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Notes -
A few points:
If the argument is “it doesn’t matter SCOTUS will decide anyhow,” then (1) maybe not due to cert denial, (2) maybe yes but if SCOTUS sided with the 499/500, then an injustice occurred potentially for years, and (3) if trying to solve time then legal issues don’t get to evolve within multiple rulings to tease out the thorny issues.
DOJ discussed long standing precedent that the general rule is they respect the opinion and judgement but they reserve the right to respect only the judgement. Notably, this is a historic precedent something that the DOJ actually pursued while Kagan was solicitor genera. However, the DOJ stated they would respect both the opinion and judgement of SCOTUS.
Yeah, that's kinda the core of the problem, here.
There's a lot of arguments in favor of a muscular judiciary, and I've made a good number of them, but we don't have that. SCOTUS hears a tiny number of cases, a fraction of those they do hear either get punts or toothless GVRs, and the normal policy has been to fastidiously avoid interlocutory appeals and triple-check every case for sufficient jurisdiction and mootness, and even on those extremely rare events where they don't skip out completely we still get cases that don't want to make the law clear.
That's what makes this sorta thing gall. I don't think Trump has a particularly strong arg for the AEA stuff, and even if the birthright citizenship history is more complicated than most people think the stare decisis is pretty compelling. But I can name countless other issues, and every single time that the court punts on any situation where there is current and unrecoverable harm and the court hems and haws over the importance of procedural regularity, I'm going to point to this case. And I'm going to have a lot of opportunities to point to this case.
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