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PaperclipPerfector  5d ago (text post)   25552 thread views

Culture War Roundup for the week of June 23, 2025

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Thanks for this, very helpful.

I saw this in Axios:

The Supreme Court will rule on the constitutionality of the executive oder that curtails birthright citizenship in October, Attorney General Pam Bondi said, adding that she was "confident" in the court.

Until then, the administration can start pursuing its policy in states where it's not blocked.

As of right now, 22 states have challenged the the executive order.

Given that we could end up in situations where newborns in certain states acquire citizenship and other newborns don't, I would've thought the Supreme Court would issue a decision on birthright citizenship within the present term. Is it just that there's not enough time?

What are the chances that the Supreme Court actually strikes down birthright citizenship? My impression from the start was that this was always going to be a losing case given how far back the precedent goes, but I'm far from an expert.

The chances of actually striking it down in its face are actually zero. I mean that completely. Zero. If it happens I will shave my head and never comment anything about politics again ever on any website. Zero.

The chances of them weakening it via some kind of practical or legal obstacles, to the point where it is effectively dead is extremely low but not impossible. Under 5% surely. Maybe 1-2%? Still quite a reach. Maybe still that’s high.

The chances of some other procedural weakening where it is merely super annoying, that’s a little higher. I’m not sure exactly where to peg it.

The chances of practical and legal burdens and even unalterable mistakes for those currently giving birth in the next year or so are actually kinda high. But that’s by definition temporary. Not much comfort if you or your wife are pregnant right now and lack papers. Honestly I think this is the true target and goal of the administration. If you are cruel and capricious enough you might get enough people to self deport, or not make the trip over, and this helps the near term numbers and politics.

The long-term outlook for birthright citizenship is not really under any actual threat. You still need an amendment to change it. At most, beneficiaries will have to budget a little bit more on practical or legal bills surrounding the birth, but that’s already the case to some extent with any new baby birth (it’s never free)

Given that we could end up in situations where newborns in certain states acquire citizenship and other newborns don't, I would've thought the Supreme Court would issue a decision on birthright citizenship within the present term. Is it just that there's not enough time?

They don't have a current case on it; almost everything is early in preliminary process at the district or appeals level. The oral args brought up cases in the First, Fourth, and Ninth Circuit, there's no chance of the feds winning the 9th Circuit barring pod people, and the feds committed to requesting cert if they lost (for whatever a lawyer's promise is worth, lol). Bondi's statement, charitably, would involve a fast resolution to one of those cases, an October term hearing, and decisions months after that. This timeline might not give us an answer until Spring or Summer 2026 (although I think it'd be obvious before then).

But I don't think CASA prohibits all preliminary protections. The majority opinion openly invites class certification and class-wide relief, and the extent that the feds tried to argue against class certification during oral args was kinda a joke:

KAVANAUGH: If you were to oppose it, on what basis would you plausibly oppose [classwide certification]?

GENERAL SAUER: There may be problems of commonality and typicality, for example. For -- for example, there's two different sets of groups that are affected by the Executive Order. There are those where the mothers are temporarily present and those where the mother are illegally present, and in both cases, the father is neither a citizen nor a lawful permanent resident. So there might be issues of typicality. Adequacy of representation might very well be an issue. So there would have to be that rigorous application of those criteria. Now the argument may be this is a case that is a natural candidate for a Rule 23(b)(2) certification. That may well be true. The government hasn't taken a position on that. Our position is not that class certification will necessarily be granted.

((I'm increasingly thinking SCOTUS picked such a broad case because the more grounded alternatives for preliminary relief are fairly straightforward.))

What are the chances that the Supreme Court actually strikes down birthright citizenship? My impression from the start was that this was always going to be a losing case given how far back the precedent goes, but I'm far from an expert.

It's pretty low. The legal arguments aren't as obviously wrong as at first glance, but they're still a long reach, and mixing that, the reliance interests, the seeing-as-a-state problems, everything like that... I don't want to say zero, because zero isn't a probability, but it's low low. I'd honestly consider 9-0 more likely than 6-3 or 7-2.

What do double parentheses mean?

It’s a convention from role playing communities indicating either out-or-character comments or side discussions not attached to the main thrust of the current discussion.

So, a district court or one of the Circuits could certify a class like this:

all persons born to a non-citizen or non-permanent resident mother, with the father also being a non-citizen or non-permanent resident when the person was born

and then issue a nationwide preliminary injunction against the EO?

I am not a lawyer, nevermind a class action lawsuit lawyer. The federal government's lawyer said that there were questions of typicality and gave a few groups, primarily based on the distinction between whether parents were temporarily permitted into the United States at the time of the birth. If he got his way, this would point to a couple different class actions...

But class action plaintiffs can prove they are typical members of a class by bringing more members into the plaintiff side of the bench; if you have plaintiffs on record as belonging to each of these groups, you defeat a typicality challenge.

This could be an issue for other universal injunctions, but I'm willing to put my money where my mouth is on this one.

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