. Meaning- Good enough. Yeah, let's just call it half. In half the states in the country,

you would have birthright citizenship. You get born at any hospital in those states, you are handed a birth certificate that proves that you're an American. In the other half of the states, you would get a birth certificate that just says, you know, you were born, but you would have to prove your citizenship in some other process that has not yet been figured out. So that's what the administration was asking the Supreme Court to say. What the administration or what the Supreme Court did at that point was like, yeah, great, we'll hear oral arguments about that

on May 15. Oral arguments about what they didn't tell us there was no question presented. So we came into this wondering how much was going to be about birthright citizenship, how much was going to be about universal injunctions, how much was going to be about something called associational standing, right, if it's a advocacy group that sues and says that they represent people across the country. And so after two and a half hours, we have answers to some of those questions, but there were some real surprises. David French, let's do some big picture takeaways. And by the way, just so everyone knows, Amy Howe will be joining us from right outside the courtroom.

As soon as she can literally get out of the courtroom, she needs to go to where the lockers are to retrieve her things because you're not allowed to bring anything except pen, paper, and cough drops into the courtroom. So she needs to get her phone, maybe a purse, and then she'll be joining us live outside the courtroom to give us some of those, you know, ESPN style sideline reporter type interviews. But while we wait for her, David, French, top line reactions. I'm reminded of the Princess Bride in this sense that universal injunctions, as soon as it became clear that this was an argument about universal injunctions, almost really more than anything else, but universal injunctions came in here, I thought, maybe dead.

But then I found out through the first 15 to 20 minutes of the Solicitor General's argument, maybe it was only mostly dead. And that ironically enough, the Solicitor General's argument to try to kill universal injunctions may have helped revive universal injunctions. Now I'm less certain about that after hearing some of the rest of the argument,

but in that opening, it was really remarkable. And there was a key moment. There was a key moment where I thought that, uh-oh, the Solicitor General here may have torpedoed his own case. And that was when Justice Barrett asked him about, what about injunctions within the Second Circuit? Would you comply with injunctions within the Second Circuit?

And he said, generally. And she kept pressing him. And he kept saying, generally. And she kept pressing him and he kept saying, generally. And she's like, no, no, no, I'm not saying if like there's some 1950s case that you're trying to get overturned. No, I'm saying there's a present injunction and he wouldn't retreat from generally,

which is another word for not always or no, or we can't guarantee that. And landing on top of a situation where the court is already alarmed by the administration's failures to fully comply with the full meaning and intent of judicial orders, that was a fascinating moment. Now, now, I don't think it was a dispositive moment at all, because it, but it became very clear to me,

what the court was looking for though, was a solution that says, what allows us to act when we need to act without all of this mess around potentially conflicting district court orders, et cetera, et cetera. And we kept landing into this conundrum, but those opening few minutes were striking to me. David Latt, we'll bring in Amy how she's ready. I want to bring her in in just a second.

But real quick, this may be more than any oral argument I can remember listening to was a real expectations game. As in, I think we all went in with the expectations that many, if not most of these justices would be incredibly skeptical about how district courts have been, let's just say it, abusing their nationwide injunction powers for all manner of random nonsense. Now, this case isn't random nonsense, but there have been a lot of side eye and eye rolling. It's felt like we've seen it in dissents from denial of cert from

justices like Gorsuch and Thomas. And it's worth mentioning at this point that also these universal injunctions aren't like a conservative versus liberal thing. Joe Biden had huge numbers on his biggest stuff. Student loan debt forgiveness, vaccine mandate, eviction moratorium, all fell victim to these universal injunctions. So just because this happens to be a Donald Trump executive order, the actual fight over universal injunctions doesn't fall neatly along partisan lines at all. In fact, I'll mention, you know, husband of the pod was the Texas Solicitor General. He was the one who got the universal injunctions against Obama's DACA and DAPA policies back

during the end of that administration. And he wrote a Wall Street Journal op-ed in the run up to the 2020 election saying, we should all love universal injunctions. So that's one of the most, you know, conservative lawyers on the planet who was in favor of universal injunctions. So David, we went in with that kind of vibes, if you will, that universal injunctions were on life support. Is David French right that John Sauer, the Solicitor General, actually talked himself out of a winning case? General actually talked himself out of a winning case? So I don't know in the sense that I think this was a

weird and perhaps challenging vehicle or case to tee up the issue of universal injunctions because It is clear from the questioning that the justices seem very against the trump administration's approach to birthright citizenship. There were a couple, there were a number of references to the merits of the birthright citizenship issue. And they were more than I expected in terms of just the expectations game. And they were all on one side. It wasn't like Justice Alito or Justice Thomas

was piping up to say, well, they might have a point here on the 14th amendment. And I think what ended up happening was the merits, the birthright citizenship issue, sort of bled over into or colored the universal injunctions issue. Because essentially what the- At several points, what I found interesting

was, several points, assume that your birthright citizenship executive order is unlawful. Now what relief should be granted? Exactly. And that was constant. It was basically a situation, OK, maybe there are some problems with universal injunctions.

But when something is flagrantly unconstitutional and wreaking nationwide havoc as a practical matter, are you saying we, the United States Supreme Court, can't do anything? That's what they were essentially saying to Sauer. They're saying, look, okay, fine. Yeah, there's some overreaching here, but what about us and what about a really bad situation?

It turns out it was not the ideal vehicle for the administration. This was a really weird vehicle for them to want to pursue. But they had confidence going in. I mean, you read their brief and they talk about, oh, how this is the perfect vehicle. This is going to be resolved, this issue clean and neatly. And that is the exact opposite of what we saw during the entire oral argument. All right, let's bring in Amy Howe from the steps

of the courthouse. Amy! Hello. There she is. OK, first of all, tell us what we're looking at. You know, oftentimes when we're talking about the Supreme Court, court insiders use the term One First Street, like what's going on at One First Street. So what's One First Street?

So I'm actually the sideline reporter at the Masters today with the screen jacket on. Actually, no. So I am in sort of the press corral because we are not actually allowed on the steps at one first street. So I am in a wonderful spot that our producer Victoria has found for us kind of in the shade and it's not raining. So it's a, it's a wind. And there are, it's not a huge crowd actually. There's some demonstrators out supporting Kilmar Abrego Garcia, the Maryland man who is in prison in Venezuela or in El Salvador, whom the Trump administration admits

was sent due to an administrative error. And there's a sort of a press scrum behind me where some of the lawyers who argued today are speaking. And the oral argument just got out a little while ago, as you and your listeners and viewers know. And it went not quite two and a half hours. A lot of that time was, John Sauer, Trump's Solicitor General, had 30 minutes plus the seriatim questioning time. and there were a lot of questions for him. I think I have the same impression that David Blatt had, and it was something that we saw if you were on a live blog for the opinion that the court released. I saw in the comments shortly before

I scurried upstairs, someone said something along the lines of horrible facts lead to this kind of law in the case of Barnes versus Felix involving a moment of the threat doctrine. And it was the case of a police officer who shot a motorist as he drove away. And this was the case, I think, in which going in, we had several justices who were clearly very skeptical of universal injunctions

and the Trump administration, John Sauer at the oral argument reiterated that they were just bringing this question of universal injunctions to the court. They had not opted to bring the question of birthright citizenship, but clearly several of the justices were very skeptical of the birthright citizenship question on both sides. And so they were skeptical that solving the universal injunction issue was going to matter as a practical matter, particularly in this case. You had Justice Brett Kavanaugh asking about how it's going to work with birth certificates in hospitals. And Justice Forsyth, I think, asked, was one of the justices who asked essentially,

how quickly, how can we get to the merits of this case quickly? And so the justices will meet for their private conference today. It would not be altogether surprising to me if they set the birthright citizenship question for oral argument and maybe didn't decide universal injunctions this time around. Wow.

I remain puzzled by Justice Gorsuch. Okay. So before we get, we've got a lot to talk about here. We've got to talk about class actions. We've got to go through some of the individual justices, and of course, our surprise justice of the day, Justice Gorsuch, who based on all of his writings, had come in as the most skeptical of nationwide injunctions and that was not the justice we heard from today. But Amy, before we get to that, I noticed that the

flag is flying at half mast behind you. I assume that that is in honor of the passing of Justice Souter last week. And I just want to note that we will have Judge Newsome, former clerk to Justice Souter on our next podcast episode to do a little memorial and memoriam for Justice Souter. Also I noticed there's scaffolding, I don't know what to call it, in front of the court. And that must be pretty new. It is relatively new, I think.

They've been doing renovations off and on and they have had at times sort of a scrim that looked like the Supreme Court, the face of the Supreme Court. The Chief Justice John Roberts, before the court released opinion this morning, had a long tribute that he read to Justice Souter. He noted that the door of the courtroom was draped in black in honor of Justice Souter. So that was also some moving remarks.

That makes so much sense. You know, us over at the live blog after you left us, we were some moving remarks. That makes so much sense. Us over at the live blog after you left us, we were getting pretty confused. I was on hold with ABC in case it was one of the big decisions, and 1001, 1002, 1005. We couldn't figure out. Yeah, I didn't know how long it was going to be,

so I didn't know whether I had time to run back to my desk and type, Tribute to Justice Suit are going on right now, we'll have opinions in a moment. Because the second I did that, you know that he would wind up and then release the opinion. And once you're trying to get back into the press room to get the opinions, you're like a salmon swimming upstream and you know, it's all over. Okay, Zach, do you want to set up this class action problem? And just my own take real quick before you actually explain the law as a actual civil litigator. It seems to me, and this was to Justice Kavanaugh's practicalism, consequentialism point, that

one of the arguments from the Solicitor General was, don't do nationwide injunctions, but you could do class actions, to which Justice Kavanaugh was like, don't do nationwide injunctions, but you could do class actions. So it's Justice Kavanaugh was like, don't we end up in the same place where now we just have a bunch of class actions that bar stuff nationally? So why are we doing this? Yeah, I'll speak on it a little. I mean, for class actions,

the idea of course under rule 23, the federal rules is to have a party certified. So a group of people who have been injured and they can represent one individual or the named plaintiffs can represent others in that party. And so when they bring a suit forward, it represents the whole group, even those who aren't litigating the issue. And so you had this kind of idea that class actions, well, there were a number of strands, but one is that we have class actions, and therefore, how does that differ from nationwide injunctions also in terms of how expanded could they be with class actions? And there were a number of other points kind of just setting up different ways

in which class actions would intersect with national injunctions. I mean, David French, when it comes to the conservative legal movement for the last, let's call it 20 years, I get it. There's been a lot of skepticism about nationwide injunctions, but it has been taken as an article of faith

to hate class actions. So to switch one for the other seems like a weird judicial ideology move. Yeah, that sound you hear is a bunch of Fed Soc lawyers going, yay? Or let me continue with movie analogies. What we just witnessed was Bruce Banner in the chair getting gamma radiation to turn him in the Incredible Hulk. But instead of Bruce Banner, it's rule 23 of the Federal Rules of Civil Procedure.

Because I think one of the possible outcomes here is the Supreme Court basically saying, Because I think one of the possible outcomes here is the Supreme Court basically saying, y'all haven't been using class actions enough. And oh, by the way, you should be doing this in a way that allows for expedited proceedings, which expedited proceedings and class actions are not words that go together very well at all. And so one of my questions out of this is,

do we end up with, you no longer have six eggs, here are half a dozen, we call them class actions. And that's my question about this outcome. There has been one conservative voice in the wilderness in support of class actions. So I have to plug him, Brian Fitzpatrick. He actually wrote a book called the conservative case for class actions. And he has been trying to encourage them as a way

to basically use private litigation among folks as opposed to government rules. And so he has a very interesting take on it. And I'd imagine he was probably more excited by some of this than anyone else out there. I'm literally thinking back to the last national FedSoc national conference last November for whatever reason there were many people talking skeptically if I'm being polite about Brian Fitzpatrick's class action take and here we are but a few months later. And can I say it wasn't just Justice Kavanaugh, but Justice Alito also said during John Sauer's time at the lectern, he said, would class actions raise

all of the same problems, sort of the practical problems that the government talks about as if a universal injunction would. And so there were questions about whether or not class actions would solve all of the problems that the government says are created by universal injunctions. And then much along the lines of this David French right before I came on talking about the moment in which John Sauer refused to concede

to Justice Barrett that the government would always follow a ruling on behalf of an individual plaintiff in the Second Circuit. He had a lot of questions from Justice Kagan about whether or not the government would resist a class certification. And definitely seem to suggest that the government would fight a class certification in any event. Amy, this gets to a question that I had. So on the live blog, you saw some agreement between, particularly, I mean, me and David Latt, I think to a slightly lesser extent,

our professors who just aren't going to wade into some of this, but the idea that the tone and aggressiveness that they had towards the Solicitor General, John Sauer. I think I lost you for a second. Yep, she's present. But I think we can finish the question, which is the tone and aggressiveness towards John Sauer suggests some perhaps goodwill being lost with this administration. That's how I'm filling in the question. And like from your perspective inside the courtroom, Amy, did you sense that there was

sort of a feeling in the room or on the bench against the position of the SG? I mean, I think that there was a healthy skepticism was the way I would say, you know, and sort of both his insistence that they were right on this question of birthright citizenship and that they weren't going to bring it up because of the idea of percolation. I think it was Justice Barrett who pressed him saying that basically you have come to the Supreme Court on the merits in other emergency application postures without waiting for the issue to sort of percolate on the merits in the lower courts. I mean, you know, they are kind of drowning in emergency applications right now,

and the overwhelming majority of the really substantive ones are from the Trump administration. I think it's just a fact. Well, I have a news update in real time. Sarah has lost power in her house. That's untimely. a news update in real time. Sarah has lost power in her house. So I will take over sort of for the hosting duties for the moment. I try to step into her shoes. And let me transition a bit to, okay, if we're in a position where it seemed the Solicitor General was single-handedly perhaps reviving the case for universal injunctions, where maybe also a case for more expansive use

of class actions was coming into play. Is there a sense that you have that whatever the outcome is going to be here, that what we're really gonna be arguing over is not whether courts can issue injunctions that apply beyond their jurisdiction, the specific jurisdiction, say the Southern District of New York, but which vehicle will do it? Did we come down to that? It's just a matter of which vehicle.

And Zach, I'll start with you. Oh no. I mean, I actually, I wanted to ask Amy, uh, and I'm very curious for her take on what is the, at the end of the day in Sowers view, what is the advantage class actions over nationwide injunctions? I mean, what, what ultimate difference is that going to make, at least in Sauer's head? I think because it gives them, it probably slows it down

and gives them the opportunity to fight the class certification. Yeah, which is, yeah, the answer seems totally right to me. And of course that strikes to the irony of them endorsing this and then we'll do everything they can to fight it back Well, I think what he might say is What some of a lot of what his argument was against a nation? Universal injunctions was article 3 which is the provision of the Constitution that sets forth Judicial power and he's essentially saying look these universal injunctions go beyond the power that the Constitution

gives these judges. So if you're thinking about it in terms of just the origins and the nature of judicial power, as opposed to the practical consequences, you could say that class actions do a little bit better because they have been created by Congress. They have grounding. It's not just judges kind of running around doing their thing. There are all these requirements you have to meet to have class certification that

are laid out in Rule 23, which we didn't get into those too much, but commonality, typicality, et cetera. So I think what he, so it may not address the practical issue quite as much, because practically maybe we do end up in a similar spot. But to the extent that constitutional first principles are being violated, maybe class actions are better. Yeah.

I mean, I think that's right. I mean, he did concede, I think, that Congress could authorize some form of universal injunction. That doesn't address the Article III question, obviously. And I guess it goes, another sort of response that he would have that would go to the practicality question would be this idea of asymmetry, that under universal injunctions the government is bound everywhere

and another plaintiff can bring a case. But on the other hand, in the class action, everybody in the class is bound, win or lose. And maybe class actions have more of a historical pedigree, because you also had the bill. This didn't get brought up. I thought it would get brought up more. But bills of peace, which were kind of considered proto class actions, you know, in the 19th

and I think 18th century. So, so maybe there is a greater historical pedigree for there there than there is for national injunctions or nationwide injunctions. I wonder if enough people were listening in real time to where Google trends spiked a bills of peace Google. Bills of peace. I thought there was plenty of discussion of bills of peace on my end. They started with bills of peace. Justice Thomas loves the historical pedigree. Absolutely.

Sorry about that. We had a power flicker here and that was enough to knock me off. My lights went out, Wi-Fi went out and it came right, it was so annoying. I want to read one of the ideas that Will Bode had about at least what New Jersey was asking for, and start getting your reactions to potential outcomes and where individual justices are. Let me read Will Bode's summary

of what New Jersey was asking for, because at least I felt like the justices were most keen on New Jersey's buckets, if you will. And there was a lot of bucket talk. So New Jersey, according to Will Bode, would want the court to write an opinion that says, one, universal injunctions should only issue when necessary to grant complete relief to the plaintiffs. Two, to figure out whether it is necessary to grant complete relief, you have to recognize the complete unlawfulness of the executive order. And three, given the complete

unlawfulness of the executive order and the way people move around, New Jersey needs a nationwide injunction for complete relief in this case. So let me just throw that to you, David French. Does that sound like something you think the justices were leaning towards? You take the advocate's version of reality and you're going to tinker with it a little, but it's always interesting which version of reality they're going to start with. Yeah. I found that approach very interesting. But let me put it this way, I just keep going back to that opening half hour that I don't think walking into this.

Like walking into this, if you're going to tell me, David, what do you expect about the inclination of majority of the justices regarding universal injunctions or any attempt to really rehabilitate universal injunctions? I would have been somewhat skeptical. But I think that you had a chain of events in the first 30 minutes of the argument that might have opened some minds to, okay, universal injunctions might be the most practical way of accomplishing these vital interests.

However, at the same time, we don't want willy-nilly. How can an advocate gift wrap me a framework that answers my concerns that are all of the concerns that are emerging? And so I thought that that framework became more viable over the course of the day. Now, of course, I mean, we're all doing, we haven't done the mandatory disclaimer yet, which is don't read too much into oral argument as we go ahead and read way too much into it.

But with that caveat out of the way, I thought that that framework walking into it, I would not have thought they'd have been as hospitable to walking out of it. I think there's a chance that could capture like five of the nine brains perhaps. I don't know. It's much more viable than I thought it would be.

Amy, you were in there, you were seeing their body language, all the things that we were missing here on the outside, who were the swing justices, what were they, you know, making faces about? Yeah, I mean, the body language was not particularly telling, you know, the chief was the one who, you know, didn't talk a lot, you know, talked about to the extent that he did talk, talked about how quickly, you know, seemed to extent he did talk, talked about how quickly it seemed to suggest that if they were to get rid

of universal injunctions, they could deal with the merits pretty quickly. Justice Thomas was mostly interested in the historical pedigree of universal injunctions. So ironically, it may come down to the three Trump appointees. Justice Barrett certainly seems skeptical both on the underlying merits question. Justice Kavanaugh, as we discussed,

seemed skeptical as well about how a universal injunction would work. I agree with David French that sometimes what they're looking for is a rule. And I think that the rule that New Jersey outlined, Jeremy Feigenbaum, was not what they're concerned about. All of them, Justice Kagan also talked about sort of the abuse of universal injunctions, is a rule that is not going to be particularly malleable by district court judges, and maybe that one fits the bill. David Lat, do you think we're going to see the merits factor into whatever the test is, i.e.,

something that the associational standing advocates, sorry, we didn't actually get a whole lot on associational standing after all of that that we were sort of gearing up for, but the advocate for the association for CASA, her test was gonna look something more like, if it deals with the constitutional, right, we need nationwide injunctions, if it's something more ministerial or a government benefit,

then it should be about the plaintiffs. Do you see a world in which the test turns on how unlawful or how constitutionally unlawful any given executive action or pending regulation or anything else is? Yeah, so that was what Kelsey Corcoran who was arguing for the private respondents, was trying to advance. I did not get a sense that it was getting a lot of traction. I think that what you articulated earlier, which was Professor Bode's point about the issue of scope

of relief, it seems to me that might be something the justices would hang their robes on. Solicitor General John Sauer was even making fun of the idea of there's no really, really unconstitutional exception to the rules of Article 3. And I can see why he made that point rhetorically because there did seem to be in the questioning a kind of backwards reasoning approach. The justices seem to be saying, A, this approach to birthright citizenship

is flagrantly unconstitutional. And B, there has to be something we, the Supreme Court, can do about that. So craft for us a rule that doesn't allow for all the abuses of nationwide injunctions, but allows us, the Supreme Court, to get at the egregiousness here.

So I think that the merits of birthright citizenship will come into play. Now there were some justices who were really trying to keep them out. Justice Alito asked various iterations of the question of, can we deal with the issue of remedies and universal injunctions and class actions and all of that without taking a quote peak at the merits. And I think he was the one who was trying to avoid that. And I think that I don't know that there's a majority for that. I think you probably have a majority for the other way where the merits come into play.

And when you look at the standards for injunctive relief, one of the factors is likelihood of success on the merits And so that does go to the merits of birthright citizenship and there was really nobody again who was piping up to suggest That the order on the merits might be correct even though John Sauer began his rebuttal by trying to defend The merits of the Trump administration's approach to birthright citizenship. And Zach, there was something really strategically that I thought that the advocates for New Jersey and the private plaintiffs, they didn't actually, there wasn't a whole lot of strategy going into their position. I think we all knew what their position was going to be on each of these. But for John Sauer, the Solicitor General, he had some strategic decisions to make on this. So for instance, what about if he had come in

and advocated for lower courts can't do nationwide injunctions, but the Supreme Court might have authority to issue a nationwide injunction, but he didn't take the bait on that one, even though they kind of offered it up to him at a few points. My other question to you is,

do you think there's a world, which I did not think there was going into this, but now is there a world in which the court gives the lower courts just another chance and says, quit abusing this, here's what abuse looks like. Try again. We need it this time and see if they'll take the note, even from Justice Kagan, you were hearing they're getting really sick of these lower courts self-aggrandizing, if you will.

I think that that is the path that they're going to carve out. And I think you're likely to see something like six, three, or seven, two to do that. I'm counting to three, and you'd better be in your room in bed. Yeah, yeah, yep. This is the nemo-no of universal injunction.

Yep, yep, exactly. This time we really mean it. Yep, yeah, be very serious, lay it out. But at the end of the day, take this middle path. And I think that was the most appealing to the justices. And going in, I thought it would be much more categorical, especially for Gorsuch. And Sauer had a number of strategic decisions to make. One was saying, okay, SCOTUS, it's okay for you to do that, but not the lower courts.

I just think that leads to a lot of problematic outcomes and confusions there. Then, you know, it ultimately has to get to the high court and that's the only way for these to be resolved. And while it solves the problem of all powerful district court judges, it creates plenty of new ones. So I don't ultimately- Yeah, never seen the Supreme Court taken out that meant more work for the Supreme Court. Exactly. I just don't see it, especially with the Supreme Court. Not to say they're lazy, but the Supreme Court is more picky as we've seen over the years as ones pass. So I'm just not seeing that. I have to say,

though, I just want to put this out there. Jeremy Faginbaum was absolutely fantastic. Crushed it. I'd never heard him argue, at least not to my memory. And I thought he started out a little bit unsteady. He just sounded a little bit nervous. Yes. Boy, about five minutes in, seven minutes in, he just really hit his stride. And now we really sound like ESPN.

But he was just hitting balls out of the spark. Draining the threes. Yeah, he started off, you know, he was speaking a little quickly trying to get through it, but once he hit his stride, he was really an excellent, really impressive advocate. Amy, will you walk through where Kagan, Sotomayor, and Jackson were and what sort of middle ground you think they could potentially sign on to, if any? So Kagan and Sotomayor were very focused on the merits. Kagan started out questions for Sauer with just you're talking about how wrong the birthright citizenship order was. Sotomayor was talking about, as I can't remember now

who mentioned this, but sort of working backwards, the idea that without a universal injunction, you're going to have thousands of children born who, she said, could be essentially stateless because there are countries who do not recognize citizenship for the children who are born overseas. So if they're born here, they're not citizens, but they also wouldn't be citizens of their parents' countries. And she also, I think, to try to make a rhetorical point, had a scenario involving an executive order by presumably a Democratic president that banned everyone's guns, took away everyone's guns. She was sort of suggesting, are you saying that it would be nothing that we could

do to stop that until it sort of bubbled its way up to the Supreme Court. Jackson, as it seems to often be the case, had sort of a slightly different twist on it. And she was talking about, more focused on the idea of universal injunctions and the concept of relief. And she sort of floated the idea that universal injunction, you know, and when you're talking about relief, you're not so much talking about who benefits this idea that the argument that the government makes that universal injunctions provide relief to people or entities who are not a party to the case, but to the government makes that universal injunctions provide relief to people or entities who are not a party to the case, but to the idea that a universal

injunction is telling the defendant that it has to do something or refrain from doing something. And the incidental benefit of that is that some people who may not be parties to the case may also be affected by the court's order, sort of looking at it from a different lens. And David, it's not clear sort of where they're going to go, but, you know, clearly, I think on board for the challengers.

David Frenchy French. Here. Experiment with new ways to distinguish you two. Here. Experiment with new ways to do things with you two. You were doing the argument differently than David and Zach and I were, because I'll just tell you, that was our first time doing a live vlog

during an oral argument, and that's hard to listen and be forming thoughts, and it absolutely affects then how you listen to the rest of it if you're already starting to form thoughts and I have sort of Thinking like boy that must be a little bit what it's like to be a justice as well Like you don't just get to like listen the whole time, but david you actually got to just listen Were you as surprised by justice gorsuch's? Coming out party as the rest of us were

You know I was I was, I was. However, let's circle back to a couple of AOs ago where we talked about sort of the Kennedy-Gorsuch through line of like the anti-bullying sort of instinct that Gorsuch has. This whole concept of maybe that these kids are born, but they're not immediately granted citizenship that they're stateless. And here comes the big federal government sort of saying, well, I mean, too bad, so sad, we gotta jump through all of these hoops.

And oh, by the way, the whole weight here isn't gonna really be through the injunction. It's gonna be the power of precedent. And we just said that, well, we generally will comply with precedent. And there's a lot going on here, I felt like, that really lands in the Gorsuch, sort of in the Gorsuch framework of, wait, we've got a very big, very powerful force here that is trying to play fast and loose in a way that can harm some people who are about as

vulnerable as they can be. And so that is, that's pricking a part of the Gorsuch jurisprudence that we've talked about before. So when you take a look at it, and this brings us all the way back to the vehicle conversation, is this the right vehicle for the smack down of the universal injunction?

One thing that was so striking to me in listening to this whole thing is you just listened to the whole thing and you had, and I don't know if you guys disagree with this, I didn't find even a glimmer of a ray of hope for the administration on the actual merits here. And not a glimmer, not a ray, not nothing. And so in that circumstance you've got this question of okay the merits are terrible of, okay, the merits are terrible for the administration, the equities are horrible

when you talk about who's vulnerable here. So you start to get to a situation where I'm not super shocked that Gorsuch responded the way he responded. Okay, this is our first live AO after an oral argument. I'm sure we're gonna do more of them and we're not done yet, but Amy, you do look a little like you're melting out there. I see we're on our second water bottle. So I wanna ask a few more questions of you

and then let you go so that you can get into some better shade. We're learning a lot through this process guys, so that next term we'll just be firing on all cylinders. Next time I'll bring my golf umbrella. I mean, we're not, I am not convinced that we are done for the term. We can still be out here talking about the merits of birthright citizenship. Don't you dare, Amy.

Oh, come on. It'd be fun. You're the one who's out there in the sun. Amy, tell us a little bit about your predicted outcomes. You hinted at one that blew my mind, which is maybe they won't decide this case at all despite just having oral arguments, and instead they'll just re-grant

another on the actual merits of birthright citizenship, and we'll just keep kicking this can football, whatever analogy you want down the road. Down the road. That's my prediction and I'm sticking with it. Wow. Go big or go home. OK, any last takes from inside the courtroom

that we didn't get to? I don't think so. I mean, it was not a hot, particularly hot it wasn't a hot, particularly hot bench, you know, that's pretty normal these days because they all know they're gonna get to ask their questions. You know, it was well argued. And now we wait and see.

I mean, if we don't get an order, basically tomorrow, obviously, my prediction is going down in flames. So, we'll see. And we're, this an incredibly unusual oral argument. You're our historian here about the court as well. We've only had three of these. The vaccine mandate case, which, disclosure,

husband of the pod argued. We had the one environmental case. So this is our third of these ever, basically. Yes, and so as you know, because husband of the pod argued, the vaccine mandate decisions came very quickly. The EPA stay application, not so much. So I think all we know is that we will get a decision in this case by late June.

Yeah, okay. So sometime tomorrow or a month from now, who knows? Who knows? Amy Howe live from One First Street. Thank you for joining us. Thank you so much fun. All right gentlemen I want your reactions. I don't know if I'm getting on board with Amy's prediction David Latte that we might see an order because remember right after this the justices will go into conference this means that they will sit around a table without any of their clerks uh the chief justice either really has the privilege to talk first or last my understanding is that he

tends to talk first these days and then they'll go around in order of seniority giving their views of how the case should come out and what Amy is saying is that there's a chance'll go around in order of seniority, giving their views of how the case should come out. And what Amy is saying is that there's a chance they go around the table and say, F it, let's decide this on the merits. In which case, because they didn't ask for briefing on the merits, because they didn't really hear argument on the merits, we'll get an order tomorrow

that just resets this whole thing again for either briefing or arguments on the merits, in which case we'll know basically right away. Now, if at conference they go around the table and there's a lot of, you know, well actually, what about this, what about this? I mean, I could see a world in which you go around a table and get nine different versions of what the test should be, then we're not in a vaccine mandate case where it's like, allow the vaccine, don't allow the vaccine. Here, they're asking for a test. Tests are hard. And even with a month, I don't know that that's enough time. I mean, I've told this story before that Byron White,

when Justice Gorsuch was clerking for Byron White, Justice Gorsuch went in to Byron White and said, I don't understand this opinion. And Justice White said to his clerk, was it argued in April? And Justice Gorsuch said, then Clerk Gorsuch said, yes. And Justice White's point was the worst decisions are based on April oral arguments because you have so little time to actually write good opinions. We are in the middle of May. It is the Ides

of May. So if they tried to get a decision out that's not just a thumbs up thumbs down decision this really can't be that and they've only got six weeks max. Like I don't know that I agree with Amy that we're getting something tomorrow. But I don't see how we get something so quickly that's such a complicated question on outcome, David Lat. Well, this is why I wanna call it the short order docket, because when they are deciding these things, not only is it literally a short order, but it's not haute cuisine.

They don't have the time to cook up a multi-course meal. They're flipping you the fries. So that's kind of what I think they're going to try to do here. So there was suggestion raised in the chat by professors Bowdoin and Tyler about whether or not they might try to tackle the merits and maybe even kick the case to the fall and have full briefing. I think Amanda Tyler mentioned that possibility.

I do think that the fact that they scheduled this for May suggests they feel a certain urgency on the issue of universal injunctions and remedies. And so I do think, if I had to guess, that they will try to resolve that admittedly thorny question sooner rather than later. There was an argument, there was a question to Kelsey Corcoran about, well, you know, how quickly could we tackle the merits? And she said you could issue an order for supplemental briefing tomorrow. But I don't know that they're going to do that. There's definitely an appetite perhaps for tackling the merits from some of the liberal justices, but I don't know that some of the conservative justices

want to go there. So I think they're going to, as they often do in the short order docket, try to come up with something that's pretty narrow and maybe even sort of procedural or technical in nature. Again, I, sitting here as just sort of not a justice, I, that's not exactly coming to me. No, I do see perhaps Will's point about just how the you know, the issue of scope of relief and whether or not you can give plaintiffs complete relief and maybe that

could be what they hang their hat on. But I do I think you know, they can write broad, they can write narrow, they can write narrow. I think they're going to write narrow and leave untouched for another day, all sorts of other questions about universal injunctions and class actions and remedies and standing. I think they want to bite off as little as they can chew here. I think I mentioned in a prior recording

that given the nature of this case, it was kind of like a buffet and they could kind of choose how much they wanted to handle. I think they're just, you know, going to make a little salad for themselves. I do not think they're going to be gorging. Zach, pick a fight with your husband, please. Unfortunately, I agree with him. I will say that betting against Amy Howe is not a smart move when it comes to the Supreme Court. You know, she's forgotten more things on the Supreme Court than all the knowledge I've

ever had on it. So I think that though they're going to try and carve out a middle ground here, given how complicated it is, and given how much the merits were bleeding through To their view of universal jurisdiction And I think they're gonna want to put something out there to if not try and resolve this move the ball forward David this gets to a question of how How we cover the court how we explain judicial philosophy, because in theory, right, your judicial philosophy should apply no matter what the facts are.

That's the idea behind originalism or anything really except legal realism and living constitutionalism to some extent, but I think even a living constitutionalist would say the facts aren't supposed to matter. But this, I mean, we've talked about this before on the pod, right? Several of our doctrines, bad facts make bad law, bad man stays in jail.

This feels like if it had been the DACA or DAPA, universal injunction, these were about people, children who were brought here illegally, but as minors and giving them legal status and then giving their parents legal status. It came up with the oral argument that, for instance, it would have been a complete remedy to Texas to simply bar the DACA and DAPA from going into effect in Texas, because the argument was Texas was going to have to pay money to issue drivers licenses and work, you know, permits and stuff like that. When you come in, as we all thought, very skeptical of universal injunctions from a sort of first principles constitutional authority under Article 3, a unwise universal injunction would have made it pretty easy. This was a terrible vehicle if you don't like universal injunctions. And so I do wonder how much the facts of this have changed the course of

universal injunction history because this was the case that happened to get heard on this question. It could have been any case for the last 12 years on this question. They've been you know, they've known this was a problem. They've been wrestling with it since obama's second term But this is the one that we're going to decide universal injunctions on this seems crazy to me By the way, this seems to be the theme. Sorry david. I was just gonna say this seems to be the theme of this podcast Yeah, what? Which David was my Frenchie French, okay Not sure I'm in love with Frenchie French, but we can workshop this you can just call me lat a lot of people You know, it's funny is I always call you David lat like it's all right

It's one word, but I don't say David French, but then once I say David Lat, but then David, that gets confusing. So maybe we'll just know that I'm always saying David Lat and David. Wait, you know, oh, that's fine. Perfect, perfect. Much better than Frenchy French. But to answer the question. Yeah, you know, again, we going back to theme,

we talk about advisory opinions a lot. Pay attention to the facts of the case that they choose to select when they're taking a case on an issue that ostensibly is unrelated to the facts of the case. It's very hard to separate those things. It's very hard for human beings to separate those things. And so, you know, we have these rules of thumb, you know, Sarah, you talked about bad man stays in jail. This is why we can't have nice things.

And all of those are related to underlying facts, that underlying fact when you are wanting to choose a case and the Supreme Court has menu, a giant menu of cases, one of the things that if you if you're wanting to make an interesting or difficult procedural ruling, why not make it in a case where everyone's gonna go, yay, this is exactly the case to make that procedural ruling and then the president's there, a little bit of judicial jujitsu.

This is not that case. And that was so much more clear to me listening to the oral argument even than I thought going in. And I did not think going in that there was going to be five justices on board with the Trump position. I did not expect this kind of unrelenting background hostility to it. And that is something that was surprising to me. I thought the Trump administration would lose on the merits. I did not expect to just feel this radiating contempt for the position. So yeah, I do think and look, go back to the Alito Wall Street Journal op-ed from a couple of years ago. There are originalists who think about consequences. And, yeah, go ahead, David Latt. But yeah, that's just the consequences always come into play. I mean, to kind of tweak your old advisory opinion saying, it's kind of like bad order stays enjoined. The justices want to find a way to put the kibosh on this that doesn't do essentially

doctrinal violence to the rest of remedies and federal courts, but they do not want to let this stand. I still am shocked that Thomas and Alito did not say anything in, you know, not strong support but at least in a little support of birthright citizenship and the order. I was expecting at least one or two, maybe even three or four straight comments, but that just did not happen. They could have been a patronizing pat on the head. I mean, like there wasn't nothing like nothing like you're a leader person

Alito kept saying things like set aside the merits or yeah, let's put to the side the merits There wasn't a suggestion of well, you know a number of constitutional scholars John Eastman Ilan Worman A number of constitutional scholars have raised questions about this. There was not that about this. There was not that. Nothing. And David Latt, do you think it is fair to say that we no longer can call the solicitor general the tenth justice? Yeah, I agree with your point earlier that the presumption of regularity, essentially this notion that look, we give the government the benefit of the doubt, we assume they're

doing things on the up and up. I think that that is eroding very rapidly. We talked earlier in the podcast about this line of questioning that John Sauer got about whether or not the solicitor general, whether or not the federal government would adhere to a ruling of a circuit court. And Justice Barrett was the one hammering him on this. And she said, look, she said, it is in my view, Justice Barrett's the one hammering him on this and she said look she said it is a it is in my view Justices Barrett's view it is in my view a long-standing

that was the word she was long-standing practice for the executive branch or a presidential administration to adhere to the ruling of a circuit court and Then she seemed to say in contrast this administration seems to maybe take a different practice and Speaking of advisory opinions. She seemed to be saying well, you seem to be taking the rulings of federal appellate courts circuit courts as Kind of advisory and even though she's a justice she didn't really seem to like that very much So we call the Solicitor General the tenth justice as you said because of that presumption of regularity Because of the collegiality that the justices usually have with that person, I think that we can be done with that moniker. However, it is also the case that there's very practical

reasons that we call the Solicitor General of the 10th Justice. They have an office at the Supreme Court. An office is actually like underselling. It's like a huge, beautiful, mahogany wood lined room with beautiful portraits and a big conference table and comfy leather chairs. I mean, I'll just say this now. On May 15th, 2025, I think there's a chance that by

the end of this administration, that room is turned into a event space for the Supreme Court. That if the Solicitor General isn't going to follow the rulings of the Second Circuit, that you don't need office space in here. You can be treated like every other advocate. Nobody else gets their own changing room basically.

Of course, the Solicitor General wears the morning coat. They keep them all in the Department of Justice. They're, you know, the long tails of course, but they're like pinstriped pants. They're really a whole thing. Sarah Harris, by the way, has crushed it in her morning suit. Elena Kagan did not wear one as the first female Solicitor General. Sarah Harris's acting Solicitor General brought it back. She wore tails with a pencil skirt and just incredible, you guys. It's really like sartorial bliss. I want to close with a few thoughts.

One, this quote from Oliver Wendell Holmes, Jr. You'll know I actually kind of hate him as a justice. But nevertheless, in this securities case, he has this very famous quote, great cases like hard cases make bad law, for great cases are called great, not by reason of their importance, but because of some accident

of immediate overwhelming interest, which appeals to the feelings and distorts the judgment. That to me is that tension between the philosophy of nationwide injunctions and constitutional separation of powers and birthright citizenship, EO. On our next advisory opinions, we will have, as I said,

a tribute to Justice Souter from his former clerk, Judge Kevin Newsom of the 11th Circuit. We will also have amazing audio from David and I's trip to Gettysburg with the Sixth Circuit legal eagles, including Pickett's Charge, a mile up and a mile back, y'all, in the rain, no less. We also have Judge Jeff Sutton talking about the Confederate Constitution and comparing it to the U.S. Constitution. And I'll just, I'll give you the short version of this one, which is, if the Confederacy was so worried about states' rights, why does their Constitution not have any single difference in federalism or the structure of government.

In fact, the only differences are a bunch of mentions of, you guessed it, slavery. We'll also have Judge Chad Radler talking about legal eagles in the trip, and a little thought on his time at the Civil Division at the Department of Justice. Finally, from Judge Sargas, a District Court judge over there in Ohio, he did a really excellent deep dive into one soldier who fought in the Civil War,

and there was a huge yearly celebration in his name that's been completely forgotten. So that will be next time on Advisory Opinions. Thank you guys so much for joining us on this very first ever live advisory opinions on video with Amy coming from the Supreme Court, with Zach, our new executive editor of SCOTUS blog, David Latt, our partner in crime

over at Original Jurisdiction. I hope you guys enjoyed this. We are going to try to do more, do better, do faster, do harder. Did I not help you? So since you can't call me Frenchy French anymore, I'm just not mentioned. You're just getting-

I see how it is. I see how it is. You're like that really comfy pair of slippers. I love you, but I don't think about you that much. By the way, the next time we have to decide what this emergency docket is called because there were some very good suggestions on the live chat. Interlocket was my favorite of the suggestions. It's Interlocutory Docket. Interlocutory. It's a good name. Now, as Will Boyd Bode pointed out, there are interlocutory decisions on

the merits dockets too, so it's not perfect, but interlocut is such a good name. Short order docket was definitely getting a lot of love at the live blog. But Zachary, Zach, you came out pretty strong in favor of interim relief docket, which I think would be the preferred name from the justices themselves. Yeah, I'm an interim relief guy. Despite the diarrhea evoking your visual. Perhaps because of.

All right. Thank you guys for joining us. We'll see you next time.