Welcome back, Deadline: Legal Newsletter readers. With President Donald Trump making an unprecedented appearance on Wednesday, the Supreme Court considered his bid to single-handedly redefine American citizenship. The hearing went poorly for the administration, but let's spotlight some other high court news before getting into why.
The week started with the court leaving an "injustice in place," according to a dissent by Justice Sonia Sotomayor, joined by Justice Ketanji Brown Jackson. The Democratic appointees' complaint came on Monday's order list, where among the rejected petitions was one from James Skinner. The justices previously vacated the murder conviction of Skinner's co-defendant, Michael Wearry, because Louisiana prosecutors failed to disclose favorable evidence. Yet, Skinner couldn't get the requisite four votes to hear his appeal. That led Sotomayor to write that her and Jackson's colleagues violated the principle engraved on the court's building: "Equal justice under law."
The same principle featured in another appeal, argued Tuesday, regarding discrimination in jury selection. Ahead of the hearing, Mississippi death row prisoner Terry Pitchford argued in his brief that the state courts' failure to scrutinize the striking of Black prospective jurors "undermines the foundational promise of equal justice under law." Pitchford was tried by the same prosecutor, Doug Evans, whose discrimination led the court to side with another Mississippi death row prisoner, Curtis Flowers, in a 2019 ruling by Justice Brett Kavanaugh. The Trump appointee has been interested in the jury issue at least since his law school days, and he could prove pivotal in the Pitchford case.
After joining Sotomayor in Monday's Skinner dissent, Jackson dissented again in a case decided Tuesday. The court sided with Kaley Chiles, a Christian counselor who appealed against Colorado's ban on so-called conversion therapy for minors. But unlike in the Skinner case, the Biden appointee was alone in protesting the 8-1 ruling in Chiles v. Salazar. Justice Neil Gorsuch wrote for the lopsided majority that the state ban, as applied to Chiles' talk therapy, conflicts with First Amendment principles because it regulates speech based on viewpoint. Jackson, who read some of her dissent from the bench in a rare move signifying her extreme displeasure with the outcome, wrote that the majority "plays with fire in this case" and that she fears "the people of this country will get burned."
Turning to birthright citizenship, the hearing can be summed up by an exchange between Chief Justice John Roberts and Solicitor General John Sauer. Seeking to defend Trump's executive order that flies in the face of the Constitution, law and the court's own precedent, Sauer argued that we're "in a new world" from the one that cemented birthright citizenship in the wake of the Civil War.
"Well, it's a new world," the chief justice acknowledged, but he observed that "it's the same Constitution."
Roberts wasn't the only GOP appointee to question the legality of Trump's order, which purports to eliminate automatic citizenship for U.S.-born babies. Because the order is so obviously illegal, it's been consistently blocked in the lower courts and hasn't taken effect. If the case turns out as Wednesday's hearing suggests, then it never will.
Indeed, don't be surprised if it's a lopsided ruling against the administration when the opinion in Trump v. Barbara comes down by early July. If, say, it winds being up an 8-1 ruling like this week's Chiles decision, then Justice Samuel Alito could be a candidate for the lone dissenter.
Even a single vote for the fringe anti-birthright citizenship position would be remarkable. But whatever the tally in the likely impending loss for the administration, the president has seemed to understand the inevitability of his defeat. That was evident even prior to the hearing, when he lumped the citizenship appeal in with the tariffs case that marked one of his rare Supreme Court losses to date. When he was fresh off the tariffs loss in February, Trump wrote on his Truth Social account that "this supreme court will find a way to come to the wrong conclusion" on birthright citizenship, too.
After the hearing on Wednesday, the president returned to posting on his Truth Social account: "We are the only Country in the World STUPID enough to allow 'Birthright' Citizenship!" In fact, we aren't the only country with such citizenship. But everyone can agree that this week's hearing highlighted stupid decisions that we've made as a nation, even if people disagree about what they are.
Have any questions or comments for me? I'd love to hear from you! Please submit them through this form for a chance to be featured in a future newsletter.
