SCOTUS Sets Special May Sitting In Birthright Citizenship Case

The last May case was argued by Brett Kavanaugh.

Today the Supreme Court set oral argument for the birthright citizenship cases on May 15:

Consideration of the application (24A884) for partial stay presented to The Chief Justice and by him referred to the Court is deferred pending oral argument. Consideration of the application (24A885) for partial stay presented to Justice Kagan and by her referred to the Court is deferred pending oral argument. Consideration of the application (24A886) for partial stay presented to Justice Jackson and by her referred to the Court is deferred pending oral argument. The applications are consolidated, and a total of one hour is allotted for oral argument. The applications are set for oral argument at 10 a.m. on Thursday, May 15, 2025.

May and June oral arguments are quite rare. (I do not count regularly-scheduled cases from the April sitting that spill into May.) In 2017, I tracked three such cases in recent decades:

1. Raines v. Byrd (1996) involved the Line Item Veto Act. This bill had a direct appeal from D.D.C. D.D.C resolved the case on April 10, and the Court noted probably jurisdiction two weeks later on April 23. It was argued on May 27, and decided on June 26.

2. Felker v. Turpin (1996) involved the constitutionality of the newly-enacted Antiterrorism and Effective Death Penalty Act (AEDPA). The 11th Circuit denied a stay of execution for Felker on May 2. That day, Felker filed an application for a stay of execution with Circuit Justice Kennedy. On May 3, it was referred to the whole Court and granted. The briefs were to be filed two weeks later on May 17 , reply briefs on May 28. Oral arguments were set for June 3, 1996.

Justice Stevens, joined by Justices Souter, Ginsburg, and Breyer, dissented, noting that this case shouldn't be so rushed:

In my opinion, it is both unnecessary and profoundly unwise for the Court to order expedited briefing of the important questions raised by the petition for certiorari and application for a writ of habeas corpus. Even if the majority were right that this petition squarely presents substantial constitutional questions about the power of Congress to limit this Court's jurisdiction, our consideration of them surely should be undertaken with the utmost deliberation, rather than unseemly haste. Accordingly, I respectfully dissent from the entry of the foregoing order.

The case was resolved on June 28–two days after Raines v. Byrd. (That was a busy June!).

3. Swidler & Berlin v. U.S. (1998) involved the Independent Counsel's request for handwritten notes from Vince Foster's attorney. The D.C. Circuit found that the privilege does not survive death. Certiorari was filed on December 31, 1997, and cert was granted on March 30, 1998. The case was set for expedited arguments on June 8 (by Brett Kavanaugh), and decided on June 25. The New York Times reported that "the High Court agreed to hear the case unusually quickly."

And who argued Swidler & Berlin? Brett Kavanaugh, who was working for the Independent Counsel.

Update: A colleague reminded me that the Court heard oral arguments in May 2020 during the "remote" Zoom hearings. The last such case, Chiafalo v. Washington, was argued on May 13.

Comments

[SMP0328]

This sounds like Trump will get at least a partial victory on the birthright citizenship issue. Otherwise, the Court would have simply denied the applications.

[wvattorney13]

There is a political problem overhanging this whole case that won't let Trump count to 5. I think there is no appetite for the Court to feather the heat it will get if it does not rule for birthright citizenship.

I could be wrong, but I see a 7-2 (Thomas and Alito).

[SMP0328]

You could be right, but then why not just deny the applications?

[wvattorney13]

Maybe he plans on letting Sotomayor run loose on Trump with a fairly harsh opinion. Roberts really doesn't like him.

[David Nieporent]

Sort of weird that he invented an immunity special for Trump found nowhere in the text, history, or precedent of the country if he "really doesn't like him."

[Magnus Pilatus, MBA, MD, JD, PhDx2]

President's have always been immune for lawful acts.

Only retards believe otherwise.

[Riva]

Crazy Dave is in a class all his own.

[SRG2]

President's have always been immune for lawful acts.

And as the immunity decision was about unlawful acts you have implicitly conceded the point.

[David Nieporent]

Immunity, of course, is not needed for "lawful acts," since there's no liability for those in the first place. What the Supreme Court did was invented immunity for unlawful acts. Something not found at any point in the history of the United States, the text of the constitution, or any court precedent.

BTW, only retards use an apostrophe to make a word plural.

[Riva]

Not really crazy Dave. Try to ponder this in your broken little mind. If Congress lacks authority under constitutional separation of powers to regulate or punish the President for the exercise of his core constitutional duties, and the courts equally lack authority to try or punish the President under that “law,” than how could that President be acting unlawfully? Since the Constitution is the highest law, Congress and the Courts would be acting unlawfully if they tried to punish the executive in that scenario.

[wnoise]

One doesn't need immunity for lawful acts.

[Riva]

Nowhere in the text, history, or precedent of this country, you witless troll? Separation of powers ring a bell? What do you think was the basis for immunity in Nixon v Fitzgerald? And you might be overlooking 200 plus years of history of consistent treatment of the Chief Executive, until the Big Guy slithered his way into office.

[SRG2]

"Separation of powers" does not mean or imply "immunity from criminal proceedings", you doubly witless troll.

[Riva]

Actually, for official acts within the president's exclusive sphere of constitutional authority, it means absolute immunity; and for acts within the outer perimeter of his official responsibility, it means presumptive immunity. Do you even know what is meant by "separation of powers"?

[David Nieporent]

It does not in any way mean that. It doesn't even imply that. As evidenced by the fact that the framers wrote legislative immunity into the constitution instead of saying, "Oh, separation of powers means that legislators are automatically immune."

And for your edification since you're confused: separation of powers means that other branches can't veto bills or issue pardons.

[Riva]

That was the rationale of Nixon v Fitzgerald? The S.Ct said “other branches can’t veto bills or issue pardons so civil immunity for the President”? That’s insightful crazy Dave.

[Trinian]

It sounds like the opposite to me.

I think CJ Roberts believes he can get a quick 9 - 0 decision in favor of the status quo. He wants to balance the inevitable pro-Trump decisions that are heading his way.

[SMP0328]

You think he can get Alito and Thomas to agree with birthright citizenship?

[MaddogEngineer]

Clarence Thomas absolutely believes in birthright citizenship, as anyone knows who has been paying attention.

If any change were possible to it, and I doubt that it is, it certainly cannot be accomplished via executive order. Congress would need to legislate in the gray area that those opposed are grounding their argument: exactly what "under the jurisdiction thereof" means, that would include a domicile and/or legal entry requirement. Such questions are a matter of law, not executive order.

[Riva]

So much for the objective administration of justice.

[y81]

I think there is a fairly obvious 9-0 decision available, and Roberts is at least as smart as I am. The current Nationality Act provides for birthright citizenship in the same language as the Fourteenth Amendment. That Act was passed against the background of Young Kim Ark, where the Court stated clearly that the Fourteenth Amendment intended to enact into the Constitution the common law rule of jus soli (as opposed to the Continental rule of jus sanguinis, developed in the aftermath of the French Revolution). There is no need to construe the Constitution, only the statute, which reflected the Young Kim Ark construction. Compare what the Court (following John Marshall in Strawbridge) did with the Federal Interpleader Act, where it turns out that "citizens of different states" means different things in the statute and the Constitution.

Bottom line is that any change would have to come from Congress.

[Riva]

Wow. That's quite a put down of Roberts. Even I wouldn't go that far.

[David Nieporent]

*Wong Kim Ark,

But otherwise, yes.

[wvattorney13]

That seems like doing a lot in a short amount of time just to punt on the ultimate question.

[not guilty]

"This sounds like Trump will get at least a partial victory on the birthright citizenship issue. Otherwise, the Court would have simply denied the applications."

The government here is not seeking for the Supreme Court to address the merits of Fourteenth Amendment birthright citizenship. The instant objection is to the nationwide scope of the District Court injunctions.

I suspect that the Chief Justice is growing weary of micromanaging the executive branch of the federal government via the Supreme Court's shadow docket, and he wants to erect some guardrails before the end of the current term.

[David Nieporent]

But this is a terrible vehicle for restricting nationwide injunctions. If there's one area of law where a universal rule is de rigueur, it's citizenship. (Note, indeed, that the constitution only permits Congress to create a uniform rule for naturalization.) You can't have birthright citizenship in some states or circuits but not others.

[y81]

Is suspect the Chief Justice is weary of both overreaching district court judges and of an overreaching and somewhat lawless administration. But being more responsible than I, he doesn't feel entitled to say "a plague on both your houses" and must get involved.

[wvattorney13]

That's an excellent point. Has the government even argued the merits in the application? I don't think they have. If not, the ultimate question is not even presented.

[David Nieporent]

Consideration of the application (24A884) for partial stay … is deferred pending oral argument.

There's always the danger of becoming Blackmanesqe by considering a short order and inventing pages of fanfic to try to read into the tea leaves, but to the extent we want to risk that, note that they did not enter a stay here. Deferring a stay until oral argument is kind of a nonsensical framing; it's denying the application for a stay.

[A Japanese Student]

May oral arguments in recent terms:

- During OT2020, one case was argued in May: Terry v. United States. DOJ changed its position after change in the administration, delaying oral argument. (Despite that, the court affirmed unanimously.)
- During OT2019, some of the cases scheduled to be argued during March and April were instead argued in May, due to COVID.

[y81]

As an amusing note, Swidler is the only privilege case the independent counsel lost. I don't assume that affects Kavanagh's decision.

[not guilty]

Brett Kavanaugh's wild goose chase regarding Vince Foster's suicide was sickening.

[ikaritenshi]

I think this is about nationwide injunctions.

I think Roberts is trying to head off congress, because eventually you will get enough of both republicans and democrats to past legislation to seriously curtail district court authority. Both sides have complained about them before. one side has now been annoyed enough to submit legislation, that won't go anywhere yet.

I think the Court is going set limits, to head off future legislation. John Robers is an institutionalist about all else.

[not guilty]

A stay is an intrusion into the ordinary processes of administration and judicial review. Nken v. Holder, 556 U.S. 418, 427 (2009). A court must consider four factors: “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” Id., at 434.

In addition, to obtain a stay pending the filing and disposition of a petition for a writ of certiorari, an applicant must show: (1) a reasonable probability that four Justices will consider the issue sufficiently meritorious to grant certiorari; (2) a fair prospect that a majority of the Court will vote to reverse the judgment below; and (3) a likelihood that irreparable harm will result from the denial of a stay. In close cases the Circuit Justice or the Court will balance the equities and weigh the relative harms to the applicant and to the respondent. Hollingsworth v. Perry, 558 U.S. 183, 190 (2010) (per curiam).

The government's brief in support of the stay application, https://www.supremecourt.gov/DocketPDF/24/24A885/354846/20250407104645173_24A885%20Reply.pdf , is remarkable for its failure to discuss either of the precedents cited above.

The absence of any injury to the government from the injunctions issued by the various District Courts is particularly telling. As the brief of the States of Washington, Arizona, Illinois and Oregon recites, "Being directed to follow the law as it has been universally understood for over 125 years is not an emergency warranting the extraordinary remedy of a stay." https://www.supremecourt.gov/DocketPDF/24/24A885/354760/20250404111851793_24A885_PlaintiffStates_ResponseEmergencyStay.pdf

[MollyGodiva]

"Being directed to follow the law as it has been universally understood for over 125 years is not an emergency warranting the extraordinary remedy of a stay."

It is if you are Trump.

[wvattorney13]

"The absence of any injury to the government from the injunctions issued by the various District Courts is particularly telling. As the brief of the States of Washington, Arizona, Illinois and Oregon recites, "Being directed to follow the law as it has been universally understood for over 125 years is not an emergency warranting the extraordinary remedy of a stay." https://www.supremecourt.gov/DocketPDF/24/24A885/354760/20250404111851793_24A885_PlaintiffStates_ResponseEmergencyStay.pdf"

This is a typical stay argument. They are basically saying there is no harm because the government won't win anyways.

The government can tennis ball that one back by saying that there is a harm every time it is forced to recognize an illegal and future MS-13 gangbanger born to MS-13 gangbanger parents as a citizen in violation of a legal executive order causing untold strain on the social welfare system.

These "factors" are pretty malleable.