The Supreme Court mulled whether judges should be allowed to extend injunctive relief to the entire country in a lively argument Thursday stemming from President Trump’s efforts to narrow birthright citizenship.
The practice of issuing nationwide — or “universal” — injunctions drew both criticism and staunch defense from the justices, as the argument bled into the actual constitutionality of Trump’s order and whether the administration would abide by court precedents.
Here are five takeaways from the argument:
Conservatives question need for universal injunctions
Several of the Supreme Court’s conservatives lamented the recent rise in nationwide injunctions, noting they didn’t exist near the founding and have largely been used against modern presidential administrations.
Justice Clarence Thomas in the few questions he asked pressed the attorneys when such rulings came about.
“So, we survived until the 1960s without universal injunctions,” Thomas noted at one point.
“That’s exactly correct,” responded Solicitor General D. John Sauer, representing Trump. “And in fact, those are very limited and very rare, even in the 1960s. It really exploded in 2007.”
Judges issued six nationwide injunctions during the second Bush administration, according to an analysis published in the Harvard Law Review. The number doubled to 12 during the Obama administration before skyrocketing to 64 during Trump’s first term.
During the Biden administration, the number of nationwide injunctions fell back to 14. Sauer said Thursday that 40 have been issued against Trump so far in his second term, already surpassing Biden’s number.
Multiple justices on Thursday suggested that universal injunctions could be replaced by the federal court’s long-standing rules allowing for plaintiffs to file class-action lawsuits in certain circumstances.
Justice Amy Coney Barrett, Trump’s final appointee to the court during his first term, at one point suggested the practical effect would be the same, asking Sauer, “What’s it to you?”
“If you win here on this procedural point,” said Justice Brett Kavanaugh, another of Trump’s appointees, “it seems very likely that the day after there are going to be suits filed all over the place seeking class-wide treatment.”
Liberal justices defend nationwide relief
The court’s liberal justices spoke in support of nationwide injunctions.
Justice Elena Kagan posed a hypothetical, positing that Trump’s executive order diminishing birthright citizenship is unlawful and the government’s legal argument is “dead wrong.”
“Does every single person that is affected by this EO [executive order] have to bring their own suit?” she asked. “Are there alternatives? How long does it take?”
Justice Ketanji Brown Jackson suggested that it seemed to turn the justice system into a “catch-me-if-you-can regime,” where all Americans must hire lawyers to get the government to “stop violating people’s rights.”
“I don’t understand how that is remotely consistent with the rule of law,” she said.
However, Sauer contended that the “catch-me-if-you-can” problem is where the government finds itself now.
New Jersey Solicitor General Jeremy Feigenbaum, the state’s top appellate lawyer who represented 22 Democratic-led states and two cities, leaned heavily on practical concerns. He questioned whether a person’s citizenship status would change every time they traveled between two states — or even two cities, pointing to the “porous” area between Philadelphia, Pa., and Camden, N.J., that is separated only by a river.
“We genuinely don’t know how this could possibly work on the ground,” he said.
Justices search for path to rule on 14th Amendment
The Trump administration has not yet asked the Supreme Court to definitively settle whether Trump’s executive order is constitutional.
But the issue overshadowed the arguments, with justices in both ideological wings searching for a pathway for the court to ultimately decide that question.
Justice Sonia Sotomayor was the most aggressive, floating that the justices should leapfrog the lower courts to immediately take up the issue, which no party suggested.
“Shouldn’t we grant cert before judgment on that issue, if we’re afraid that this is, or even have a thought that this is, unlawful executive action?” said Sotomayor, turning her head to face her fellow justices as she asked the question.
Multiple justices noted that lower-court judges have so far all ruled against Trump, meaning the administration would need to appeal to the Supreme Court, which it may not be incentivized to do.
“If I were in your shoes, there is no way I’d approach the Supreme Court with this case,” Kagan, a former solicitor general herself, told Sauer.
Sauer insisted that the justices should allow the 14th Amendment issue to continue percolating in the lower courts in normal course, and he said that if the administration ultimately loses, it’ll appeal.
During the entire argument, no justice spoke up in defense of Trump’s order, an ominous sign for its future.
A who’s who at the high court
The weighty arguments brought a number of high-profile figures to the Supreme Court.
Four Democratic attorneys general — from New Jersey, Connecticut, Massachusetts and Washington state — were at the court for the argument and spoke outside afterward.
“The unfortunate reality that we are facing now in America is it is incumbent upon attorney generals to stand up and protect Americans from their president, because time and time again, this president is acting unlawfully in violation of the Constitution,” said Washington Attorney General Nick Brown.
Connecticut Attorney General William Tong called birthright citizenship a “really personal fight,” explaining that his citizenship was derived not from his parents but because of his birth on American soil.
“The 14th Amendment establishes who we are; this is the soul of our country,” he said.
The arguments also drew Trump’s allies to the nation’s highest court.
Deputy Attorney General Todd Blanche and Emil Bove, another high-ranking Justice Department official, made a rare appearance and sat in the center section of the public gallery.
John Eastman, a lawyer at the center of Trump’s bid to overturn the 2020 presidential election results and a major proponent of his birthright citizenship arguments, was also at the courthouse.
“I think the historical record is much stronger in favor of President Trump’s executive order than the three or four justices that commented about the merits were willing to accept,” he said.
Rule of law emerges as key theme
Looming over it all was a recognition that the Trump administration might not yield to court orders, bringing a possible constitutional crisis into focus.
Despite Kagan’s pressing, Sauer declined to commit to not enforcing Trump’s citizenship restrictions within a particular federal circuit court, even if that court has issued an opinion definitively ruling Trump’s order is illegal.
The solicitor general said it’s “our general practice” to respect it but there are “exceptions” that would allow Trump’s policies to proceed for people who haven’t sued.
“I can’t say as to this individual case,” Sauer said.
Barrett returned to Kagan’s questioning later in the argument, pressing Sauer on his suggestion that the administration might not abide by lower courts’ orders because it “might disagree with the opinion.”
Sauer did insist that if the Supreme Court definitively rules Trump’s order is unconstitutional, at that point, the justices would have spoken, setting “nationwide precedent.” But Kagan noted that it could take years, leaving babies without citizenship in the meantime.
“So finally, once it gets to us after four years, you’re going to respect that?” she asked.
“Yes,” Sauer replied.
