“How can President Donald Trump appeal to the Supreme Court on the issue of whether a district judge can block action nationwide when I don’t believe the issue has gone through lower courts?”
— Tom Morris, Richmond, Virginia
Hi Tom,
There are different ways that cases get to the Supreme Court. The traditional route is for an issue to be fully litigated first through the trial and appellate courts, which can take years. Then there’s the route that the Trump administration took on birthright citizenship, which lands on the court’s so-called “shadow docket” or “emergency docket,” where the justices handle preliminary or urgent matters.
Here’s how that background plays out in the birthright citizenship litigation. Federal trial judges in three states (Maryland, Massachusetts and Washington) preliminarily halted Trump’s attempt to restrict birthright citizenship. The administration went to the respective federal appeals courts to try to upend those trial-court orders, lost those efforts, and then went to the Supreme Court with applications that are still pending.
As you note, the issue the administration is pressing to the high court isn’t the constitutional merits of the birthright citizenship question per se but whether judges can block a move nationwide — instead of just helping the people who brought the lawsuits in these cases. Nationwide injunctions are an issue that’s applicable across all sorts of cases and one that Republican-appointed justices have criticized; along with the merits of the birthright citizenship issue not favoring the government, that could be what made taking the nationwide injunction issue to the justices a more attractive litigation strategy for the government rather than more directly and immediately seeking to upend a long-standing constitutional protection. Notably, the justices aren’t treating the Trump administration’s applications with much urgency. Trump’s acting solicitor general filed the applications to the high court on March 13, and the justices gave the opposing parties an April 4 deadline to respond. In the context of purported emergency litigation, that’s a luxurious timeline. Whether that reflects the high court’s skepticism of the government’s underlying argument on the merits of the birthright citizenship issue, something else or some combination of factors may become more apparent in retrospect when the court ultimately rules on the government’s applications. But in light of that relatively luxurious timeline, it will likely be at least a couple more weeks until we learn more about the court’s thinking. Have any questions or comments for me? I’d love to hear from you! Please email deadlinelegal@nbcuni.com for a chance to be featured in a future newsletter.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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