This is an adapted excerpt from MSNBC legal correspondent Lisa Rubin’s May 15 comments on the Supreme Court’s birthright citizenship case.
On Thursday, the Supreme Court heard oral arguments over Donald Trump’s efforts to end birthright citizenship, but the biggest takeaway from those arguments has nothing to do with birthright citizenship at all. Instead, perhaps the most important moment of Thursday’s hearing came when the Trump administration’s top appellate lawyer (who was previously Trump’s personal Supreme Court advocate), Solicitor General D. John Sauer, revealed a troubling sign of creeping authoritarianism.
Sauer told Barrett it is “general practice” to “respect those precedents,” but added that “there are circumstances when it is not a categorical practice.”
During an exchange between Sauer and Justice Amy Coney Barrett — Trump’s latest nominee to the court and, in most cases, a reliable conservative — the justice confronted him about the administration’s approach to compliance with court orders issued by courts other than the Supreme Court (aka, federal, district and appeals courts).
Sauer told Barrett that it is “general practice” for the government to “respect those precedents,” but added that “there are circumstances when it is not a categorical practice.”
Barrett then asked Sauer whether he believes that has been the “general practice” of only the Trump administration or the Justice Department historically.
“As I understand it, [it is the] long-standing policy of the Department of Justice,” he replied. “As it was phrased to me, [we] generally respect circuit precedent but not necessarily in every case. Some examples might be a situation where we’re litigating to try and get that circuit precedent overruled, and so forth.”
Barrett pushed Sauer further, responding that she wasn’t referring to circumstances such as when the Second Circuit (one of the 13 federal appellate circuits) “has a case from 1955 and you think it’s time for it to be challenged.”
“That’s not what I’m talking about,” Barrett continued. “I’m talking about, this week, the Second Circuit holds that the executive order is unconstitutional, and then what do you do the next day or the next week?”
Sauer responded again that “generally,” the administration would follow that order. Contrary to Sauer’s assertion, that finds no support in long-standing DOJ policy, much less department norms. “So you’re still saying ‘generally’? And you still think that it’s generally the policy — long-standing policy — of the federal government to take that approach?” Barrett pressed. “That is my understanding,” Sauer confirmed. Here’s what that means in plain English: The Trump administration, through its top lawyer, is telling the Supreme Court that it doesn’t believe it has to comply with lower court orders in all circumstances. And contrary to Sauer’s assertion, that finds no support in long-standing DOJ policy, much less department norms. It’s one thing to hear political actors — whether that’s the White House press secretary or even Vice President JD Vance — assert that the administration should not be bound by federal court orders it considers lawless. But it’s another thing entirely to hear the administration’s top appeals lawyer say as much in front of the Supreme Court of the United States.
Lisa Rubin is an MS NOW legal correspondent and a former litigator. Previously, she was the off-air legal analyst for “The Rachel Maddow Show” and “Alex Wagner Tonight.”
Allison Detzel is an editor/producer for MS NOW.
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