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PaperclipPerfector  6mo ago (text post)   32065 thread views

Culture War Roundup for the week of June 23, 2025

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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.

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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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