Welcome back, Deadline: Legal Newsletter readers. Apparently, June is “gamesmanship” month at the Supreme Court. Last year, Justice Sonia Sotomayor accused the GOP-appointed majority of rewarding the Trump administration’s “gamesmanship” in the birthright citizenship litigation. This week, she accused the majority of rewarding Alabama’s “gamesmanship” in redistricting litigation.
Last year’s claim stemmed from how the administration handled challenges to President Donald Trump’s executive order, which aimed to end the guarantee of automatic citizenship for babies born in this country. Judges easily issued nationwide injunctions against the order due to how obviously illegal it was. “Blatantly unconstitutional” is what one judge called it.
Yet the administration didn’t run to the justices for a quick ruling on the order’s legality, as it has done for a variety of other Trump policies blocked in lower courts. Instead, it used the citizenship litigation as a vehicle to seek stricter standards for nationwide injunctions generally, which would make it harder for plaintiffs to challenge all sorts of executive policies going forward. The administration stressed that it only wanted the procedural ruling; it didn’t want a ruling on the merits of Trump’s citizenship order.
The majority obliged in last June’s Trump v. CASA decision, without ruling on the merits of Trump’s citizenship order one way or the other. In her dissent for the three Democratic appointees, Sotomayor observed that the administration wasn’t shy about asking for speedy merits rulings in other cases and yet it didn’t want one in the CASA case. She said the reason why was “obvious,” because winning on the citizenship issue would be an “impossible task” due to the order’s plain flaws.
“So the Government instead tries its hand at a different game,” Sotomayor wrote in her CASA dissent last June. She said the government asked the justices to rule that, “no matter how illegal a law or policy, courts can never simply tell the Executive to stop enforcing it against anyone” with a nationwide injunction, instead forcing plaintiffs to try other, riskier litigation strategies. “The gamesmanship in this request is apparent and the Government makes no attempt to hide it. Yet, shamefully, this Court plays along,” she wrote.
The merits of Trump’s citizenship order are on the court’s docket this term in a case called Trump v. Barbara. Notably, the order still hasn’t taken effect and, if the hearing earlier this year is any indication, it never will. The president has said he is poised to lose the case after attending the hearing in a seeming first for a sitting president. The ruling is expected in the coming weeks.
Even if the court strikes down the order as expected, the majority will have needlessly endorsed the administration’s gamesmanship along the way. The court could have issued a ruling on nationwide injunctions in a different case that didn’t involve an underlying policy that is so clearly illegal and risks so much chaos while the matter is in limbo. Of course, we still need to see that merits ruling in the Barbara case to make sure that the court is, in fact, unwilling to let the president single-handedly redefine American citizenship in the face of the Constitution, the law and more than 100 years of precedent.
This week’s gamesmanship came in the court’s party-line ruling in Allen v. Milligan, which is poised to help Alabama Republicans gain another congressional seat in the midterms. In an unsigned opinion Tuesday night, the majority blessed the state’s use of a congressional map that a three-judge lower court panel (with two Trump appointees on it) had deemed racially discriminatory.
Sotomayor was in dissent again for the Democratic-appointed trio. On top of pointing out that the majority’s action wasn’t even required by the court’s latest gutting of the Voting Rights Act in Louisiana v. Callais, she criticized the majority for “rewarding Alabama’s gamesmanship and outright defiance of court orders.” Among other things, she noted that despite previous rulings requiring the state to draw a map with two so-called opportunity districts for Black voters, the state “doubled down” on unlawful discrimination by adopting one with only one such district.
Next week, the court is set to hand down more opinions from cases argued this term on Thursday morning. The court doesn’t announce which rulings are coming ahead of time, and it might still be early for the final birthright citizenship decision. But we’ll be looking out for that one and whatever else comes, all while keeping a watchful eye on any further gamesmanship afoot.
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